political law by suarez

ARTICLE X LOCAL GOVERNMENT PART I REVIEW OF SECTIONS 1 TO 21, ARTICLE X, 1987 CONSTITUTION PART II CORPORATION: ITS NATURE, CLASSIFICATION AND FUNCTIONS PART III POWERS AND ATTRIBUTES OF LOCAL GOVERNMENT UNITS DISCUSSION PART I REVIEW OF SECTION 1 TO 21, ARTICLE X, 1987 CONSTITUTION Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. Q - What are the territorial and political subdivisions of the Republic of the Philippines? A - a. Provinces b. Cities c. Municipalities d. Barangays e. The Autonomous Region Q - How many autonomous regions are allowed by the 1987 Constitution? A - They are only two and they are: (1) the Autonomous Region in Muslim Mindanao; and (2) the Autonomous Region in Cordilleras. Q - Can there be an additional autonomous region? A - Yes, but a constitutional amendment is needed. Q - Is the right of provinces, cities, municipalities, barangays and autonomous regions to exist as the political and territorial subdivisions of one State a constitutional right or a statutory right? A - It is a constitutional right. However, the authority to create, divide, merge or abolish a local government or its boundaries is dependent upon the power of Congress in the case of a province, city, municipality or any other subdivision, or by ordinance passed by the 1

Sangguniang Panlalawigan or Sangguniang Panlungsod concerned in the case of a barangay. (Section 6, Chapter 2, Republic Act No. 7160 or LGC) ##638 Section 2. The territorial and political subdivisions shall enjoy local autonomy. Q - What is the declared policy of the State regarding local autonomy? A - It is declared policy of the State that the territorial and political subdivisions of the State should enjoy genuine meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. (Section 2, Republic Act No. 7160) It is also the policy of the State to ensure the accountability of local government units through the institution of effective mechanisms of recall, initiative and referendum. (Ibid.) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units, non-governmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions. (Ibid.) Q - How can this be attained? A - Towards the attainment of the said declared policy, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local governments will be given more powers, authority, responsibilities and resources. The process of decentralization shall proceed from the National Government to the local government units. (Ibid.) Q - What is the significance of Section 2, Article X which provides that "the territorial and political subdivision shall enjoy local autonomy"? A - It gives more freedom to local governments to improve their respective territories. The local government will be more free to manage their own affairs and communities without too much intervention from the national government. At the same time, the national government will be relieved from the burden of handling and managing local concerns. Q - What, if any, is the difference between autonomy and decentralization? A - Autonomy also involves decentralization of administration or power and this happens when administrative powers are delegated by the central government to its political subdivision with the end in view of making local government units more responsive, accountable and self-reliant communities. In decentralization of power, the same is given in favor of the local government unit so it will be more independent and free to move on its own with the least intervention from the central government. In this manner, the autonomous local government unit becomes accountable not to the central authorities but to its constituency. (Bernal, citing Limbona vs. Conte Mangelin, et al., G.R. No. 80391, February 28, 1989) ##639 Q - What are the operative principles of decentralization? 2

A - The following are the operative principles of decentralization: a. There shall be an effective allocation among the different local government units of their respective powers functions responsibilities and resources; (Underlining Supplied) b. There shall be established in every local government unit an accountable, efficient, and dynamic organizational structure and operating mechanism that will meet the priority needs and service requirements of its communities; c. Subject to civil service law, rules and regulations local officials and employees paid wholly or mainly from local funds shall be appointed or removed according to merit and fitness, by the appropriate appointing authority; (Underlining Supplied) d. The vesting of duty, responsibility, and accountability in local government unit shall be accompanied with provision for reasonably adequate resources to discharge their powers and effectively carry out their functions; hence, they shall have the mower to create and broaden their own sources of revenue and the right to a just share in national taxes and an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas; (Underlining Supplied) e. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribes powers and functions; f. Local government units may group themselves, consolidate or coordinate their efforts, services, and resources for purposes commonly beneficial to them; g. The capabilities of local government units, especially the municipalities and barangays shall be enhanced by providing them with opportunities to participate actively in the implementation of national programs and projects; (Underlining Supplied) h. There shall be a continuing mechanism to enhance local autonomy not only by legislative enabling acts but also by administrative and organizational reforms; (Underlining Supplied) ##640 i. Local government units shall share with the National Government the responsibility in the management and maintenance of ecological balance within their territorial jurisdiction, subject to the provisions of this Code and national policies; j. Effective mechanisms for ensuring the accountability of local government units to their respective constituents shall be strengthened in order to upgrade continually the quality of local leadership; (Underlining Supplied) k. The realization of local autonomy shall be facilitated through improved coordination of national government policies and programs and extension of adequate technical and material assistance to less developed and deserving local government units; (Underlining Supplied) l. The participation of the private sector in local governance, particularly in the delivery of basic services, shall be encouraged to ensure the viability of local autonomy as an alternative strategy for sustainable development; and m. The National Government shall ensure that decentralization contributes to the continuing improvement of the performance of local government units and the quality of community life. (Underlining Supplied) 3

LIM, ETC. VS. JUDGE PACQUING, ETC., ETAL. G.R. NO. 115044, JANUARY 27, 1995; GUINGONA, JR., ETAL. VS. JUDGE REYES, ETAL. G.R. NO. 117263, JANUARY 27, 1998 FACTS: In a decision dated September 9, 1988, the Regional Trial Court of Manila in Civil Case No. 45660, directed the Mayor of Manila to issue immediately to the Associated Development Corporation (ADC) the license to operate the Jai-Alai in Manila under Manila Ordinance No. 765. ADC moved to execute the judgment which became final. On March 28, 1994, the Regional Trial Court of Manila, Branch 40, presided by Judge Felipe G. Pacquing, directed then Manila Mayor Alfredo S. Lim to issue the permit/license. In a petition for certiorari docketed as G.R. No. 115044, Mayor Lim questioned the said order. The Supreme Court dismissed the petition and ruled that Judge Pacquing did not act with grave abuse of discretion. On September 13, 1994, then Executive Secretary Teofisto Guingona directed the Games and Amusement Board to hold in abeyance the grant of authority, or if any had been issued, to withdraw such grant of authority until the following legal questions are properly resolved: ##641 1. Whether PD No. 771 which revoked all existing Jai-Alai franchises granted by local governments as of August 20, 1975 is unconstitutional; 2. Assuming that the City of Manila had the power on September 7, 1971, to issue Jai-Alai franchise to ADC, whether such franchise is valid considering that it has no duration and appears to be granted in perpetuity; 3. Whether the City of Manila had the power to issue a Jai-Alai franchise to ADC on September 7, 1971, in view of E.O. No. 392 dated January 1, 1951, which transferred from local governments to the Games and Amusement Board the power to regulate Jai-Alai. On September 15, 1994, Associated Development Corporation (ADC) filed a petition for prohibition, mandamus, injunction and damages with prayer for temporary restraining order and/or writ of preliminary injunction in the Regional Trial Court of Manila against Teofisto Guingona and the Games and Amusement Board (GAB) chairman docketed as Civil Case No. 94-71656, seeking to prevent the GAB from withdrawing the provisional authority earlier granted to ADC. On the same day, the Regional Trial Court of Manila, Branch 4, through Presiding Judge Vetino Reyes, issued a temporary restraining order enjoining GAB from withdrawing ADC's provisional authority to operate. The temporary restraining order was later converted into a preliminary injunction upon posting by ADC of a bond. In another development in G.R. No. 115044 before the Supreme Court, the Republic of the Philippines, through the GAB, sought to intervene therein by filing a motion for intervention; for leave to file a motion for reconsideration in intervention, and to refer the case to the Court En Banc, and thereafter, a motion for leave to file a supplemental motion for reconsideration in intervention and to admit attached supplemental motion for reconsideration in intervention. In Civil Case No. 94-71651, Judge Vetino Reyes, issued a preliminary mandatory injunction compelling Guingona and GAB to issue to ADC the authority to operate 4

the Jai-Alai. On account of this, Guingona and the GAB Chairman Dominador Cepeda, Jr., filed before the Supreme Court a petition assailing this order of Judge Reyes. This was docketed as G.R. No. 117263. G.R. Nos. 117263 and 115044 were consolidated and at the hearing thereof on November 10, 1994, the following issues were formulated for resolution: 1. Whether the Republic's intervention in G.R. No. 115044 is proper at that stage of the proceeding where the case has been dismissed and terminated. 2. Assuming that the intervention is proper, whether ADC has a valid and subsisting franchise to operate and maintain the Jai-Alai. 3. Whether Judge Reyes committed grave abuse of discretion in issuing the TRO/preliminary injunction against Guingona and GAB restraining the withdrawal of ADC's provisional authority. 4. Whether Judge Reyes committed grave abuse of discretion in issuing the writ of preliminary mandatory injunction. ##642 HELD: The Republic, in contra distinction to the City of Manila, may be allowed to intervene in G.R. No. 115044. The Republic is intervening in G.R. No. 115044 in the exercise, not of its business or proprietary functions, but in the exercise of its governmental functions to protect public morals and promote the general welfare. Congress did not delegate to the City of Manila the power "to franchise" wagers or betting, including the Jai-alai, but retained for itself such power "to franchise." What Congress delegated to the City of Manila in Republic Act No. 409, with respect to wagers or betting was the power to "license permit or regulate" which therefore means that a license or permit issued by the City of Manila to operate a wager or betting activity such as the Jai-alai where the bets are accepted, would not amount to something meaningful UNLESS the holder of the permit or license was also FRANCHISED by the national government to so operate. Moreover, even this power to license, permit, or regulate wagers or betting Jai-alai was removed from local governments including the he City of Manila, and transferred to the GAB on January 1, 1951 by Executive Order No. 392. The net result is that the authority to grant franchises for the operation of Jai-alai frontons is in Congress while the regulatory function is vested in the GAB. (Underlining Supplied) ADC argued that Presidential Decree No. 771 is unconstitutional for being a violation of the equal protection and non-impairment provisions of the Constitution. On the other hand, the government contends that P.D. No. 771 is a valid exercise of the inherent police power of the State. It should also be remembered that P.D. No. 771 provides that the national government can subsequently grant franchises "upon proper application and verification of the qualifications of the applicant." ADC has not alleged that it filed an application for a franchise with the national government subsequent to the enactment of P.D. No. 771; thus, the allegations abovementioned (of preference to a select group) are based on conjectures, speculations and imagined biases which do not warrant the consideration of this Court. On the other hand, it is noteworthy that while then President Aquino issued Executive Order No. 169 revoking P.D. No. 810 (which granted a franchise to a Marcos-crony to operate 5

the Jai-alai), she did not scrap or repeal P.D. No. 771 which had revoked all franchises to operate Jai-alais issued by local governments, thereby re-affirming the government policy that franchises to operate Jai-alais are for the national government (not local governments) to consider and approve. On the alleged violation of the non-impairment and equal protection clauses of the Constitution, it should be remembered that a franchise is not in the strict sense a simple contract but rather it is more importantly, a mere privilege specially in matters which are within the government's power to regulate and even prohibit through the exercise of police power for the public welfare. ##643 CABRERA VS. COURT OF APPEALS G.R. NO. 78673, MARCH 18, 1991 FACTS: The Provincial Board of Catanduanes issued a resolution closing an old road leading to the new capital building to traffic and giving to the owners of the properties traversed by the new road equal area from the old road adjacent to the respective remaining portion of their properties. Pursuant to said resolution, deeds of exchange were executed under which the province conveyed to the persons affected portions of the closed road in exchange for their own respective properties, on which was subsequently laid a new concrete road leading to the capital building. In 1978, part of the northern end of the old road fronting Cabrera's house was planted to vegetables in 1977 by Eulogia. Pena, who had bought Varga's share, also in the same part of the road, converted it into a piggery farm. Learning about the resolution, Cabrera filed a complaint for restoration of Public Road. He alleged that the land fronting his house has a public road owned by the province in its governmental capacity and, therefore, beyond the commerce of man. He said that the said resolution and the deeds of exchange were invalid. He also questioned the closure of the northern portion of the street. The trial judge while holding that the land was not declared public road but a mere "passageway" or "short-cut," sustained the authority of the provincial board to enact the resolution under existing law. The Court of Appeals found the road to be a public road and not a trail but, just the same, also upheld the resolution. ISSUE: Cabrera insisted that Section 2246 is not applicable because the resolution is not an order for the closure of the road in question but an authority to barter or exchange it with private properties. He said that control over public road is with Congress and not with the provincial board. He alleged that the closure of the road injured him as he can no longer use it in going to the national road, but instead pass through a small passageway. For such inconvenience, he is entitled, he said, to damages in accordance with law. The Supreme Court affirmed the decision of the Court of Appeals. ##644 6

HELD: Cabrera is not entitled to damages because the injury he has incurred is the price he and others like him must pay for the welfare of the entire community. This is not a case where his property has been expropriated, and he is entitled to just compensation. The construction of the new road was undertaken under the general welfare clause. Whatever inconvenience Cabrera has suffered is insignificant compared to the greater convenience the new road, which is wide and concrete, has been giving to the public, plus the fact that the new road adds beauty and color not only to the town but also to the whole province. Cabrera must content himself with the altruistic feeling that for the prejudice he has suffered, the price he can expect is the improvement of the comfort and convenience of the inhabitants of the province, of whom he is one. That is not a paltry recompense. MAGTAJAS VS. PRYCE PROPERTIES CORPORATION, INC. AND PAGCOR G.R. NO. 111097, JULY 20, 1994 FACTS: In response to PAGCOR's expansion of it operations to Cagayan de Oro City, the Sangguniang Panlungsod of Cagayan de Oro City enacted two (2) ordinances: 1. One ordinance prohibits the issuance of business permit and cancelling permit to any establishment for allowing the use of its premises for the operation of casino. 2. The other ordinance prohibits the operation of casino. The government of Cagayan de Oro City contended that it has power and authority to prohibit gambling and this power and authority includes its power and authority to prevent the Philippine Amusements and Gaming Corporation (PAGCOR) from operating a casino in Cagayan de Oro City. On the other hand, PAGCOR maintained that under Presidential Decree 1869, it has the power and authority to centralize and regulate all games of chance in the country. ISSUE: Can the government of Cagayan de Oro City prevent the exercise of the said power and authority under Presidential Decree 1869? HELD: Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local governments units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute. ##645 The Supreme Court also ruled, through Justice Isagani Cruz, that: "In the exercise of its own discretion, the legislative power may prohibit gambling altogether or allow it without 7

limitation or it may prohibit some forms of gambling and allow others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but permits lotteries, cockfighting, and horse-racing. In making such choices, Congress has consulted its own wisdom, which this Court has no authority to review, much less reverse. Well has it been said that courts do not sit to resolve the merits of conflicting theories. That is the prerogative of the political departments. It is settled that questions regarding wisdom, morality and practicability of statutes are not addressed to the judiciary but may be resolved only by the executive and legislative departments, to which the function belongs in our scheme of government." Talks regarding the supposed vanishing line between right and privilege in American constitutional law has no relevance in the context of these cases. On the other hand, jai-alai is not a mere economic activity which the law seeks to regulate. It is essentially gambling and whether it should be permitted and, if so, under what conditions are questions primarily for the lawmaking authority to determine, taking into account national and local interests. Here, it is the police power of the State that is paramount. ALFREDO TANG, ETAL. VS. HONORABLE GOV. SALVADOR P. SOCRATES, ET AL. G.R. NO. 110249, AUGUST 21, 1997 FACTS: The petitioner assailed the constitutionality of the following: 1. Ordinance No. 50-92 dated December 15, 1992, of the Sangguniang Panglungsod ng Puerto Princesa City which took effect on January 1, 1993 entitled "AN ORDINANCE BANNING THE SHIPMENT OF ALL FISH AND LOBSTER OUTSIDE PUERTO PRINCESA CITY FROM JANUARY 1, 1998 AND PROVIDING EXEMPTIONS PENALTIES AND FOR OTHER PURPOSE THEREOF." 2. Resolution No. 33 dated February 19, 1993, of the Sangguniang Panlalawigan, Provincial Government of Palawan entitled "A RESOLUTION PROHIBITING THE CATCHING, GATHERING, POSSESSING, BUYING, SELLING AND EQUIPMENT OF LIVE MARINE CORAL DWELLING AQUATIC ORGANISMS, TO WIT: FAMILY: SCARIDAE (MAMENG), EPINE PHELUS FASCIATUS (SUNO), CROMILEPTES ALTIVELIS (PANTHER OR SENORITA), LOBSTER BELOW 200 GRAMS AND SPAWNING, TRIDACNA GIGAS (TAKLOBO) PINCTADA MARGARITEFERA (MOTHER PEARL, OYSTERS, GIANT CALMS AND OTHER SPECIES), PENAEUS MONODON (TIGER PRAWN-BREEDER SIZE OR MOTHER), EPINEPHELUS SUILLUS (LOBA OR GREEN GROUPER) AND FAMILY: BALISTIDAE (TROPICAL AQUARIUM FISHES) FOR A PERIOD FIVE (5) YEARS IN AND COMING FROM PALAWAN WATERS." ##646 As a result of the implementation of the said ordinance and resolution, all the fishermen of the whole province of Palawan and the City of Puerto Princesa were deprived of their only means of livelihood and other marine merchants were not able to perform their lawful occupation. 8

Without seeking redress from the concerned local government units, procecutor's office and court, petitioner directly invoked the original jurisdiction of the Supreme Court by filing this petition on June 4, 1993. Their petition is for "Certiorari, Injunction With Preliminary and Mandatory Injunction, with Prayer for Temporary Restraining Order." ISSUE: 1. Is the petition that was filed a petition for Certiorari or a Declaratory Relief? 2. Are the ordinances enacted by the said local government units valid and constitutional? 3. Are the petitioners qualified to be called subsistence or marginal fishermen? HELD: 1. The instant petition is obviously one for DECLARATORY RELIEF, i.e., for a declaration that the Ordinances in question are a "nullity... for being unconstitutional." As such, their petition must likewise fail, as this Court does not have original jurisdiction over petitions for declaratory relief even if only questions are law involved, it being settled that the Court merely exercises appellate jurisdiction over such petitions. Even granting arguendo that the first set of petitioners have a cause of action ripe for the extraordinary writ of certiorari, there is here a clear disregard of the hierarchy of courts, and no special and important reason or exceptional and compelling circumstance has been adduced why direct recourse to us should be allowed. While we have concurrent jurisdiction with Regional Trial Courts and with the Court of Appeals to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence gives petitioners no unrestricted freedom of choice of court forum, as we held in People vs. Cuaresma (172 SCRA 415, 423-424): ##647 x x x There is after all hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for extraordinary writs x x x A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. x x x 2. These Ordinances were undoubtedly enacted in the exercise of powers under the new LGC relative to the protection and preservation of the environment and are thus novel and of paramount importance. It is of course settled that laws (including ordinances enacted by local government units) enjoy the presumption of constitutionality. To overthrow this presumption, there must be a clear and unequivocal breach of the Constitution, not merely a doubtful argumentative contradiction. After a scrutiny of the challenged Ordinances and the provisions of the Constitution petitioners claim to have been violated, we find petitioners' contentions baseless and so hold that the former do not suffer from any infirmity, both under the Constitution and applicable laws.

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3. There is absolutely no showing that any of the petitioners qualifies as a subsistence or marginal fisherman. In their petition, petitioner Airline Shippers Association of Palawan is self-described as "a private association composed of Marine Merchants"; petitioners Robert Lim and Virginia Lim, as "merchants"; while the rest of the petitioners claim to be "fishermen," without any qualification, however, as to their status. Since the Constitution does not specifically provide a definition of the terms "subsistence" or "marginal" fishermen, they should be construed in their general and ordinary sense. Besides, Section 2 of Article XII aims primarily not to bestow any right to subsistence fishermen, but law puts emphasis on the duty of the State to protect the nation's marine wealth. What the provision merely recognizes is that the State may allow, by law, cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays and lagoons. Our survey of the statute books reveals that the only provision of law which speaks of a preferential right of marginal fishermen is Section 149 of the LGC, which pertinently provides: "Sec. 149. Fishery Rentals, Fees and Charges. x x x (b) The Sangguniang bayan may: (1) Grant fishery privileges to erect fish corrals, oyster, mussels or other aquatic beds or bangus fry areas, within a definite zone of the municipal waters, as determined by it: Provided, however That duly registered organizations and cooperatives of marginal fishermen shall have the preferential right to such fishery privileges..." ##648 Section 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. Q - Is the enactment of the local government code left alone to the initiative of Congress? A - The enactment of a local government code is left to the initiative of Congress but the Constitution mandates that the said code must provide for the following: 1. It must provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms. (a) For recall; (b) Initiative; and (c) Referendum 2. It must allocate among the different local government units their powers, responsibilities and resources. 3. It must provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local offices, and all other matters relating to the organization and operation of local units. 10

It is on the basis of this mandate, coupled with the long felt need for more local autonomy and decentralization, that Republic Act No. 7160, otherwise known as the Local Government Code of 1991, was enacted. Section 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed power and functions. ##649 Q - Distinguish the president's power of general supervision over local governments under the 1935 and 1987 Constitution. A1935 CONSTITUTION Article VII, Section 10(1) "The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that laws be faithfully executed." 1987 CONSTITUTION Article VII, Section 17 "The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed." Q - What are the different supervisory powers, as defined by Section 4, Article X? A - The supervisory powers, as defined in Section 4, are as follows: Q - The superior local government unit has the supervisory power to "ensure that the acts of their component units are within the scope of their prescribed powers and functions." On this basis, can the superior local government unit substitute its judgment for that of the local component local unit? A - It cannot substitute its judgment in discretionary matters for that of the component local unit. Section 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. Q - What is the significance of Section 5? A - While the prevailing doctrine in this jurisdiction is still to the effect that municipal corporations do not have the inherent power to tax, Section 5 confers on municipal corporations a general power: "To levy taxes, fees and charges" subject to the guidelines and limitations imposed by Congress. This means that municipal corporations may exercise the said power "to levy taxes, fees and charges" even without a statutory grant provided only that the guidelines and limitations imposed by Congress are complied with. 11

Q - What are the sources of revenue of municipal corporations? A - Their sources of revenue are: (1) Those raised from taxes, fees and charges, as aforementioned; (2) Internal Revenue Allotments from the National Government; (3) Lease of public utilities; (4) Funds derived from national aid such as the CDF (Countrywide Development Fund); and (5) Donations. ##650 Section 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. Section 7. Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with inhabitants by way of direct benefits. Q - Is there still a need for enabling law to realize the provisions of Sections 6 and 7, Article X to the effect that local governments shall have a just share and equitable share in national taxes? A - Yes, an enabling law is necessary to determine the shares to the local governments. "Section 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them." "Section 7. Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with inhabitants by way of direct benefits." Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Q - What is the term limit of local officials? A - The term limit of elective local officials, except barangay officials, is three (3) years and they cannot serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time "shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." Q - What is the term of barangay officials and for how many terms can they be allowed to serve? A - The term of office of barangay officials and members of the sangguniang kabataan shall be for three (3) years, which shall begin after the regular election of barangay officials on the second Monday of May, 1994. (Sec. 43[c], LGC) ##651 Section 9. Legislative bodies of local governments shall have sectoral representation as may be prescribed by law. 12

Q - Is there a need for an enabling law to realize this constitutional provision that "legislative bodies shall have sectoral representation"? A - Yes, because of the phrase "as may be prescribed by law." Section 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. Q - Simplify Section 10. A - A province, city, municipality, or barangay may be (1) created, (2) divided, (3) merged, (4) abolished, or (5) its boundary can be substantially altered. However, this power is subject to: 1. The criteria established in the Local Government Code. 2. The approval by a majority of the votes cast in a plebiscite in the political units directly affected. Q - Are the said acts still legislative in nature? A - The rule in Pelaez vs. Auditor General (15 SCRA 569, 576 [1965]) that "the authority to create municipal corporations is essentially legislative in nature," still holds because the power under Section 10 (to create, abolish, merge, alter) is subject to the "criteria established in the Local Government Code." Section 11. The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination. Q - What are the powers and limitations of Congress? A - Section 11 gives Congress the power to create special metropolitan political subdivisions but this power is subject to the following limitations. 1. It is subject to the approval of the majority of the votes cast in a plebiscite in the political units directly affected. 2. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and local assemblies. 3. The jurisdiction of the metropolitan authority that will be created shall be limited to basic services requiring coordination. ##652 Section 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be 13

independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. Q - What are the three (3) kinds of cities? A - The three kinds of cities are the following: 1. Highly urbanized cities as determined by law - They do not vote in provincial elections, which means that they do not vote for provincial elective officials. 2. Cities not raised to the highly urbanized category but whose charters prohibit their voters from voting in provincial elections - Being independent of the province, residents therein are not qualified to run for provincial positions. 3. Component cities which are still under a province in some ways - Being under a province, residents therein cannot be denied a vote in the election of provincial officials. Section 13. Local Government units may group themselves, consolidate or coordinate their efforts, services, and resources for purposes commonly beneficial to them in accordance with law. Q - What is the authority given to Local Government Units? A - The consolidation and coordination under Section 13 is only with respect to "their efforts, services and resources for purposes commonly beneficial to them," and not with respect to their corporate personality. Section 14. The President shall provide for regional development councils or other similar bodies composed of local government officials, regional heads of departments and other government offices, and representatives from non-governmental organizations within the regions for purposes of administrative decentralization to strengthen the autonomy of the units therein and to accelerate the economic and social growth and development of the units in the region. Q - What are the two powers referred to in Section 14? A - There are two powers referred to in Section 14, and they are the power of the President (1) to provide for regional development councils and (2) to provide for other similar bodies composed of: ##653 a. Local government officials. b. Regional heads of departments and other government offices. c. Representatives of NGOs (non-governmental organizations) within the regions. This power is given to the President for the following purposes: 14

1. To attain administrative decentralization. 2. To strengthen the autonomy of the units therein. 3. To accelerate the economic and social growth and development of the units in the regions. Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. Q - What are the two (2) autonomous regions? A - (1) Autonomous Regions in Muslim Mindanao; and (2) Autonomous Regions in the Cordilleras. Q - What is its composition? A - It shall consist of provinces, cities, municipalities and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures and other relevant characteristics. Q - What is meant by "Autonomous regions can be established only within the framework of the Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines"? A - This means that the autonomous regions now existing, or which may exist in the future, are still part and parcel of the Republic of the Philippines and should, therefore, be bound by our Constitution. Q - Can there still be other autonomous regions other than for Mindanao and the Cordilleras? A - There are those who say that the same can still be done, only that it requires a constitutional amendment. The author submits that Section 15 itself authorizes the creation of "autonomous regions in Muslim Mindanao and in the Cordilleras" and for as long as what will be created is in that area and the criteria therein set forth is present, the same can be done, without a constitutional amendment. However, if the autonomous regions sought to be established are in other areas not specified in Section 15, constitutional amendment is required. ##654 Section 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. Q - What kind of supervision has the President over autonomous regions? A - Section 16 specifically provides that the President's power over autonomous region is only one of "general supervision" and not of control.

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Section 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government Section 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multi-sectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic act shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. The creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. Section 19. The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras. Q - Simplification of Sections 17, 18 and 19. A - The powers granted to autonomous regions are enumerated by law. If they are not included in the enumeration, they remain vested in the National Government. In order to realize the establishment of the autonomous regions, Congress is mandated by Section 19 to pass the organic acts for each of the autonomous regions within eighteen (18) months from the time of the organization of the First Congress. Now, two organic acts have already been approved by Congress, one creating the Autonomous Regions in Muslim Mindanao and the other, the Cordillera Autonomous Region. After the approval of the said organic acts, the said autonomous regions are created only when the said organic acts were ratified by a majority of the votes cast by the constituent units in a plebiscite held for that purpose. ##655 Q - What kind of plebiscite will be held? A- The plebiscite will be held in the municipality or city, as the case may be - If what will be created is a Barangay - The plebiscite will be held in the province - If what will be created is a municipality or component city - The plebiscite will be held in the province to be created a well as in the other province - If a province will be carved to form another province - The plebiscite will be held in the region affected. 16

- If an autonomous region will be formed. Section 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (a) Administrative organization; (b) Creation of sources of revenues; (c) Ancestral domain and natural resources; (d) Personal, family, and property relations; (e) Regional urban and rural planning development; (f) Economic, social, and tourism development; (g) Educational policies; (h) Preservation and development of the cultural heritage; and (i) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. Q - What is the legislative power of autonomous regions? A - Section 20, Article X provides as follows: "Section 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (a) Administrative organization; (b) Creation of sources of revenues; (c) Ancestral domain and natural resources; (d) Personal, family, and property relations; (e) Regional urban and rural planning development; (f) Economic, social, and tourism development; (g) Educational policies; (h) Preservation and development of the cultural heritage; and (i) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region." ##656 Section 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the regions shall be the responsibility of the National Government. Q - What are the three problems mentioned in Section 21? A - There are three (3) problems mentioned by Section 21, thus: (1) Preservation of peace and order within the regions; (2) Defense of the regions; and (3) Security of the regions. 17

Q - What is the delineation of responsibility of local police agencies and the national government? ARESPONSIBILITY OF LOCAL POLICE AGENCIES 1. Internal peace and order 2. Ordinary criminality RESPONSIBILITY OF THE NATIONAL GOVERNMENT The defense and security of the regions shall be the responsibility of the national government. PART II CORPORATION: ITS NATURE, CLASSIFICATION AND FUNCTIONS Q - What is a corporation, as defined in the corporation law? A - A corporation is an artificial being created by operation of law, having the right of succession and the powers, attributes and properties expressly authorized by law or incident to its existence. (Section 2, Batas Pambansa Bilang 68) Q - What is the classification of a corporation according to purpose? A1. Public - Organized for the government of a portion of the State. 2. Private - Formed for some private purpose, benefit aim or end. 3. Quasi-public - A private corporation that renders public service or supplies public wants. ##657 Q - When is a corporation considered public? A - If a corporation is created by the State as its own agency to help the State in performing or exercising governmental functions, said corporation is considered a public corporation. Otherwise, it is private. Q - What are the two kinds of public corporation? A1. Quasi-corporation - It is created by the State for a limited purpose. 2. Municipal corporation - It is created for the purpose of local government. Q - What are the elements of a municipal corporation? A - CODE: TILCO Territory - (a fixed territory where the inhabitants reside, with the waters [external and internal], and the air space above the land and waters) Inhabitants - (the people residing in the territory of the new municipal corporation) L-egally created or incorporated - (the law which authorizes the creation of incorporation of the municipal corporation) 18

CO-rporate name - (the name by which the corporation shall be called). Q - What is the dual nature and function of a local government unit? A - It is a body politic and a corporate entity and it exercises dual functions, thus: 1. Public or governmental - It is an agent of the State for the government of the territory and the inhabitants. 2. Private or proprietary - It is an agent of the community for the purpose of administering local affairs. Q - What are the territorial and political subdivisions of the Republic of the Philippines? A - Already answered. See Sections 1 and 11, Article X, 1987 Constitution. Section 1 - Provinces, cities, municipalities, barangays, autonomous regions. Section 11 - Special metropolitan political subdivisions. ##658 BRIEF EXPLANATION OF EACH 1. Province - Composed of a cluster of municipalities, or municipalities and component cities. It helps in governing local government units within its territorial jurisdiction. 2. City - Composed of more urbanized and developed barangays. It helps in governing the inhabitants within its territorial jurisdiction. 3. Municipality - Composed of barangays. It helps in governing the inhabitants within its jurisdiction. 4. Barangay - It is a basic political unit. It is a planning and implementing unit of government policies and programs. It is also in the barangay level where differences and disputes among residents are settled amicably. If the case is not settled, the barangay, through the Lupon Tagapayapa, will issue a "certificate to file action." 5. Autonomous regions - Already discussed. 6. Special metropolitan political subdivisions - Already discussed. CREATION, DIVISION, MERGER, ABOLITION OF PROVINCES, CITIES, MUNICIPALITIES AND BARANGAYS Q - What is the rule on this matter? A - A province, city, municipality, or barangay may be (1) created, (2) divided, (3) merged, (4) abolished, or (5) its boundary can be substantially altered. However, this power is subject to: (a) The criteria established in the Local Government Code; and (b) The approval by a majority of the votes cast in a plebiscite in the political units directly affected. Q - What is the rule and the basis to create a local government unit or its conversion from one level to another?

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A - "Section 7. Creation and Conversion - As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services, to wit: Income - It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned; Population - It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and Land Area - It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions and sufficient to provide for such basic services and facilities to meet the requirement of its populace. Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR)." (Sec. 7, Local Government Code, Republic Act No. 7160) ##659 Q - Was the creation of Metropolitan Manila valid? A - In Lopez vs. Comelec (136 SCRA 633), the Supreme Court upheld the validity of the creation of Metropolitan Manila. The authority then of the President was authorized by the referendum held on February 27, 1995, and the said authority includes the restructuring of local governments in the 4 cities and 13 municipalities of Metropolitan Manila. Q - What should be included in the computation of the average annual income of the municipality for purposes of determining whether the municipality may be validly converted into a city? A - The Internal Revenue Allotments (IRA) should be included in the said computation. (Alvarez vs. Guingona, 252 SCRA 695) Q - What is the limitation imposed by Republic Act No. 7160 regarding division and merger of existing local government units? A - "Section 8. Division and Merger - Division and merger of existing local government units shall comply with the same requirements herein prescribed for their creation: Provided, however, that such division shall not reduce the income, population, or land area of the local government unit or units concerned to less than the minimum requirements prescribed in this Code: Provided, further that the income classification of the original local government unit or units shall not fall below its current income classification prior to such division. The income classification of local government units shall be updated within six (6) months from the effectivity of this Code to reflect the changes in their financial position resulting from the increased revenues as provided herein." (Sec. 8, Local Government Code, Republic Act No. 7160) 20

Q - When can a local government unit be abolished? A - "Section 9. Abolition of Local Government Units - A local government unit may be abolished when its income, population, or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under Book III of this Code, as certified by the national agencies mentioned in Section 7 hereof to Congress or to the sanggunian concerned, as the case may be. The law or ordinance abolishing a local government unit shall specify the province, city, municipality, or barangay with which the local government unit sought to be abolished will be incorporated or merged. (Republic Act No. 7160) ##660 DE FACTO MUNICIPAL CORPORATION Q - When is a municipal corporation considered defacto? A - When it proceeds to assume or exercise corporate powers on the basis of a law authorizing its corporation, it attempts in good faith to organize under the said law, and it has a colorable compliance with the same. Q - Can the legal existence of a municipal corporation be questioned in a collateral proceeding? A - No. Besides, this action is reserved to the State in a quo warranto proceeding, or in any other direct proceeding. Q - When the legal existence of a municipal corporation is challenged many years after it was created, will it prosper? A - The party making the challenge may be already estopped to question the legal existence of a municipal corporation, especially if on account of various acts on the part of the government, it has, in effect, accorded recognition and acknowledgment to its existence. In this case, what may have started as a de facto municipal corporation, acquired a de jure status in the process. (Municipality of Jimenez, Misamis Occidental vs. Borja, 265 SCRA 182) PART III POWERS AND ATTRIBUTES OF LOCAL GOVERNMENT UNITS Q - What are the different powers of local government units? A - Governmental Powers: 1. Governmental powers - Powers expressly granted, implied therefrom, necessary, appropriate or incidental for their efficient and effective governance, and those which are essential to the promotion of the general welfare. 2. Power to create their own sources of revenue; to levy taxes, fees and charges which shall accrue to their case and disposition; to have a just share in the national taxes; to have equitable share in the proceeds from the utilization and development of the national wealth and resources. 3. Power of Eminent Domain. 21

4. Power to authorize reclassification of agricultural lands. 5. Power to close and open roads. 6. Local Legislative Power. 7. Authority over police units. 8. To discharge functions and responsibilities of national agencies and offices devolved to them. ##661 Corporate Powers: 1. To sue and be sued. 2. To have and use a corporate seal. 3. To acquire and convey real or personal property. 4. To enter into contracts. 5. To have continuous succession in its corporate name. 6. To perform and exercise such other powers that are granted to a corporation, subject to the limitations provided in the Code and other laws. SCOPE, LIMITATIONS AND REQUISITES OF THE FOUR (4) PRINCIPAL POWERS OF LOCAL GOVERNMENT UNITS 1. General Welfare Clause (Statutory grant of police power) 2. Taxation 3. Eminent Domain 4. Local Legislative Power GENERAL WELFARE CLAUSE Q - What is the general welfare clause? A - It is the statutory grant of police power to local government units. Q - What are the powers included in the general welfare clause? A - They are those powers expressly granted to local government units, including those which are implied from those expressly granted, and including those which are necessary, appropriate, or incidental for its efficient governance, and those which are essential to the promotion of the general welfare. Q - What is the responsibility of LGU's under the general welfare clause? A - Among others, LGU's shall ensure and support: 1. The preservation and enrichment of culture 2. Promote health and safety 3. Enhance the right of the people to a balanced ecology 4. Encourage and support the development of appropriate and self-reliant scientific and technological capabilities 5. Improve public morals 6. Enhance economic prosperity and social justice 7. Promote full employment among their residents 22

8. Maintain peace and order 9. Preserve the comfort and convenience of their inhabitants. (Sec. 16, Republic Act No. 7160) ##662 Q - What are the limitations on the exercise of powers under the General Welfare Clause? A - CODE: EEDC E (to be exercised only within the territorial limits of the LGU, except for protection of water supply) E (equal protection to the interest of the public in general) D (due process which means that the means employed are reasonably necessary for the accomplishment of the purpose and not duly oppressive to individuals) C (conformity to the Constitution which means that activities allowed by law cannot be prohibited. They can only be regulated) APPLICATION OF THE LIMITATIONS DECLARED INVALID: 1. Municipal ordinance prohibiting the operation of night clubs. (De la Cruz vs. Paras, 123 SCRA 569) REASON: It can only be regulated, not prohibited. 2. QC ordinance requiring owners of commercial cemeteries to reserve 6% of their burial lots for burial grounds of paupers (QC vs. Ericta, 122 SCRA 759) REASON: It is an exercise of eminent domain, not an exercise of police power. 3. Opening of Jupiter and Orbit Streets in Bel Air Subdivision, as ordered by Mayor Binay, is a valid exercise of police power (Sanggalang vs. IAC, 176 SCRA 719) 4. Ordinance penalizing persons charging full payment for admission of children, 7 to 12 years of age, in movie houses is not valid exercise of police power. (Balacuit vs. CFI of Agusan Del Norte, 163 SCRA 182) 5. An ordinance which imposed a P0.30 police inspection fee per sack of cassava flour produced and shipped out of the Municipality of Malabang, Lanao del Sur, was declared invalid because it is not a license fee but a tax which is unjust and unreasonable because the service extended by the municipality is only with respect to the verification of the number of sacks actually loaded. (Matalin Coconut vs. Municipal Council of Malabang, Lanao Del Sur, 143 SCRA 404) DECLARED VALID 1. Manila ordinance prohibiting barbershops to conduct massage in another room. (Velasco vs. Villegas, 120 SCRA 568) REASON: To protect public morals. 2. Imposition of P100.00 (annual permit/license fee to discourage non-useful occupations is valid). (Physical Therapy Association of the Philippines vs. Municipal Board of Manila) 3. Puerto Princesa ordinance which banned the shipment of all live fish and lobster outside Puerto Princesa City from January 1, 1997 to January, 1998. (Tano vs. Socrates, G.R. No. 119249, August 21, 1997) 23

4. SP Resolution which prohibited the catching, gathering, processing, buying, selling and shipment of live marine coral dwelling of aquatic organisms for a 5 year period, coming from Palawan waters. (Ibid.) 5. Zoning ordinance which re-classified residential into commercial or light industrial area is a valid exercise of police power. (Ortigas vs. Feati Bank, 94, SCRA 533) ##663 Q - What is the test to determine the validity of police power? A - In order to determine whether or not the exercise of police power is invalid requires the concurrence of the following: 1. The subject matter of the law must be lawful, which means that public interest, as distinguished from those of a particular interest, requires the interference of the State. 2. The means employed to attain the purpose of the law must be reasonably necessary and not unduly oppressive upon individuals. (NTC vs. Philippine Veterans Bank, 192 SCRA 257) Example: 1. A municipal ordinance providing, among others, that children between 7 and 12 years of age should only be charged half the value of movie tickets. It was held that said ordinance is unduly oppressive and unreasonable. The means employed to attain the purpose of the ordinance is unreasonable, confiscatory and oppressive because the theater owners suffer a loss in revenue besides being penalized for failure to comply with the said ordinance. (Balacuit vs. CFI of Agusan Del Norte, 163 SCRA 187) ##664 2. NTC (National Telecommunications Commission) granted a franchise to Express Telecommunications, Co., Inc. (ETCI) to operate and maintain a cellular mobile telephone service and paging system in Metro Manila and Southern Luzon. NTC granted a provisional authority to ETCI provided that ETCI and PLDT shall enter into an interconnection agreement with PLDT and that said agreement should be jointly submitted to NTC approval. PLDT claims that NTC has no jurisdiction to grant ETCI a certificate of public convenience and necessity or interconnection with PLDT. The Supreme Court upheld the authority of NTC to compel PLDT to allow ETCI to interconnect on the ground that although there is an intervention with property rights, it is nevertheless dictated by the objective of the government to promote the rapid expansion of telecommunication services in the Philippines and to maximize the use of telecommunication facilities. (PLDT vs. NTC, 190 SCRA 717) 3. Color coding system and supplementary rules to minimize traffic of the riding public. Is this arbitrary and oppressive? No, following the decision in Bautista vs. Junio (127 SCRA 329). 4. Law requiring government official and employees to file annually a detailed statement of their assets and liabilities. Is this an invasion of privacy?

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No. It is justified under the police power of the State to minimize graft and corruption and maintain a high standard of honesty in the government service. (Marfe vs. Mutuc, 22 SCRA 424) 5. Ordinance confining prostitutes within prescribed limits. Is this justified under the police power of the State? Yes, to protect public health and morals (L 'Hotel vs. New Orleans, 177 U.S. 587). This is different from the case of Villaviciencio vs. Lucban where the Mayor of Manila shipped prostitutes to Davao to clean the City of Manila. In this case, the Supreme Court ruled that there is a violation of liberty of travel and abode. ##665 OTHER CASES WHEN POLICE POWER WAS CONSIDERED AS VALIDLY EXERCISED 1. Law prohibiting slaughter of work animals like carabaos. REASON: To preserve carabaos which are considered as tractors of Filipino farmers. (U.S. vs. Tonbio, 15 Phil. 85) 2. Law fixing fees of recruitment agencies. REASON: The business is impressed with public interest. (Olsen vs. State of Nebraska, 313 U.S. 236) 3. Ordinance prohibiting theaters to sell tickets beyond their sitting capacity. REASON: To promote convenience, comfort and safety of the viewing public under the police power. (People vs. Chan, 65 Phil. 611) 4. DOLE'S order to suspend temporarily deployment of Filipino domestic workers to a certain country. REASON: To insure that our overseas workers are adequately protected while away from home. (Phil. Association of Service Exporters, Inc. vs. Drilon, 163 SCRA 386) 5. Law inquiring compulsory vaccination of people against small pox, cholera, and sterilization of insane and idiots. REASON: The purpose of the law is to protect and ensure the health of the people. (People vs. Abad Lopez, 62 Phil. 835) 6. Confinement of lepers. REASON: Leprosy is an infectious disease and their exclusion from society will prevent the spread of disease. (Lorenzo vs. Director of Health, 50 Phil. 595) FROM THE AFOREMENTIONED SUPREME COURT DECISIONS, HERE IS A SUMMARY OF THE IMPORTANT POINTS TO REMEMBER 1. The test to determine the validity of a police measure is as follows: a. The subject of the police measure in issue must be within the scope of the police power. b. Even if the said police measure is within the scope of police power, the means employed to attain the purpose of the law must be reasonably necessary and not unduly oppressive upon individuals. 2. If the above exist or are complied with, the enjoyment of private rights, or the conduct of private affairs or activities, may be subordinated to the interest of the greater number on the time honored principle of Salus Populi Est Suprema Lex. 3. Police power is resorted to in order to protect public welfare. 4. Public welfare is protected and promoted by restraining and regulating the use of liberty and property. ##666 25

Q - If the State, through police power, can interfere and invade private affairs and activities, what are the remaining areas of human activity that are not within the reach of police power? A - a. A person is still free to choose the religion he likes but if the religion he chooses conducts a ritual or activity that is contrary to law, morals and public policy, the State can interfere with and arrest those who are involved in such illegal activity. b. A person may or may not work as he chooses but if he works to carry out an illegal recruitment, sale or disposition of prohibited drugs, or other illegal activities, the State can also interfere with and make him liable according to his participation. c. A person is free to choose his attire, or the color of his skirts, pants, blouse or underwear, and up to that point, the State will not interfere, but if a woman, for instance will choose to walk along Roxas Boulevard only with a panty covering her body, the State can take appropriate action to stop her from doing so to avoid public scandal. d. A person may construct a residential structure in his lot and the State will not interfere if such house is big or small, but the local government unit can require him to submit a corresponding building permit to insure compliance with engineering requirements and other specifications. e. A person may acquire a house and lot in a subdivision of his choice but he cannot use it as his base of operation for prohibited drugs. f. A person is free to sing in his private bathroom and the State is not concerned at all if he sings well or not, but if he sings at the top of his voice at 1:00 o'clock a.m., in the sala of a boarding house thereby bothering the peace and silence of his boardmates, he subjects himself to criminal and civil sanctions. g. A person who owns several cars is free to use any of his cars but he cannot choose to drive a car and use it to and from his office if the said car cannot be used on a particular day and time because of color coding. h. A person is free to decorate his bedroom or sala the way he likes, fill it with pictures and flowers as he chooses, and the State is not concerned at all if the same is beautiful or not, but if he uses his bedroom as the place to store prohibited drugs, the State can interfere, through appropriate action, to protect innocent men and women of tender age. i. Rodman, the famous basketball player of Chicago Bulls, had his hair colored with green, pink, gold, etc., and the State did not even interfere at all with his choices, but if he unlawfully hurts his adversaries inside the basketball court, the State can interfere with and punish him accordingly. There will still be a long list of acts that may or may not be done by private individuals. In any and all of the said cases, the interference of the State, or the validity of the said interference, will depend on the circumstances of each particular case, using the following tests: ##667 1. The subject matter of the law must be lawful which means that public interest, as distinguished from those of a particular interest, require the interference of the State; 2. The means employed to attain the purpose of the law must be reasonably necessary and not unduly oppressive upon individuals. 26

Without compliance with the above criteria, the power of the State to interfere in the private business or affairs of an individual, may likely resort to abuse, and hence, this will result to unlawful and unwarranted intrusion into individual property and property rights. POLICE POWER OF LOCAL GOVERNMENT UNITS While the exercise of police power is principally lodged in the legislature, the President and local government units may exercise such power. In fact, the Local Government Code of 1991 explicitly grants to the local government units the power to enact laws that will promote the welfare of the people. CASES: 1. An ordinance of the City of Manila prohibits any operator of any barbershop to conduct the business of massaging customers in any adjacent room or rooms of said barbershop. Is this ordinance valid? The ordinance is valid. REASON: To arrest the commission of possible immorality that may arise if a separate room for the massage of customers is constructed. (Velasco vs. Villegas, 120 SCRA 568) 2. How about an ordinance which prohibits the establishment and operation of sauna parlors, nightclubs, cabarets. Is this valid? The ordinance is valid. Under Section 458[4][VII] of the Local Government Code, because City Councils may now prohibit certain forms of amusement or entertainment in order to protect the social and moral welfare of the community. NEW CASES 1. Cabrera vs. Court of Appeals, G.R. No. 78673, March 18, 1991 2. Magtajas vs. Pryce Properties, G.R. No. 111097, July 20, 1994 3. Lim, etc. vs. Judge Pacquing, etc., et al., G.R. No. 115044, January 27, 1995; Guingona, Jr., et al. vs. Judge Reyes, et al., G.R. No. 117263, January 23, 1998 ##668 SUMMARY OF DECISIONS 1. Cabrera vs. Court of Appeals - Whatever are the damages and inconveniences suffered by Cabrera as a result of the new road is insignificant compared to the greater convenience derived from the said road, plus the fact that the new road adds beauty and color not only to the town but also to the whole province. 2. Magtajas vs. Pryce Properties - It is a heresy to suggest that the LGUs can undo the acts of Congress, from which they have derived their power, and negate by mere ordinance the mandate of the statute. In the exercise of its own discretion, the legislature power may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow other for whatever reason it may consider sufficient. The Supreme Court has no authority to review, much less reverse such choices. 3. Lim vs. Pacquing - Congress did not delegate to the City of Manila the power "to franchise" wagers or betting, including Jai-alai, but retained for itself such power "to franchise." What 27

Congress delegated to the City of Manila under Republic Act No. 409, with respect to wagers or betting, was the power "to license, permit, or regulate." This means that a license or permit issued by the City of Manila, would not amount to something meaningful UNLESS THE HOLDER OF THE PERMIT OR LICENSE WAS ALSO FRANCHISED BY THE NATIONAL GOVERNMENT TO SO OPERATE. POWER TO TAX AND REVENUE-RAISING POWERS OF LGU Q - What are the fundamental principles that should be observed regarding the exercise of said powers? A - CODE: U-E-P-C-C U-niform taxation (which means that taxation shall be uniform in each LGU) Equitable taxation (which means that taxes, fees, charges and other impositions shall be equitable and based as far as practicable on the taxpayer's ability to pay) P-rogressive system of taxation (each LGU shall evolve a progressive system of taxation as far as practicable) C-ollected only for public purposes and shall insure solely to the LGU unless specifically provided by law C-ollection of local taxes, fees, charges and other impositions shall in no case be let to any person (Section 130, Republic Act No. 7160) Q - Can LGU's tax instrumentalities of the National Government? A - No (Basco vs. Pagcor 197 SCRA 52). Congress can grant a municipal corporation the power to tax certain matters, and it can also provide for exemptions or even take back the power. ##669 Q - Under Republic Act No. 6958, the Mactan Cebu International Airport (MCIAA) is exempt from the payment of realty taxes imposed by the National Government or any of its political subdivisions. Does the City of Cebu have the power to collect real property taxes from MCIAA? A - Yes (MCIAA vs. Marcos, G.R. No. 120082, September 11, 1996) REASON: The exemption may be withdrawn at the pleasure of the taxing authority. Q - Is the said rule absolute? A - No. Although the exemption may be withdrawn at the pleasure of the taxing authority, nevertheless, if the exemption was granted to private parties based on mutual and material considerations, it becomes contractual which is within the protective mantle of the nonimpairment clause. (Ibid.) MACTAN CEBU INTERNATIONAL AIRPORT AUTHORITY VS. MARCOS, ETAL. G.R. NO. 120082, SEPTEMBER 11, 1996 FACTS: 28

Mactan Cebu International Airport Authority (MCIAA) was created by virtue of Republic Act No. 6958, mandated to "principally undertake the economical, efficient and effective control, management and supervision of the Mactan International Airport in the Province of Cebu and the Lahug Airport in Cebu City, and such other efforts as may be established in the Province of Cebu." On October 11, 1994, the Treasurer of Cebu City demanded payment for realty taxes on several parcels of land belonging to the petitioner located at Barrio Apas and Barrio Kasambagan, Lahug, Cebu City, in the total amount of P2,229,078.79. Petitioner claims that the demand for payment is baseless and unjustified as it is exempt from payment of realty tax under Section 14 of R.A. No. 6958. Besides, it is an instrumentality of the government performing governmental functions, citing Section 133 of the Local Government Code of 1991, which puts limitations on the taxing powers of local government units. Respondent city claims otherwise and insists that the petitioner is a governmentcontrolled corporation whose tax exemption has been withdrawn by virtue of Sections 193 and 234 of the Local Government Code that took effect on January 1, 1992. Petitioners paid the tax "under protest," and thereafter, filed a Petition for Declaratory Relief in the Regional Trial Court of Cebu. The said petition was denied. ##670 ISSUE: Petitioner asserts: (1) that although it is a government-owned or controlled corporation, it is mandated to perform functions in the same category as an instrumentality of Government; and (2) that being an instrumentality of the National Government, the City of Cebu has no power nor authority to impose realty taxes under Section 133 of the Local Government Code. HELD: There can be no question that under Section 14 of R.A. No. 6958, the petitioner is exempt from the payment of realty taxes imposed by the National Government or any of its political subdivisions, agencies and instrumentalities. Nevertheless, since taxation is the rule and exemption therefrom the exception, the exemption may thus be withdrawn at the pleasure of the taxing authority. The only exception to this rule is where exemption was granted to private parties based on material consideration of a mutual nature, which then becomes contractual and is thus covered by the non-impairment clause of the Constitution. The petitioner is now the owner of the land in question and the exception in Section 234(c) of the Local Government Code is not applicable. It cannot claim that it was never a "taxable person." It was only exempted from the payment of real property taxes. The grant of the privilege only in respect of this tax is conclusive proof of the legislative intent to make it a taxable person subject to all taxes except real property tax. FINANCIAL AFFAIRS, TRANSACTIONS AND OPERATIONS OF LGU'S Q - What are the basic principles to be observed regarding financial transactions and operations of LGU's? 29

A - BEFORE MONEY IS PAID, SPENT 1. No money shall be paid out of the local treasury except in pursuance of an appropriation ordinance or law. 2. Local government funds and monies shall be spent solely for public purposes. 3. Trust funds in the local treasury shall not be paid out except in fulfillment of the purpose for which the trust was created or the funds received. (Sec. 305, Republic Act No. 7160) ##671 ACCOUNTABILITY AND RESPONSIBILITY 1. All monies officially received by a local government officer in any capacity or in any occasion shall be accounted for as local funds, unless otherwise provided by law. 2. Every LGU officer whose duties permit or require custody of local funds shall be properly bonded, and said officer shall be accountable and responsible for said funds and for the safekeeping thereof. (Ibid.) BUDGETING 1. Local budgets shall be based on functions, activities and projects, in terms of expected results. 2. Local budgets plans and goals shall, as far as practicable, be harmonized with national development plans, goals and strategies in order to optimize the utilization of resources and to avoid duplication in the use of fiscal and physical resources. 3. Local budgets shall operationalize approved local development plans. 4. LGU's shall ensure that their respective budgets incorporate the requirements of their component units and provide for equitable allocation of resources among these component units. 5. National planning shall be based on local planning to ensure that the needs and aspirations of the people as articulated by the LGUs in their respective local development plans are considered in the formulation of budgets of national line agencies or offices. 6. The LGU shall endeavor a balanced budget in each fiscal year of operation. (Ibid.) SHARING OF FISCAL RESPONSIBILITY 1. It shall be shared by all those exercising authority over the financial affairs, transactions and operations of the LGUs. (Ibid.) EMINENT DOMAIN Q - Can LGU's exercise the power of eminent domain? A - Local government units have no inherent power to exercise eminent domain. It must be explicitly delegated as, in fact, it is so provided by Section 19 of the Local Government Code of 1991, thus: "Section 19. Eminent domain. A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws. xxx" 30

##672 Q - What are the limitations on the exercise of said power under Section 19 of the Local Government Code (Republic Act No. 7160)? A - The power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner and such offer was not accepted. (Ibid.) Q - Can the LGU immediately take possession of the property subject of eminent domain? A - Yes, upon making a deposit with the proper court of at least 15% of the fair market value of the property based on the current tax declaration of the property to be expropriated. (Ibid.) Q - Who determines the amount to be paid for the expropriated property? A - The proper court, based on the fair market value at the time of the taking of the property. (Ibid.) Q - What is the difference between the power of eminent domain, as exercised by Congress, and the power of eminent domain, as exercised by LGU's? A - The power of eminent domain, so exercised by Congress, is plenary. It can reach every form of property which may be needed by the State for public use. In fact, it can reach even private property already dedicated to public use, or even property already devoted to religious worship (Barlin vs. Ramirez, 7 Phil. 41). On the other hand, the power of eminent domain as exercised by Local Government Units is not, strictly speaking, a power of eminent domain but merely a power of inferior domain which means that local government units can only exercise such power which is delegated to it. Q - Can a land be expropriated by the Municipality of Parañaque on the basis of a resolution passed by the Sangguniang Bayan? A - What is required by law is an ordinance, not a resolution. The requirement therefore of Section 19 of the LGC was not complied with (Municipality of Parañaque vs. V.M. Realty Corporation, 292 SCRA 676) Q - What is the difference between a resolution and an ordinance? AOrdinance: 1 It is a law. 2. An ordinance has to undergo three readings before it is finally approved into law Resolution: 1. It is merely an expression of a sentiment or opinion of a law-making body on a specific matter. 2. This is not required unless decided otherwise by a majority of the members of the Sangguniang Bayan. ##673 CLOSURE AND OPENING OF ROADS 31

Q - What is the power of LGU's regarding closure and opening of roads, alley, park or square within its jurisdiction? A - They may, pursuant to an ordinance, close or open the same, permanently or temporarily. (Section 21, Republic Act No. 7160) Q - What are the requirements in case of permanent closure? A1. Said ordinance must be approved by at least 2/3 of all the members of the Sanggunian, and when necessary, it shall provide an adequate substitute. 2. Adequate provision for the maintenance of public safety must be made. 3. The property may be used or conveyed for any purpose for which other real property may be lawfully used or conveyed, but no freedom park shall be closed permanently without provision for its transfer or relocation to a new site. Q - When can the same be temporarily closed? A - During an actual emergency, fiesta celebrations, public rallies, etc. Q - Can the City Mayor of Manila, by himself, withdraw Padre Rada as a public market? A - The same can only be made possible by joint action of the Sanggunian and the Mayor. (Cruz vs. Court of Appeals, 153 SCRA 142) Q - Can a person who allegedly suffered damage and inconveniences on account of a street which was ordered closed, recover compensation for the said closure? A - No. REASON: (1) He has still a reasonable access to the general system of the streets; (2) Whatever are the damages and inconveniences suffered by Cabrera as a result of the new road is insignificant compared to the greater convenience derived from the said road, plus the fact that the new road adds beauty and color not only to the town but also to the whole province. (Cabrera vs. Court of Appeals, G.R. No. 78673, March 18, 1991) RE-CLASSIFICATION OF LANDS Q - What is the guide on the principal classifications of land? APRIMARY AG-FO-TI-MI-NA AG-ricultural FO-rest TI-mber MI-neral NA-tional parks SECONDARY RE-CO-IN RE-sidential 32

CO-mmercial IN-dustrial ##674 Q - What is the distinction between primary classification and secondary classification? APRIMARY The responsibility over primary classification of lands of the public domain is vested in the President upon the recommendation of the DENR. (CA 141 [1936], Section 6; EO 192 [1987]) The said power and responsibility is the sole prerogative of the President. SECONDARY The authority to reclassify agricultural lands into RECOIN (residential, commercial, industrial) is vested in LGU's (cities and municipalities). (Republic Act 7160 [1991], Section 20) Q - Are agricultural lands reclassified by LGU's into forest conservation zones converted into forest lands? A - They are not converted into forest lands as to be exempted from CARP. The reason for this is because LGU's have no authority or power to make primary classifications, as already aforementioned. Such power or authority belongs to the President, upon the recommendation of the DENR. Q - Are agricultural lands reclassified by LGU's into RECOIN covered by CARP? A - It depends. If the said classification was made by LGU and approved by HLURB, or its predecessor agencies, prior to June 15, 1988, the said lands are not covered by CARP. The only requirement, however, is to secure an exemption clearance from DAR. This is what is called as Declaration of Exempt Status under DAR AO No. 6 [1994] If the said lands, however, are reclassified after June 15, 1988, they are covered by CARP. Hence, the law on land conversion will apply. (Section 65, Republic Act No. 6657; AO No. 1, 1999) Q - What is the specific authority of a city or municipality regarding reclassification of agricultural lands? A - A city of municipality may, through an ordinance passed after conducting public hearings for the purpose, authorize the reclassification of agricultural lands and provide for the manner of their utilization or disposition: a) When the land ceases to be economically feasible and sound for agricultural purposes as determined by the Department of Agriculture; or ##675 33

b) Where the land shall have substantially greater economic value for residential, commercial or industrial purposes, as determined by the sanggunian; provided that such reclassification shall be limited to the following percentage of the total agricultural land area at the time of the passage of the ordinance; [i] for highly urbanized cities and independent component cities: 15%, [ii] for component cities and 1st to 3rd class municipalities: 10%, and [iii] for 4th to 6th class municipalities: 5%; provided that agricultural land distributed to land reform beneficiaries shall not be affected by such reclassification. LOCAL LEGISLATIVE POWER Q - What are those that can be approved by local legislative bodies? A1. Ordinance 2. Resolution Q - What is the difference between an ordinance and a resolution? A - Already discussed. Q - What are the requisites of a valid ordinance? A1. It must not be contrary to the Constitution and any statute. 2. It must not be unfair or oppressive. 3. It must not be partial or discriminatory. 4. It must not prohibit but may regulate trade. 5. It must not be unreasonable. 6. It must be general in circulation and consistent with public policy. (Tatel vs. Municipality of Virac, 207 SCRA 1579) Q - When is an ordinance (whether it is passed by the Sangguniang Panlalawigan, Sangguniang Barangay, Sangguniang Panlunsod) considered approved? A - It is considered approved (1) when the local chief executive approves the same, affixing his signature on each and every page thereof; (2) when the local chief executive vetoes the same, and the veto is overridden by 2/3 vote of all the members of the Sanggunian; and (3) when it is not acted upon within 15 days in case of a province, or 10 days in case of a city or municipality, otherwise the ordinance shall be deemed approved, as if he signed it. VETO POWER OF THE LOCAL CHIEF EXECUTIVE Q - What is the veto power of a chief executive? A - He may veto an ordinance only once on the ground that it is ultra vires, or that it is prejudicial to public welfare. ##676 Q - Can he veto a particular item or items of an ordinance? A - Yes. In such a case, the veto shall not affect the item or items which are not objected to. 34

REVIEW OF APPROVED ORDINANCES AND RESOLUTIONS Q - What happens after the said ordinances and resolutions are approved? A1. The same shall be forwarded to the Sangguniang Panlalawigan for review. If it finds that the ordinance or resolution is beyond the power of the Sangguniang Panlunsod or Sangguniang Bayan, it shall declare said ordinance or resolution invalid in whole or in part. If no action is taken within 30 days, the same is presumed valid. REVIEW OF BARANGAY ORDINANCE Q - What happens after the enactment of a baranggay ordinance? A - They shall be furnished to the Sangguniang Panlunsod or Sangguniang Bayan for review. If the reviewing sanggunian finds the baranggay ordinances inconsistent with law or city or municipal ordinances, the sanggunian concerned shall, within 30 days from receipt thereof, return the same with its comments and recommendations to the sangguniang barangay for adjustment, amendment or modification, in which case the effectivity of the ordinance is suspended until the revision called for is effected. If no action is taken by the sangguniang panlungsod or sangguniang bayan within 30 days, the ordinance is deemed approved. Q - What is the consequence if a disapproved ordinance or resolution is enforced by an official or employee? A - It is a sufficient ground for the suspension or dismissal of an official or employee concerned. EFFECTIVITY OF ORDINANCE OR RESOLUTION Q - When does an ordinance or resolution take effect? A - It takes effect after 10 days from the date a copy thereof is posted in a bulletin board at the entrance of the provincial capitol, or city, or municipal or baranggay hall, and in at least two other conspicuous places in the local government unit concerned. (Sec. 59, LGC) Q - What is required if an ordinance imposes penal sanctions? A1. It shall be published in a newspaper of general circulation within the province where the local legislative body belongs. 2. If there is no newspaper of general circulation within the province, posting of such an ordinance shall be made in all municipalities and cities of the province where the sanggunian of origin is situated. (Sec. 59[c], LGC) ##677 Q - What is the requirement in the case of an ordinance approved by highly and independent component cities? A1. The same shall be posted;

35

2. In addition, it shall be published once in a local newspaper of general circulation within the city. If there is no such newspaper, within the city, the publication shall be made in any newspaper of general circulation. (Sec. 59[d], LGC) CORPORATE POWERS OF LGU'S Q - What are the corporate powers of LGU's? A - Already answered. Q - If a local government unit decides to sue, how is it commenced and who will file it? A - It is commenced by the local executive, upon authority of the Sanggunian, except when the City Councilors, by themselves and as representation of or on behalf of the City, bring the action to prevent unlawful disbursement of City funds. (City Council of Cebu vs. Anzon, 47 SCRA 325) Q - Who can represent a municipality? A - Only the Provincial Fiscal, Provincial Attorney, or the Municipal Attorney may validly represent the municipality. The representation of an unauthorized lawyer may be raised at any stage of the proceedings. (Ramos vs. Court of Appeals, 269 SCRA 34) POWER OF LGU'S TO ACQUIRE AND CONVEY REAL OR PERSONAL PROPERTY Q - Can LGU's acquire real or personal property? A - Yes, provided it is in a manner provided by law. Q - Can LGU's alienate the same? A - It may alienate only a patrimonial property, upon proper authority. Q - What are the kinds of properties owned by a municipal corporation? A - Public Property - If the property is owned by the municipality in its public and governmental capacity, the property is public and Congress has absolute control over it. Patrimonial Property - If the property is owned by the municipality in its private or proprietary capacity, then it is patrimonial and Congress has no absolute control over the same. ##678 This distinction which was laid down in Province of Zamboanga Del Norte vs. City of Zamboanga (22 SCRA 1334, 1341 [1968]), and which was amplified in Cebu City vs. NAWASA, is different from the classification under Articles 423 and 424 of the Civil Code, thus: "Article 424. Property for public use, in the provinces, cities, and municipalities, consist of the provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities, or municipalities. (Underlining supplied) All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the provisions of special laws." 36

The phrase "public works for public service," as used in Article 424 was interpreted in Cebu City vs. NAWASA (107 Phil. 1112) in this manner: "xxx the term public works for public service" must be interpreted, following the principle of ejusdem generis, in the concept of the preceding words, "Provincial roads, city streets, municipal streets, the squares, fountains, public waters and promenades "which are used freely by all, without distinction. Hence, if the public works is not for such free public service, it is not within the purview of the first paragraph, but the second paragraph of Article 424, and consequently, patrimonial in character. And as already held by this Court, a municipal work system designed to supply water to the inhabitants for profit is a corporate function of the municipality." Q - What is legua communal or communal lands of a town? A - It is a property held by the municipality for the State in trust for the inhabitants, hence, the State is free to dispose it at will. (Salas vs. Jarencio, 46 SCRA 734 [1972]) TOWN PLAZA, PUBLIC PLAZA, PUBLIC STREETS Q - What kind of property is a town plaza? A - It is a property of public dominion. Q - As a result of the eruption of Taal Volcano, residents of towns and barangays near Taal, Batangas, converged in front of and around the municipal hall prompting the mayor to put up tents in the Taal Town Plaza. Can the said plaza be used and occupied by the people affected by the Taal Volcano eruption? A - Yes, but the same can only be used and occupied during the duration of an emergency or until they can be relocated to a better place. ##679 Q - Can a public street or thoroughfare be used for a private purpose by any private person? A - No. It is property for public use, outside the commerce of man, and may not be subject of lease or other contracts (Macasiano vs. Diokno, 208 SCRA 404) OPEN SPACES IN A SUBDIVISION Q - What is required by law in the case of open spaces in a subdivision? A - Presidential Decree No. 957, as amended by Presidential Decree No. 1216, mandates that the same shall be donated to the LGU where the subdivision is situated. POWER OF LGU TO ENTER INTO CONTRACTS Q - What are the requisites of a valid municipal contract? A1. The local government unit has the express, implied or inherent power to enter into the particular contract. 2. The contract is entered into by the proper department, board, committee, officer or agent. Unless otherwise provided by the Code, no contract may be entered into by the local chief 37

executive on behalf of the local government unit without prior authorization by the sanggunian concerned. (Sec. 22[c], LGC) 3. The contract must comply with certain substantive requirements, i.e., when expenditure of public fund is to be made, there must be an actual appropriation and a certificate of availability of funds. 4. The contract must comply with the formal requirements of written contracts, e.g., the Statute of Frauds. Q - When is a contract ultra vires? A - When it does not comply with the first and third requisite, as aforementioned, it is ultra vires and is null and void. Q - Can it be ratified or validated? A - No. Q - When can a defective municipal contract be ratified? A - When there is non-compliance with the second and the fourth requirements, as aforementioned. The ratification may be express or implied. Q - Can X municipality enter into a contract of lease with a private person granting the latter fishing privileges? A - Yes, it is a valid and binding contract. Q - Can the said municipality adopt a subsequent resolution setting aside the said contract of lease and granting the privilege to another? A - No, unless the subsequent resolution is a police measure, in which case, the exercise of police power prevails over the non-impairment clause. (Manamtan vs. Municipality of Luna, La Union, 82 Phil. 844) ##680 AUTHORITY TO NEGOTIATE AND SECURE GRANTS Q - Is a local chief executive authorized to negotiate and secure financial grants or donations in kind? A - Section 23 of the LGC (Republic Act No. 7160) provides as follows: "Section 23. Authority to Negotiate and Secure Grants - Local chief executives may, upon authority of the sanggunian, negotiate and secure financial grants or donations in kind, in support of the basic services or facilities enumerated under Section 17 hereof, from local and foreign assistance agencies without necessity of securing clearance or approval therefor from any department, agency, or office of the National Government or from any higher local government unit: Provided, That projects financed by such grants or assistance with national security implications shall be approved by the national agency concerned: Provided, further, That when such national agency fails to act on the request for approval within thirty (30) days from receipt thereof, the same shall be deemed approved. 38

The local chief executive shall, within thirty (30) days upon signing of such grant agreement or deed of donation, report the nature, amount, and terms of such assistance to both Houses of Congress and the President." LIABILITY OF LGU'S FOR DEATH OR INJURY TO PERSONS OR DAMAGE TO PROPERTY Q - Are LGU's and their officials exempt from said liability? A - It depends. 1. If the LGU is engaged in governmental functions, it is not liable. 2. If the LGU is engaged in proprietary functions, it is liable. Example: 1. Governmental Function a. In a hurry and in response for immediate help, the firetruck owned by the X Municipality and driven by Pedro, a regular employee of the said Municipality, proceeded to the fire scene. While the said firetruck was moving backward at the fire scene, it accidentally bumped a jeep parked at the place. X Municipality may not be held liable. 2. Proprietary Function a. The stage constructed by X Municipality (where a drama and singing contest it sponsored will be held) collapsed resulting in the death of some participants. The said municipality is liable. b. Operation of the waterworks system established by the municipality is a proprietary function. ##681 LIABILITY OF LOCAL OFFICIALS Q - Cite instances when a local official can be held personally liable for damages. A1. Illegal dismissal of an LGU employee coupled with bad faith. (Rama vs. Court of Appeals, 148 SCRA 496) 2. Persistent defiance to follow the order of the Civil Service Commission to reinstate an LGU employee. (Salcedo vs. Court of Appeals, 81 SCRA 408) LIABILITY OF A MUNICIPAL CORPORATION REGARDING CONTRACTS IT ENTERS INTO Q - What is the liability of a municipal corporation regarding contracts it enters into? A - It is liable just like an ordinary person regarding contracts it enters into provided it is intra vires. Q - What is the doctrine of implied municipal liability? A - Under this doctrine, a municipality becomes obligated upon an implied contract to pay the reasonable value of the benefits accepted or appropriated by it. If a municipality therefore 39

derives benefits from a contract it entered into, it cannot question its validity to deny answerability under the contract. Q - Can a municipality engage the services of a private lawyer? A - No. As aforementioned, only the Provincial Fiscal, the Provincial Attorney or the Municipal Attorney can validly represent a province or municipality in law suits. (Ramos vs. Court of Appeals, 269 SCRA 34) Q - When can a municipality engage the services of a private lawyer? A - Only when the Provincial Fiscal is disqualified to represent it. In such a case, the fact of disqualification must appear on record. (Municipality of Pililia, Rizal vs. Court of Appeals, 233 SCRA 484) ELECTIVE OFFICIALS QUALIFICATIONS/DISQUALIFICATIONS Q - What are the qualifications of an elective local official? A1. Citizen of the Philippines; 2. A registered voter in the barangay, municipality, city or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panglungsod, or sangguniang bayan, in the district where he intends to be elected; 3. A resident therein for at least one (1) year immediately preceding the day of the election; and 4. Able to read and write Filipino or any other local language or dialect. ##682 NOTE: 1. Age requirement for candidates for Governor, Vice-Governor, Member of Sangguniang Panlalawigan, or Mayor, Vice-Mayor, or Member of the Sangguniang Panglungsod of highly urbanized cities: At least 23 years of age on election day; 2. Age requirement for candidates for the position of Mayor, or Vice-Mayor of independent component cities, component cities, or municipalities: At least 21 years of age on election day. 3. Age requirement for candidates for the position of Member of the Sangguniang Panglungsod or Sangguniang Bayan: At least 18 years of age on election day. 4. Age requirement for candidates for the position of punong barangay or member of the Sangguniang Barangay: At least 18 years of age but not more than 21 years of age on election day. 5. Candidates for the sangguniang kabataan must be at least 15 years of age but not more than 21 years of age on election day. Q - Who are disqualified from running for any elective local position? A - The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment, within 2 years after serving sentence; 40

(b) Those removed from office as a result of an administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitive from justice in criminal or nonpolitical cases here or abroad; (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded. (Sec. 40, LGC) REGARDING THE CITIZENSHIP REQUIREMENT OF AN ELECTIVE LOCAL OFFICIAL Q - When should an elective local official possess Filipino citizenship? Is it from the date of the filing of the certificate of candidacy, from the date of his election, or from the date of his proclamation? A - Section 39 of the Local Government Code does not mention any particular date when the candidate must possess Filipino citizenship, but the Supreme Court ruled in Frivaldo vs. Comelec (257 SCRA 727) that Governor Frivaldo was qualified to be proclaimed on the reasoning that an official begins to govern only upon his proclamation and on the day his term begins. ##683 REGARDING THE PHRASE "FUGITIVE FROM JUSTICE" Q - Who are included in the phrase "fugitive from justice"? A - It includes (1) those who flee after conviction to avoid punishment; and (2) those who, after being charged, flee to avoid prosecution. In Rodriguez vs. Comelec, 259 SCRA 296, the Supreme Court ruled that Rodriguez is not considered a "fugitive from justice" because he arrived in the Philippines long before the filing of the complaint against him in the court of Los Angeles and the issuance of the warrant of arrest against him. MANNER OF ELECTION Q - How shall the officials mentioned hereinbelow be elected? 1. Governor, vice-governor, city mayor, city vice mayor, municipal mayor, municipal vice mayor and punong barangay. 2. Regular members of the sangguniang panlalawigan, sangguniang panglungsod, and sangguniang bayan. AGovernor, vice-governor, city mayor, city vice mayor, municipal mayor, municipal vice mayor, and punong barangay - They shall be elected at large in their respective units by the qualified voters therein. Regular members of the sangguniang panlalawigan, sangguniang panlungsod, and sangguniang bayan - They shall be elected by district, as may be provided for by law. (Section 41, LGC) DATE OF ELECTION 41

Q - When shall the said election be held? A - Unless otherwise provided by law, the elections for local officials shall be held every three (3) years on the second Monday of May. ##684 TERM OF OFFICE Q - What is the term of office of all local elective officials? A(a) The term of office of all local elective officials elected after the effectivity of this Code shall be three (3) years, starting from noon of June 30, 1992 or such date as may be provided for by law, except that of elective barangay officials: Provided, That all local officials first elected during the local elections immediately following the ratification of the 1987 Constitution shall serve until noon of June 30, 1992. (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. (c) The term of office of barangay officials and members of the sangguniang kabataan shall be for three (3) years, which shall begin after the regular election of barangay officials on the second Monday of May 1994. (Sec. 43, LGU) Q - Mayor A who was elected in 1988, died in 1989. Vice-Mayor B succeeded and became Mayor in 1989. Is Mayor B still eligible to run for the position of Mayor in 1998, after succeeding to win the election for the same position in the elections held in 1992 and 1995? A - Yes, because the term of three (3) years refers to the terms for which Mayor B was elected. (Borja vs. Comelec, G.R. No. 133495, September 3, 1998) VACANCIES AND SUCCESSION Q - What are the rules in case of permanent vacancies (1) in the office of the Governor, Vice Governor, Mayor and Vice-Mayor; (2) in the Sanggunian? A - If a permanent vacancy occurs in the office of the Governor, Vice Governor, Mayor and Vice-Mayor (1) The highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice-governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. (Sec. 44[a], LGC) (2) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay member, or in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay. (Sec. 44[b], LGC) (3) The successors as defined herein shall serve only the unexpired terms of their predecessors. (Sec. 44[d], LGC) ##685 42

Q - What causes permanent vacancy? A1. Death 2. Removal from office 3. Voluntary resignation 4. Permanent incapacity to discharge the functions of an office 5. Permanent vacancy also arises when an elective official fills a higher vacant office, refuses to assume office or fails to qualify. (Sec. 44[d, 5th paragraph], LGC) PERMANENT VACANCIES IN THE SANGGUNIAN Q - How are permanent vacancies in the sanggunian filled? A - Permanent vacancies in the sanggunian where automatic successions provided above do not apply shall be filled by appointment in the following manner: (1) The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the sangguniang panglungsod of highly urbanized cities and independent component cities; (2) The governor, in the case of sangguniang panglungsod of component cities and the sangguniang bayan; (3) The city or municipal mayor, in the case of sangguniang barangay, upon recommendation of the sangguniang barangay concerned. (a) Except for the sangguniang barangay, only the nominee of the political party under which the sanggunian member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy in the sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the same political party as that of the sanggunian member who cause the vacancy and shall serve the unexpired term of the vacant office. In the appointment herein mentioned, a nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and certification shall be null and void ab initio and shall be a ground for administrative action against the official responsible therefor. ##686 (b) In case the permanent vacancy is caused by a sanggunian member who does not belong to any political party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy. (c) In case of vacancy in the representation of the youth and the baranggay in the sanggunian, said vacancy shall be filled automatically by the official next in rank of the organization concerned. (Sec. 45, LGC) Q - Who should make the appointment to any vacancy caused by the cessation from office of a member of the Sangguniang Barangay? 43

A - The mayor upon the recommendation of the Sangguniang Barangay concerned. (Sec. 45[a] [3]) Q - Is the nomination by the political party still needed? A - No more, because the recommendation by the Sangguniang Barangay takes the place of nomination by the political party. REASON: Because Sangguniang Barangay members are prohibited to have party affiliations. Q - Suppose the vacancy to be filled is that of a Sangguniang Bayan member who did not belong to any political party. The Governor appointed A without the recommendation of the Sangguniang Bayan. On the other hand, the Sangguniang Bayan recommended B and the Mayor appointed him. As between A and B, who was validly appointed? A - Both A and B were not validly appointed. A was not validly appointed because although he was appointed by the Governor, he was not recommended by the Sangguniang Bayan. B was not validly appointed because although he was recommended by the Sangguniang Bayan, he was appointed by the Mayor. (Fariñas vs. Barba, 256 SCRA 396) Q - What are the rules in case of temporary vacancy in the Office of the Local Chief Executive? A1. When the governor, city or municipal mayor, or punong barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office. - The vice governor, city or municipal vice mayor, or the highest ranking sangguniang barangay member shall automatically exercise powers and perform the duties and functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty (30) working days. 2. When the incumbent local chief executive is travelling within the country but outside his territorial jurisdiction for a period not exceeding three (3) consecutive days. - He may designate in writing the officer in charge of the said office. Such authorization shall specify the powers and functions that the local official concerned shall exercise in the absence of the local chief executive except the power to appoint, suspend, or dismiss employees. 3. When the local chief executive concerned fails or refuses to issue such authorization. (Sec. 46, LGC) - The vice governor, the city or municipal vice mayor, or the highest ranking sangguniang barangay member, as the case may be, shall have the right to assume the powers, duties and functions of the said office on the fourth (4th) day of absence of the said local chief executive, subject to the limitations provided in subsection (c) hereof. ##687 Q - In case of vacancy in the representation of the youth and the barangay in the Sanggunian, how shall it be filled? 44

A - It "shall be filled automatically by the official next in rank of the organization concerned." (Sec. 45[d], LGC) Q - If the SK Chairman (1) refuses to assume office; (2) fails to qualify; (3) convicted of a crime; (4) dies; (5) voluntary resigns; (6) permanently incapacitated; (7) removed from office; or (8) has been absent without leave for more than three (3) consecutive months, who succeeds him? A - The SK member who obtained the next highest number of votes shall succeed him. Q - When shall said temporary capacity terminate? A - The same shall terminate upon submission to the appropriate sanggunian of a written declaration by the local chief executive concerned that he has reported back to office. In cases where the temporary incapacity is due to legal causes, the local chief executive concerned shall also submit necessary documents showing that said legal causes no longer exist. ##688 Q - Can the local chief executive authorize any local official to assume the powers, duties and functions of the office, other than the vice governor, the city or municipal vice mayor, or the highest ranking sangguniang barangay member, as the case may be? A - No, except as provided above. (Sec. 46[e], LGC) APPROVAL OF LEAVES OF ABSENCE Q - How shall the leaves of absence of the local officials hereinbelow be approved? 1. Governor and the mayor of a highly urbanized city or an independent component city 2. Vice governor or a city or municipal vice mayor 3. Component city or municipal mayor 4. Punong barangay A1. Leaves of absence of the governor and the mayor of highly urbanized city or an independent component city - Shall be approved by the President or his duly authorized representative. 2. Leaves of absence of a vice governor or a city or municipal vice mayor - Shall be approved by the local chief executive concerned: Provided, That the leaves of absence of the members of the sanggunian and its employees shall be approved by the vice governor or city or municipal vice mayor concerned. 3. Leaves of absence of the component city or municipal mayor - Shall be approved by the governor. 4. Leaves of absence of a punong barangay - Shall be approved by the city or municipal mayor: Provided, That leaves of absence of sangguniang barangay members shall be approved by the punong barangay. ##689 Q - What happens if the said application for leave of absence is not acted upon within five working days after receipt thereof? 45

A - The application for leave of absence shall be deemed approved. PRACTICE OF PROFESSION Q - Can governor, city and municipal mayors practice their profession or engage in any occupation other than the exercise of their functions as local chief executives? A - They are prohibited from doing so. (Sec. 90, LGC) Q - Can Sanggunian members practice their professions or engage in any occupation? A - Yes, except during session hours. However, sanggunian members who are also members of the Bar shall not: 1. Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party; 2. Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; 3. Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and 4. Use property and personnel of the Government except when the sanggunian member concerned is defending the interest of the Government. (Sec. 90[b], LGC) Q - Can sanggunian members teach in schools? A - Yes, except during session hours. (Ibid.) Q - Can sanggunian members who are doctors of medicine practice their profession during official hours of work? A - Yes, but only on occasions of emergency: Provided, That the officials concerned do not derive monetary compensation therefrom. (Sec. 90[c], LGC) PARTISAN POLITICAL ACTIVITY Q - Can local officials or employees in the career civil service engage directly or indirectly in any partisan political activity or take part in any election, initiative, referendum, plebiscite, or recall? A - They are prohibited from doing so except: (1) that they can vote and they can express their views on current issues, or mention the names of certain candidates for public office whom they support; (2) they may take part in the partisan political and electoral activities, but it shall be unlawful for them to solicit contributions from their subordinates or subject these subordinates to any of the prohibited acts under the Omnibus Election Code. (Section 93, LGC) ##690 Q - Can they use their official authority or influence to cause the performance of any political activity or body? A - No. (Ibid.) 46

DISCIPLINARY ACTIONS Q - Can an elective local official be disciplined, suspended or removed from office? A - Yes, on the following grounds: (a) Disloyalty to the Republic of the Philippines; (b) Culpable violation of the Constitution; (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; (d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor; (e) Abuse of authority; (f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlunsod, sangguniang bayan, and sangguniang bayan, and sangguniang barangay; (g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and (h) Such other grounds as may be provided in this Code and other laws. An elective local official may be removed from office on the grounds enumerated above by order of the proper court. (Section 60, LGC) Q - What is required in case a complaint will be filed against an erring local elective official? A1. The said complaint must be verified. 2. It shall be filed in the following offices: (a) In the office of the President: In case of a complaint against any elective official of a province, a highly urbanized city, an independent component city or component city. (Section 61[a], LGC) (b) In the Sangguniang Panlalawigan: In case of a complaint against any elective official of a municipality. The decision of the sangguniang panlalawigan whose decision may be appealed to the Office of the President; (Section 61 [b], LGC) and (c) In the Sangguniang Panglunsod or Sangguniang Bayan: In case of a complaint against any elective barangay official. The decision of the sangguniang panglunsod or sangguniang bayan shall be final and executory. (Section 61[c], LGC) ##691 Q - What is the procedure to be observed after the filing of the said administrative complaint? A1. Within 7 days after the filing of administrative complaint: The office of the President or the sanggunian concerned, as the case may be, shall require the respondent to submit his verified answer within 15 days from receipt thereof; and commence the investigation of the case within 10 days after receipt of such answer. 2. If an elective official of a province or highly urbanized city: Such hearing and investigation shall be conducted in the place where he renders or holds office. For all other local elective officials, the venue shall be the place where the sanggunian concerned is located. 47

Q - Can an investigation be held prior to a local election? Can preventive suspension be imposed prior to local election? A - No investigation shall be held within 90 days immediately prior to any local election, and no preventive suspension shall be imposed within the said period. If preventive suspension has been imposed prior to the 90-day period immediately preceding local election, it shall be deemed automatically lifted upon the start of aforesaid period. (Section 62[c], LGC) Q - When the evidence of guilt is strong, what penalty can be imposed? A - Preventive suspension may be imposed under Sec. 63 of LGC. Q - Who can impose preventive suspension? A1. It may be imposed by the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city; (Section 63[1], LGC) 2. It maybe imposed by the Governor, if the respondent is an elective official of a component city or municipality; (Section 63[2], LGC) or 3. It may be imposed by the Mayor, if the respondent is an elective official of the barangay. (Section 63[3], LGC) ##692 Q - What specifically is required before preventive suspension may be imposed? A - Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. Provided, that, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, that in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension. (Section 63[b], LGC) Q - What happens upon the expiration of the preventive suspension? A - Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case. (Section 63[c], LGC) Q - What is the consequence if the power to impose preventive suspension is abused? A - It shall be penalized as abuse of authority. (Section 63[d], LGC) 48

EFFECT OF PREVENTIVE SUSPENSION ON THE SALARY OF RESPONDENT Q - What is the effect of preventive suspension on the salary of the respondent official preventively suspended? A - The respondent official preventively suspended from office shall receive no salary or compensation during such suspension; but, upon subsequent exoneration and reinstatement, he shall be paid full salary or compensation including such emoluments accruing during such suspension. (Section 64, LGC) RIGHTS OF RESPONDENT Q - What exactly are the rights of respondent in case a complaint is filed against him? A - The respondent shall be accorded full opportunity to appear and defend himself in person or by counsel, to confront and cross-examine the witnesses against him, and to require the attendance of witnesses and the production of documentary evidence in his favor through compulsory process of subpoena or subpoena duces tecum. (Section 65, LGC) ##693 FORM AND NOTICE OF DECISION Q - When is the investigation terminated? A - The investigation of the case shall be terminated within ninety (90) days from the start thereof. Q - When shall the decision be rendered? A - Within thirty (30) days after the end of the investigation, the Office of the President or the sanggunian concerned shall render a decision in writing stating clearly and distinctly the facts and the reasons for such decision. Copies of said decision shall immediately be furnished the respondent and all interested parties. (Section 66, LGC) Q - Can an erring local elective official be suspended for more than six (6) months? A - The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications required for the office. (Section 66[b], LGC) REMOVAL FROM OFFICE Q - What is the effect of a penalty of removal from office? A - The penalty of removal from office as a result of an administrative investigation shall be considered a bar to the candidacy of the respondent for any elective position. (Section 66[c], LGC) ADMINISTRATIVE APPEALS Q - Are decisions in administrative cases appealable? A - Yes, within thirty (30) days from receipt thereof. (Section 67[a], LGC) Q - Where shall the appeal be filed? 49

A1. In the Sangguniang Panlalawigan: In the case of decisions of the sangguniang panglungsod of component cities and the sangguniang bayan; (Section 67[a], LGC) and 2. In the Office of the President: In the case of decisions of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities. (Section 67[b], LGC) EXECUTION PENDING APPEAL Q - Can an appeal prevent a decision from becoming final or executory? A - An appeal shall not prevent a decision from becoming final or executory. The respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in the event he wins such appeal. In the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments during the pendency of the appeal. (Section 68, LGC) ##694 RECALL Q - Who can exercise the power of recall? A - The registered voters of a local government unit to which the local elective official subject to such recall belongs. (Section. 69, LGC) Q - On what ground can such power of recall be exercised? A - On the ground of loss of confidence. (Section 69, LGC) Q - How may it be initiated? A - It may be initiated by a preparatory recall assembly or by the registered voters of the LGU to which the local elective official subject to such recall belongs. PRA (PREPARATORY RECALL ASSEMBLY) Q - Is there a PRA in every LGU? A - Yes. There shall be a PRA in every province, city, district, and municipality. Q - What is the composition of the PRA? A1. Provincial level COMPOSITION: All mayors, vice-mayors, and sangguniang members of the municipalities and component cities. 2. City level COMPOSITION: All punong barangay and sangguniang barangay members in the city. 3. Legislative District level 50

COMPOSITION: In cases where sangguniang panlalawigan members are elected by district, all elective municipal officials in the district; and in cases where sangguniang panlungsod members are elected by district, all elective barangay officials in the district. 4. Municipal level COMPOSITION: All punong barangay and sangguniang barangay members in the municipality. Q - How shall a recall be initiated? A1. It shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for the purpose. (Section 70[c], LGC) 2. It may also be validly initiated upon petition of at least 25% of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected. (Section 70[d], LGC) ##695 Q - Can a written petition for recall be filed with the Comelec? A - Yes, this is allowed under Sec. 70(d)(1). Q - What are the requirements in this case? A - A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall proceeding against any elective official in the LGU concerned. Recall of provincial, city, or municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for the purpose. (Section 70[c], LGC) Recall of any elective provincial, city, municipal, or barangay official may also be validly initiated upon petition of at least 25% of the total number of registered voters in the LGU concerned during the election in which the local official sought to be recalled was elected. (Section 70[d], LGC) ELECTION RECALL Q - What happens after the said petition for recall is filed with the appropriate local office of the Comelec? A - The Comelec or its duly authorized representative shall set the date of the election on recall, which shall not be later than thirty (30) days after the filling of the resolution or petition for recall in the case of the barangay, city or municipal officials, and 45 days in the case of provincial officials. The official or officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions, and like other candidates, shall be entitled to be voted upon. (Section 71, LGC) EFFECTIVITY OF RECALL 51

Q - When shall the recall of an elective local official be effective? A - It shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office. (Section 72, LGC) Q - During the recall process, the elective local official sought to be recalled resigned. Can this be done? A - No. Section 73 of LGC provides as follows: "The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress." ##696 LIMITATIONS ON RECALL Q - What are the limitations on recall? A - (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence; (b) No recall shall take place within 1 year from the date of the official's assumption to office or 1 year immediately preceding a regular local election. (Section 74, LGC) EXPENSES INCIDENT TO RECALL ELECTION Q - Who shoulders the expenses incident to recall elections? A - It shall be borne by the Comelec. For this purpose, there shall be included in the annual General Appropriations Act a contingency fund at the disposal of the Comelec for the conduct of recall elections. (Section 75, LGC) HUMAN RESOURCES AND DEVELOPMENT Q - What governs all matters pertinent to human resources and development? A - It shall be governed by the Civil Service Law and such rules and regulations and other issuances promulgated pursuant thereto, unless otherwise specified in this Code. (Section 78, LGC) APPOINTMENT IN THE CAREER SERVICE OF THE LOCAL GOVERNMENT Q - What is the limitation when somebody is appointed in the career service of the local government? A - No person shall be appointed in the career service of the local government if he is related within the fourth civil degree of consanguinity or affinity to the appointing or recommending authority. (Section 79, LGC) REQUIREMENT IF A LOCAL CHIEF EXECUTIVE WILL FILL UP A VACANT CAREER POSITION Q - What should be observed when a local chief executive fills a vacant career position? A - (a) There shall be posted notices of the vacancy in at least 3 conspicuous public places in the local government unit concerned for a period not less than 15 days; (b) There shall be established in every province, city or municipality a personnel selection board to assist the 52

local chief executive in the judicious and objective selection of personnel for employment as well as for promotion, and in the formulation of such policies as would contribute to employee's welfare; and (c) The personnel selection board shall be headed by the local chief executive, and its members shall be determined by resolution of the sanggunian concerned. A representative of the Civil Service Commission, if any, and the personnel officer of the local government unit concerned shall be ex officio members of the board. (Section 80, LGC) ##697 COMPENSATION OF LOCAL OFFICIALS AND EMPLOYEES Q - Who determines the compensation of local officials and personnel? A - The Sanggunian concerned, subject to the following limitations: 1. That the increase in compensation of elective local officials shall take effect only after the terms of office of those approving such increase shall have expired; 2. That the increase in compensation of the appointive officials and employees shall take effect as provided in the ordinance authorizing such increase; 3. That said increases shall not exceed the limitations on budgetary allocations for personal services provided under Title Five, Book II of this Code; and 4. That such compensation may be based upon the pertinent provisions of R.A. No. 6758, otherwise known as the "Compensation and Position Classification Act of 1989." RESIGNATION OF ELECTIVE LOCAL OFFICIALS Q - When is a resignation of an elective local officials effective? A - The same shall be deemed effective only upon acceptance by: 1. The President - In the case of governors, vice-governors, and mayors and vice-mayors of highly urbanized cities and independent component cities; 2. The Governor - In the case of municipal mayors, municipal vice-mayors, city vice-mayors of component cities; 3. The Sanggunian concerned - In the case of sanggunian members; and 4. The City or Municipal Mayor - In the case of barangay officials. (Section 82[a], LGC) Q - Should a copy of the said resignation letter be furnished to the DILG? A - Yes. (Section 82[d], LGC) ##698 Q - What is the consequence if the resignation is not acted upon by the authority concerned? A - The resignation shall be deemed accepted if not acted upon by the authority concerned within 15 working days from receipt thereof. (Section 82[c], LGC) IRREVOCABLE RESIGNATIONS BY SANGGUNIAN MEMBERS Q - When is this deemed accepted? A - It shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records. Provided, however, that this subsection does not 53

apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignations. (Section 82[d], LGC) ADMINISTRATIVE DISCIPLINE AGAINST APPOINTIVE LOCAL OFFICIALS AND EMPLOYEES Q - What is the governing law regarding administrative complaint against appointive local officials and employees? A - Civil Service Law, rules and other pertinent laws. The results of such administrative investigations shall be reported to the CSC. PREVENTIVE SUSPENSION OF APPOINTIVE LOCAL OFFICIALS AND EMPLOYEES Q - May local chief executives preventively suspend any subordinate official or employee under his authority pending investigation? A - Yes, if the charge against such official or employee involves (a) dishonesty; (b) oppression or grave misconduct; (c) neglect in the performance of duties; (d) or if there is reason to believe that the respondent is guilty of the charges which would warrant his removal from the service. Q - Is the suspended official or employee entitled to reinstatement upon the expiration of the preventive suspension? A - Yes, but without prejudice to the continuation of the administrative proceedings against him until its termination. (Section 85[b], LGC) Q - If there is a delay in the proceedings of the case, is the time of the delay to be counted in computing the period of suspension? A - Sec. 85(b), last sentence, provides that "if the delay in the proceedings is due to the fault, neglect or request of the respondent, the time of the delay shall not be counted in computing the period of suspension. ##699 ADMINISTRATIVE INVESTIGATION Q - Who may conduct an administrative investigation in any LGU? A - Any person or committee duly authorized by the local chief executive. Q - What is the responsibility of the said person or committee? A(1) It shall conduct hearings on the cases brought against the appointive local officials and employees complained of and (2) It shall submit its findings and recommendations to the local chief executive concerned within 15 days from the conclusion of the hearings. Q - When shall the administrative case be decided? A - 90 days from the time the respondent is formally notified of the charges. 54

DISCIPLINARY JURISDICTION Q - What are the penalties that the local chief executive may impose? A - Except as otherwise provided by law, the local chief executive may impose the penalty of: R-D-S-F-R. 1. Removal from the service. 2. Demotion in rank 3. Suspension for not more than one (1) year without pay 4. Fine in an amount not exceeding 6 months salary 5. Reprimand (Section 87, LGC) Q - What penalty is appealable and what penalty is final? A - If the penalty imposed is suspension without pay for not more than 30 days, his decision shall be final. If the penalty imposed is heavier than suspension of 30 days, the decision shall be appealable to the Civil Service Commission, which shall decide the appeal within 30 days from receipt thereof. (Sec. 87, last sentence) LOCAL GOVERNMENT UNITS I. BARANGAY A. THE PUNONG BARANGAY B. THE SANGGUNIANG BARANGAY C. BARANGAY ASSEMBLY D. LUPONG TAGAPAMAYAPA E. PANGKAT NG TAGAPAGKASUNDO F. SANGGUNIANG KABATAAN ##700 II. THE MUNICIPALITY A. THE MUNICIPAL MAYOR B. THE VICE-MAYOR C. THE SANGGUNIANG BAYAN III. THE CITY A. THE CITY MAYOR B. THE CITY VICE-MAYOR C. THE SANGGUNIANG PANLUNGSOD IV. THE PROVINCE A. THE PROVINCIAL GOVERNOR B. THE PROVINCIAL VICE-GOVERNOR C. THE SANGGUNIANG PANLALAWIGAN I. BARANGAY Q - What is the role of the barangay? 55

A - As the basic political unit, the barangay serves as the primary planning and implementing unit of government policies, plans, programs, projects, and activities in the community, and as a forum wherein the collective views of the people may be expressed, crystallized and considered, and where disputes may be amicably settled. (Section 384, LGC) MANNER OF CREATION Q - How is a barangay created, divided, merged, abolished, or its boundary substantially altered? A(1) By law; or (2) by ordinance of the sangguniang panlalawigan or sangguniang panlungsod, subject to the approval by a majority of the votes cast in a plebiscite to be conducted by the Comelec in the LGU directly affected. (Section 385, LGC) (2) By an act of Congress, a barangay may be created to enhance the delivery of basic services in the indigenous cultural communities. (Section 386, LGC) POPULATION OF A BARANGAY Q - Is there a required population before a barangay can be created? A - No specific number of inhabitants is required. Section 386 of the LGC merely requires that (a) A barangay may be created out of a contiguous territory which has a population of at least 2,000 inhabitants as certified by the National Statistics Office except in cities and municipalities within Metro Manila and other metropolitan political subdivisions or in highly urbanized cities where such territory shall have a certified population of at least 5,000 inhabitants. Provided, that the creation thereof shall not reduce the population of the original barangay or barangays to less than the minimum requirement prescribed herein. ##701 To enhance the delivery of basic services in the indigenous cultural communities, barangays may be created in such communities by an Act of Congress, notwithstanding the above requirement. (b) The territorial jurisdiction of the new barangay shall be properly identified by metes and bounds or by more or less permanent natural boundaries. The territory need not be contiguous if it comprises two (2) or more islands. (c) The governor or city mayor may prepare a consolidation plan for barangays, based on the criteria prescribed in this Section, within his territorial jurisdiction. The plan shall be submitted to the sangguniang panlalawigan or sangguniang panlungsod concerned for appropriate action. In the case of municipalities within the Metropolitan Manila area and other metropolitan political subdivisions, the barangay consolidation plan shall be prepared and approved by the sangguniang bayan concerned. (Section 386, LGC) BARANGAY OFFICIALS Q - Who are the barangay officials? 56

A1. Punong Barangay 2. Seven (7) Sangguniang barangay members 3. Kabataan Chairman 4. Barangay Secretary 5. Barangay Treasurer (Section 387, LGC) Q - What are the other offices in the Barangay? A1. Lupong Tagapamayapa 2. Community Brigades 3. Other offices as may be necessary (Section 387, LGC) ##702 Q - Who are the persons in authority and who are the agents of person in authority? AOFFICIALS 1. Punong Barangay - Person in Authority 2. Sangguniang Barangay members - Person in Authority 3. Members of the Lupon Tagapamayapa - Person in Authority 4. Other Barangay officials charged in the maintenance of public order, protection and security of life and property and any barangay member who comes to the aid of the person in authority. (Section 388, LGC) - Agents of persons in authority POWERS, DUTIES AND FUNCTIONS OF THE PUNONG BARANGAY, SANGGUNIANG BARANGAY Q - What are the powers, duties and functions of the Punong Barangay? A - Enumerated in Section 389 of the LGC. Q - What are the powers, duties and functions of the Sangguniang Barangay? A - Enumerated in Section 390 of the LGC. Q - Can the Barangay Chairman possess and carry firearm? A - Yes, but only within his territorial jurisdiction subject to appropriate rules and regulations. (Section 389, LGC) KATARUNGANG PAMBARANGAY Q - What was created to supervise conciliation of disputes in the barangay level? 57

A - The Lupong Tagapamayapa and the Pangkat ng Tagapagkasundo. Q - What are the functions of the Lupon? A - The Lupon shall: (a) Exercise administrative supervision over the conciliation panels provided herein. (b) Meet regularly once a month to provide a forum for matters relevant to the amicable settlement of disputes, and to enable various conciliation panel members to share with one another their observations and experiences in effecting speedy resolution of disputes; and (c) Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance. (Section 402, LGC) ##703 Q - What is the task of the Pangkat ng Tagapagkasundo? A - The members of the Lupon shall serve as conciliators. (Section 404, LGC) AMICABLE SETTLEMENT OF DISPUTES BETWEEN PERSONS RESIDING IN THE SAID BARANGAY Q - Where shall said disputes be brought for amicable settlement? A - Before the Lupon of the said Barangay. Q - What are the different disputes that may be brought for amicable settlement? A(a) Those involving actual residents of different barangays within the same city or municipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complainant. (b) All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated. (c) Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study shall be brought in the barangay where such workplace or institution is located. (Section 409, LGC) LIMITATIONS BEFORE A COMPLAINT, PETITION, ACTION OR PROCEEDING INVOLVING ANY MATTER WITHIN THE AUTHORITY OF THE LUPON COULD BE FILED IN COURT (Section 412, LGC) Q - What is the limitation? A(a) Pre-condition to filing of complaint in court. - No complaint, petition, action or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon chairman or pangkat chairman or unless the settlement has been repudiated by the parties thereto. 58

(b) Where parties may go directly to court. - The parties may go directly to court in the following instances: ##704 (1) Where the accused is under detention; (2) Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings; (3) Where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; and (4) Where the action may otherwise be barred by the statute of limitations. (c) Conciliation among members of indigenous cultural communities. - The customs and traditions of indigenous cultural communities shall be applied in settling disputes between members of the cultural communities. (Section 412, LGC) CASES WHEN THE PARTIES MAY GO DIRECTLY TO COURT Q - When can the parties go directly to court? A(1) Where the accused is under detention; (2) Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings; (3) Where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; and (4) Where the action may otherwise be barred by the statute of limitations. PROVISO: If the conciliation is among members of the indigenous cultural communities, their customs and traditions shall be applied in settling disputes. APPEARANCES IN KATARUNGANG PAMBARANGAY PROCEEDINGS Q - Can the parties be represented by counsel or representative? A - In all katarungang pambarangay proceedings, the parties must appear in person without the assistance of counsel or representative, except for minors and incompetents who may be assisted by their next-of-kin who are not lawyers. (Section 415, LGC) SANGGUNIANG KABATAAN Q - Is there a sangguniang kabataan in every barangay? A - Yes. (Section 423, LGC) Q - What is its composition? A - Chairman, (7) seven members, a secretary and a treasurer. ##705 Q - What is the composition of the Katipunan ng Kabataan? A - The Katipunan ng Kabataan shall be composed of all citizens of the Philippines actually residing in the barangay for at least six (6) months, who are fifteen (15) but not more than 59

twenty-one (21) years of age, and who are duly registered in the list of the sangguniang kabataan or in the official barangay list in the custody of the barangay secretary. (Section 424, LGC) Q - What are the powers and functions of the Sangguniang Kabataan? A - The Sangguniang Kabataan shall: (a) Promulgate the resolutions necessary to carry out the objectives of the youth in the barangay in accordance with the applicable provisions of this code; (b) Initiate programs designed to enhance the social, political, economic, cultural, intellectual, moral, spiritual, and physical development of the members; (c) Hold fund-raising activities, the proceeds of which shall be tax-exempt and shall accrue to the general fund of the sangguniang kabataan: Provided, however; That in the appropriation thereof, the specific purpose for which such activity has been held shall be first satisfied; (d) Create such bodies or committees as it may deem necessary to effectively carry out its programs and activities; (e) Submit annual and end-of-term report to the sangguniang barangay on their projects and activities for the survival as development of the youth in the barangay; (f) Consult and coordinate with all youth organizations in the barangay for policy formulation and program implementation; (g) Coordinate with the appropriate national agency for the implementation of youth development projects and programs at the national level; and (h) Exercise such other powers and perform such other duties and functions as the sanggunian barangay may determine or delegate or as may be prescribed by law or ordinance. (Section 426, LGC) FEDERATION OF SANGGUNIANG KABATAAN Q - Is there a federation of Sangguniang Kabataan in all levels? A - Yes, as provided in Section 436 of the LGC, thus 1. Pambansang Pederasyon - in Municipalities 2. Panglungsod na Pederasyon - in Cities 3. Panlalawigan na Pederasyon - in Provinces 4. Pangmetropolitang Pederasyon - in Special Metropolitan Subdivisions 5. Pambansang Pederasyon - in the National Level ##706 THE MUNICIPALITY, CITY, PROVINCE AT A GLANCE I. MUNICIPALITY ROLE: The municipality, consisting of a group of a barangays, serves primarily as a general purpose government for the coordination and delivery of basic, regular and direct services and effective governance of the inhabitants within its territorial jurisdiction. (Section 440, LGC) MANNER OF CREATION: A municipality may be created, divided, merged, abolished, or its boundary substantially altered only by an Act of Congress and subject to the 60

approval by a majority of the votes cast in a plebiscite to be conducted by the Comelec in the local government unit or units directly affected. Except as may otherwise be provided in the said Act, the plebiscite shall be held within one hundred twenty (120) days from the date of its effectivity. (Section 441, LGC) REQUISITES FOR CREATION: (a) A municipality may be created if it has an average annual income as certified by the provincial treasurer, of at least Two million five hundred thousand pesos (P2,500,000.00) for the last two (2) consecutive years based on the 1991 constant prices; a population of at least twenty-five thousand (25,000.00) inhabitants as certified by the National Statistics Office; and a contiguous territory of at least fifty (50) square kilometers as certified by the Lands Management Bureau; Provided, that the creation thereof shall not reduce the land area, population or income of the original municipality or municipalities at the time of said creation to less than the minimum requirements prescribed herein. (b) The territorial jurisdiction of a newly-created municipality shall be properly identified by metes and bounds. The requirement on land area shall not apply where the municipality proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. (c) The average annual income shall include the income accruing to the general fund of the municipality concerned, exclusive of special funds, transfers and non-recurring income. (d) Municipalities existing as of the date of the effectivity of this code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of this Code shall henceforth be considered as regular municipalities. (Section 442, LGC) ##707 II. CITY ROLE: The city, consisting of more urbanized and developed barangays, serves as a generalpurpose government for the coordination and delivery of basic, regular, and direct services and effective governance of the inhabitants within its territorial jurisdiction. (Section 449, LGC) MANNER OF CREATION: A city may be created, divided, merged, abolished, or its boundary substantially altered only by an Act of Congress and subject to the approval by a majority of the votes cast in a plebiscite to be conducted by the Comelec in the local government unit or units directly affected. Except as may otherwise be provided in the such Act, the plebiscite shall be held within one hundred twenty (120) days from the date of its effectivity. (Section 449, LGC) REQUISITES FOR CREATION: (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and it has either of the following requisites: 61

(i) A contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands Management Bureau; or (ii) A population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office. Provided, that, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers and non-recurring income. (Section 450, LGC) ##708 III. PROVINCE ROLE: The province composed of a cluster of municipalities, or municipalities and component cities, and as a political and corporate unit of government, serves as a dynamic mechanism for developmental processes and effective governance of local government units within its territorial jurisdiction. (Section 459, LGC) MANNER OF CREATION: A province may be created, divided, merged, abolished, or its boundary substantially altered only by an Act of Congress and subject to the approval by a majority of the votes cast in a plebiscite to be conducted by the Comelec in the local government unit or units directly affected. The plebiscite shall be held within one hundred twenty (120) days from the date of its effectivity of said Act, unless otherwise provided therein. (Section 460, LGC) REQUISITES FOR CREATION: (a) A province may be created if it has an average annual income, as certified by the Department of Finance of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices, and it has either of the following requisites: (i) A contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or (ii) A population of not less than two hundred fifty thousand (250,000) inhabitants, as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. 62

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers and non-recurring income. (Section 461, LGC) SETTLEMENT OF BOUNDARY DISPUTES Q - What is the boundary dispute referred to in Section 118 of the LGC? A - It is a boundary dispute between and among LGU's. More specifically, there are four (4) kinds of boundary disputes mentioned in Section 118, that, as much as possible, shall be settled amicably. ##709 BOUNDARY DISPUTES: 1. Involving 2 or more barangays in the same city or municipality. 2. Involving 2 or more municipalities within the same province. 3. Involving municipalities or component cities of different provinces. 4. Involving a component city or municipality on the one hand and a highly urbanized city on the other, or 2 or more highly urbanized cities. SHALL BE REFERRED FOR SETTLEMENT: 1. To the sangguniang panlungsod or sangguniang bayan. 2. To the sangguniang panlalawigan concerned. 3. To the sanggunian of the provinces concerned. 4. To the respective sanggunian of the parties. Q - What happens if the sanggunian fails to effect an amicable settlement within 60 days from the date the dispute was referred to? A - It shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within 60 days from the date of the certification referred to above. (Section 118[e], LGC) Q - Is the decision of the sanggunian concerned appealable? A - Yes, within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned to the proper RTC having jurisdiction over the area in dispute. (Section 119, LGC) Q - Within what time shall the RTC decide the appeal? A - Within one (1) year from the filing thereof. Q - Pending final resolution of the case in the RTC, what happens to the disputed area? A - The disputed area prior to the dispute shall be maintained and continued for all legal purposes. LOCAL INITIATIVE AND REFERENDUM Q - Define local initiative. 63

A - Local initiative is the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance. (Section 120, LGC) Q - Who may exercise local initiative? A - The power of local initiative and referendum may be exercised by all registered voters of the provinces, cities, municipalities, and barangays (Section 121, LGC) ##710 Q - What is the procedure in local initiative? A 1. How many registered voters may file a petition? Not less than 1,000 registered voters in case of provinces and cities, 100 in case of municipalities, and 50 in case of barangays, may file a petition with the sanggunian concerned proposing the adoption, enactment, repeal, or amendment of an ordinance. (Section 122[a], LGC) 2. What happens if no favorable action is taken by the sanggunian concerned? If no favorable action thereon is taken by the sanggunian concerned within 30 days from its presentation, the proponents, through their duly authorized and registered representatives, may invoke their power of initiative, giving notice thereof to the sanggunian concerned. (Section 122[b], LGC) 3. How shall the proposition be numbered? The proposition shall be numbered serially starting from roman numeral I. The Comelec or its designated representative shall extend assistance in the formulation of the proposition. (Section 122[c], LGC) 4. How many propositions may be submitted? Two (2) or more propositions may be submitted in an initiative. (Section 122[d], LGC) 5. How many days are given to the proponents to collect the required number of signatures? Proponents shall have 90 days in case of provinces and cities, 60 days in case of municipalities, and 30 days in case of barangays, from notice mentioned in subsection (b) thereof to collect the required number of signatures. (Section 122[e], LGC) 6. Where shall the petition be signed? The petition shall be signed before the election registrar, or his designated representatives, in the presence of a representative of the proponent, and a representative of the sanggunian concerned in a public place in the local government unit, as the case may be. Stations for collecting signatures may be established in as many places as may be warranted. (Section 122[f], LGC) 7. When shall the certification be issued as to whether or not the required number of signatures has been obtained? Upon the lapse of the period herein provided, the Comelec, through its office in the LGU concerned, shall certify as to whether or not the required number of signatures has been obtained. Failure to obtain the required number defeats the proposition. (Section 122[g], LGC) 8. What happens if the required number of signatures is obtained? If the required number of signatures is obtained, the Comelec shall then set a date for the initiative during which the proposition shall be submitted to the registered voters in the LGU concerned for their approval within 60 days from the date of certification by the Comelec, as provided in subsection (g) hereof, in case of provinces and cities, 45 days in case of municipalities, and 64

30 days in case of barangays. The initiative shall then be held on the date set, after which the results thereof shall be certified and proclaimed by the Comelec. (Section 122[h], LGC) ##711 EFFECTIVITY OF LOCAL PROPOSITIONS Q - When shall the proposition, as approved by a majority of the votes cast, take effect? A - If the proposition is approved by a majority of the votes cast, it shall take effect 15 days after certification by the Comelec as if affirmative action thereon had been made by the sanggunian and local chief executive concerned. If it fails to obtain said number of votes, the proposition is considered defeated. (Section 123, LGC) LIMITATIONS ON LOCAL INITIATIVE Q - What are the limitations on local initiative? A(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 sanggunians to enact. (c) If at any time before the initiative is held, the sanggunian concerned adopts in toto the proposition presented and the local chief executive approves the same, the initiative shall be cancelled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided. (Section 124, LGC) LIMITATIONS UPON SANGGUNIANS Q - Can the sanggunian concerned repeal, modify or amend any proposition or ordinance approved through the system of initiative? A - It cannot do so within 6 months from the date of the approval thereof. The said proposition may be amended, modified or repealed by the sanggunian within 3 years thereafter by a vote of 3/4 of all its members. Provided, that in case of barangays, the period shall be 18 months after the approval thereof. (Section 125, LGC) ##712 LOCAL REFERENDUM Q - Define local referendum. A - Local referendum is the legal process whereby the registered voters of the local government may approve, amend or reject an ordinance enacted by the sanggunian. Q - How shall a local referendum be held and when can it be held? A - The local referendum shall be held under the control and direction of the Comelec within 60 days in the case of provinces and cities, 45 days in case of municipalities and 30 days in case of barangays. The Comelec shall certify and proclaim the results of the said referendum. (Section 126, LGC) Q - Can the proper courts declare null and void any proposition? A - Yes, on the following grounds: (1) For violation of the Constitution; or (2) For want of capacity of the sanggunian concerned to enact the said measure. 65

INTERGOVERNMENTAL RELATIONS NATIONAL SUPERVISION OVER LOCAL GOVERNMENT Q - Who shall exercise general supervision over LGU's? A - The President. (Section 25[a], LGC) Q - What is the reason behind the power of the President to exercise general supervision over LGU's? A - Section 25 of the LGC says that this is "consistent with the basic policy of local autonomy in order" to ensure that their acts are within the scope of their prescribed powers and functions. Q - How shall the President exercise his supervisory authority? A - The President shall exercise supervisory authority directly over: 1. Provinces 2. Highly urbanized cities 3. Independent component cities, through the province with respect to component cities and municipalities, and through the city and municipality with respect to barangays COORDINATION BETWEEN NATIONAL AGENCIES AND LGU'S Q - Does the law provide that they shall coordinate with each other? If so, how? A - National agencies and offices with implementation functions shall coordinate with one another and with the local government units concerned in the discharge of these functions. They shall ensure the participation of local government units both in the planning and implementation of said national projects. ##713 The President may, upon request of the LGU concerned, direct the appropriate national agency to provide financial, technical, or other forms of assistance to the LGU. Such assistance shall be extended at no extra cost to the LGU concerned. National agencies and offices including government-owned and controlled corporations with field units or branches in a province, city, or municipality shall furnish the local chief executive concerned, for his information and guidance, monthly reports including duly certified budgetary allocations and expenditures. (Section 25[b], [c], [d], LGC) DUTY OF NATIONAL GOVERNMENT IN THE MAINTENANCE OF ECOLOGICAL BALANCE Q - What is the duty of National Government regarding the maintenance of ecological balance? A - To consult with LGU's, NGO's and other sectors concerned and explain the goals and objectives of its project; its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof. (Section 26, LGC) 66

Q - What is the project or program referred to? A - Any project or program that may cause pollution, climatic change, depletion of nonrenewable resources, loss of cropland, rangeland, or forest cover, and extinction of animal or plant species. (Section 26, LGC) Q - Is prior consultation mandatory? A - Yes. Section 27 of the LGC provides as follows: "No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2(c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained. Provided, that occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution. (Section 27, LGC) RELATIONS WITH NATIONAL POLICE Q - Does a local chief executive have control and supervision over the units of the PNP? A - Yes, but its operational control and supervision over the police force, fire protection unit and jail management personnel shall be limited to their respective jurisdictions, and this is governed by Republic Act No. 6975, otherwise known as the DILG Act of 1990. (Section 28, LGC) ##714 INTER-LOCAL GOVERNMENT RELATIONS I. PROVINCIAL RELATIONS WITH COMPONENT CITIES Q - Are highly urbanized cities and independent component cities independent of the province? A - Yes, subject to the following limitations: 1. The governor shall review all executive orders promulgated by the component city or municipal mayor within his jurisdiction, except as otherwise provided under the Constitution and special statutes; (Section 30, LGC) 2. The province, through the governor, shall ensure that every component city and municipality within its territorial jurisdiction acts within the scope of its prescribed powers and functions. (Section 29, LGC) II. CITY OR MUNICIPAL MAYOR AND THE PUNONG BARANGAY Q - Can the city or municipal mayor review all the executive orders promulgated by the punong barangay within his jurisdiction? A - Yes. In fact, Section 30 of the LGC requires the following: 1. Copies of said orders shall be forwarded to the governor or the city or municipal mayor, as the case may be, within three (3) days from its issuance. 2. In all instances of review, the local executive concerned shall ensure that such executive orders are within the powers granted by law and in conformity with provincial, city or municipal ordinances. (Section 30, LGC) 67

Q - What happens if the governor or city or municipal mayor fails to act on said executive orders within thirty (30) days from their submission? A - They shall be deemed consistent with law and therefore valid. (Section 30[b], LGC) Q - Who may be consulted by the municipal government on any legal question affecting the municipality? A - The municipal legal officer, if there is one. If there is none, the provincial legal officer, and in the absence of the latter, the provincial prosecutor. III. CITY OR MUNICIPALITY AND THE COMPONENT BARANGAYS Q - Does the city or municipality have supervision over component barangays? A - Yes, but it shall only exercise "general supervision over component barangays to ensure that said barangays act within the scope of their prescribed powers and functions." ##715 IV. COOPERATIVE UNDERTAKINGS AMONG LOCAL GOVERNMENTS Q - May LGU's group themselves for purposes commonly beneficial to them? A - Yes. The participating LGU's involved may, upon approval by the sanggunian concerned after a public hearing conducted for the purpose, contribute funds, real estate, equipment, and other kinds of property and appoint or assign personnel under such terms and conditions as may be agreed upon by the participating LGU's. V. RELATIONS OF LGU'S WITH PEOPLE'S AND NGO'S Q - How do they help one another? A1. LGU's shall promote the establishment and operation of social organizations to become active partners in the pursuit of local autonomy. (Section 34, LGC) 2. LGU's may enter into joint ventures and other cooperative arrangements of the said organizations to engage in the delivery of certain basic services, capability building and livelihood projects, and to develop local enterprises designed to improve productivity and income, diversify agriculture, special industrialization, promote ecological balance, and enhance the economic and social well-being of the people. (Section 35, LGC) 3. The LGU may, through its local chief executive and with the concurrence of the sanggunian concerned, provide assistance, financial or otherwise, to such organizations for economic, socially oriented, environmental, or cultural projects to be implemented within its territorial jurisdiction. (Section 36, LGC) ARTICLE XI ACCOUNTABILITY OF PUBLIC OFFICERS Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. Q - Explain the principle of "public office is a public trust." 68

A - Under this principle, public officials in all the ladders of our government should always remember that they were merely entrusted by the people to perform the duties and responsibilities of their offices for a fixed period of time. They were chosen to serve the people, not to cheat them. Their offices are not their own, nor can they be treated as private properties which they can manage or dispose of at their whim and caprice. ##716 Q - What is a public office? A - It is the right, authority and duty, created and conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by the individual for the benefit of the public. (Fernandez vs. Sto. Tomas, 242 SCRA 192) Q - What could be the importance of having this policy when this is in reality breached by many public officials from time to time? A - Despite so many sad experiences in past elections, a majority of the people have never learned from their mistakes. They still believe in empty and false promises and continue to elect people who choose to be masters of their own selfish agenda, at the expense of the people to whom they are committed to serve "with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives." Section 1 may have been breached a thousand times, or even more, but it serves at least as a constant reminder to all public officials that "public office is a public trust." Q - What is the meaning of the word "office"? A - It is that function by virtue of which a person has some employment in the affairs of another, whether the incumbent holds the position either by virtue of an appointment or by election, and whether the appointment is for a fixed term or at the pleasure of the appointing power. Q - Distinguish public office from contract. APUBLIC OFFICE: 1. It is a creation of sovereignty. 2. It is more lasting in nature. 3. Its objective is to carry out sovereign as well as governmental functions which involve even persons who are not parties to the agreement CONTRACT: 1. Contract arises from the agreement or will of the parties. 2. The effectivity of the contract may be for a long or short period of time, as may be agreed upon by the parties. 69

3. The obligations arising from the contract is, as a rule, enforceable only as between the parties to the contract (Article 1311, New Civil Code) Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust All other public officers and employees may be removed from office as provided by law, but not by impeachment. ##717 Q - What is impeachment? A - In this jurisdiction, it could be defined as the extra-ordinary means of removing the impeachable public officials mentioned in Article XI, Section 2, through a verified complaint filed by any member of the House of Representatives or by any citizen upon a resolution of endorsement by any member thereof, which complaint is tried by the Senate to decide whether any of the grounds provided in Section 2 exist or not and whether a judgment of impeachment will be rendered or not. Q - Who are the officials removable by impeachment? A - The officials removable by impeachment are the following: 1. The President 2. The Vice-President 3. The Members of the Supreme Court 4. The Members of the Constitutional Commissions 5. The Ombudsman Q - What are the grounds for impeachment? A - Section 2 enumerates the grounds for impeachment and they are as follows: 1. Culpable violation of the Constitution 2. Treason 3. Bribery 4. Graft and corruption 5. Other high crimes 6. Betrayal of public trust Q - Define each. A - Culpable violation of the Constitution - It is a willful and intentional violation of the Constitution. It does not, therefore cover violations committed unintentionally, or in good faith, or on account of an honest mistake of judgment. 70

Treason - Treason is defined by Article 114 of the Revised Penal Code in this manner: "Any Filipino citizen who levies war against the Philippines or adheres to her enemies, giving them aid or comfort within the Philippines or elsewhere," commits the crime of treason. Treason, in its general sense, is a violation by a subject of his allegiance or his sovereign or to the supreme authority of the State. (The Revised Penal Code, Book Two, Luis B. Reyes, citing U.S. vs. Abad, 1 Phil. 437) ##718 Bribery - Bribery is defined in Articles 210 and 211 of the Revised Penal Code. Article 210 refers to Direct Bribery which is committed by "any public officer who shall agree to perform an act constituting a crime, in connection with the performance of his official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another x x x." "If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and the officer executed said act, he shall suffer the same penalty provided in the preceding paragraph; and if said act shall not have been accomplished, the officer shall suffer the penalties of prison correccional in its medium period and a fine of not less than twice the value of such gift." "If the object for which the gift was received or promised was to make the public officer refrain from doing something which it was his official duty to do, he shall suffer the penalties of prison correccional in its maximum period and a fine of not less than three times the value of such gift." Article 211 refers to Indirect Bribery. It provides as follows: "The penalties of prison correccional, in its medium and maximum periods, suspension and public censure shall be imposed upon any public officer who shall accept gifts offered to him by reason of his office." Graft and Corruption - This is defined by Section 3 of Republic Act No. 3019 in this manner: "In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared unlawful: a. Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offence in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. b. Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his capacity has to intervene under the law. c. Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act. ##719 71

d. Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. e. Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefit, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. f. Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. g. Entering, on behalf of the government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. h. Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. i. Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transactions or acts by the board, panel or group to which they belong. ##720 j. Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege, or advantage, or of mere representative or dummy of one who is not so qualified or entitled. k. Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. "The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section 9 of this Act and shall be permanently or temporarily disqualified, in the discretion of the Court, from transacting business in any form with the government." Other High Crimes - They are those offenses "which like treason and bribery are of enormous gravity that they strike at the very life or orderly workings of government." (Report of the 72

Special Committee on the Impeachment of President Elpidio Quirino). Will this include involvement in drug syndicates? Considering the ill effects of drugs to society and the day to day commission of drug-related offenses which consume the time, effort, and resources of our government and which destroy the lives of many people, especially the young, they will fall within the definition of high crime. Betrayal of Public Trust - This covers any and all offenses or acts which are violations of the oath of office of the impeachable officers aforementioned, even if they are not punishable by statute as penal offenses, as long as they render the public official concerned as unfit to continue in office (i.e., tyrannical abuse of power, inexcusable negligence of duty, betrayal of public interest, breach of official duty, cronyism, favoritism and obstruction of justice). Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. ##721 (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded (4) In case the verified complaint or resolution of impeachment is filed at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (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. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. (8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. Q - What is the procedure of impeachment? 73

A - The simplified procedure of impeachment is as follows: 1. Filing of a complaint: This starts the proceedings for impeachment. a. The complaint is filed either by a member of the House of Representatives; or by any citizen upon a resolution of endorsement by any member thereof. 2. Complaint is referred to the proper Committee: a. The Committee conducts deliberation of the complaint that was filed. Thereafter, the Committee should decide whether the complaint is sufficient in form and in substance. b. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty (60) session days from the referral of the complaint, together with the corresponding resolution. c. The resolution shall be calendared for consideration by the House within ten (10) session days from receipt thereof. d. A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. ##722 3. Complaint is sent to the Senate which will try and decide cases of impeachment: a. If filed by at least 1/3 of all the members of the House, the same shall constitute the Articles of Impeachment. 4. Trial and Conviction: The Senate tries the impeachment and convicts by a vote of 2/3 of all the members of the Senate. Q - Who can file a complaint for impeachment? A - Section 3(2), Article XI, states that "a verified complaint for impeachment may be filed by (a) any Member of the House of Representatives or (b) by any citizen upon a resolution of endorsement by any Member thereof. Q - Can an impeachment proceeding be initiated against the same official more than once within a period of one year? A - No. Section 3(5) provides that "No impeachment proceedings shall be initiated against the same official more than once within a period of one year." This is intended to prevent impeachment from being an instrument of mere harassment. Q - When is impeachment proceedings considered "initiated"? A - There are conflicting opinions on this question until the Supreme Court decided the case of "ERNESTO B. FRANCISCO, JR., ETC. VS HOUSE OF REPRESENTATIVES, ET AL.," docketed as G.R. No. 160261, NOVEMBER 10, 2003, where this issue, among others, was resolved. The pertinent portion of the decision on this point is as follows: "xxx The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory construction is, therefore, in order. That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado, who eventually became an 74

Associate Justice of this Court, agreed on the meaning of "initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong during the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at which he added that the act of "initiating" included the act of taking initial action on the complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI(3) and (5) of the Constitution means to file the complaint and take initial action on it. ##723 "Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. As Webster's Third New International Dictionary of the English Language concisely puts it, it means "to perform or facilitate the first action," which jibes with Justice Regalado's position, and that of Father Bernas, who elucidated during the oral arguments of the instant petitions on November 5, 2003 in this wise: Briefly then an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice." (Underlining Supplied) Background: At the time I wrote my reviewer in 2001, this is my opinion; "The author believes that if Section 3 will be strictly construed, the same is considered "initiated" from the time it is filed by a member of the House of Representatives or by any citizen upon a resolution of indorsement by any member thereof. It is from that time when the filing of the complaint is initiated and commenced. It is actually the filing that starts the proceedings. As to whether or not the complaint that was filed is sufficient or insufficient in form and in substance, is another issue which, in fact, may or may not cause the filing of indorsement of the resolution of impeachment in the Senate. The problem with this interpretation, however, is that it may provide a loophole for constitutional officers to invoke it for their own advantage. An officer concerned, for instance, who knows beforehand that an impeachment complaint will be or is about to be filed, may use people of his confidence to pre-empt such an action, by filing a baseless complaint and later on, it will be easier for the said officer to obtain a dismissal of the same. If this happens, the said officer will be protected by the constitutional provision, thus: "No impeachment proceedings shall be initiated against the same official more than once within a period of one year." (Section 3[5]). Q - Who has the sole power to try and decide all cases of impeachment? A - "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." (Underlining Supplied) (Section 3[6], Article XI) 75

##724 Q - What is the nature of an impeachment proceeding? A - Justice Isagani Cruz said: "Impeachment proceedings are in a sense judicial and penal in character. Hence, the constitutional rights of the accused as guaranteed in Article III, such as the right to due process and against self-incrimination, are available in these proceedings. The Rules of Court, while not strictly applicable as the Congress is not a court of justice, are nonetheless observed in the conduct of the trial. As in ordinary criminal actions, proof beyond reasonable doubt is necessary for conviction." On the basis of the impeachment trial of President Joseph Estrada, I am more inclined to submit that while impeachment proceeding is in a sense judicial in character, it is not necessarily penal in character for it is clear that in case of conviction of President Joseph Estrada, he shall be punishable only by: 1) Removal from office; and 2) Disqualification to hold any office under the Republic of the Philippines. (Section 3[71, Article XI of the 1987 Constitution) The said penalty is more of a penalty in an administrative proceeding than in a criminal proceeding. Section 7, Article XI provides in full: "Judgment in cases of impeachment shall not extend further that removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law" The fact that the last sentence of Section 7 provides for a situation where a party convicted "shall be nevertheless liable and subject to prosecution, trial, and punishment according to law" does not make impeachment a criminal proceeding because it is clear that it is only in case of his conviction that President Estrada shall be liable and subject to prosecution, trial, and punishment. It is only from there when the President will be subject to a criminal proceeding. Q - What rules apply in impeachment proceeding? A - The rules of the present Senate. The Rules of Court shall supplement the rules of the Senate whenever it is practicable. ##725 Q - What is the quantum of evidence required for conviction? A - Conviction in the criminal proceeding should be proven by proof beyond reasonable doubt but conviction in the impeachment proceeding will only require substantive evidence because, as already mentioned, the same is only an administrative proceeding and by express provision of Section 3[7], Article XI, "judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic 76

of the Philippines." The said penalty therefore does not require imprisonment and merely considered as administrative penalty. Q - What is needed in order to convict a person subject of impeachment? A - Section 3(6) "x x x No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate." Q - What is the effect of a judgment in case of impeachment? A - (1) Section 7(3), Article XI specifies the following effects: a. Removal from office; b. Disqualification to hold any office under the Republic of the Philippines; c. In addition, the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. Q - If President Estrada was acquitted in the impeachment proceeding, can he be subsequently subject to prosecution, trial, conviction and punishment in the regular courts of justice? A - There is no precedent yet on this question. The exact wording of Section 3(7), Article XI which provides, thus: “Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution trial, and punishment according to law "(Underlining Supplied), is interpreted by some lawyers to mean that it is only in case of his conviction, that he shall be liable and subject to prosecution, trial and punishment. Many lawyers, including myself, however, are inclined to take the view that he or anybody else similarly situated may still be subject of a criminal prosecution for the following reasons: (1) Impeachment is separate and distinct from a criminal proceeding; (2) The purpose of impeachment is to find out whether the official subject of impeachment is fit or unfit to continue holding on to a position of trust, and if evidence so warrants, that he/she is unfit, to find out whether he/she shall be removed from office and disqualified to hold any office under the Republic of the Philippines; (3) The purpose of a criminal proceeding is to find out if the accused is guilty or not guilty of the offense charged. The alleged guilt shall be proven by proof beyond reasonable doubt and proven, the corresponding penalty of imprisonment shall be imposed against the accused; (4) The evidence required in the impeachment case is not proof beyond reasonable doubt but mere substantive evidence, because the same is only an administrative proceeding. Hence, the penalty thereof is merely an administrative penalty; (5) For all the foregoing reasons, the acquittal in the impeachment process means that if the person subject of impeachment is acquitted, the same is based not on proof beyond reasonable doubt but merely on substantive evidence, hence, there is no barrier for the people to pursue their grievances in the regular courts to prove their case based on proof beyond reasonable doubt. Then and only then when the People of the Philippines are ultimately heard and satisfied in their quest for redress of grievances. ##726 77

Q - If President Estrada was convicted in the impeachment proceeding and thereafter criminally prosecuted for the offense which warranted his conviction on impeachment, can he plead the defense of double jeopardy? A - No. As already stated, the penalty which the Senate may impose shall be limited to removal from office and disqualification to hold any office under the Republic of the Philippines. This penalty is beyond the reach of the President's power of executive clemency, but does not place the officer beyond liability to criminal prosecution. When criminally prosecuted, therefore, for the offense which warranted his conviction on impeachment, the officer cannot plead the defense of double jeopardy. Q - If President Estrada resigned before the rendition of judgment by the impeachment court, does his resignation place him beyond the reach of impeachment for offenses committed during his tenure? A - No. REASON: While it is true that he is already resigned and can no longer be removed from his office, there is still a penalty which can be imposed even after his resignation and that is the penalty of "disqualification to hold any office under the Republic of the Philippines." Q - During the process of the impeachment trial, can the President subject of impeachment be suspended pendente lite? A - This has no precedent in our jurisdiction. It is my opinion that the penalty of preventive suspension pendente lite may be imposed for the following reasons: 1. As aforementioned, the impeachment trial is judicial and administrative in character because precisely of the penalty provided in Section 7, Article XI; 2. The purpose of suspension pendete lite is precisely to prevent the officer sought to be suspended from possibly using his influence against any and all officials of the government and thereby help him influence the outcome of the proceeding. It is for this reason that suspension pendete lite may be justified. ##727 Q - Is the judgment of Congress in an impeachment proceeding subject to judicial review? A - As a rule, it is not subject to judicial review precisely because of the Constitutional provision that the Senate has the "sole power to try, and decide all cases of impeachment." However, the courts may annul the proceedings if there is a showing of a grave abuse of discretion committed by the Congress or of non-compliance with the procedural requirements of the Constitution. Example: 1. When the charges are instituted without a verified complaint; or by less than one-third (1/3) of all the members of the House of Representatives; or where the judgment of conviction is supported by less than a two-thirds (2/3) vote in the Senate.

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Q - Can the person subject of conviction in the impeachment be subject to the pardoning power of the President? A - It is not subject to the pardoning power of the President. However, if the convicted official is prosecuted later on in an ordinary criminal action and later on found guilty, the decision may be the subject of pardon by the President. Q - Section 3(6), Article XI states that no person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. Does this refer to two-thirds of twenty four or two-thirds of twenty-two? A - The Constitution merely states "two-thirds of all the Members of the Senate without any specification as to whether it is two-thirds of the regular membership of twenty-four or twothirds of the present members of the Senate. This will be a test case in the Supreme Court. However, the old case of Avelino vs. Cuenco gives us a guide on what constitutes a quorum in the Senate. In the said case of Avelino vs. Cuenco, then Senate President Avelino motu-propio adjourned a session of the Senate leaving twelve (12) other Senators in the session hall. The twelve (12) Members continued meeting and replaced Senate President Avelino with Senator Cuenco as acting President. Senator Avelino contended that Senator Cuenco was not validly elected because the twelve (12) Senators did not constitute a majority, or a quorum of the twenty-four-man Senate. The Supreme Court ruled that twelve (12) Senators were sufficient to constitute a quorum thereby using the principle of majority of twenty three (23), and not twenty four (24) Senators. ##728 The reason given by the Supreme Court is that one Senator was then outside of the Philippines being then in the U.S. and for this reason, he is therefore outside the coercive jurisdiction of the smaller number of Senators who could adjourn from day to day and compel the attendance of absent members in such manner and under such penalties as the Senate might provide. There is more reason to believe that this doctrine will be held applicable because Justice Marcelo Ferran is not only outside of Philippine territory. He already died and therefore he cannot in anyway be capable of voting in the first place. In the case of Gloria Macapagal-Arroyo, she was then already elected Vice-President of the Republic of the Philippines and for this reason she was no longer capable to participate in the impeachment proceeding as a Senator and therefore no longer capable to vote. The actual reality is that the membership of the Senate at that time is only twenty-two (22) and therefore the constitutional requirement of "concurrence of two thirds (2/3)" should be two thirds (2/3) of the members of the Senate at that time who are actually participating in the impeachment proceeding. As a matter of fact, on the basis of this submission, the author even submits that Senator Barbers who is not actually participating in the impeachment trial may not be able to be included because he was outside not only of the territorial jurisdiction of the Senate but also outside the coercive jurisdiction of the smaller number of Members. 79

Q - What is the effect of the judgment of conviction? A - Section 3(7) provides that the said judgment "shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines." Q - Can a party convicted in the impeachment proceeding be still subject to prosecution, trial, and punishment according to law? A - Yes, by express provision of Section 3(7), thus: "Section 3(7). Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution trial, and punishment according to law." (Underlining Supplied) JOSEPH ESTRADA VS. ANIANO DESIERTO, IN HIS CAPACITY AS OMBUDSMAN, ET AL. G.R. NOS. 146710-15, MARCH 2, 2001 FACTS: On October 4, 2000, Ilocos Sur Governor Luis "Chavit" Singson, a long time friend of the petitioner, went on air and accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords. The next day, then Senate Minority Leader Teofisto Guingona delivered a fiery privilege speech. He accused the petitioner of receiving some Php 220 million in jueteng money from Governor Singson from November 1998 to August 2000. He also charged that petitioner took from Governor Singson Php 70 million on excise tax on cigarettes intended for Ilocos Sur. The House of Representatives conducted its own investigation. The House Committee on Public Order and Security, then headed by Representative Roilo Goilez, decided to investigate the expose of Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Hererra and Michael Defensor spearheaded the move to impeach the petitioner. On October 12, then Vice President Gloria Macapagal-Arroyo resigned as Secretary of the Department of Social Welfare and Development and later asked for petitioner's resignation. However, petitioner strenuously held on to his office and refused to resign. ##729 On November 13, House Speaker Villar transmitted the Articles of Impeachment signed by 115 representatives, or more than 1/3 of all the members of the House of Representatives to the Senate. On December 7, 2000, the impeachment trial started. Several witnesses were presented by the prosecution, but it was Clarissa Ocampo and Secretary Edgardo Espiritu who delivered the most serious accusations. Clarissa Ocampo testified that she was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on account documents involving a Php 500 million investment agreement with their bank on February 4, 2000. Secretary Espiritu alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider trading. 80

On January 16, 2001, on a vote of 11-10 (Those who voted “yes" to open the envelope were: Senators Pimentel, Guingona, Drilon, Cayetano, Roco, Legarda, Magsaysay, Flavier Biazon, and Osmeña III. Those who voted "no" were Senators Ople, Defensor-Santiago, John Osmeña, Aquino-Oreta, Coseteng, Enrile, Honasan, Jaworski, Revilla, Sotto III, and Tatad) the senator judges ruled against the opening of the second envelope which allegedly contained evidence showing that petitioner held Php 3.3 billion in a secret bank account under the name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective resignation. They also filed their manifestation of Withdrawal of Appearance with the impeachment tribunal. On January 18, 2001, a 10 kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation. This attracted more and more people. Thereafter, there was a resignation by some cabinet secretaries, undersecretaries, and assistant secretaries and bureau chiefs. To stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the highly controversial second envelope. There was no turning back the tide. The tide had become a tsunami. ##730 On January 20, at about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Philippines. At 2:30 pm, petitioner and his family hurriedly left Malacañang Palace. He issued the following press statement: "20 January 2001 Statement from President Joseph Ejercito Estrada At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and beloved people. MABUHAY! (Sgd.) JOSEPH EJERCITO ESTRADA" It also appears that on the same day, January 20, 2001, he signed the following letter: 81

"Sir: By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice-President shall be the Acting President. (Sgd.) JOSEPH EJERCITO ESTRADA" On the same day, January 20, he signed the following letter and sent the same to former Speaker Fuentebella at 8:30 a.m. Another copy was transmitted to Senate President Pimentel on the same day although it was received only at 9:00 pm. On January 22, respondent Arroyo immediately discharged the powers and duties of the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter No. 01-1-05 SC, to wit: ##731 "A.M. No. 01-1-05-SC - In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath of Office as President of the Republic of the Philippines before Chief Justice Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter the court Resolved unanimously to confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001. This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper party." From day to day after this, respondent Arroyo attended official functions. On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated. Senator Miriam Defensor-Santiago stated "for the record" that she voted against the closure of the impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that the resolution left open the question of whether Estrada was still qualified to run for another elective post. After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion. A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges against the petitioner. Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court G.R. No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757, and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as President is over and only if legally warranted." He prayed for judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to 82

have taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the Constitution." ##732 ISSUES: 1. Whether the petitions present a justiciable controversy. 2. Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on leave while respondent Arroyo is an Acting President. 3. Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still President, whether he is immune from criminal prosecution. 4. Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity. HELD: 1. WHETHER OR NOT THE CASES AT BAR INVOLVE A POLITICAL QUESTION Respondent's claim that respondent Arroyo ascended the presidency through people power; that she has already taken her oath as the 14th President of the Republic; that she has exercised the powers of the presidency and that she has been recognized by foreign governments. All these, constitute "the political ticket which the Court cannot enter." This claim is not applicable and the Supreme Court said: "x x x Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution notably Section 1 of Article II, and Section 8 of Article VII and the allocation of governmental powers under Section 11 of Article VII The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury vs. Madison, the doctrine has been laid down that "it is emphatically the province and duty of the judicial department to say what the law is...: Thus, respondent's invocation of the doctrine of political question is but a foray in the dark. (Underlining Supplied) 2. WHETHER OF NOT THE PETITIONER RESIGNED AS PRESIDENT - Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that the Office of the President was not vacant when respondent Arroyo took her oath as President. The Supreme Court rejected this claim and said: "x x x In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he evacuated Malacañang Palace in the afternoon of January 20, 2001, after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his acts and omissions before, during and after January 20, 2001, or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using the totality test, we hold that petitioner resigned as President." ##733 These contemporaneous and posterior facts and circumstantial evidence are as follows: 83

1. The proposal for a snap election for president in May where he would not be candidate is an indicium that petitioner had intended to give up the presidency even at that time. 2. The petitioner expressed no objection to the suggestion for a graceful and dignified exit but said he would never leave the country. 3. Again, we note that the resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of this fact. 4. The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that during this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled points at that time were the measures to be undertaken by the parties during and after the transition period. 5. In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind of inability and that he was going to re-assume the presidency as soon as the disability disappears; (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President; (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Petitioner's reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioner's valedictory, his final act of farewell. His presidency is now in the past tense. The Supreme Court concluded: "Certainly, the national spirit of reconciliation and solidarity cannot be attained if he will not give up the presidency." (Underlining Supplied) 3. WHETHER OR NOT THE PETITIONER IS ONLY TEMPORARILY UNABLE TO ACT AS PRESIDENT - Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that "Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in Section 11 of Article VII. This contention is the centerpiece of petitioner's stance that he is a President on leave and respondent Arroyo is only an Acting President. ##734 The Supreme Court rejected this claim and ruled: Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of government, and without any support from the Armed Forces of 84

the Philippines and the Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary. What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioner's claim of inability. In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure President made by a coequal branch of government cannot be reviewed by this Court. 4. WHETHER OR NOT THE PETITIONER ENJOYS IMMUNITY FROM SUIT ASSUMING HE ENJOYS IMMUNITY, WHAT IS THE EXTENT OF THE IMMUNITY - (1) Petitioner makes two submissions: first, the cases filed against him before the respondent Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil. The Supreme Court held that "When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the 1973 Constitution." (2) We reject his argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. Since the Impeachment Court is now functus officio it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. (Underlining Supplied) What is the scope of immunity that can be claimed by petitioner as a non-sitting President? The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery, and graft and corruption. 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 post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation 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. There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust. ##735 85

5. WHETHER OR NOT THE PROSECUTION OF PETITIONER ESTRADA SHOULD BE ENJOINED DUE TO PREJUDICIAL PUBLICITY - Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is all set to file the criminal cases in violation of his right to due process. This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul convictions in high profile criminal cases. In People vs. Teehankee, Jr., later reiterated in the case of Larranaga vs. Court of Appeals, et al., we laid down the doctrine that: "We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accused's right to a fair trial for, as well pointed out, a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field x x x. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. x x x" (Underlining Supplied) There is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. ##736 Section 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy, and at least one Deputy each for Luzon, Visayas and Mindanao. A separate Deputy for the military establishment may likewise be appointed. Section 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman according to the Civil Service Law. Section 7. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution. BRIEF COMPARISON OF THE SANDIGANBAYAN AND THE OMBUDSMAN SANDIGANBAYAN 1. It is the court trying the cases falling under the Anti-Graft and Corrupt Practices Act. 86

2. It is composed of a Presiding Justice and Eight Associate Justices, with the rank of Justice of the Court of Appeals. It sits in three (3) divisions and there are three members in each division. 3. In order that a case may fall under the exclusive jurisdiction of the Sandiganbayan, the following requisites must concur: a. The offense committed is a violation of Republic Act 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. b. The offender is a public official or employee holding any of the positions enumerated in paragraph a, Section 4, Republic Act No. 8249. c. The offense committed is in relation to the office. (Lacson vs. Executive Secretary, G.R. No. 128096, January 20, 1999) 4. In this connection, it is not enough to state in the information that the offense was committed by an accused public officer "in relation to his office." The exact offense must be stated with particularity. (Ibid.) 5. The Sandiganbayan was created by Presidential Decree No. 1606, as amended. ##737 OMBUDSMAN 1. The Ombudsman shall exercise the powers mentioned in Section 13 and it is also vested with prosecutorial functions under Republic Act No. 6770, otherwise known as the Ombudsman Act of 1987. 2. There is one Ombudsman; one over-all Deputy; and at least one deputy each for Luzon, Visayas and Mindanao. A separate deputy may be appointed for the military establishment. 3. The qualifications of the Ombudsman and his Deputies are the following: a. Natural born citizens of the Philippines; b. At least forty years of age; c. Of recognized probity and independence; d. Members of the Philippine Bar; and e. Must not have been candidates for any elective office in the immediately preceding election. 4. The Ombudsman must have been a judge or engaged in the practice of law for ten years or more. 5. Their term of office is for seven years without re-appointment. 6. Their salary shall not be decreased during their term of office. 7. The Ombudsman and the Deputies are appointed by the President from a list of six nominees prepared by judicial and bar council, and from a list of at least three nominees for every vacancy thereafter. 8. All vacancies must be filled in three months. 9. The Office of the Ombudsman shall enjoy fiscal autonomy. Q - What are the other powers of the Ombudsman? 87

A1. Power to cite for contempt. 2. To exercise other powers, functions and duties as the law may prescribed. 3. To impose preventive suspension on any officer or employee under its authority pending an investigation, whether such officer or employee is employed in the Office of the Ombudsman or in any other government agency. (Buenaseda vs. Flavier, 226 SCRA 645) 4. Investigate criminal offenses committed by a public officers which have no relation to their office. (Vasquez vs. Alino, 271 SCRA 67) 5. The Ombudsman may refer cases involving non-military personnel for investigation by the Deputy Ombudsman for Military Affairs. (Acop vs. Office of the Ombudsman, 248 SCRA 566) Q - Is the Sandiganbayan a "constitutional court"? A - No. It is a statutory court; that is, it is created not by the Constitution but by statute, although its creation is mandated by the Constitution. Q - What are the respective functions of Tanodbayan and the Office of the Special Prosecutor? A - Originally, the Tanodbayan was both a prosecutor and an Ombudsman. (Presidential Decree No. 1487, as amended by Presidential Decree No. 1607) ##738 As it is now, the Sandiganbayan is the court trying the cases falling under the Anti-Graft and Corrupt Practices Act. The Office of the Special Prosecutor is the Office prosecuting the said case. The Ombudsman shall exercise the powers mentioned in Section 13, and it is also vested with prosecutorial functions under Republic Act No. 6770, otherwise known as the Ombudsman Act of 1987. Q - What happened to the Office of the Special Prosecutor? A - In Zaldivar vs. Sandiganbayan, the Supreme Court ruled that the Special Prosecutor would continue to exercise the powers the former Tanodbayan had except those which are passed on to the Ombudsman or new Tanodbayan. The court added that since the power to investigate is granted by Section 13(1) to the Ombudsman, the Special Prosecutor can neither investigate nor prosecute unless authorized by the Ombudsman. (160 SCRA 843, 846 [1988]). The authority to conduct preliminary investigation and to direct the filing of criminal cases with the Sandiganbayan "was lost effective February 2, 1987." From that time, he has been divested of such authority. (Ibid.) 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 recognize 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. Q - What are the qualifications of the Ombudsman? 88

A - Already answered. Q - What are the qualifications of his deputies? A - The same qualifications, to wit: 1. At least forty (40) years of age. 2. Of recognized probity and independence. 3. Members of the Philippine Bar. 4. Must not have been candidates for public office in the immediately preceding election. They shall be subject to the same disqualifications and prohibitions in Section 2, Article IX-A. 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. ##739 Q - Who appoints the Ombudsman? A - The Ombudsman and his Deputies shall be appointed by the President. Section 10. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same salary, which shall not be decreased during their term of office. Self-explanatory 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. Self-explanatory Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. Self-explanatory. Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any 89

government-owned or controlled corporation with original charter, to perform, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault; and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observe of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. ##740 Q - What are the broad powers of the Ombudsman? A - Section 13 enumerates eight powers, functions and duties. Added to all the broad powers granted, the Ombudsman can investigate any act or omission "which appears to be illegal, improper or inefficient." More than this, the Ombudsman can investigate even if the alleged offense is not related to the performance of the duties of a public official. (Deloso vs. Domingo, 191 SCRA 545, 550 [1990]). Even alleged confidentiality will not prevent the Ombudsman from demanding the production of documents needed during the investigation. (Almonte vs. Vasquez, G.R. No. 95367, May 23, 1995) Section 14. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released Self-explanatory. Section 15. The right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches, or estoppel. Self-explanatory. Section 16. No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly, by any government-owned or controlled bank or financial institution to the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure. Q - Can any of the above-mentioned officials obtain loan to finance the construction of their residential house? 90

A - Yes, because this is not covered by the prohibition. The loan is being obtained for a personal purpose. ##741 Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. Section 18. Public officers and employees owe the State and this Constitution at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. MULTIPLE CHOICE QUESTION 1. When is Impeachment Proceedings considered initiated? A. It is considered initiated from the time the Committee submits a report to the House of Representatives, together with a corresponding resolution which shall be calendared for consideration by the House within ten (10) session days. B. It is considered initiated from the time a vote of at least 1/3 of all the members of the House acts on the resolution of the committee, either by indorsing the complaint for trial by the Senate, or by dismissing the said complaint. This is premised on the reasoning that it is only from that time when the complaint itself is filed and endorsed by the House of Representatives for formal trial by the Senate. C. It is considered initiated from the time a complainant (either a citizen, endorsed by a member of the House of Representatives, or by a member of the House of Representatives itself) signs and verifies his complaint, even if it is not yet filed, on the reasoning that it is from the time of the preparation, signing and verification of the complaint, when the initiation of the complaint has actually commenced. D. The same is considered initiated from the time it is filed by a member of the House of Representatives or by any citizen upon a resolution of endorsement of any member thereof As to whether or not the complaint that was filed is sufficient or insufficient in form or in substance, is another issue which in fact, may or may not cause the filing of endorsement of the resolution of impeachment in the Senate. ##742 2. Nature of Impeachment Proceeding A. It is judicial in character. B. It is penal in character. C. It is administrative in character. D. In a sense, it is judicial in character but not necessarily penal in character because in case of conviction of an official subject of impeachment he shall be punishable by removal from office and disqualification to hold any office under the Republic of the Philippines. 3. Quantum of Evidence required for conviction in Impeachment Proceeding. 91

A. Preponderance of evidence. B. Proof beyond reasonable doubt. C. Evidence deemed sufficient by 2/3 of the members of the Senator Judges who participated in the impeachment trial. D. Substantive evidence because impeachment is only an administrative proceeding. ARTICLE XII NATIONAL ECONOMY AND PATRIMONY Section 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices. In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership. Q - What are the goals of our national economy? A1. Amore equitable distribution of opportunities, income, and wealth; 2. A sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and 3. An expanding productivity as the key to raising the quality of life for all, especially the underprivileged. ##743 Q - How will those goals be attained? A1. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. 2. The State shall protect Filipino enterprises against unfair foreign competition and trade practices. 3. All sectors of the economy and all regions of the country shall be given optimum opportunity to develop. 4. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership. 92

Q - What is our national patrimony? A - When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos. (Manila Prince Hotel vs. GSIS, Manila Hotel Corporation, et al.) MANILA PRINCE HOTEL VS. GSIS, MANILA HOTEL CORPORATION, ETAL. G.R. NO. 122156, FEBRUARY 3, 1997 FACTS: Pursuant to the privatization program of the government, the shares of GSIS, owner of 51% of the shares of Manila Hotel Corporation (MHC), was sold by GSIS through public bidding. Manila Prince Hotel and Renong Berhad, a Malaysian firm, participated in the bidding, and both of them offered to buy 51% of MHC shares. Renong Berhad offered a higher bid. MHC sent a check to match the bid of the foreign firm. To prevent the consummation of the bid of Renong Berhad, petitioner filed a petition for prohibition and mandamus. Petitioner's arguments are as follows: 1. Petitioner invokes Article XII, Section 10(2) of the Constitution and submits that Manila Hotel has been identified with the Filipino nation and has practically become a historical monument that reflects the vibrance of Philippine heritage and culture. 2. Manila Hotel has become a national patrimony. 3. Since Manila Hotel is part of national patrimony and part of the national economy, petitioner should be preferred after it has matched the offer of the Malaysian firm. Respondents argued that Article XII, Section 10(2) is merely a statement of principle and policy since it is not a self-executing provision and requires implementing legislation. Respondents added that even if the provision is self-executing, the hotel does not fall under the term "national patrimony." ##744 ISSUE: Does MHC fall under the term "national patrimony"? Is Section 10(2) of Article XII selfexecuting? HELD: Section 10, second paragraph, Article XII of the 1987 Constitution, is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words, the provision does not require any legislation to put in operation. It is per se judicially enforceable. When our Constitution mandates that in the grant of rights, privileges, and concession covering national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that - qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified circumstances, an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by its own 93

inherent potency and puissance, and from which all legislations must take their bearings. Where there is a right, there is a remedy. Ubijus ibi remedium. In its plain and ordinary meaning, the term patrimony pertains to heritage. When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos. Manila Hotel has become a landmark - a living testimonial of Philippine heritage. While it was restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly Filipino. Formerly a concourse for the elite, it has since then become the venue of various significant events which have shaped Philippine history. It was called the Cultural Center of] 930. It was the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official Guest House of the Philippine Government, it plays host to dignitaries and official visitors who are accorded the traditional Philippine hospitality. The term qualified Filipinos as used in our Constitution also includes corporations at least 60% of which is owned by the Filipinos. This is very clear from the proceedings of the 1986 Constitutional Commission. ##745 It should be stressed that while the Malaysian firm offered the higher bid, it is not yet the winning bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and executed the necessary contracts, and secured the requisite approvals. Since the Filipino First Policy provision of the Constitution bestows preference on qualified Filipinos, the mere tending of the highest bid is not an assurance that the highest bidder will be declared the winning bidder. Reluctantly, respondents are not bound to make the award yet, nor are they under obligation to enter into one with the highest bidder. For in choosing the awardee, respondents are mandated to abide by the dictates of the 1987 Constitution, the provisions of which are presumed to be known to all the bidders and other interested parties. The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes more business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained by the Constitution. Privatization of a business asset for purposes of enhancing its business viability and preventing further losses, regardless of the character of the asset, should not take precedence over non-material values. A commercial, nay even a budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material values. Indeed, the Court will always defer to the Constitution in the proper governance of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved. 94

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 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 coproduction, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. ##746 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 fishworkers 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 minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. Q - What is owned by the State? A1. All lands of the public domain 2. Waters 3. Minerals 4. Coal 5. Petroleum 6. Other mineral oils 7. All forces of potential energy 8. Fisheries, forests or timber 9. Wildlife 10. Flora and fauna 11. And other natural resources Q - What cannot be alienated? A - Except agricultural lands, all other mineral resources shall not be alienated. 95

Q - Who shall have full control and supervision in case of exploration, development and utilization of natural resources? A - The State. Q - Can the State do the same in joint venture or co-production with other Filipino private individuals or corporations? A - Yes, but in the case of corporations and associations, it can only do so with corporations and association 60% of the capital of which is owned by Filipino citizens. Q - Is this subject to a limitation? A - Yes. (1) Said 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 be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. ##747 Q - Section 2 is a recognition of regalian doctrine. What is the regalian doctrine? A - Under the regalian doctrine, (1) all agricultural timber and mineral lands of the public domain are owned by the State; (2) all lands not otherwise clearly appearing to be privately owned are presumed to belong to the State. Q - What is the meaning of imperium and dominium? A - Imperium refers to the government authority possessed by the State which is appropriately embraced in sovereignty. Dominium refers to the capacity of the State to own or acquire property, and it is in this sense, that the said lands are held by the State in its proprietary character. It is in this capacity that the State may provide for the exploitation and use of lands and other natural resources, including their disposition, except as limited by the Constitution. 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. 96

Q - What is the primary classification of lands of the public domain? A - They are classified as: (AG-FO-TI-MI-NA) AG-ricultural land FO-rest land TI-mber land MI-neral land NA-tional park ##748 Q - What are the alienable lands of the public domain? A - Alienable lands of the public domain shall be limited to agricultural lands. They are the agricultural lands which may be disposed of by the State either by purchase, homestead or grant, lease. Q - What are the limitations when said lands are disposed of by the State? A1. Alienable lands shall be limited to agricultural lands. 2. Only Filipino citizens may acquire not more than 12 hectares by purchase, homestead or grant; or lease not more than 500 hectares. 3. Private corporations may lease not more than 1,000 hectares for 25 years, renewable for another 25 years. Q - What is the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor? A - Congress shall determine this by law considering the requirements of conservation, ecology, development and agrarian reform. Q - What is the definition of agricultural land under Republic Act No. 6657? A - It refers to land devoted to agricultural activity as defined in the said law and not classified as (MINFORECOIN) mineral, forest, residential, commercial or industrial land. (Section 3, Republic Act No. 6657) Q - Who has the power to classify said primary classification of lands? A - The President, upon the recommendation of the DENR. (CA 141 [1936] EO 192 [1987]) Q - When agricultural lands are further classified according to the uses to which they may be devoted, what shall be their classification? A - The further classification shall be referred to as secondary classification. Q - What can be the further classification of agricultural lands? A - They can be further re-classified as RE-CO-IN (residential, commercial or industrial) Q - Who has the power to re-classify agricultural lands? 97

A - The authority to re-classify RECOIN is vested, among others, in cities and municipalities. (Section 20 of Republic Act No. 7160 [1991]) Q - Can local governments re-classify agricultural lands into "forest conservation zones"? A - No. Only the President has the power to do this, upon the recommendation of the DENR. Local governments have no authority or power to make primary classifications, and besides, an agricultural land is already a primary classification. ##749 Q - How about in the case of secondary classifications, can the local government do this? A - Yes. As already stated, they can re-classify agricultural lands into RE-CO-IN (residential, commercial or industrial lands). (Section 20, Republic Act No. 7160) 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. Q - What is the responsibility of Congress under Section 4? A - (1) 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; (2) 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. Q - What are ancestral lands? A - Ancestral lands, as defined in Section 9 of Republic Act No. 6657, shall refer to ancestral land of each indigenous cultural community which shall include, but not be limited to, lands in the actual, continuous and open possession and occupation of the community and its members; Provided, that the Torrens System shall be respected. (Section 9, first paragraph) Q - What is the protection given by Republic Act No. 6657 to each indigenous cultural community? A - The right of these communities to their ancestral lands shall be protected to ensure their economic, social and cultural well-being. In line with the principles of self-determination and autonomy, the systems of land ownership, land use, and the modes of settling land disputes of all these communities must be recognized and respected. (Section 9, 2nd paragraph) 98

##750 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. Q - What is the meaning of Section 6 in relation to Agrarian Reform as mandated by Republic Act No. 6657? A - Land has a social function, hence, there is a concomitant social responsibility in its ownership and should, therefore, be distributed to the actual tillers/occupants. Section 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain. Q - What is the limitation under Section 7 when lands are transferred or conveyed? A - 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. 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. Q - Can a Filipino citizen who is later on naturalized as an American citizen, acquire private lands in the Philippines? A - Yes, by express provision of Section 8, subject to limitations provided by law. Q - What is the limitation provided by law? A - Former natural-born Filipino citizen may acquire up to 5,000 square meters of urban lands and 3 hectares of rural land which may not be used for business and for other purposes (Republic Act No. 8179, amending Batas Pambansa Blg. 185). Under Batas Pambansa Blg. 185, the said land may be used as residence. Q - Can American citizens and American owned and controlled corporations validly acquire private agricultural lands? A - No. They cannot validly acquire private agricultural lands under the Parity Amendment, since the exceptional rights granted to them under the said Amendment refer only to agricultural, mineral and timber lands of the public domain and natural resources, and conduct and operation of public utilities (Republic vs. Quasha, 46 SCRA 160). This ruling was however abandoned by Section 11, Article XVII of the 1973 Constitution which reads: "Section 11. The rights and privileges granted to citizens of the United State or to 99

corporations or associations owned or controlled by such citizens under the Ordinance appended to the nineteen hundred and thirty-five Constitution shall automatically terminate on the third day of July, nineteen hundred and seventy-four Titles to Private land acquired by such Persons before such date shall be valid as against other private persons on" (Emphasis Supplied). Hence, private land acquired by said persons before July 3, 1973 shall be valid as against other private persons only. ##751 Q - Can private lands under the control and possession of disqualified aliens be recovered? A - The State can institute an action for reversion of said lands under the Public Land Act and the power of the State to do so is imprescriptible. (Baguio vs. Republic, G.R. No. 119682, January 21, 1999) Q - Can private persons or parties institute such kind of action? A - No. It is the State alone which may institute reversion proceeding under the Public Land Act (Urquiaga vs. Court of Appeals, G.R. No. 127833, January 22, 1999), or file a suit for the conveyance. Private persons are not proper parties to file an action for reconveyance. (Tankiko vs. Cezar, G.R. No. 131277, February 2, 1999) Q - Can the State be held in estoppel for irregular acts and mistakes of its officials? A - As a rule, estoppel against the State is not favored. However, if for a long time, the State failed to correct and recover alleged increase in the land area of the titles issued, this will amount to laches, and consequently, the State may be held in estoppel for irregular acts and mistakes of its officials. (Republic vs. Court of Appeals, G.R. No. 11611, January 21, 1999) 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. ##752 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. Q - What is the responsibility of Congress and the State under Sections 9 and 10? 100

A(1) The Congress may establish an independent planning agency headed by the President which will implement continuing integrated and coordinated programs and policies for national development. (Section 9) (2) The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve certain areas of investment to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens. (Section 10, first paragraph) (3) The State shall give preference to qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony. (Section 10, second paragraph) (4) The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities. 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 investor 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. ##753 Q - What is the limitation under Section 11? A(1) Franchise, certificate, or any other form of authorization for the operation of public utility shall be granted only to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least 60% of whose capital is Filipino owned. (2) Said franchise, certificate, or authorization shall be exclusive in character, valid for not more than 50 years. (3) Said franchise or right shall be granted under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. Q - Is Petron a public utility? A - No. There is therefore no merit to the contention of the petitioner that the sale of the block of shares to Aramco violated Section 11, Article XII of the Constitution. A public utility is one organized "for hire or compensation" to serve the public, and the public, in turn, has the right to demand its service. Petron is not engaged in oil refining for hire or compensation to process the oil of other parties. Q - Are radio and television companies, the owners of airwaves and frequencies? 101

A - No. They are merely given the temporary privilege of using them. 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. 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. ##754 Q - What is the responsibility of the State under Sections 12, 13, and 14? A(1) 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 12) (2) 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 13) (3) The State shall promote 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. The State shall encourage appropriate technology and regulate its transfer for the national benefit. (Section 14) Q - What is the responsibility of Congress under Sections 15 and 16? A(1) The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development. (Section 15) (2) The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. (Section 16) Q - Is the practice of all professions in the Philippines limited only to Filipino citizens? A - Yes, by express provision of Section 14, second paragraph, except in cases prescribed by law. Section 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribe by it, temporarily take over or 102

direct the operation of any privately owned public utility or business affected with public interest. Q - Can the State temporarily take over or direct the operation of any privately owned public utility or business affected with public interest? A - Yes, by express provision of Section 17, but the same can only be done (1) in times of national emergency; (2) when the public interest so requires. 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. ##755 Q - May the State establish and operate vital industries and transfer them to public ownership utilities? A - Yes, by express provision of Section 18, but the same can only be done in the interest of national interest or defense. 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. Q - Can the State regulate or prohibit monopolies? A - Yes, by express provision of Section 19, but it can only be done when the public interest so requires. Private monopolies are not therefore absolutely prohibited. Hence, the award of stevedoring and arrastre services to only one corporation is valid. (Northern Cement Corporation vs. Intermediate Appellate Court, 158 SCRA 408) Q - Is Republic Act No. 8180 (which provides for the deregulation of the oil industry) constitutional? A - Republic Act No. 8180 was declared unconstitutional for three reasons: (1) It gave more power to an already powerful oil oligopoly; (2) It blocked the entry of effective competitors; and (3) it will sire an even more powerful oligopoly whose unchecked power will prejudice the interest of the consumers and compromise the general welfare. The decision precisely levels the playing field of investors. The Supreme Court said: "Finally, public respondents raise the scarecrow argument that our Decision will drive away foreign investors. In response to this official repertoire, suffice it to state that our Decision precisely levels the playing field for foregoing investors as against the three dominant oil oligopolist. No less than the influential Philippine Chamber of Commerce and Industry whose motive is beyond question, stated thru its Acting President Jaime Ladao that "x x x this Decision, in fact tells us that we are for honest-to-goodness competition." Our Decision should be a confidence-booster to foreign investors for it assures them of an effective judicial remedy against an unconstitutional law. There is need to attract foreign investment but the policy has 103

never been foreign investment at any cost. We cannot trade-in the Constitution for foreign investment. It is not economic heresy to hold that trade-in is not a fair exchange." 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 banks and exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions. ##756 Until the Congress otherwise provides, the Central Bank of the Philippines, operating under existing laws, shall function as the central monetary authority. Q - What is the responsibility of Congress under Section 20? A - The Congress shall establish an independent central monetary authority. Q - What is the function of the central monetary authority? A1. It shall provide policy direction in the areas of money, banking and credit. 2. It shall have supervision over the operations of finance companies and other institutions performing similar functions. Q - What are the qualifications of the members of the governing board of the central monetary authority? A1. Natural-born Filipino citizens. 2. Of known probity, integrity and patriotism. 3. Majority of the members shall come from the private sector. 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. 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. Self-explanatory. MULTIPLE CHOICE QUESTIONS 1. Alienable lands of the public domain A. A forest land is an alienable land. B. A timber land is an alienable land. C. A mineral land is an alienable land. 104

D. Alienable lands of the public domain shall be limited to agricultural lands. ##757 2. X, a Filipino, was naturalized as an American Citizen. Can he acquire a five (5) hectare of riceland in a mountain area where he was born? A. Yes, subject to limitations provided by law. B. No, because he is already an American citizen. C. He can acquire a rural land provided it will only be used for residence. D. He can acquire not more than three (3) hectares of rural land which may not be used for business and other purposes but which can be used as residence. ARTICLE XIII SOCIAL JUSTICE AND HUMAN RIGHTS Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequalities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increment. Section 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. Q - Why should we promote a just and dynamic social order? A - It is the foundation of a strong and prosperous nation. Poverty and injustice are the root causes of public discontent which gives rise to chaos and disorder, and later, to a revolution. Q - What is social justice? A - It is "neither communism, nor atomism, nor anarchy" but the humanization of laws and the equalization of social and economic forces of the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the component elements of the society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of "salus populi est suprema lex." (Calalang vs. Williams, 70 Phil., 726) ##758 Q - What, if any, is the expanded meaning of social justice under the 1987 Constitution? A - Social justice under the 1987 Constitution is broader than the concept of social justice under the 1935 and 1973 Constitution and, in fact, broader than the definition in Calalang vs. Williams. Social justice under the 1987 Constitution includes all phases of national development, instead of being merely limited to the removal of socio-economic inequities. 105

In fact, Article XIII of the 1987 Constitution, provides for the following specific mandate: Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequalities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use and disposition of property and its increments. Section 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. Section 3. The State shall afford full protection to labor, local overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth. ##759 Q - How can social justice be promoted? A1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequalities by equitably diffusing wealth and political power for the common good. 2. The State shall regulate the acquisition, ownership, use and disposition of property and its increments. 3. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. Q - In National Service Corporation vs. NLRC, et al., G.R. No. 69870, November 29, 1988, citing Cult of Legalism by Dr. Jorge Bocobo, the Supreme Court said that the principle of social justice was not included in the fundamental law as a mere popular gesture. It was meant to be a vital, articulate and compelling principle of public policy. Does this mean that social justice champion division of property or equality of economic status? A - Social justice does not champion division of property or equality of economic status; what it and the Constitution do guarantee are equality of opportunity, equality of political rights, 106

equality before the law, equality between values given and received, equitable sharing of the social and material goods on the basis of efforts exerted in their production. It is a command to devise social measures; but it cannot be used to trample upon the rights of others. (Guido vs. Rural Progress Administration, G.R. No. L-2089, October 31, 1949) Q - In Ondoy vs. Ignacio, G.R. No. L-436969, February 28, 1978, it was ruled that as between a laborer, usually poor and unlettered, and the employer, who has resources to secure able legal advice, the law has reason to demand from the latter stricter compliance. Is this not a violation of the principle enunciated in the aforementioned case? A - Social justice in this case is not equality but protection (Ibid.). It is compassionate justice or an implementation of the policy that those who have less in life should have more in law. (Allied Investigation Bureau, Inc. vs. Ople, et al., G.R. No. L-449678, June 29, 1979) Q - Is it only equitable diffusion of wealth that should be promoted by the principle of social justice? A - Under the 1987 Constitution, social justice contemplates equitable diffusion not only of wealth but also of political power. (Section 1, Article XIII, 1987) Q - Is compassion for the poor an imperative of every human society? A - Compassion for the poor is an imperative of every human society but only when the recipient is not a rascal claiming an undeserved privilege. Social justice cannot be permitted to be the refuge of scoundrels any more than can equity be an impediment to the punishment of the guilty. Those who invoke social justice may do so only if their hands are clean and their motives blameless and not simply because they happen to be poor. This great policy of our Constitution is not meant for the protection of those who have tainted the cause of labor with the blemishes of their own character. (Philippine Long Distance Co. vs. NLRC, et al., G.R. No. 8060, August 23, 1988; De Vera et al. vs. NLRC, et al., G.R. No. 93212, November 22, 1990; Flores vs. NLRC, et al., G.R. No. 96969, March 2, 1993) ##760 Q - The State, and Congress particularly, shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities x x x for the common good. Does this mean that the government is obligated to provide housing for all the poor, or if it cannot, does this mean that the government can just tolerate squatters so that they can have shelter before the government could effectively respond to the problem arising from acute housing shortage? A - No. While it is the responsibility of the government to help in the alleviation of poverty and housing shortage, it has also the responsibility to protect true, lawful and legitimate owners of property who are also protected under the bill of rights. Moreover, the government could not be expected to give houses to all the homeless considering its limited funds and resources. LABOR 107

Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerned activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments and to expansion and growth. Q - What is the responsibility of the State under Section 3? A - The State shall afford: ##761 1. Full protection to labor, local and overseas, organized and unorganized; 2. Promote full employment and equality of employment opportunities for all; 3. It shall guarantee the rights of all workers to: (a) Self-organization; (b) Collective bargaining and negotiations; (c) Peaceful concerned activities; (d) The right to strike in accordance with law. 4. The State shall promote: (a) The principle of shared responsibility between workers and employers; (b) Preferential use of voluntary modes in settling disputes. 5. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments. Q - Does the right of government employees to organize include the right to form unions or associations? A - Yes, but it does not include the right to strike and to engage in similar activities (Social Security System Employees Associations, Inc. vs. Court of Appeals, 175 SCRA 686, July 28, 1989). This was reiterated in Manila Public School Teachers Association (MPSTA) vs. Laguro, Jr., (200 SCRA 323, August 6, 1991). Again this was reiterated in 1993 in Alliance of Government Workers vs. Minister of Labor and Employment, (124 SCRA 1, August 3, 1993). 108

Please note, however, that there are two dissenting opinions on this matter. Although they are dissenting opinions, the arguments of Justice Isagani Cruz and Justice Hugo Gutierrez have persuaded many lawyers, law students and laymen and who knows they may be the majority view in the future. Dissenting opinion of Justice Isagani Cruz: "Being an economic weapon to promote the interest of labor, the denial of the right to strike from government employees is a "derogation of their freedom of expression and a violation of the equal protection clause, besides being contrary to social justice." "Government workers, whatever their category or status, have as much right as any person in the land to voice their protests against what they believe to be a violation of their interests. The fact that they belong to the civil service has not deprived them of their freedom of expression, which is guaranteed to every individual in this country, including even the alien. It would be ridiculous to even suggest that by accepting public employment, the members of the civil service automatically and impliedly renounce this basic liberty. This freedom can at best be regulated only but never completely withdrawn." Dissenting opinion of Justice Hugo Gutierrez: "To me, the issue is the freedom to effectively speak. When the members of a noble profession are demeaned by low salaries and inattention to their needs, surely their freedom to speak in a manner and at a time as is most effective far outweighs conventional adherence to orthodox service rules on proper conduct and behavior." ##762 AGRARIAN AND NATURAL RESOURCES REFORM Section 4. The State shall, by law, undertake an agrarian reform program on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the rights of small landowners. The State shall further provide incentives for voluntary land-sharing. Section 5. The State shall recognize the right of farmers, farmworkers, and landowners, as well as cooperatives, and other independent farmers' organizations to participate in the planning, organization, and management of the program, and shall provide support to agriculture through appropriate technology and research, and adequate financial production, marketing, and other support services. Section 6. The State shall apply the principle 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. 109

##763 Section 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources. Section 8. The State shall provide incentives to landowners to invest the proceeds of the agrarian reform program to promote industrialization, employment creation, and privatization of public sector enterprises. Financial instruments used as payment for their lands shall be honored as equity in enterprises of their choice. Q - What is agrarian reform? A - Agrarian Reform means the redistribution of lands, regardless of crops or fruits produced, to farmers and regular farmworkers who are landless, irrespective of tenurial arrangement, to include the totality of factors and support services designed to lift the economic status of the beneficiaries and all other arrangements alternative to the physical redistribution of lands, such as product or profit-sharing, labor administration, and the distribution of shares of stock, which will allow beneficiaries to receive a just share of the fruits of the lands they work. (Section 3, Republic Act No. 6657) Q - Is Republic Act No. 6657 constitutional? ASSOCIATION OF SMALL LANDOWNERS IN THE PHILIPPINES VS. SECRETARY OF AGRARIAN REFORM G.R. NO. 78742, JULY 14, 1989 FACTS: PD No. 27, EO Nos. 228 and 229, and RA No. 6657 (Comprehensive Agrarian Reform Program) were assailed as violative of due process and therefore unconstitutional. ISSUE: Is Republic Act No. 6657 constitutional? ##764 HELD: The taking contemplated is not a mere limitation of the use of the land. What is required is the surrender of the land and the physical possession of the land in excess of the retention limit and all the beneficial rights accruing to the owner in favor of the former beneficiary. This is within the power of the state to take and regulate private property for which payment of just compensation is provided. Although the proceedings in Section 16 of CARL are described as summary, the landowners and other interested parties are nevertheless allowed an opportunity to submit evidence on the real value of the property. DAR's determination of just compensation is not by 110

any means final and conclusive upon the landowner or any interested party. DAR's determination is only preliminary unless accepted by all parties concerned. Otherwise, the court of justice will still have the right to review with finality the said determination in the exercise of what is admittedly a judicial function. Regarding Section 18 thereof which requires the owners of expropriated properties to accept just compensation in less than money, the Supreme Court said: "This is not an ordinary expropriation where only a specific property is sought to be taken by the state from its owner for a specific and perhaps local purpose. WHAT WE DEAL WITH HERE IS A REVOLUTIONARY KIND OF EXPROPRIATION." Such program will involve not merely millions but billions of pesos. "We assume that the framers of the Constitution were aware of this difficulty when they called for agrarian reform as a top project of the government. There can be no doubt that they were aware of the financial limitation of the government and had no illusions that there would be enough money to pay in cash and in full for the lands they wanted to be distributed among the farmers." "We may assume their intention was to allow such manner of payment as provided by the CARP Law conditions the transfer of possession and ownership of the land to the government upon receipt by the landowner of the corresponding payment or the deposit by the DAR of the compensation in cash or LBP bonds with an accessible bank. Until then, the title remains with the landowner. No outright change of ownership is contemplated." Q - What is the concept of stewardship? A - We are mere stewards of God to whatever wealth, talent and property that we have in this world, and at anytime, we shall either leave them or lose them. As stewards, our responsibility is to take care of them, to use them well, but never to abuse them or to use them unjustly. God has given us two gifts without which it shall be impossible for us to survive and to enjoy material wealth. These gifts are given to all without distinction between the rich or poor, the weak or strong. Air, for one, is given to all of us for free. Water is given for free (although the people are now required to use their skill and resources to bring water from the mountains to the urban centers.) If air and water are gifts of God, so also are the lands, mountains, and the sea that cleans the air we breathe and which supply the water that we drink. ##765 No one in particular owns the lands from the beginning. The passage of time will not change this. Ownership through conquests and grants is the will of the victor over the vanquished, but never the will of God. We cannot bring vast lands with us when we die. Only a portion of that land is needed to cover our dead bodies and our caskets. From then on, our role as stewards is ended. (A Mile To Go For Genuine Land Reform in the Philippines, Suarez, p. 97) Q - What is the retention limit provided for by Republic Act No. 6657?

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A - The land to be retained by the landowner shall not exceed five (5) hectares, but three (3) hectares may be awarded to each child of the landowner subject to the following qualifications: a) That he is at least fifteen (15) years of age; and b) That he is actually tilling the land or directly managing the farm. Q - If the lands of a landowner have already been covered by Presidential Decree No. 27, what are his rights under Republic Act No. 6657? A - He shall have the following rights: a) He shall be allowed to keep the area originally retained by him under Presidential Decree No. 27, provided that the original homestead grantees or direct compulsory heirs who still own the original homestead at the time of the approval of Republic Act No. 6657 shall retain the same areas as long as they continue to cultivate said homestead. (Section 6) Q - What if the area chosen by the landowner is tenanted, what is the option of the tenant? A(a) He can remain in the land, in which case, he shall be considered a leaseholder and shall lose his right as a beneficiary under Republic Act No. 6657. (b) He can choose to be a beneficiary in the same or another agricultural land with a similar or comparable features. (Section 6, last paragraph) Q - If the tenant chooses to be a beneficiary in another agricultural land, what is the consequence? A - He shall lose his right as a leaseholder to the land retained by the landowner. (Section 6, last paragraph) ##766 Q - If the tenant chooses this option (to be a beneficiary) what is the time frame given to him by Republic Act No. 6657 within which to exercise his option? A - He must exercise this option within one (1) year from the time the landowner manifests his choice of the area to be retained by him. Q - Upon effectivity of Republic Act No. 6657, any sale, disposition, lease, management, contract or transfer of possession of private lands executed by the original landowner, shall be null and void. Suppose there was a sale of a private land from A to B on May 2, 1988, but on account of their jobs abroad, they were not able to register the same in the Registry of Deeds and they were able to come back only in December, 1988, to spend Christmas vacation in the Philippines and to register what they failed to register on May 2, 1988. Is the sale valid? A - No. Section 6, last paragraph, provides that a transaction (i.e., sale, transfer of possession, etc.) shall be valid only when registered with the Registry of Deeds within a period of three months after the effectivity of Republic Act No. 6657. 112

Q - What is the retention limit under Presidential Decree No. 27, Executive Order No. 229 and Republic Act No. 6657? A - P.D. No. 27 - Retention limit is lowered to seven (7) hectares. E.O. No. 229 - There is no provision on retention. R.A. No. 6657 - Landowner shall retain not more than five (5) hectares of agricultural land. Each child of the landowner may be awarded three (3) hectares provided that he is at least fifteen (15) years old and is actually tilling the lands or managing the farm. In case of landowners whose rice and corn lands have been previously covered by P.D. No. 27, they can keep the area originally retained by them under said decree. Q - What are the rights of subsistence fishermen and fish workers? A1. The rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. 2. The right of fish workers to receive a just share from their labor in the utilization of marine and fishing resources. Q - What support shall be provided by the State to such fishermen? A1. Appropriate technology and research. 2. Adequate financial, production and marketing assistance. 3. Other services. 4. The State shall also protect, develop, and conserve such resources. ##767 URBAN LAND REFORM AND HOUSING Section 9. The State shall, bylaw, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing and basic services to underprivileged an homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners. Section 10. Urban rural dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated Q - What is the responsibility of the State under Sections 9 and 10? A1. To undertake, in cooperation with the private sector, a continuing program of urban land reform and housing and basic services to underprivileged a homeless citizens in urban centers and resettlement areas. (Section 9, paragraph 1)

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2. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners. (Section 9, paragraph 1) 3. Urban rural dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. (Section 10, paragraph 1) 4. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated. (Section 10, paragraph 2) Q - Does this mean that the validity of the demolition or eviction hinges in the existence of a resettlement area designated or earmarked by the government? A - No. (People vs. Leachon, G.R. No. 108725, September 25, 1998) HEALTH Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the underprivileged sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers. ##768 Section 12. The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health manpower development and research, responsive to the country's health needs and problems. Section 13. The State shall establish a special agency for disabled persons for their rehabilitation, self-development and self-reliance, and their integration into the mainstream of society. Q - What is the responsibility of the State under Sections 11,12 and 13? A1. It shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. (Section 11) 2. The State shall endeavor to provide free medical care to paupers, giving priority for the needs of the underprivileged sick, elderly, disabled, women, and children. (Section 11) 3. The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health manpower development and research, responsive to the country's health needs and problems. (Section 12) 4. The State shall establish a special agency for disabled persons for their rehabilitation, selfdevelopment and self-reliance, and their integration into the mainstream of society. (Section 13) WOMEN Section 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and 114

opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. Q - How shall working women be protected by the State under Section 14? A - By providing them safe and healthful working conditions considering their maternal functions. ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS Section 15. The State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means. People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership, and structure. ##769 Section 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms. Q - Is the right to join a people's organization part and parcel of the freedom and assembly? A - Yes. Q - Is the right to join the people's organization absolute? A - No. It is subject to limitations imposed by law and to the dominant police power of the State. It is for this reason that Section 15 requires that the legitimate and collective interests and aspirations of persons in said organizations should be pursued "within the democratic framework," and must be carried out "through peaceful and lawful means." HUMAN RIGHTS Section 17. (1) There is hereby created an independent office called the Commission on Human Rights. (2) The Commission shall be composed of a Chairman and four (4) Members who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office and other qualifications and disabilities of the Members of the commission shall be provided by law. (3) Until this Commission is constituted, the existing Presidential Committee on Human Rights shall continue to exercise its present functions and powers. (4) The approved annual appropriations of the Commission shall be automatically and regularly released Section 18. The Commission on Human Rights shall have the following powers and functions: 115

(1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights; (2) Adopt its operational guidelines and rules of procedure, and for the contempt for violations thereof in accordance with the Rules of Court; (3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection; ##770 (4) Exercise visitatorial powers over jails, prisons, or detention facilities; (5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights; (6) Recommend to the Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families; (7) Monitor the Philippine government's compliance with the international treaty obligations on human rights; (8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; (9) Request the assistance of any department, bureau, office, or agency in the performance of its functions; (10) Appoint its officers and employees in accordance with law; and (11) Perform such other duties and functions as may be provided by law. Section 19. The Congress may provide for other cases of violations of human rights that should fall within the authority of the Commission, taking into account its recommendations. Q - What is the composition of the Commission on Human Rights? A - The Commission shall be composed of a Chairman and four (4) Members. Q - What are the qualifications of the members of the said Commission? A1. Natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. Q - Is the Commission on Human Rights a court of justice, or a quasi-judicial agency? A - It is not a court of justice or a quasi-judicial agency. Its function is merely to receive evidence and make findings of fact regarding human rights violation involving civil and political rights. (Carino vs. Commission on Human Rights, G.R. No. 96681, December 2, 1991) Q - Can it issue writ of injunction or a restraining order against supposed violators of human rights? A - No. It is not a court of justice. 116

##771 MULTIPLE CHOICE QUESTIONS 1. Social Justice A. Under the 1987 Constitution, social justice has still the same meaning. B. Social Justice means that the State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living and an improved quality of life for all. C. Social Justice is compassionate justice both for the poor and the rich. D. Social Justice now includes all phases of national development instead of being merely limited to the removal of socio-economic equities, including diffusion of wealth and political power 2. Constitutionality of Agrarian Reform Law In Association of Small Landowners vs. Secretary of Agrarian Reform, the constitutionality of Republic Act No. 6657 was upheld. A. The taking contemplated under Republic Act No. 6657 is not a mere limitation of the use of the land. What is required is the surrender of the land and the physical possession of the land in excess of the retention limit and all the beneficial rights. B. The taking contemplated is considered an ordinary expropriation where a specific property is sought to be taken by the State from its owner for a specific and perhaps local purpose. C. The proceedings in Sec. 16 of Republic Act No. 6657 is described as summary and the landowner concerned is required to surrender his land and the physical possession of the land in excess of the retention limit. D. The taking is not an ordinary expropriation where only a specific property is sought to be taken by the State from its owner for a specific or perhaps local purpose. What we deal with here is a revolutionary kind of expropriation, but the CARP Law conditions the transfer of possession and ownership of the land to the government upon receipt by the landowner of the corresponding payment or deposit by the DAR of the compensation in cash or LBP Bonds with an accessible bank. Until then, the title remains with the landowner. ##772 ARTICLE XIV EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS Section 1. The State shall protect and promote the right of all citizens to quality education at all levels and shall take appropriate steps to make such education accessible to all. Q - What shall the State protect and promote under Section 1? A(1) The State shall protect and promote the right of all citizens to quality education at all levels; (2) The State shall take appropriate steps to make such education accessible to all. Section 2. The State shall: 117

(1) Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society; (2) Establish and maintain a system of free public education in the elementary and high school levels. Without limiting the natural right of parents to rear their children, elementary education is compulsory for all children of school age; (3) Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the underprivileged; (4) Encourage non formal, informal, and indigenous learning systems, as well as self-learning, independent, and out-of-school study programs particularly those that respond to community needs; and (5) Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational efficiency, and other skills. Q - What is compulsory for all children of school age? A - Elementary education is compulsory for all children of school age. (Section 2[2]) Q - What shall be established and maintained by the State under Section 2? A(1) Free public education in the elementary and high school levels; (Section 2[2]) (2) A system of scholarship grants, student loan program, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the underprivileged; (Section 2[3]) (3) A complete, adequate, and integrated system of education relevant to the needs of the people and society. (Section 2 [1]) ##773 Q - In compliance with the said constitutional mandate regarding free public education in the high school level, what law was enacted by Congress in 1988? A - Free Public Secondary Act of 1988. Q - Is the right to secondary education demandable in an institution of higher learning like the U.P.? A - No. Secondary education is not the mandated function of the U.P. The purpose of the said university, according to its charter, "shall be to provide advance instruction in literature, philosophy, sciences and arts, and to give professional and advanced technical training." The U.P. cannot be compelled to provide for secondary education. For this reason, the petitioners have no clear legal right to demand secondary education at the U.P. (U.P. vs. Ayson, 176 SCRA 571, August 17, 1989) Q - The right of all citizens to quality education at all levels, as provided in Section 1, shall be protected and promoted by the State. Except, however, for the alleged huge budget allocated for the Department of education, "quality education" is seemingly getting harder to attain as years go by. Every year, the government cannot afford to build more rooms and libraries; the 118

scarcity in the countryside is even more depressing either because the rooms or the structures themselves have not been repaired, or because of lack of classrooms, the teachers conduct their classes under the trees in school compound; the teachers are not commensurately paid; the roads leading to the school in remote towns and barrios are dirty and flooded roads; and worst, teachers who have dedicated and sacrificed the best years of their lives teaching the young, have no adequate pension and health plans, rendering their lives more miserable in their old age. Under the said conditions, can quality education still be a demandable right from the State? A - Education is a key to our progress as a nation, hence, Section 1 makes it the corresponding duty of the State to support the right to quality education. There are no "ifs" and "buts" insofar as the said duty of the State is concerned, hence, it is demandable. The people cannot forever be victims of the incompetence and corruptions in government which is perceived to be the root causes of our ills as a nation and as a people. They should be vigilant in demanding what is due them because the ills that are prevailing today will even be more compounded in the days to come. The future of the young is more at stake than those who are already old to be recipients of quality education. And not only for this reason, it is their generation that will manage the affairs of our nation in the near future. ##774 Section 3. (1) All educational institutions shall include the study of the Constitution as part of the curricula. (2) They shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency. (3) At the option expressed in writing by the parents of guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government. PART OF THE CURRICULA Q - What shall educational institutions include as part of the curricula? A - All educational institutions shall include the study of the Constitution as part of the curricula. (Section 3[1]) CONSTITUTIONAL OBJECTIVES Q - What are the constitutional objectives? A - The educational institutions shall: (1) Inculcate patriotism and nationalism; (2) Foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country; (3) Teach the rights and duties of citizenship; 119

(4) Strengthen ethical and spiritual values; (5) Develop moral character and personal discipline; (6) Encourage critical and creative thinking; (7) Broaden scientific and technological knowledge; and (8) Promote vocational efficiency ##775 OPTIONAL RELIGIOUS INSTRUCTION IS ALLOWED SUBJECT TO LIMITATIONS Q - What are the limitations? A1. The option must be expressed in writing by the parents or guardians; 2. Religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours; and 3. Religion shall be taught by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government. Section 4. (1) The State recognizes the complementary roles of public and private institutions in the educational system and shall exercise reasonable supervision and regulation of all educational institutions. (2) Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions. The control and administration of educational institutions shall be vested in citizens of the Philippines. No educational institution shall be established exclusively for aliens and no group of aliens shall comprise more than one-third of the enrollment in any school The provisions of this subsection shall not apply to schools established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other foreign temporary residents. (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. OWNERSHIP OF EDUCATIONAL INSTITUTIONS 120

Q - What is the constitutional limitation insofar as ownership of an educational institution is concerned? A - Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions. (Section 4[2], first paragraph) ##776 Q - What is the constitutional limitation insofar as control and administration of an educational institution is concerned? A - The control and administration of educational institutions shall be vested in citizens of the Philippines. (Section 4[2], 2nd paragraph) ALIEN SCHOOLS Q - Can an educational institution be established exclusively for aliens? A - No, by express constitutional provision (Section 4[2], 3rd paragraph). This provision does not apply, however, to schools established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other foreign temporary residents. TAX EXEMPTIONS Q - What shall be exempt from taxes and duties? A(1) 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. (2) 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. (3) 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. Section 5. (1) The State shall take into account regional and sectoral needs and conditions and shall encourage local planning in the development of educational policies and programs. (2) Academic freedom shall be enjoyed in all institutions of higher learning. (3) Every citizen has a right to select a profession or course of study, subject to fair, reasonable, and equitable admission and academic requirements. (4) The State shall enhance the right of teachers to professional advancement. Non-teaching academic and non-academic personnel shall enjoy the protection of the State (5) The State shall assign the highest budgetary priority to education and ensure that teaching will attract and retain its rightful share of the best available talents through adequate remuneration and other means of job satisfaction and fulfillment ##777 121

RATIONALE OF SECTION 5[5] Q - What is the rationale for giving "the highest budgetary priority"? A - Education is the key to the progress of the nation. Young men and women who are being trained and educated today will be the future leaders who will manage the affairs of our country in the years to come. They will carry on the burden and responsibility of molding good governance, enlightened and responsible citizenry, and who, in the course of time, will improve our present quality of education. ACADEMIC FREEDOM Q - What is the constitutional guarantee under Section 5[2]? A - "Academic freedom shall be enjoyed in all institutions of higher learning." Q - What is academic freedom? A - Section 5[2] merely states that "academic freedom shall be enjoyed in all institutions of higher learning." Its meaning could be viewed from the point of view of (a) the freedom of a faculty member; and of (b) the freedom of an academic institution of higher learning. Q - Explain the first aspect (Freedom of a faculty member) A1. Full freedom in research and publication of the same - This freedom, however, is subject to the adequate performance of his academic duties; 2. Freedom to discuss his subject in the classroom - This freedom, however, is subject to the responsibility not to teach matters not related to his subject; 3. Freedom from institutional censorship or discipline - This freedom, however, is subject to the responsibility to be accurate; to respect the opinions of others; and to exercise restraint. (Bernas, citing the 1940 Statement of Principles of the American Association of University Professors) Q - Explain the second aspect (Freedom or autonomy of an academic institution of higher learning). A - It is the freedom of the school or college to decide on what its aims and objectives will be and what is the best manner to attain the same. It is free to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study. (Ateneo De Manila vs. Capulong, 222 SCRA 644, May 27, 1993) ##778 Q - Can a school of higher learning be compelled to admit students who desire to enroll in said school? A - No. A school of higher learning has the discretion to admit or not to admit students. Admission is not a right but merely a privilege. (Isabelo, Jr. vs. Perpetual Help College of Rizal, 227 SCRA 591, November 8, 1993)

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Q - Is the requirement to pass the National Medical Admission Test as a pre-condition for admission to the medical school a violation of the right to education which, according to Section 1, Article XIV of the Constitution, should be "accessible to all"? A - No. It is not a violation of the right to education. It ensures to protect the public from "potentially deadly effects of incompetence and ignorance in those who would undertake to treat the human bodies and minds for disease or trauma." (Tablarin vs. Gutierrez, 152 SCRA 730, July 31, 1987) Q - After failing in the bar examinations for three times, a bar Hunker is required to enroll again in the College of Law where he will study again the law subjects he previously passed. Is this a violation of the right to education? A - No. A person may have a right to choose the profession he wants but if he does not have the capability to comply with the academic requirements and qualifications required of a lawyer, this only means that he is not fit to be one. As Justice Isagani Cruz puts it, if one who wants to be a lawyer may prove better as a plumber, he should be so advised. Of course, he may not be forced as a plumber, but on the other hand, he may not force his entry into the bar. x x x (DECS vs. San Diego, 180 SCRA 533, December 21, 1989) Q - Can a school be compelled to re-admit a student for academic deficiencies? A - No. To do so will violate the academic freedom of the school. (Tangonan vs. Pano, 137 SCRA 245, June 27, 1985) Q - Is the said rule which allows schools a latitude of discretion on the admission of students absolute? A - As a rule, the courts cannot interfere with the academic judgment of the school, of its faculty and the proper authorities as to the competence and fitness of an applicant for enrollment. The only exception to this rule is if the action of the school is tainted with arbitrariness (Garcia vs. Faculty Admission Committee, Loyola School of Theology, 68 SCRA 277, November 28, 1975). In 1991, the Supreme Court ruled that a school is not liable for damages for refusing to re-admit a high school student who failed to fulfill the academic standards established by the school. (San Sebastian College vs. Court of Appeals, 197 SCRA 138, May 15, 1991) Q - Can a nursing school be compelled to re-open at the instance of the striking students? A - No. (Capitol Medical Center vs. Court of Appeals, 178 SCRA 493) ##779 RIGHT OF PRIVATE SCHOOLS TO ADMIT OR REFUSE TO ADMIT STUDENTS Q - What is the termination of contract rule? A - It means that when a student enrolls in a given school, he is registering for the entire semester and after the semester ends, the school has no duty to accept him because the contract is deemed terminated. Q - Can a school refuse the re-admission of students based on the termination of contract rule? 123

A - Yes. (Alcuaz vs. PSBA, 161 SCRA 7, May 2, 1988) Q - What are the other valid grounds to deny re-admission of students? A - (1) Academic deficiency; and (2) breach of school's reasonable rules of conduct. Q - What are the minimum standards of procedural due process when disciplinary sanctions are imposed to students of a school? A(1) The students must be informed in writing of the nature and cause of the accusation against them; (2) They shall have the right to answer the charges against them; (3) They shall be informed of the evidence against them; and (4) The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. (Guzman vs. National University, 142 SCRA 699) Q - Does compliance with the three year probation for teachers result to his permanent status? A - Not necessarily. It is still the discretion of the school to determine whether the performance of the said teacher is satisfactory or not and whether the said teacher has met its standards. (Cagayan Capitol College vs. NLRC, 189 SCRA 658) Q - Does a university have the right to revoke or withdraw the honor or distinction it has awarded compared to a student who already graduated? A - Yes, if there is evidence that said honor or distinction was obtained through fraud. (U.P. Board of Regents vs. William, G.R. No. 134625, August 31, 1999) Q - Can a medical school be closed for being "inadequate"? A - Yes. (Board of Medical Education vs. Judge Alfonso, 176 SCRA 304) ##780 LANGUAGE Section 6. The national language of the Philippines is Filipino. As it evolves, it shall be further developed and enriched on the basis of existing Philippine and other languages. Subject to provisions of law and as the Congress may deem appropriate, the Government shall take steps and sustain the use of Filipino as a medium of official communication and as language of instruction in the educational system. Section 7. For purposes of communication and instruction, the official languages of the Philippines are Filipino and, until otherwise provided by law, English. The regional languages are the auxiliary official languages in the regions and shall serve as auxiliary media of instruction therein. Spanish and Arabic shall be promoted on a voluntary and optional basis. Section 8. This Constitution shall be promulgated in Filipino and English and shall be translated into major regional languages, Arabic and Spanish. 124

Section 9. The Congress shall establish a national language commission composed of representatives of various regions and disciplines which shall undertake, coordinate, and promote researches for the development, propagation, and preservation of Filipino and other languages. Q - What is the national language of the Philippines? A - Filipino. (Section 6) Q - What are the official languages of the Philippines? A - Section 7 designates Filipino and English as the official languages of the Philippines "for purposes of communication and instruction." Q - Are regional languages used for purposes of communication and instruction? A - Yes, but they will only be auxiliary official languages in the regions and shall serve "as auxiliary media of instruction therein." ##781 Q - Can the Spanish and Arabic language be used? A - They are no longer required for degree purposes but the schools may continue to require them for certain major specializations or special studies. The Constitution only provides that the said languages "shall be promoted on a voluntary and optional basis." Q - Section 8 provides that "this Constitution shall be promulgated in Filipino and English and shall be translated into major regional languages, Arabic and Spanish." If there is a conflict in meaning among the different text, which shall prevail? A - The Constitution is silent on this point but the language used during the discussions, from the opening of the entire proceedings to the termination of the same, were predominantly in English. It is submitted that the English text should prevail. SCIENCE AND TECHNOLOGY Section 10. Science and technology are essential for national development and progress. The State shall give priority to research and development, invention, innovation, and their utilization; and to science and technology education, training, and services. It shall support indigenous, appropriate, and self-reliant scientific and technological capabilities, and their application to the country's productive systems and national life. Section 11. The Congress may provide for incentives, including tax deductions, to encourage private participation in programs of basic and applied scientific research. Scholarships, grants-in-aid, or other forms of incentives shall be provided to deserving science students, researchers, scientists, inventors, technologists, and especially gifted citizens. Section 12. The State shall regulate the transfer and promote the adaptation of technology from all sources for the national benefit. It shall encourage the widest participation of private groups, local governments, and community-based organizations in the generation and utilization of science and technology. 125

Section 13. The State shall protect and secure the exclusive rights of scientists, investors, artists, and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law. Q - Why should priority be given to research and development, invention, innovation, and their utilization, and to science and technology education, training and services? A - Science and technology are essential for national development and progress. (Section 10) ##782 Q - Is the private sector encourage to participate the programs of basic and applied scientific research? A - Yes. In fact, Congress may provide for incentives, including tax deductions. Scholarships, grants-in-aid, or other forms of incentives shall be provided to deserving science students, researchers, scientists, inventors, technologies, and specially gifted citizens. (Section 11) Q - What specific protection shall the State give to scientists, inventors, artists, and other gifted citizens to their intellectual property and creations? A - The State shall protect and secure the exclusive rights to their intellectual property and creations. ARTS AND CULTURE Section 14. The State shall foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression. Section 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation's historical and cultural heritage and resources as well as artistic creations. Section 16. Al! the country's artistic and historic wealth constitute the cultural treasure of the nation and shall be under the protection of the State which may regulate its disposition. Section 17. 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. Section 18. (1) The State shall ensure equal access to cultural opportunities through the educational system, public or private cultural entities, scholarships, grants and other incentives, and community cultural centers, and other public venues. (2) The State shall encourage and support researches and studies on the arts and culture. Q - Summarize the concerns of the State regarding arts and culture (Section 14 to Section 18). A - Section 14 - Preservation, enrichment and dynamic evolution of a Filipino national culture. ##783 Section 15 - Conservation, promotion and popularization of the nation's historical and cultural heritage and resources as well as artistic resources. Section 16 - Protection of the country's artistic and historic wealth. 126

Section 17 - Preservation and development of the rights, cultures. traditions and institutions of indigenous cultural communities. Section 18 - Equal access to cultural opportunities through the educational system. SPORTS Section 19. (1) The State shall promote physical education and encourage sports league competitions, and amateur sports, including training for international competitions, to foster self-discipline, teamwork, and excellence for the development of a healthy and alert citizenry. (2) All educational institutions shall undertake regular sports activities throughout the country in cooperation with athletic clubs and other sectors. Q - What are the concerns of the State under Section 19? A(1) Promotion of physical education. (2) Development of a healthy and alert citizenry. (3) Regular sport activities throughout the country in cooperation with athletic clubs and other sectors. ARTICLE XV THE FAMILY Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Q - What are the three responsibilities of the State when the Constitution states that "The State recognizes the sanctity of family life."? A - This recognition carries with it three responsibilities of the State, thus: 1. It shall protect and strengthen the family as a basic autonomous social institution. 2. It shall equally protect the life of the mother and the life of the unborn from conception. 3. The natural primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the aid and support of the government. Q - Why is the family considered as a basic autonomous social institution? A - The family is a social institution because it forms part of the community. Without a family or a group of families, the community has no one to depend on for any project it wishes to carry out. The government in every community is the agency or instrumentality through which the wishes of the people are made known and implemented. All the governments, taken together, form part of the Republic of the Philippines. ##784 Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. 127

Q - When Section 2 provides that marriage is "an inviolable social institution," does this mean that marriage cannot be annulled? A - No. Precisely, the New Family Code, Article 45 thereof, provides that marriage can be annulled on the grounds enumerated in said section in addition to the ground stated in Article 36 of the Family Code. Section 3. The State shall defend: (1) The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood; (2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development; (3) The right of the family to a family living wage and income; and (4) The right of families or family associations to participate in the planning and implementation of policies and programs that affect them. Section 4. The family has the duty to care for its elderly members but the Senate may also do so through just programs of social security. Q - What is the constitutional protection to elderly members of our society? A - Section 4 requires that the "family has the duty to care for its elderly members but the Senate may also do so through just programs of social security." ARTICLE XVI GENERAL PROVISIONS Section 1. The flag of the Philippines shall be red, white, and blue, with a sun and three stars, as consecrated and honored by the people and recognized by law. Section 2. The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum. ##785 Q - What shall be submitted to the people in a national referendum under Section 2? A - A law passed by Congress which adopts either: (1) a new name for the country; (2) a new national anthem; (3) or a new national seal. Section 3. The State may not be sued without its consent. Q - What is the rationale of Section 3? A(1) A State has the inherent right to exist and to protect itself and its citizens from any act or acts which will defeat the greater interest of the people which it is obligated to serve. This includes the right to protect itself against indiscriminate suits which will necessarily require 128

its attention, time and resources. All these could otherwise be used more for the benefit and interest of the general welfare, in line with the provisions of Sections 4 and 5, Article II of the 1987 Constitution. (2) At a time when our country and the citizenry are confronted with serious problems arising not only from economic depression but also from rampant criminality, kidnapping, drugrelated crimes, massacres, agrarian unrest, labor strikes, and many others, the interest of public welfare demands that the time and resources of the State should better be used for more pressing matters instead of indiscriminate suits. To a greater number of people, this basis is perhaps more understandable than what Justice Holmes said that "there can be no other legal rights against the authority which makes the law on which the right depends." Q - Is the doctrine of State immunity available to member States if they are sought to be sued in the court of the local State? A - It is not conducive to harmony and peace in the community of nations if one State can assert jurisdiction over another State. The better view is to uphold the principle of sovereign equality of States under the time-honored principle of "PAR IN PAREM IMPERIUM NON HABET." Q - Can the government of the Republic of the Philippines be sued? Explain. A - As a rule, the government of the Republic of the Philippines cannot be sued without its consent. The consent of the State to be sued may be given expressly or impliedly. Express consent may be manifested either through a general law or special law. ##786 When is there an express consent? There is express consent when a law expressly grants authority to sue the State or any of its agencies. Another example of express consent is the special law enacted by the Philippine Legislature authorizing an individual to sue the Philippine Government for injuries he had sustained when his motorcycle collided with a government ambulance. (Merit vs. Government of the Philippine Islands, 34 Phil. 311) When is there an implied consent? (1) When the State enters into a private contract, unless the contract is only incidental to the performance of a government function. (Santos vs. Santos, 92 Phil. 281) (2) When the State enters into an operation that is essentially business operation, unless the business operation is only incidental to the performance of a governmental function (i.e. arrastre service). (Mobil Philippines vs. Customs Arrastre Service, 18 SCRA 1120 [1966]) (3) When the State sues a private party, the defendant can file a counterclaim against the State, unless the suit is entered into only to resist a claim. (Lim vs. Brownell, 107 Phil. 344 [1969]) 129

Q - What is the procedure to prosecute the claim of government? A - Under C.A. No. 327, as amended by P.D. No. 1445, a claim against the government must first be filed with the Commission on Audit, which must act upon it within sixty days. If the claim is rejected, the claimant is authorized to elevate the matter to the Supreme Court on certiorari and in effect sue the State with its consent. (P.D. No. 1445, Sections 49-50) Q - Can the express consent of the State be given by a mere counsel of the Government? A - In Republic vs. Purisima (78 SCRA 470), the Supreme Court ruled that the waiver made by the lawyer of the Rice and Com Administration is not binding upon the State. The express consent of the State to be sued should, therefore, be provided by law. Q - Can the agencies of the Government of the Republic of the Philippines be sued? A - It depends on whether the government agency to be sued is incorporated or unincorporated. If it is incorporated, the rule is that it is suable if its charter says so and regardless of the functions it is performing. If it is unincorporated, the rule is that it is suable if it is performing proprietary functions, and not suable if it is performing governmental functions. ##787 Note: The old cases are Meritt vs. Government of the Philippine Islands, 34 Phil. 311; Rosette vs. Auditorial General, 81 Phil. 453 and Palafox vs. Ilocos Norte. Q - Briefly, what is the decision of the Supreme Court in the said cases? A - In Meritt vs. Government, the driver of the ambulance of the Philippine General Hospital was not considered as an agent and the said hospital is not therefore liable for the negligence of the ambulance driver. In Rosette vs. Auditor General, it was held that the officers of the Emergency Control Administration did not act as special agents of the government in storing gasoline in the warehouse of the Emergency Control Administration. Hence, the government is not responsible for the damages caused through such a negligence. In Palafox vs. Province of Ilocos Norte, the latter was not liable for the acts of the driver of the truck because he was not a special agent of the government as the term was used in Article 1903 of the Spanish Civil Code. The judgment of the lower court dismissing the complaint of plaintiff's father on the ground that the province was not engaged in industry and therefore not liable under Article 103 of the Penal Code (where the employer's liability is subsidiary), was affirmed by the Supreme Court. FONTANILLA VS. MALIAMAN, ET AL. G.R. NO. 55963; NATIONAL IRRIGATION ADMINISTRATION VS. FONTANILLA, ETAL. G.R. NO. 610-45, DECEMBER 1, 1989 FACTS: 130

NIA, a government agency, owns and operates a pick-up, and it is officially driven by Hugo, the one employed by NIA as its regular driver. Said pick-up bumped a bicycle ridden by Francisco, son of petitioners. Because of the impact, Francisco was thrown 50 meters away from the point of impact, while Restituto, another passenger, was thrown a little bit further. Francisco died. Hugo was a licensed professional driver and he passed the written and oral examinations on traffic rules and maintenance given by NIA. The parents of Francisco sued NIA for damages. NIA's contention: NIA alleged that it does not perform solely or primarily proprietary functions, and that it is an agency of the government tasked with governmental functions. It cannot therefore be held liable for damages for injuries caused by its employees to a third person. ##788 ISSUE: Is NIA liable for damages? HELD: The NIA is an agency of the government exercising proprietary functions, by express provision of Republic Act No. 3601. Indubitably, it is a government corporation with juridical personality and not a mere agency of the government. Since it is a corporate body performing non-governmental functions, it now becomes liable for the damage caused by the accident resulting from the tortious act of its driver-employee. In this case, the NIA assumes the responsibility of an ordinary employee and as such, it becomes answerable for damages. This assumption of liability, however, is predicated upon the existence of negligence of supervision. The matter of due diligence on the part of NIA is a crucial issue in determining its liability since it is a government agency performing proprietary functions and as such assumes the posture of an ordinary employer which, under paragraph 5 of Article 2180, is responsible for the damages caused by its employees provided that it has failed to observe or exercise due diligence in the selection and supervision of the driver. Evidently, there was negligence in the supervision of the driver for the reason that they were traveling at a high speed within the city limits and yet the supervisor of the group failed to caution and make the driver observe the proper and allowed speed within the city. Under the situation, such negligence is aggravated by their desire to reach their destination without even checking whether or not the vehicle suffered damage from the object it bumped, thus showing imprudence and recklessness on the part of both the driver and the group supervisor. Therefore, NIA may be held liable for damages caused by the negligent act of its driver who was not its special agent. Q - Can a public officer be sued in his official capacity without obtaining first the consent of the State to be sued? A - This is allowed in cases where said public officer is merely being required to do or perform a duty which is required by law, or if he is merely being restrained to do or perform an act 131

which is alleged to be illegal or unconstitutional, or if he is being sued to be able to recover from him the possession of a property which is under his custody in his official capacity as a public officer. However, if in the enforcement of a judgment rendered in connection with said cases, an appropriation of public funds will be needed to satisfy the judgment, the State should be included in the suit as party defendant. In other words, the State need not be a party defendant if such claim can be satisfied and complied with by the said public officer. ##789 Q - Can a public officer who claims to have exercised an act in the performance of his official duties incur personal liability? A - It is not enough that a public officer complies with his official duties. He should perform his duties in accordance with law and he should act within the scope of his authority and jurisdiction. Hence, if a public officer acts without jurisdiction or in excess of jurisdiction, any injury caused by him is his personal liability and cannot be imputed to the State. Q - When the State gives its consent to be sued, does it also consent to the execution of the judgment against it? A - This question was raised in Republic of the Philippines vs. Villasor (54 SCRA 84). In this case, a writ of execution was issued by the court against the funds of the Armed Forces of the Philippines to satisfy a judgment rendered against the Philippine Government. It was ruled that public funds cannot be the object of garnishment proceedings even if the consent to be sued had been previously granted and even if the State liability has been adjudged. This ruling upholds the view that when the State give its consent to be sued by private parties, either by general or special law, it may limit claimant's action only up to the completion proceedings anterior to the stage of execution and that the power of Courts ends when the judgment is rendered. In other words, judgment is one thing and disbursement of public funds to satisfy the said judgment is another. The first is well within the scope of the power and authority of the court. The seconds depends on whether or not there is a corresponding appropriation, as required by law, to satisfy the judgment of the court. Q - Are there instances when funds belonging to government corporations and deposited in a bank, were garnished? A - In Philippines National Bank vs. Pabalan (83 SCRA 595), a writ of execution was issued against PVTA (Philippine Virginia Tobacco Administration). Its funds on deposit with PNB were garnished. Here the funds belong to a government corporation whose charter provides that it can sue and be sued. In National Housing Authority vs. Heirs of Quirelondo, G.R. No. 154411, June 19, 2003, it was held that funds belong to a government owned or public corporation which is clothed with a personality of its own, hence, the same are not exempt from garnishment. Here, the NHA was considered like any other corporation because it has entered into a commercial transaction, and for which reason, it has abandoned its sovereign capacity. ##790 132

There is another case where the City Government approved and passed an ordinance, allocating a certain amount to be able to pay back salaries. Here, there is already an appropriated amount intended to be used and to satisfy the said obligation. (City of Caloocan vs. Allarde, G.R. No. 107271, September 10, 2003). Q - Suppose there is already a final money judgement against a municipality but despite this, the later still fails and refuses to pay the same, what coercive measure, if any, can be availed of to compel the payment of the said judgment? A - The claimant may file a petition for mandamus to compel the enactment and approval of the necessary appropriation ordinance and the corresponding disbursement of municipal funds. (Municipality of Makati vs. Court of Appeals, 190 SCRA 206) Section 4. The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve, as may be provided by law. It shall keep a regular force necessary for the security of the State. Section 5. (1) All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution. (2) The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty. (3) Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be insulated from partisan politics. No member of the military shall engage directly or indirectly in any partisan political activity, except to vote. (4) No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government including governmentowned or controlled corporations or any of their subsidiaries. (5) Laws on retirement of military officers shall not allow extension of their service. (6) The officers and men of the regular force of the armed forces shall be recruited proportionately from all provinces and cities as far as practicable. (7) The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty. ##791 Q - What is required and expected of the Armed Forces of the Philippines? A(1) All members of the armed forces shall take an oath or affirmation to uphold and defend this Constitution. (2) The armed forces shall be insulated from partisan politics. 133

(3) No member of the military shall engage directly or indirectly in any partisan political activity, except to vote. (4) No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government including governmentowned or controlled corporations or any of their subsidiaries. Q - Can there be law which will allow extension of service of military officers? A - Laws on retirement of military officers shall not allow extension of their service. Q - Can the tour of duty of the Chief of Staff of the Armed forces exceed three years? A - The tour of duty of the Chief of Staff of the Armed Forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty. Section 6. The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law. Q - Who has control and administration over all police units in the Philippines? A - The National Police Commission. Q - What is the nature of our police force? A - We shall have "one police force, which shall be national in scope and civilian in character." Section 7. The State shall provide immediate and adequate care, benefits, and other forms of assistance to war veterans and veterans of military campaigns, their surviving spouses and orphans. Funds shall be provided therefor and due consideration shall be given them in the disposition of agricultural lands of the public domain and, in appropriate cases, in the utilization of natural resources. Section 8. The State shall, from time to time, review to upgrade the pensions and other benefits due to retirees of both the government and the private sectors. ##792 Section 9. The State shall protect consumers from trade malpractices and from substandard or hazardous products. Section 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press. Section 11. (1) The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens. 134

The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. (2) The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare. Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines. Q - What are the constitutional limitations regarding ownership and management of mass media? A(1) It shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens. (2) The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. (3) The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare. (4) Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. (5) The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines. ##793 Section 12. The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, MULTIPLE CHOICE QUESTIONS I. Immunity of agencies of the government of the Republic of the Philippines Can agencies of the Government of the Republic of the Philippines be sued? A. They can be sued if they give their consent to be sued. B. They cannot be sued if they are performing a work in the exercise of their governmental function. C. They cannot be sued because they are merely agents of the national government and it is the latter that should be sued. 135

D. It depends on whether government to be sued is incorporated or unincorporated. If it is incorporated, the rule is that it is suable if its charter says so and regardless of the functions it is performing. If it is unincorporated, the rule is it is suable if it is performing proprietary functions and not suable if it is performing governmental functions. 2. Enforcement of judgment against a municipal government A complaint for sum of money with damages was filed against X Municipality in connection with a construction project entered into by and between said municipality and Strong Contractors, Inc. After trial and hearing, judgment was rendered against X Municipality and subsequently, a writ of execution was issued by the court to enforce judgment. A. The money owned by X Municipality and deported in Rizal Bank can be garnished to satisfy the judgment. B. The power of the courts and when the judgment is rendered and the writ of execution or garnishment cannot be enforced. C. Public funds cannot be the object of garnishment proceedings even if the consent to be sued has been previously granted on account of the contract. D. It is within the power of the court to render Judgment but the power to disburse public funds to satisfy the judgment will depend on whether there is a corresponding appropriation, as required by law. ##794 ARTICLE XVII AMENDMENTS OR REVISION Section 1. Any amendment to, or revision of, this Constitutional may be proposed by: (a) The Congress, upon a vote of three-fourths of all its Members; or (b) A constitutional convention. CAN THE 1987 CONSTITUTION BE CHANGED? IF SO, HOW CAN IT BE CHANGED? Yes. By express Constitutional provision. It can be changed either by amendment or revision. DISTINCTION BETWEEN REVISION AND AMENDMENT Revision is the rewriting or overhauling of the entire instrument. Amendment is a change or alteration for the better, an amendment or change within the lines of the original instrument which will bring about improvement. STEPS REQUIRED IN THE REVISION OR AMENDMENT OF THE CONSTITUTION There are two (2) steps required in the process of revising or amending the Constitution, namely: (a) Proposal; and (b) Ratification. (a) PROPOSAL. Proposal is the motion of initiating suggestions or proposals on the amendment or revision which may either be by: • Congress upon a vote of three-fourths of all its Members; or 136

• A Constitutional Convention; or • The people through initiative. (b) RATIFICATION. Ratification is the sovereign act vested in the Filipino people to either reject or approve the proposals to amend or revise the Constitution. The ratificatory process is found and outlined in Section 4, Article XVII of the Constitution, to wit: "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 (60) days nor later than ninety (90) days after the approval of such amendment or revision. ##795 "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 (60) days nor later than ninety (90) days after the certification by the Commission on Elections of the sufficiency of the petition." HOW MAY THE CONSTITUTION BE REVISED? There are two (2) modes of revising the Constitution, to wit: (a) By the Congress, upon a vote of three-fourths of all its Members; or (b) By a Constitutional Convention. If Congress chooses to call a Constitutional Convention to revise the Constitution, it may either: (a) Call a Constitutional Convention by a vote of two-thirds of all its Members; or (b) Submit to the electorate the question or calling such a body by a majority vote of all its Members. HOW MAY THE CONSTITUTION BE AMENDED? Amendment may be effected: (a) By Congress, upon a vote of the three-fourths of all its Members; (b) By a Constitutional Convention; (c) By People's Initiative. 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. 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. 137

PEOPLE'S INITIATIVE 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. ##796 THREE (3) SYSTEMS OF INITIATIVE (a) Initiative on the Constitution - which refers to a petition proposing amendments to the Constitution. (b) Initiative on Statutes - one referring to a petition to enact a national legislation. (c) Initiative on Local Legislation - it refers to a petition proposing to enact a regional, provincial, city or municipal or barangay law, resolution or ordinance. REQUIREMENTS AND LIMITATIONS TO PEOPLE'S INITIATIVE Initiative to amend the Constitution may be effected through a petition, subject to the following conditions: (a) The petition must have at least twelve (12%) per centum of the total number of registered voters as signatories. (b) Of the twelve (12%) per centum total registered voters, at least every legislative district must be represented by three (3) per centum of the registered voters therein. THE LIMITATIONS ON THE EXERCISE OF SUCH RIGHT ARE: (a) The power of initiative shall be exercised five years after the ratification of the 1987 Constitution. (b) The power may be exercised only once every five years thereafter. CONTENTS OF THE PETITION ON INITIATIVE The petition must state the following: (a) Contents or text of the proposed law sought to be enacted, approved, or rejected, amended or repealed, as the case may be. (b) The proposition. (c) The reason or reasons thereof. (d) That it is not one of the exceptions provided therein. (e) Signatures of the petitioners or registered voters. (f) An abstract of summary proposition in not more than one hundred words which shall be legibly written or printed at the top of every page of the petition. Section 4. Any amendment to, 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.

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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 Election of the sufficiency of the petition. ##797 RATIFICATION It is the direct approval of the people of the amendment to, or revision of, the Constitution. WHEN SHOULD THE AMENDMENT TO OR REVISION OF THE CONSTITUTION BE SUBMITTED TO THE PEOPLE IN A PLEBISCITE? The amendment to or revision of the Constitution must be submitted to the people in a plebiscite called for the purpose not earlier than sixty (60) days nor later than ninety (90) days after the approval of such amendment or revision. Any amendment to the Constitution undertaken by virtue of the people's right on initiative shall be submitted also within the same period after the certification by the COMELEC of the sufficiency of the petition. (Section 4, Paragraph 2, Article XVII) CAN PROPOSED AMENDMENTS TO THE CONSTITUTION BE SUBMITTED AT A PLEBISCITE WHICH IS SCHEDULED ON THE SAME DAY AS THE REGULAR ELECTIONS? In Gonzales vs. Commission on Elections (21 SCRA 774), the petitioner questioned the validity of the submission of some proposed amendments to the Constitution at a plebiscite which is scheduled on the same day as the regular elections. It was the contention of the petitioner that it being the same day when the regular elections shall be held, the people would have more interest on the election issues rather than on the proposed amendments to the Constitution. The Supreme Court, however, did not uphold the said contention and held that "x x x The circumstance that the previous amendment 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." IS THE POWER TO AMEND OR REVISE THE CONSTITUTION INCLUDED IN THE GENERAL GRANT OF LEGISLATIVE POWER TO CONGRESS? The power to amend or revise the Constitution is not included in the general grant of legislative power to Congress. It is part of the inherent powers of the people as the repository of sovereignty in a Republican State. It cannot be exercised by Congress unless expressly granted to it in the Constitution. Congress may propose amendments to the Constitution merely because the same expressly grants such power. Thus, when exercising the same, it is said that the Senators and Members of the House of Representatives act, not as Members of Congress, but as component elements of a constituent assembly. When acting as such, the Members of the Congress derive their authority from the Constitution, unlike the people, when performing the same function, for their authority does not emanate from the Constitution - they are the very 139

source of all powers of government, including the Constitution itself. (Gonzales vs. Commission on Elections, 21 SCRA 774) ##798 IS AN AMENDMENT OR REVISION AND RATIFICATION OF THE CONSTITUTION A JUSTICIABLE QUESTION? It is a justiciable question. (Majority view in Javellana vs. Executive Secretary, et al., L36142, March 31, 1973) In Sanidad vs. Comelec (supra), the Court held that the amending process, both as to proposal and ratification raises a justiciable question. Said the Court in Sanidad: "The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of judicial review We disagree. The amending process both as to proposal and ratification, raises a judicial question. This is specifically true in cases where the power of the President to initiate the amending process by a proposal of amendment, a function normally exercised by the legislature, is seriously doubted" CAN THE CONSTITUTION BE VALIDLY AMENDED BY "TRANSPOSITION"? No. The Constitution can only be validly amended by the three (3) modes explicitly enumerated in Sections 1 and 2, Article XVII. Amendment by transposition is not one of them, hence, impermissible. (Bautista vs. Salonga, 172 SCRA 160, April 13, 1989) IS IT POSSIBLE THAT THE PROCEDURAL REQUIREMENTS FOR AMENDMENT OR REVISION OF THE CONSTITUTION ARE NOT COMPLIED WITH, AND YET, IT IS CONSIDERED VALIDLY RATIFIED? The majority view in Javellana vs. Executive Secretary confirmed that this is possible. The dispositive portion of the decision in the said case states: "Accordingly, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makaisar, Antonio and Esguerra with the four dissenting votes of the Chief Justice and Justices Zaldivar Fernando and Teehankee, all the aforementioned cases are hereby dismissed. This being the vote of the majority. there is no further judicial obstacle to the new Constitution being considered in force and effect. (Underlining Supplied) ##799 ARTICLE XVIII TRANSITORY PROVISIONS Section 1. The first elections of Members of the Congress under this Constitution shall be held on the Second Monday of May, 1987. The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area. Q - What is the purpose of the transitory provisions provided for in Sections 1 to 27 of Article XVIII of the 1987 Constitution? A - Transitory provisions are transient or temporary in nature. They are intended to attain smooth transition from the old government to the new one under the new Constitution. The 140

purpose for which a transitory provision is enacted is deemed accomplished after the said provision is carried out, implemented or fulfilled. There being no specific date that is fixed for the exact fulfillment of the same, except as otherwise indicated in some instances, they shall continue to exist until the purpose or purposes for their enactment are attained or fulfilled. Q - What are the three (3) elections mentioned or referred to under Section 1? A - There are three (3) elections mentioned in or referred to under Section 1 and they are as follows: 1. The first elections of members of Congress - The first elections of Members of the Congress under the Constitution shall be held on the second Monday of May, 1987. 2. The first local elections 3. Election of all members of the city or municipal councils in the Metropolitan area - The first local elections shall be held on the date to be determined by the President which may be simultaneous with the election of the members of the Congress. It shall include the election of all Members of the City or Municipal councils in the Metropolitan Manila area. ##800 Section 2. The Senators, Members of the House of Representatives, and the local officials first elected under this Constitution shall serve until noon of June 30, 1992. Of the Senators elected in the election in 1992, the first twelve obtaining the highest number of votes shall serve for six years and the remaining twelve for three years. Q - What is the definition of the term of office of Senators, Members of the House of Representatives, and the local officials first elected under the 1987 Constitution? A - Section 2 defines the term of the following: 1. Senators, Members of the House of Representatives - They shall serve until noon of June 30, 1992. 2. The first twelve (12) senators elected in the 1992 election who obtained the highest number of votes - The first twelve Senators obtaining the highest number of votes shall serve for six (6) years. 3. The next twelve senators elected in the 1992 Election - The remaining Senators - 13th to 24th place - shall serve for three (3) years. Q - How is synchronization attained with respect to the term of President and Vice-President? A - The first elections for the President and Vice-President under the 1987 Constitution was held on the second Monday of May, 1992, because the six-year term of then President Corazon C. Aquino and then Vice-President Salvador H. Laurel who won in the election on 141

February 7, 1986, was extended, for purposes of synchronization, to noon of June 30, 1992, an extension of about four (4) months. For the foregoing reasons, the 1987 Constitution paves the way for the synchronization of elections for local and national officials, including the President and Vice-President of the Philippines. Section 3. All existing laws, decrees, executives orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked Q - What is the rationale of Section 3? A - Existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances shall remain operative until amended, repealed or revoked, for as long as they are not inconsistent with the 1987 Constitution. In this manner, there shall be no disruption in the orderly operations of the government during the transition period. It will also insure protection and respect for vested rights and obligations derived under the existing statutes "not inconsistent with this Constitution." ##801 Section 4. 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. Q - What is the constitutional limitation with respect to existing treaties or international agreements which have not been ratified? A - Section 4 refers to treaties or international agreements which may have been entered into by President Ferdinand E. Marcos during his incumbency but which have not been ratified. They may continue, as agreed upon, but they shall not be renewed or extended without the concurrence of at least 2/3 of all the members of the Senate. Section 5. The six-year term of the incumbent President and Vice-President elected in February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May, 1992. Q - Why is the term of President Corazon Aquino and Vice-President Salvador Laurel extended to noon of June 30, 1992? A - As already stated, the six-year term of then President Corazon Aquino and then VicePresident Salvador H. Laurel was extended to noon of June 30, 1992, an extension of about four (4) months. Section 5 states that the purpose of the said extension is to attain "synchronization of elections."

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Section 6. The incumbent President shall continue to exercise legislative powers until the first Congress is convened. Q - What is the purpose of Section 6? A - This means that from the ratification of the 1987 Constitution up to the fourth Monday of July 1987, President Corazon C. Aquino shall continue to exercise legislative powers. This is the basis of her authority to implement some provisions of the Constitution that are not selfexecutory. Section 7. Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors the seats reserved for sectoral representation in paragraph (1), Section 5 of Article VI of this Constitution. Self-explanatory. Section 8. Until otherwise provided by the Congress, the President may constitute the Metropolitan Manila area. Self-explanatory. ##802 Section 9. A sub-province shall continue to exist and operate until it is converted into a regular province or until its component municipalities are reverted to the mother province. Section 10. All courts existing at the time of the ratification of this Constitution shall continue to exercise their jurisdiction, until otherwise provided by law. The provisions of the existing Rules of Court, judiciary acts, and procedural laws not inconsistent with this Constitution shall remain operative unless amended or repealed by the Supreme Court or the Congress. Section 11. The incumbent Members of the Judiciary shall continue in office until they reach the age of seventy years or become incapacitated to discharge the duties of their office or are removed for cause. Section 12. The Supreme Court shall, within one year after the ratification of this Constitution, adopt a systematic plan to expedite the decision or resolution of cases or matter pending in the Supreme Court or the lower courts prior to the effectivity of this Constitution. A similar plan shall be adopted for all special courts and quasi-judicial bodies. Section 13. The legal effect of the lapse, before the ratification of this Constitution, of the applicable period for the decision or resolution of the cases or matters submitted for adjudication by the courts, shall be determined by the Supreme Court as soon as practicable. Q - Simplify Sections 9, 10, 11, 12, and 13. A - Under Section 9, a sub-province may either be converted into a regular province, or its component municipalities may be reverted to the mother province. Under Section 10, all courts existing at the time of the ratification of the 1987 Constitution shall continue to function, until otherwise provided by law. The same thing is true for the existing Rules of Court, judiciary acts and procedural laws not inconsistent with the 143

Constitution. They shall remain operative unless amended or repealed by the Supreme Court or the Congress. Because of the mandate in Section 11, all pending resignations of incumbent judges then became functus officio upon ratification of the 1987 Constitution. Section 12 gives the Supreme Court a period of one (1) year after the ratification of the 1987 Constitution within which to adopt a systematic plan to expedite the decision or resolution of pending cases not only in the Supreme Court but also in all lower courts, special courts and quasi-judicial bodies. ##803 Under Section 13, the Supreme Court is mandated to determine the legal effect of the lapse of the applicable period for the decision or resolution of cases or matters submitted for adjudication. Section 14. The provisions of paragraphs (3) and (4), Section 15 of Article VIII of this Constitution shall apply to cases or matters filed before the ratification of this Constitution, when the applicable period lapses after such ratification. Section 15. The incumbent Members of the Civil Service Commission, the Commission on Elections, and the Commission on Audit shall continue in office for one year after the ratification of this Constitution, unless they are sooner removed for cause or become incapacitated to discharge the duties of their office or appointed to a new term thereunder. In no case shall any Member serve longer than seven years including service before the ratification of this Constitution. Q - Is the right of the member of three Constitutional Commissions to continue in office for one year after the ratification of the 1987 Constitution absolute? A - Their continuancy in office is subject only to three (3) restraints, to wit: 1. Unless they are sooner removed for cause. 2. Unless they become incapacitated to discharge the duties of their office. 3. Unless they are appointed to a new term. Section 16. Career civil service employees separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, had been accepted Q - What are the two (2) kinds of reorganization contemplated in Section 16? 144

A - Section 16 contemplates of two (2) kinds of reorganization: 1. Reorganization by virtue of Proclamation No. 3. 2. Reorganization following the ratification of the 1987 Constitution. ##804 In either case, career civil service employees separated from the service not for cause "shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. x x x" Section 17. Until the Congress provides otherwise, the President shall receive an annual salary of three hundred thousand pesos; the Vice-President, the President of the Senate, the Speaker of the House of Representatives, and the Chief Justice of the Supreme Court, two hundred forty thousand pesos each; the Senators, the Members of the House of Representatives, the Associate Justices of the Supreme Court, and the Chairmen of the Constitutional Commissions, two hundred four thousand pesos each; and the Members of the Constitutional Commissions, one hundred eighty thousand pesos each. Self-explanatory. Section 18. At the earliest possible time, the Government shall increase the salary scales of the other officials and employees of the National Government. Section 19. All properties, records, equipment, buildings, facilities, and other assets of any office or body abolished or reorganized under Proclamation No. 3 dated March 25, 1986 or this Constitution shall be transferred to the office or body to which its powers, functions, and responsibilities substantially pertain. Section 20. The first Congress shall give priority to the determination of the period for the full implementation of free public secondary education. Section 21. The Congress shall provide efficacious procedures and adequate remedies for the reversion to the State of all lands of the public domain and real rights connected therewith which were acquired in violation of the Constitution or the public land laws, or through corrupt practices. No transfer or disposition of such lands or real rights shall be allowed until after the lapse of one year from the ratification of this Constitution. Section 22. At the earliest possible time, the Government shall expropriate idle or abandoned agricultural lands as may be defined by law, for distribution to the beneficiaries of the agrarian reform program. Section 23. Advertising entities affected by paragraph (2), Section 11 of Article XVI of this Constitution shall have five years from its ratification to comply on a graduated and proportionate basis with the minimum Filipino ownership requirement therein. Section 24. Private armies and other armed groups not recognized by duly constituted authority shall be dismantled. All paramilitary forces including Civilian Home Defense Forces not consistent with the citizen armed force established in this Constitution, shall be dissolved or, where appropriate, converted into the regular force. ##805 Q - What are the concerns of the government in connection with Sections 18, 19, 20, 21, 22, 23, and 24? 145

A - Said concerns are as follows: 1. Increase of the salary scales of all officials and employees of the national government. (Section 18) 2. Properties, records, equipment, buildings, facilities and other assets of any office abolished or reorganized shall be transferred to the office or body to which its powers, functions, and responsibilities substantially pertain. (Section 19) 3. Priority to the determination of the period for the full implementation of free public secondary education. (Section 20) 4. Reversion to the State of all lands of the public domain and real rights connected therewith which were acquired unlawfully. (Section 21) 5. Expropriation of idle or abandoned agricultural lands. (Section 22) 6. Filipino ownership requirement for advertising entities. (Section 23) 7. Dismantling of private armies and armed groups. (Section 24) Section 25. 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. Q - What shall not be allowed after the expiration in 1991 of the RP-US Military Bases Agreement? A1. Foreign military bases 2. Foreign troops 3. Foreign facilities Exception: Except if there is treaty duly concurred in by the Senate. Q - If there is already a treaty concurred in by the Senate, does said treaty still need the ratification of the majority of the votes cast by the people in a national referendum held for that purpose? A - Yes, but only when Congress so requires. ##806 Q - If Congress requires ratification and the said treaty is actually ratified by the majority of the votes cast in a national referendum held for that purpose, can it be implemented already? A - No, because said treaty has still to be recognized as a treaty by the other contracting State. Section 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative 146

for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof. The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided. Q - What are the constitutional limitations for issuing a request or freeze order? A - A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof. The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided. AUTHORITY TO ISSUE SEQUESTRATION OR FREEZE ORDERS UNDER PROCLAMATION NO. 3 DATED MARCH 25, 1986 IN RELATION TO THE RECOVERY OF ILL-GOTTEN WEALTH Q - How long shall it be operative? A - It shall remain operative for not more than eighteen months after the ratification of the 1987 Constitution. ##807 Q - Can Congress extend said period? A - In the national interest, as certified by the President, the Congress may extend said period. Q - When can it be issued? A - A sequestration or freeze order shall be issued only upon showing of a prima facie case. Q - What is required when the said order is issued? A - The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. FILING OF CORRESPONDING JUDICIAL ACTION OR PROCEEDING Q - When shall it be filed? A147

1. For orders issued before the ratification of the 1987 Constitution: It shall be filed within six months from its ratification. 2. For orders issued after the ratification of the 1987 Constitution: It shall be commenced within six months from the issuance of the order. CASES Q - Is a sequestration order issued by the PCGG Task Force Regional Head valid? A - No. REASONS: (1) A writ of sequestration may be issued only upon authority of at least two PCGG Commissioners; (2) The PCGG Task Force Regional Head does not have specific authority to act on behalf of the commission; and (3) Even assuming that the said regional head is authorized, the PCGG may not validly delegate its authority to sequester. (Republic vs. Sandiganbayan, 258 SCRA 685) Q - Can the PCGG exercise the prerogatives of ownership such as the sale of property or the selection of people who should manage a corporation under sequestration? A - No, without the permission of the courts. (Republic vs. Sandiganbayan, 192 SCRA 743 [1990]; Republic vs. Sandiganbayan, 221 SCRA 189 [1993]) Q - Does sequestration automatically deprive the stockholders of their right to vote their shares of stocks? A - No. The test on whether there is right to vote sequestered shares of stocks depends on two tests: 1. Whether there is prima facie evidence to show that the said shares are ill-gotten over which the government has a legitimate claim for recovery; 2. Whether there is an immediate danger of dissipation complaints, hence, there is a need for continued sequestration in voting by the PCGG during the pendency of the principal issue with the Sandiganbayan. (PCGG vs. Cojuanco, G.R. No. 133197, January 22, 1999) ##808 Q - Can the PCGG enter into a compromise agreement involving ill-gotten wealth and the granting of immunity in civil and criminal cases without the necessity of prior approval of Congress? A - This was allowed in Benidicto vs. Board of Administrators, 207 SCRA 659. Q - What are the violations of the Anti-Graft Law that are within the authority of the PCGG to investigate? A - They are those violations: (1) which must relate to ill-gotten wealth; (2) belonging to ExPresident Ferdinand Marcos, his immediate family, relatives, subordinates, and close associates; (3) who took advantage of their public office and or their power authority, influence, connections or relationship (Romualdez vs. Sandiganbayan, 244 SCRA 152); and (4) there must be a showing that the accused has unlawfully accumulated wealth due to the close relationship with Ex-President Ferdinand E. Marcos. (Cruz vs. Sandiganbayan, 194 SCRA 474) 148

Section 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. Q - When did the Constitution take effect? Was it on February 2, 1987, the date when the plebiscite was called, or on February 11, 1987, when the results were made public pursuant to the presidential proclamation? A - On February 2, 1987, the date when the people voted and ratified the 1987 Constitution. This is the majority view. Reason: the canvass of the votes is merely the mechanical confirmation of what was done during the date of the plebiscite and the proclamation of the President is merely the official confirmatory declaration of an act which was actually done by the Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite. Justice Sarmiento dissented. His view is to the effect that the 1987 Constitution became effective on February 11, 1987, and not on February 2, 1987, because it was on February 11, 1987 when the true and sovereign will of the people who ratified it became officially and publicly known through the issuance of Presidential Proclamation No. 58. ##809 ADMINISTRATIVE LAW REVIEWER GUIDE: AT A GLANCE I. General principles II. Administrative agencies: Their nature, creation, establishment and abolition III. Powers of administrative agencies:(a) Quasi-legislative or rule making power; (b) Quasijudicial power A. Quasi-legislative or rule making power I. Kinds of administrative rules or regulations II. Requisites of a valid administrative regulation III. Discuss each requisite IV. Requisites of administrative regulation with a penalty a) Cases V. Powers and functions exercised in the course of exercising quasi-legislative power VI. Is notice and hearing necessary in the promulgation of a general regulation issued or to be issued by an administrative body? VII. When is it necessary? VIII. Can legislative powers be delegated? IX. What is the test to determine whether a given power has been validly exercised by a particular department? 149

X. Distinguish legislative power from quasi-judicial power. XI. What is the guideline to observe in order to ensure that there is a valid and lawful delegation of power? XII. What is the classification of administrative regulations? XIII. Distinguish legislative regulations from interpretative regulations. B. Quasi-judicial power 1. Definition of quasi-judicial power. 2. Why is quasi-judicial power granted to an administrative agency? 3. What is the limitation to the legislature whenever it grants quasi-judicial power to an administrative agency? 4. What is the main function of administrative agencies and the administrative officers incharge of said boards, bureaus and offices? 5. Powers included in the term quasi-judicial - (1) determinative power (2) summary power. ##810 6. Different powers. 7. What is the nature of the proceedings arising from the exercise of the said powers? 8. Why do they partake of the nature of judicial proceedings? 9. Are the proceedings before administrative agencies adversarial in nature? 10. When are proceedings adversarial and when are they held exparte? 11. Jurisdiction. Classifications of jurisdiction. 12. Source of authority and jurisdiction of administrative boards, bureaus and offices. 13. Are the orders and the decisions of administrative boards, bureaus and offices final? 14. When is an administrative decision considered resjudicata? 15. What is the doctrine of resjudicata in administrative proceedings? a) Cases IV. Important principles in administrative law V. Other ancilliary principles Relief from within the administrative agency itself Relief after the resolution of the highest level of authority in the administrative agency concerned Appeal from, or review of, decisions of administrative agency Methods of review of administrative action a) Cases Administrative agencies created by the Constitution DISCUSSION I. GENERAL PRINCIPLES Q - What is administrative law? 150

A - Administrative law is the branch of public law which fixes the organization and determines the competence of administrative authorities, and indicates to the individual remedies for the violation of his rights. (Goodnow, Comparative Administrative Law, p. 8) Q - What is administrative law in actual practice in the Philippines? A - On the basis of the different definitions of administrative law, and considering how administrative law presently operates in this jurisdiction from day to day, it is perhaps easier to understand administrative law by having in mind that: ##811 1) It is a branch of public law; 2) It deals with the activities of executive or administrative agencies, known and referred to as "boards," "bureaus,", "commissions," "authority," "office" and "administration"; 3) These "boards," "bureaus," "commissions," "authority," "office," and "administration" can exercise quasi-legislative and quasi-judicial powers and functions in the sense that they can issue rules and regulations not contrary to the guidelines set up by law and they can resolve the issues or the cases submitted to them; 4) Administrative regulations and policies enacted by administrative bodies to interpret the law which they are entrusted to enforce have the force of law and are entitled to great respect. They have in their favor a presumption of legality. (Gonzales vs. Land Bank of the Philippines, G.R. No. 7675, March 22, 1990) Example: There is a legal presumption that the rates fixed by the National Telecommunications Commission are reasonable. It must be conceded that the fixing of the rates by the government through its authorized agent involves the exercise of reasonable discretion and unless there is an abuse of that discretion, the courts will not interfere. Courts do not interfere with administrative action prior to its completion or finality. (Radio Communications of the Philippines vs. NTC, G.R. No. 66683, April 23, 1990) 5) In the resolution of cases or issues presented to administrative bodies and offices, they are not bound by the technical rules of evidence. Strict observance of the same is not indispensable in administrative cases. (Daduvo vs. CSC, 42 SCAD 750, 223 SCRA 747) 6) An administrative decision may properly be amended or set aside only upon clear showing that the administrative official or tribunal has acted with grave abuse of discretion amounting to lack or excess of jurisdiction. There is an abuse of discretion when the same was performed in a capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law, such as when the power is exercised in an arbitrary or despotic manner by reason of passion of personal hostility. (Heirs of Tanjuan vs. Office of the President, et al., G.R. No. 126847, December 4, 1996) ##812 151

7) Factual findings of administrative bodies should be accorded not only respect but also finality if they are supported by substantial evidence even if not overwhelming or preponderant. (Casa Filipino Realty Corporation vs. Office of the President, 241 SCRA 165) 8) Although findings of facts of an administrative agency is persuasive in courts and carries with it a strong presumption of correctness, nonetheless, the interpretation and application of laws is the court's prerogative. (Prudential Bank vs. Serrano, G.R. No. 49293; Prudential Bank vs. Gapultos, G.R. No. 41835, January 19, 1990) 9) Administrative remedies should first be exhausted before filing a petition for relief. (Walstrom vs. Mapa, Jr., G.R. No. 38387, January 29, 1990) 10) On purely legal question, however, the aggrieved party need not exhaust administrative remedies. REASON: Nothing of an administrative nature is to be done or can be done in the administrative forum. (Prudential Bank vs. Serrano, supra) 11) If a case is such that its determination requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are involved, then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court (Industrial Enterprises, Inc. vs. Court of Appeals, G.R. No. 88550, April 8, 1990). This is known as the principle of primary jurisdiction. Q - Trace the origin of administrative law. A - The origin of administrative law could be traced to the following: 1. Statutes - Setting up administrative authorities either by creating boards and commissions or administrative officers or by confiding the powers and duties to existing boards, commissions, or officers, to amplify, apply, execute, and supervise the operation of, and determine controversies arising under particular laws in the enactment of which the legislature decided for matters of convenience or for quicker or more efficient administration to withhold the controversies, at least in the first instance, from the courts of law. 2. Increase of government functions and concerns - Complexities of modern life necessarily increase the functions and concerns of government which, in turn, requires the legislature to create more administrative agencies which will take charge in attending to matters that demand their special competence and expertise. ##813 3. Necessity of government control and regulation - The government has intervened in contractual relations that are affected with public interest. As it is now, the government has exercised control and regulation of many aspects of business such as but not limited to labor and management relations, immigration and deportation, banking, recruitment of overseas workers, insurance, telecommunication industry, water services, finance, foreign exchange, health, food and drugs, regulation of profession, regulation of sports activities, including the monitoring of player's credentials and citizenship, morals, investment, energy regulation, forest development, mining, land conversion, election, tax collection and administration, human settlements and regulation of subdivisions, civil service and eligibility of government employees, and many other businesses and activities that are impressed with public interest. 152

In the course of the exercise of the above-mentioned functions and responsibilities, rules, regulations, decisions and orders are issued every now and then by the different agencies of the government. All of these, in turn, contribute to the growth and development of administrative law. Q - What are the sources of administrative law? A - Administrative law is derived from the following sources: 1. The Constitution (i.e., Article IX, Section 1 of the 1987 Constitution which provides as follows: "The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit"). 2. Statutes creating administrative bodies Example: The Board of Energy was created by Presidential Decree No. 1208, dated October 6, 1977. The Philippine Overseas Employment Administration (PDEA) took over the functions of the Overseas Employment Development Board (OEDB). It was created by Executive Order No. 797 dated May 1, 1972. The Workmen's Compensation Commission was abolished on March 31, 1976, and it was replaced by the Employees Compensation Commission as provided by Article 176 of the New Labor Code of the Philippines, Presidential Decree No. 442, as amended. ##814 3. Court decisions - interpreting the charters of administrative agencies and defining their powers and responsibilities. Example: Jurisprudence laid down by the Supreme Court containing interpretations involving the principle of primary jurisdiction; exhaustion of administrative remedies; due process in administrative proceedings, etc. 4. The body of rules, regulations and orders issued by administrative agencies. Examples: Rules, regulations, circulars issued by the different administrative agencies of the government. Decisions and orders of administrative bodies in cases submitted to them (i.e. decisions of the National Labor Relations Commission on complaints filed by employees against their employers). Q - What are the administrative bodies or agencies in the Philippines? A1) Administrative bodies for regulation under police power. Example: a) Commission on Immigration and Deportation 153

b) Securities and Exchange Commission c) Professional Regulation Commission d) Bureau of Food and Drug e) Housing and Land Use Regulatory Board f) Board of Food Inspectors g) Monetary Board h) Land Transportation Office 2) Administrative bodies for regulation of public utilities. Example: a) Land Transportation Franchising and Regulatory Board b) National Telecommunications Commission c) Board of Energy d) National Water and Resources Council e) Civil Aeronautics Board f) Board of Marine Inquiry 3) Administrative bodies to carry on governmental functions. ##815 Example: a) Bureau of Internal Revenue b) Bureau of Customs c) Civil Service Commission d) Board of Special Inquiry e) Bureau of Lands f) Land Registration Authority 4) Administrative bodies that adjudicates and decides industrial controversies. Example: a) National Labor Relations Commission b) Philippine Overseas Employment Adjudication Office c) Human Settlement Regulatory Commission or The Housing and Land Use Regulatory Board 5) Administrative bodies making the government a private party. Example: a) Commission on Audit b) Social Security System Adjudication Office 6) Administrative bodies that grant privileges. Example: a) Philippine Veterans Affairs Office b) Board of Pardons and Parole c) Bureau of Lands d) Land Transportation and Franchising Regulatory Board 154

In the case of PLDT vs. City of Bacolod (G.R. No. 149179, July 15, 2005), the Supreme Court ruled that the Bureau of Local Government Finance under the Department of Finance is NOT an administrative agency whose findings on questions of facts are given weight by the courts. Q - Define administration. A - It is an activity of the executive officer of the government. The government administers when it appoints an officer, instructs its diplomatic agents, assesses and collects its taxes, drills its army, investigates a case of the commission of crime and executed the judgment of court. Whenever we see the government in action as opposed to deliberation or the rendering of a judicial decision, there we say is administration. Administration is thus to be found in all the manifestation of executive action. (Goodnow, Comparative Administrative Law, p. 12) Administration, as it is presently understood, refers to the aggregate of those persons in whose hands the reigns of government are for the time being. (U.S. vs. Dorr, 2 Phil. 332) ##816 Q - What are the two aspects of administration? A - There are two (2) aspects of administration, namely: 1. Internal administration - This includes the legal structure or organization of public administration and the legal aspects of each institutional activity (i.e., personnel, material, physical and planning activities). 2. External administration - This is concerned with the problems of administrative regulations or the exercise of power for carrying out the ends for which such powers were delegated. (42 Am. Jur., 290) Q - Distinguish the following: (a) Administration and politics; (b) Administration and law; (c) Administration of government and administration of justice; (d) Administration as an organization and administration as a government. A - (a) Administration and politics ADMINISTRATION Administration has something to do with the execution of the policies of the State. Execution of said policies is entrusted to the body of officers, called administrative officers. POLITICS Politics has something to do with policies or expressions of the State's will. (b) Administration and law ADMINISTRATION Administration achieves public security by preventive measures. It selects a hierarchy of officials to each of whom definite work is assigned, and it is governed by ends rather than rules. 155

It is personal. Hence, it is often arbitrary and is subject to the abuse incident to personal as contrasted with impersonal or law-regulated action. LAW It operates by redress or punishment rather than by prevention. If formulates general rules of action and visits infraction of these rules with penalties. It does not supervise action. It leaves individuals free to act, but imposes pains on those who do not act in accordance with the rules prescribed. (Roscoe Pound in Proclamation, Pol. Sci Association, pp. 232-233) ##817 (c) Administration of government and administration of justice ADMINISTRATION OF GOVERNMENT The administrative officers who are charged with the administration of government determine what is the law to find out whether they are competent to act and if so, whether it is wise for them to act. ADMINISTRATION OF JUSTICE The judicial officers who are charged with the administration of justice decides controversies between individuals and government officers as to the applicability in the cases in a question of a particular rule of law. Hence, they determine what law is applicable to the facts brought before them. (d) Administration as an organization and government ADMINISTRATION AS AN ORGANIZATION Administration refers to that group of aggregate of persons in whose hands, the reigns of government are for the time being (U.S. vs. Dorr 2 Phil. 332). It indicates the entire administrative organization extending down from the Chief Executive to the most humble of his subordinates. It is thus the totality of the executive and administrative authorities. (Goodnow, op. cit., p. 5) ADMINISTRATION AS A GOVERNMENT As an element of the State; a government is defined as "that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state, or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them." (U.S. vs. Dorr, 2 Phil. 332; Bacani vs. National Coconut Corporation, 530. G. 2798) Q - What are the weaknesses of administrative action? A - Administration suffers from the following weaknesses: 1. Tendency towards arbitrariness; 2. Lack of legal knowledge and attitude in sound judicial technique; 156

3. Susceptibility to political bias or pressure, often brought about by uncertainty of tenure and lack of sufficient safeguards for independence; 4. A disregard for the safeguards that insure a full and fair hearing; 5. Absence of standard rules of procedure suitable to the activities of each agency; and 6. A dangerous combination of legislative, executive, and judicial functions. (Lawyer Journal, Vol. 7, p. 560; Macapagal, Judicial Supremacy over Administrative Bodies, Lawyer's Journal, Vol. 12, pp. 312-314) ##818 II. ADMINISTRATIVE AGENCIES: THEIR NATURE, CREATION, ESTABLISHMENT AND ABOLITION Q - What is the nature of administrative agencies? A - An administrative agency is an organ of government entrusted with the task of enacting specific rules and regulations to effectuate the purpose of the statute creating it. Its functions and powers are quasi-legislative or quasi-judicial, or in some instances, it acts as an agent of the executive branch of the government, in which case, it is entrusted with the duty to exercise executive and administrative functions. Q - What are the two principal powers and functions of administrative agencies? A - Administrative agencies have two principal kinds of powers and functions namely: 1. Rule-making power or quasi-legislative function. 2. Power of adjudication or quasi-judicial function. (Stasoni Cases and other Materials on Administrative Tribunals, 2nd Ed., 71) Q - How are administrative bodies created and established? A - Administrative agencies may be created by: (1) the Constitution; (2) the legislature in legislative enactments; or (3) by authority of law. Q - Does the legislature exercise control over administrative agencies? A - Yes. The legislative branch of government enacts the law that creates an administrative agency: (1) It prescribes the mode of appointment, the term of office and the compensation; (2) It fixes its authority and procedure; (3) It determines the size of its personnel and staff; (4) It exercises continuing surveillance over its activities; (5) It may investigate its operations for remedial/corrective legislation. At present, the Senate Blue Ribbon Committee as well as the appropriate committees in each House of Congress play an important role in the investigation of anomalies and irregularities of the different administration offices and agencies. Likewise, the Ombudsman, a Constitutional Office organized precisely to look into and investigate any irregularity of government officials and employees, exercise an important role in filing appropriate criminal cases against erring government officials and employees. Of course, the Sandiganbayan takes part in the trial of complaints filed by the Ombudsman. ##819 157

III. POWERS OF ADMINISTRATIVE AGENCIES A. QUASI-LEGISLATIVE OR RULE MAKING POWER 1. DIFFERENT KINDS OF ADMINISTRATIVE RULES AND REGULATIONS a) Supplementary or detailed legislation - They are rules and regulations "to fix the details" in the execution and enforcement of a policy set out in the law, e.g., Rules and Regulations Implementing the Labor Code. b) Interpretative legislation - They are rules and regulations construing or interpreting the provisions of a statute to be enforced and they are binding on all concerned until they are changed, e.g. BIR Circulars, CB Circulars, etc. They have the effect of law and are entitled to great respect; they have in their favor the presumption of legality (Gonzalez vs. Land Bank, 183 SCRA 520). The erroneous application of the law by public officers does not bar a subsequent correct application of the law. (Manila Jockey Club vs. Court of Appeals, G.R. No. 103533, December 15, 1998) c) Contingent legislation - They are rules and regulations made by an administrative authority on the existence of certain facts or things upon which the enforcement of the law depends. (Cruz vs. Youngberg, 56 Phil. 234) Contingent Regulation - It is issued on account of the concurrence of a certain contingency, as determined by the administrative agencies. On the basis of the latter's determination, the operation of a law may either be enforced or suspended Example: Authority of the Governor General to lift the prohibition against the importation of foreign cattle upon determination that there was no longer a threat of contagion caused by ruinderpest epidemic, was sustained by the Supreme Court in Cruz vs. Youngberg (56 Phil. 234). 2. REQUISITES OF A VALID ADMINISTRATIVE RULE OR REGULATION Q - What are the requisites of a valid administrative regulation? A - The following requisites must be complied with: CODE: ASAR Authorized (Its promulgation must be authorized by the legislature.) Scope of authority (It must be within the scope of the authority given by the legislature.) According to prescribed procedure (It must be promulgated in accordance with the prescribed procedure.) Reasonable (It must be reasonable.) ##820 DISCUSSION OF EACH REQUISITE 1. Authority to promulgate an administrative regulation - This is granted either by the charter itself of an administrative body, or by the law it is supposed to enforce. Hence, any and all administrative regulations issued by the administrative agency should not be contrary to the said charter or law that creates them, and that they should be in conformity with the standards prescribed by law. 158

Explanation of each requisite The promulgation of the said rules and regulations must be authorized by the legislature The authority to promulgate administrative rules and regulations is found in the charter itself of the administrative body or in the law which it seeks to enforce. Example: (a) Implementing rules and regulations regarding employment of women and minors; employment of househelpers and employment of home workers were promulgated to implement Articles 153 to 155 of the Labor Code of the Philippines. (b) Implementing rules and regulations to improve telecommunications industry is authorized under Republic Act No. 7925. (c) Implementing rules and regulations to promote liberalized foreign investment is authorized under Republic Act No. 8179. 2. The said rules and regulations must be within the scope of legislative authority - Rules and regulations which are beyond the limits of legislative authority are not valid rules and regulations. It has been the consistent rule of the Supreme Court that rules and regulations are valid only when they are within the framework of the policy which the legislature seeks to implement. (U.S. vs. Barias, 11 Phil. 327) Administrative rules and regulations must be germane to the object and purpose of the law and must conform to the standards, policies and limitations prescribed by law. (Delman vs. Philippine Veterans Administration, 51 SCRA 340) ##821 An administrative agency cannot amend an act of Congress. (Santos vs. Estenzo, 109 Phil. 419) NOTE: In People vs. Maceren, 79 SCRA 450, the Secretary of Agriculture exceeded his authority in penalizing electro-fishing by means of an administrative order. Q - Can traffic enforcers remove license plates of illegally parked vehicles? A - No. This was declared illegal in Metropolitan Traffic Command vs. Gonong (187 SCRA 432). The alleged justification to the practice of removing license plates of illegally parked vehicles was LOI 43, but another law, Presidential Decree No. 1605, was issued, and under this law, the authority of the Metro Manila Commission is limited only to suspension or revocation of the license of the driver who violated traffic rules. Said Presidential Decree No. 1605 did not include the authority to remove license plates or the confiscation of license of the erring driver. Q - Can the impounding of a vehicle be sustained under a letter of instruction prohibiting private extra heavy and heavy vehicles from using public streets on weekends and holidays? A - No, as declared in Bautista vs. Junio, (127 SCRA 329) on the ground that the impounding of a vehicle finds no statutory justification, and therefore ultra vires. The prohibition itself, 159

however, to said vehicles from using public streets on weekends and holidays, was sustained. NEW CASE: METROPOLITAN DEVELOPMENT AUTHORITY VS. DANTE O. GARIN G.R. NO. 130230, APRIL 15, 2005 There is no syllable in R.A. No. 7924 that grants the MMDA police power, let alone legislative power. The power to confiscate and suspend or revoke driver's license without the need of legislative enactment is an unauthorized exercise of police power. ##822 FACTS: 1. Atty. Dante Garin parked his vehicle illegally along Gandara Street, Binondo, Manila. 2. Atty. Garin sent a letter to Prospero Oreta, then the MMDA Chairman with these requests: (a) that his driver's license be returned to him. On the same date, he expressed his preference that his case be filed in court. 3. He did not receive a reply. Subsequently, he filed a complaint with the RTC of Parañaque City. His contentions are as follows: a. Without implementing rules and regulations, Section 5[f] of Republic Act No. 7924 grants MMDA the unbridled discretion to deprive erring motorists of their licenses. b. It will pre-empt a judicial determination of the validity of the deprivation, hence, it violates the due process clause. c. Said law also violates the constitutional prohibition against undue delegation of legislative authority. d. Said law will also allow MMDA to fix and impose unspecified and therefore unlimited fines and other penalties on erring motorists. MMDA, on the otherhand, invoked its police power. ISSUE: Are the said contentions valid? HELD: 1. There is no syllable in Republic Act No. 7924 that grants the MMDA police power, let alone legislative power. 2. Even the Metro Manila Council has not been delegated any legislative power. 3. Unlike the legislative bodies of the local government units, there is no provision in Republic Act No. 7924 that empowers the MMDA or its council to "enact ordinances, approve resolutions and appropriate funds for general welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a "development authority." It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people's organization and the private sector for the efficient and 160

expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature xxx. 4. Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate its administrative rules and regulations in the implementation of the MMDA's functions. 5. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. 6. The power therefore to confiscate and suspend or revoke driver's license without the need of legislative enactment is an unauthorized exercise of police power. ##823 3. It must be promulgated in accordance with prescribed procedure. Administrative regulations of general application does not require previous notice and hearing except where the legislature itself requires it and mandates that the same shall first require the ascertainment of facts elicited from an appropriate investigation. Q - What is the prescribed procedure referred to as the third requisite? A - The prescribed procedure is notice and hearing, if this is so required by law, and publication, as required by Executive Order No. 200. Q - Is previous notice and hearing always required in the promulgation of administrative regulations of general circulation? A - It is not required unless the legislature requires it, or unless the regulation is in effect a settlement of a controversy between specific parties in which case it is considered as an administrative adjudication, hence, it will require notice and hearing. Q - Regarding rates prescribed by administrative agencies, when is prior notice and hearing required and when is it not required? A - When the administrative agency prescribes the rates in the exercise of its legislative functions, prior notice and hearing to the affected parties is not a requirement of due process. However, when said rates are prescribed by an administrative agency in the exercise of its quasi-judicial function, prior notice and hearing are essential to the validity of said rates. (Philippine Consumers Foundation, Inc. vs. Secretary of Education, Culture and Sports, 153 SCRA 622) Q - When are rules/rates issued in the exercise of a legislative function and when are they issued in the exercise of a quasi-judicial function? A - When legislative in character: When the rules or rates issued or prescribed by an administrative agency are meant to apply to all enterprises of a given kind throughout the century, they may partake of a legislative character. ##824 When quasi-judicial in character: 161

Where the rules and the rates imposed apply exclusively to a particular party, based upon a finding of fact, then its function is quasi-judicial in character. EXAMPLE: A Department Order of the Department of Education and Culture which prescribed maximum school fees that may be charged by all private schools in the country for school year 1987 to 1988. Was that order issued in the exercise of a legislative function or quasi judicial function? It was issued in the exercise of legislative function, according to the Supreme Court in Philippine Consumers Foundation, Inc. vs. Secretary of Education, Culture and Sports. (Supra) Q - Will a violation of an administrative regulation give rise to a criminal presecution? A - No, unless the law makes the violation punishable and prescribes a penalty. 4. The administrative rule or regulation must be reasonable - An administrative rule or regulation must be reasonable, not arbitrary and capricious. The reasonableness of a regulation depends on the reason or the purpose for which a regulation is issued. Example: In Agustin vs. Edu, Letter of Instruction No. 229 which required the use of "early warning devices" (EWD) is not repugnant to the due process clause. It was considered justified for traffic safety. In Taxicab Operators of Metro Manila vs. Board of Transportation, a regulation phasing out taxicabs more than six years old was reasonable as it is intended to promote not only the safety of the passengers but also the comfort and the convenience of the passengers. Prohibition to private extra heavy and heavy vehicles from using public streets on weekends and holidays was sustained by the Supreme Court in Bautista vs. Junio. It is apparently intended to improve traffic conditions during the designated days. In Tablarin vs. Gutierrez, MECS Order No. 52, Series of 1985, which mandates the taking and passing of the National Medial Admission Test (NMAT) as a condition for securing certificates of eligibility for admission, was held to be a valid exercise of the police power of the State. The rationale for issuing the said order is the improvement of the professional and technical quality of the graduates of medical schools, by upgrading the quality of those admitted to the student body of the medical schools. ##825 AGUSTIN VS. EDU 88 SCRA 195 FACTS: Then President Ferdinand E. Marcos issued Letter of Instruction No. 229 requiring the use of "Early Warning Devices (EWD)." Petitioner claims that the use of the said early warning devices is not necessary because his car is already equipped with blinking lights. ISSUE: 162

Is the said Letter of Instruction arbitrary? HELD: It is not arbitrary and not repugnant to the due process clause. There is nothing in Letter of Instruction No. 229 which compels car owners to purchase the prescribed early warning device. Vehicle owners can produce the device themselves with a little ingenuity. BAUTISTA VS. JUNIO 127 SCRA 329 FACTS: Letter of Instruction No. 869 is an energy conservation measure which prohibits the use of heavy and extra-heavy private vehicles from using public streets on weekends and holidays. Pursuant thereto, Memorandum Circular No. 39 was issued, imposing penalties of "fine, confiscation of vehicle, and cancellation of registration." Petitioner contends that: (1) said letter of instruction is a violation of his right to use and enjoy private property and of his right to travel, hence, a violation of due process; and (2) that said memorandum circular was likewise unconstitutional for it violates the doctrine of undue delegation of power. ISSUE: Is the said letter of instruction and memorandum circular constitutional? Is the confiscation or impounding of the vehicle under Memorandum Circular ultra vires or not? ##826 HELD: The said Letter of Instruction was sustained but the confiscation or impounding of the vehicle was ultra vires because a penalty can only be imposed in accordance with the procedure required by law. While the imposition of a fine or the suspension of registration is valid under the Land Transportation and Traffic Code, the impounding of the vehicle finds no statutory justification. TABLARIN VS. GUTIERREZ 152 SCRA 730 FACTS: Pursuant to Republic Act No. 2382 or the Medical Act of 1959, MECS Order No. 52, Series of 1985, was issued. It mandates the taking and passing of the National Medical Admission Test (NMAT) as a condition for securing certificates of eligibility for admission. Petitioner assails the constitutionality of said law and MECS Order No. 52, and sought to be admitted to the College of Medicine for 1987-1988, without successfully taking the NMAT. ISSUE: Are the said law and regulation constitutional? Whether there is some reasonable relation between requirement of passing NMAT as a condition for admission to the medical school on 163

the one hand, and the securing of the health and safety of the general community, on the other hand. HELD: The Medical Act of 1959, as amended, and MECS Order No. 52, Series of 1985, are constitutional. They constitute a valid exercise of the police power of the State as it is intended to promote the public order, the health and physical safety and well being of the population. Likewise, the power to regulate and control the practice of medicine includes the power to regulate admission to the ranks of those authorized to practice medicine. There is a violation between the requirement of passing the NMAT and the securing of the health and safety of the general community because the regulation of the practice of medicine is a reasonable method of protecting the health and safety of the public. The said requirement is the protection of the public from the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma. ##827 3. REQUISITES OF ADMINISTRATIVE REGULATIONS WITH A PENALTY The requisites for the validity of administrative regulations with penal sanctions are the following: 1. The law itself which authorizes administrative authorities to issue the same must declare as punishable the violation of the rules and regulations issued under its authority; 2. The law should define or fix the penalty for the violation of the said rules and regulations; 3. Publication of said rules and regulations must be made. CASES: PEOPLE VS. MACEREN 79 SCRA 450 FACTS: Section 11 of the Fisheries Law prohibits "the use of any obnoxious or poisonous substance in fishing." The Secretary of Agriculture and Natural Resources subsequently promulgated Fisheries Administrative Order No. 84 prohibiting electro-fishing in all Philippine waters. Said order was amended by A.O. 841, by instructing the ban against electro-fishing to fresh water fishes. The respondents were charged for having violated A.O. 841. The complaint alleged that the five accused used an electro-cutting device locally known as "senso" to catch fish through electric current, in the waters of Barrio San Pablo, Sta. Cruz. The criminal complaint was dismissed. The dismissal was affirmed by the CFI. Hence, this appeal. ISSUE: Whether A.O. 84 and 841, penalizing electro-fishing, are devoid of any legal basis, and hence, invalid? HELD: 164

Yes. The Secretary of Agriculture and Natural Resources exceeded its authority in issuing F.A.O. Nos. 84 and 84-1 and that those orders are not warranted by R.A. No. 8512. The reason is that the Fisheries Law does not expressly prohibit electro-fishing. Since electrofishing is not banned under the law, and the Secretary is powerless to penalize it, hence, A.O. Nos. 84 and 84-1 are devoid of any legal basis. Had the lawmaking body intended to punish electro-fishing, a penal provision to that effect could have been easily embodied in the Old Fisheries Law. ##828 The lawmaking body cannot delegate to an executive official the power to declare what acts should constitute a criminal offense. It can authorize the issuance of regulations and the imposition of the penalty provided for in the law itself. But a mere administrative regulation is not legally adequate to penalize electro-fishing. Administrative regulations adopted under legislative authority by a particular department must be in harmony with the visions of the law, and should be for the sole purpose of carrying into effect its general provisions. An administrative agency cannot amend the act of Congress. The rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amend or expand the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned. PEOPLE VS. QUE PO LAY 51 O.G. 48850 FACTS: Central Bank issued a circular (Circular No. 20) requiring those who had foreign currency to sell the same to Central Bank. Que Po Lay was accused of violating Circular No. 20 but he claimed that the said circular has not yet been published in the Official Gazette before his alleged violation of the same and he should therefore be acquitted. HELD: The Supreme Court sustained the defense and held that before the public is bound by its contents, a law, regulation or circular must first be published so the people will be officially informed of the same, particularly the penalties for violating thereof. GIL BALBUENA VS. SECRETARY OF EDUCATION 110 PHIL. 150, G.R. NO. L-14283 NOVEMBER 21, 1960 FACTS: Petitioners, members of the religious sect "Jehovah's Witnesses," challenged the constitutionality of Republic Act No. 1265, by virtue of which the Secretary of Education issued Department Order No. 8, prescribing compulsory flag ceremony in all schools as an undue delegation of legislative power. Section 1 of the Act requires all educational institutions to observe daily flag ceremony, which shall be simple and dignified and shall include the 165

playing or singing of the Philippine National Anthem. Section 2 thereof authorizes the Secretary of Education to issue rules and regulations for the proper conduct of the flag ceremony. ##829 HELD: The requirements constitute an adequate standard to wit, simplicity and dignity of the flag ceremony and the singing of the national anthem - especially when contrasted with other standards heretofore upheld by the courts such as "public interest," "public welfare," "interest of law and order," "justice and equity" and the "substantial merits of the case," or "adequate and efficient instruction." That the legislature did not specify the details of the flag ceremony is no objection to the validity of the statute, or all that is required of it is the laying down of standard and policy that will limit the discretion of the regulatory agency. To require the statute to establish in detail the manner of exercise of the delegated power would be to destroy the administrative flexibility that the delegation is intended to achieve. Without a definite standard, there would be no reasonable means to ascertain whether or not the administrative agency concerned has acted within the scope of authority as determined by the legislature. When this happens, the power of legislation would eventually be exercised by a branch of the government other than that in which it is lodged by the Constitution. (Vigan Electric Light Co., Inc. vs. Public Service Commission, G.R. No. L-19850, January 30, 1964) REQUIREMENT AS TO PUBLICATION OF ALL LAWS AS A CONDITION FOR THEIR EFFECTIVITY Q - What should be published? A1. All statutes, including those of local application and private laws. 2. Presidential Decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. (Tanada vs. Tuvera, 146 SCRA 446) Q - How should the publication be made? A - Borrowing the words of Justice Isagani Cruz, the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the law. Q - Where should the law be published? A - The law shall be published in the Official Gazette, and not just in newspapers of general circulation. (Tanada vs. Tuvera, Ibid.) Q - When does a law take effect? A - A law takes effect after fifteen (15) days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. (Art. 2, New Civil Code). As enunciated in Tanada vs. Tuvera, however, laws shall be published in the Official Gazette, and not just in newspapers of general circulation. ##830 166

Q - Should administrative rules and regulations be published? A - It depends. If the purpose of the administrative rules and regulations is to enforce or implement existing law, they must be published. If the administrative regulation is of general circulation or penal in nature, it should be published. If regulations are merely interpretative or merely internal in nature, they need not be published. Q - From what day shall the fifteen-day period (required for the effectivity of a law or regulation) be counted? A - The fifteen-day period is counted from the date of release for circulation of the edition in the Official Gazette, not from the date or printed date of the edition of the Official Gazette. (People vs. Verdicano, 132 SCRA 523) Q - What is the meaning of the phrase "unless otherwise provided"? A - This means that the law itself can provide when it shall become effective. The law can provide that it shall become effective thirty (30) days, or twenty (20) days, after its publication in the Official Gazette, but in no case can it provide that it shall take effect immediately and without publication, if it imposes a penalty, following the rationale in Tañada vs. Tuvera, Pesigan vs. Angeles (129 SCRA 174), and People vs. Que Po Lay "that before the public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the people officially informed of said contents and its penalties." 4. POWERS AND FUNCTIONS EXERCISED IN THE COURSE OF EXERCISING QUASILEGISLATIVE POWERS An administrative agency merely exercises the power of subordinate legislation which means that it can promulgate rules and regulations intended to carry out the provisions of the law and implement legislative policy. In the course of exercising said function, an administrative agency is vested with different powers and functions, to wit: ##831 1. Enabling Powers - They are those powers that enable an administrative agency to do an act which the law precisely entrust to it. Example: a. The Land Transportation Office, or LTO, is the one entrusted with the function of registering all motor vehicles including driver's license. b. The Housing and Land Use Regulatory Board is the one entrusted with the function of approving application of subdivision developers. c. The Commission on Higher Education or CHED is the one entrusted with the function of issuing accreditation of colleges in the Philippines. 2. Summary Powers - They are those powers exercised by administrative authorities to perform coercive measures upon persons or things without the need of securing judicial warrant. Example: 167

a. An order issued by the Bureau of Immigration and Deportation not to allow a Fil-Am player from playing in the PBA on the ground of citizenship. b. The forcible evacuation of people for residing within the six (6) km. radius of Mayon Volcano to avoid loss of lives and properties. 3. Examining Powers - This is the power of an administrative agency to examine and inspect books, papers, and records to investigate the activities of persons under its jurisdiction. Example: a. The Bureau of Internal Revenue, or BIR, can lawfully examine the financial statements and books of accounts of persons and companies. b. The Bureau of Immigration and Deportation, or BID, can examine the citizenship papers of any Fil-Am player whose citizenship is under question. c. The Bureau of Labor Standard can inspect business establishments to determine whether they comply or not with occupational help and safety standards as provided for by the Labor Code of the Philippines. 4. Dispensing Power - This is the power of an administrative officer to grant exemption from the performance of a general duty. Example: a. The Bureau of Internal Revenue can exempt some business establishments from compliance with some laws or rules which are entrusted to it for enforcement. b. The Movie and Television Regulatory and Classification Board, or MTRCB, can grant exemption or relax a rule or rules regarding the showing of a film. ##832 5. NOTICE AND HEARING Q - Is notice and hearing necessary in the promulgation of a general regulation issued or to be issued by an administrative body? A - It is not necessary when the rules are merely legal opinions. It is not also necessary when substantive rules are being prepared and when the class to be affected is large and the questions to be resolved involved the use of discretion committed to the rule making body. 6. WHEN IS IT NECESSARY? An administrative rule in the nature of subordinate legislation which will implement a law by providing its details, must be heard before they are adopted. In other words, when a rule or regulation is being issued by an administrative agency in the exercise of its quasi-legislative authority, the requirement of notice, hearing and publication shall be complied with. CRUZ VS. CSC G.R. NO. 144464, NOVEMBER 27, 2001 FACTS: Private individual Esteban wrote a letter to the Chairperson of the CSC claiming that during the examinations for non-professional in the career civil service, Paitim, the Municipal 168

Treasurer of Norzagaray, Bulacan, falsely pretended to be the examinee, Cruz, a co-employee in the said office, and took the examination for the latter. The Director IV of the CSC wrote a Memorandum to the Civil Service Commissioner declaring that based on the record, she found a prima facie case against petitioners Paitim and Cruz. A fact finding investigation was conducted and a ‘Formal Charge' for "Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service" was filed against petitioners before the CSC. After filing their Answer, petitioners filed a Motion to Dismiss averring that if the investigation will continue, they will be deprived of their right to due process because the CSC was the complainant, the Prosecutor and the Judge, all at the same time. Said motion was denied as well as their motion for reconsideration. The Attorney III of CSC was directed to conduct the formal administrative investigation. She found petitioner guilty of ‘Dishonesty' and ordered their dismissal from the government service. The CSC thereafter issued a Resolution finding the petitioners guilty of the charges and ordered their dismissal from the government service. ##833 ISSUE: Whether petitioners were denied due process because the CSC acted as the investigator, the complainant, the prosecutor and the judge all at the same time. RULING: No. Petitioners were not denied due process. The CSC is mandated to hear and decide administrative cases instituted by it or instituted before it directly or on appeal including actions of its officers and the agencies attached to it pursuant to Book V, Title 1, Subtitle A, Chapter 3, Section 12, paragraph 11 of the Administrative Code of 1987 which states: (11) Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments, and review decisions and actions of its officers and of the agencies attached to it. xxx The fact that the complaint was filed by the CSC itself does not mean that it could not be an impartial judge. As an administrative body, its decision was based on substantial findings. Factual findings of administrative bodies, being considered experts in their field, are binding on the Supreme Court. Petitioners were also properly informed of the charges. They submitted an Answer and were given the opportunity to defend themselves. Petitioners cannot, therefore, claim that there was a denial of due process much less the lack of jurisdiction on the part of the CSC to take cognizance of the case. 7. CAN LEGISLATIVE POWERS BE DELEGATED? Legislative powers may be delegated in the following cases: 1. When authorized by the Constitution such as in the following cases: 169

(a) The Congress may by law grant emergency powers to the President. (Section 23[2], Article VI) (b) Congress may by law grant tariff powers to the President (Section 28[2], Article VI) 2. Legislative powers may be delegated to local governments: (a) Police power has been expressly delegated by the legislature to the local law-making bodies; (b) Eminent Domain. 3. Legislative powers may be delegated to the people at large: (a) REFERENDUM - a method of submitting an important legislative measure to a direct vote of the whole people; (b) PLEBISCITE - a device to obtain a direct popular vote on a matter of political importance. ##834 4. Legislative powers may be delegated to administrative bodies (e.g. POEA, LTFRB, CAB, OWWA, BOI, BMI, etc.). 8. TEST TO DETERMINE WHETHER A GIVEN POWER HAS BEEN VALIDLY EXERCISED BY A PARTICULAR DEPARTMENT. FIRST TEST: The first test is to determine whether or not the power in question, regardless of its nature, is granted by the Constitution to the department which seeks to exercise such power. If it is granted by the Constitution, the exercise of the power is sustained. SECOND TEST: If the power sought to be exercised is not expressly conferred by the Constitution, can the power sought to be exercised be reasonably inferred from, or is it necessary to the proper exercise of, the express power granted to the department seeking to exercise said power, hence, justified under the DOCTRINE OF IMPLICATION. What is the doctrine of implication? This means that even in the absence of an express conferment, the exercise of a given power may be justified or reasonably inferred from the express power already granted, or that it may be necessary to the proper exercise of the express power granted to the department seeking to exercise the said power. Example: 1. Rules of procedure promulgated by the Electoral Commission were challenged because they were allegedly not expressly authorized by the 1935 Constitution. In Angara vs. Electoral Commission, the Supreme Court upheld the promulgation of the said rules of procedure because they were found out to be necessary to the proper exercise of the express power of the Electoral Commission to hear and decide election contests involving members of the legislature. 2. The power of Congress to conduct legislative investigation may be implied from the express power of legislation. This power, however, is now subject to the following restraints: (a) The legislative inquiry must be in aid of legislation; 170

(b) The conduct of the investigation must be strictly in accordance with the rules of procedure that must have been published in advance for the information and protection of the witnesses; (c) The rights of persons appearing in or affected by such inquiries shall be respected. ##835 THIRD TEST: If the power sought to be exercised is not granted by the Constitution, either expressly or impliedly, can its exercise be justified as inherent or incidental? If they are, the exercise of the said power may be sustained. FOURTH TEST: Assuming that the power of the act sought to be performed is expressly or impliedly granted by the Constitution, or that it is justified as inherent, the fourth is whether or not the act of power in question has been performed in accordance with the rules laid down by the Constitution. A good example is the compliance required by Section 21, Article VI of the 1987 Constitution, which provides that the power to conduct legislative investigation, although implied from the power of legislation, is now subject to the following restraints: (a) The legislative inquiry must be in aid of legislation; (b) The conduct of investigation must be strictly in accordance with the rules of procedure that must have been published in advance for the information and protection of the witnesses; (c) The rights of persons appearing in, affected by such inquiries, shall be respected. (Principles, Comments and Cases in Constitutional Law I, First Edition, by Suarez, citing Section 21, Article VI, 1987 Constitution) The other example is when the President extends an appointment to a person who does not possess the prescribed qualifications. The courts may exercise its power to intervene. 9. DISTINGUISH LEGISLATIVE POWER FROM QUASI-LEGISLATIVE POWER. Legislative power is the power to make laws and the power to fix a legislative policy. This cannot be delegated by the legislature to administrative agencies. Quasi-legislative power is also known as the power of subordinate legislation. It is the power of administrative agencies to issue administrative rules and regulations in order to implement the law and the legislative policy fixed by the legislature. 10. WHAT IS THE GUIDELINE TO OBSERVE IN ORDER TO INSURE THAT THERE IS A VALID AND LAWFUL DELEGATION OF POWER? The legislature should lay down (1) A policy and a (2) definite standard by which the executive or administrative officer or board may be guided in the exercise of his discretionary authority. If this is observed, there is a valid delegation of legislative power (Cervantes vs. Auditor General, G.R. No. L-4043, May 26, 1952). If, on the other hand, the statute furnishes no standard and the officer or board is granted uncontrolled or unlimited discretion, such a statute is an unconstitutional delegation of power. ##836 171

1. POLICY - The determination of legislative policy is vested in the legislature and this cannot be delegated to the administrative agencies. It must be clearly declared in the language of the statute and should not be left to the discretion of the said administrative agencies. 2. STANDARD - The statute must pronounce a definite standard which will guide the administrative agency concerned. A standard defines the policy fixed by the legislature and marks and limits. 11. WHAT IS THE CLASSIFICATION OF ADMINISTRATIVE REGULATIONS? An administrative agency may either be involved in the task of adopting rules and regulations intended to carry out the provisions of a law and to implement legislative policy, or in the task of interpreting the statute being administered. The rules they adopt to implement the law and the said policy are called legislative rules or regulations. The rules arising from their interpretation of the law are called interpretative regulations. 12.

DISTINGUISH REGULATION A-

LEGISLATIVE

REGULATIONS

FROM

INTERPRETATIVE

Legislative regulations What is employed in promulgating this regulation is not the discretion to determine what the law shall be, as this is exclusively vested in the legislature, but the discretion on how the law shall be enforced. Interpretative regulations They constitute the administrator's construction of a statute and they are valid if they construe the statute correctly. If not, they are subject to judicial review. MTRCB IS AUTHORIZED TO ISSUE PREVENTIVE SUSPENSION UNDER PRESIDENTIAL DECREE NO. 1986 MTRCB has the power to supervise, regulate, grant, deny or cancel permits for the exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, and in accordance with this power, the MTRCB shall see to it that no such pictures, programs and materials as it determines to be objectionable, shall be exhibited and subject of broadcast. In the exercise of said express regulatory and supervisory statutory mandate, it has the power to issue preventive suspension. In otherwords, the power to discipline and impose penalties, if granted, carries with it the power to investigate administrative complaints, and during such investigation, to preventively suspend the person subject of the complaint. (Soriano vs. Laguardia, G.R. No. 164785, April 29, 2009) ##837 B. QUASI-JUDICIAL POWER 1. DEFINE QUASI-JUDICIAL POWER. 172

Quasi-judicial power is the power of an administrative agency to hear, determine, and make findings of facts, and to resolve the case presented to it on the basis of the said findings of facts and on the basis of its interpretation of the laws and jurisprudence concerning the issues of the case, subject only to the power of the courts to review and scrutinize the same on questions of law and jurisdiction. 2. WHY IS QUASI-JUDICIAL POWER GRANTED TO, AN ADMINISTRATIVE AGENCY? Quasi-judicial power is needed so that the administrative officers in the different boards, bureaus and offices can perform their executive duties as well as their quasi-judicial authority. For this purpose, the legislative may grant to such boards, bureaus and offices quasi-judicial powers involving the exercise of judgment and discretion as an incident to the performance of administrative functions. 3. WHAT IS THE LIMITATION TO THE LEGISLATURE WHENEVER IT GRANTS QUASI-JUDICIAL POWER TO AN ADMINISTRATIVE AGENCY? The legislature must state its intention in express terms that would leave no doubt that the power and jurisdiction being transferred are not those vested in the courts but only those powers and jurisdiction which are incidental to or in connection with the performance of administrative duties. The case of Miller vs. Mardo, et al. (Supra) which was cited earlier, illustrates this limitation to the power of the legislature in granting quasi-judicial power to administrative agencies. 4. WHAT IS THE MAIN FUNCTION OF ADMINISTRATIVE AGENCIES AND THE ADMINISTRATIVE OFFICERS INCHARGE OF SAID BOARDS, BUREAUS AND OFFICES? Their main function is to enforce the law entrusted to them for implementation. The exercise of quasi-judicial power is only incidental to their main function of enforcing the law. ##838 5. POWERS INCLUDED IN THE TERM "QUASI-JUDICIAL." The following powers are included: (1) Determinative Powers; and (2) Summary Powers Two kinds of determinative powers: a) Enabling Powers - Powers of administrative bodies to act, to grant or deny applications for licenses to engage in a particular business or occupation. (i.e., Power of the Land Transportation Office to grant professional or non-professional driver's license). b) Directing Powers - Powers of administrative agencies to see to it that laws and regulations are duly complied with. (i. e., The Housing and Land Use and Regulatory Board may require subdivision developers to submit subdivision plans and other requirements to see to it that the Cherry Ville incident in Antipolo, Rizal, may not happen again). 6. DIFFERENT POWERS Directing powers are further classified into: 173

a) Dispensing Powers - Authority to grant exemption, or be relieved, from complying with a law or regulation. (i.e., Authority of the Land Transportation Franchising and Regulatory Board to relieve school bus operators from an earlier requirement to paint their school buses with yellow every beginning of the school year). b) Examining Powers - This refers to the investigatory or inquisitorial powers of administrative agencies which includes the following: (b.1) Power to conduct inspection of accounts, records, documents, and other papers relative to its investigation. (b.2) Power to obtain other information which it finds relevant to a matter being investigated. (b.3) Power to issue subpoena and notices. (b.4) Power to swear and interrogate witnesses. (b.5) Power to inspect premises. (b.6) Power to require written answers to questionnaires. (b.7) Power to require periodic or special reports. (b.8 Power to require the filing of statements. (Am. Jur. p. 323) c) Summary Powers - This refers to the power of administrative agencies to apply compulsion or force against a person or property without the need of prior judicial warrant. (i.e., Authority of the Bureau of Immigration and Deportation to prohibit certain persons and animals from leaving the NAIA and to order that they be subject first to quarantine regulations and procedures. ##839 7. WHAT IS THE NATURE OF THE PROCEEDINGS ARISING FROM THE EXERCISE OF THE SAID POWERS? They are administrative proceedings that partake of the nature of a judicial proceeding, hence, they are described as a proceeding of a quasi-judicial character. (Morgan vs. U.S. 468) 8. WHY DO THEY PARTAKE OF THE NATURE OF JUDICIAL PROCEEDINGS? They partake of the nature of judicial proceedings because they involve the task of hearing, taking and evaluating the evidence, and the making of factual findings based on the evidence presented, and issuing the order or decision on the basis of the said findings and their interpretation of the law entrusted to their enforcement, subject only to the ultimate power of the courts to review the same on questions of law and jurisdiction. 9. ARE THE PROCEEDINGS BEFORE ADMINISTRATIVE AGENCIES ADVERSARIAL IN NATURE? Some proceedings before administrative agencies are adversarial in nature and some are held ex-parte. 10. WHEN ARE PROCEEDINGS ADVERSARIAL AND WHEN ARE THEY HELD EXPARTE? 174

They are adversarial when the order or decision of an administrative agency is in favor of one person or party and against another. In such a case, the said order or decision is issued to protect public interest (2 Am. Jur. 2nd, 143-144). EXAMPLE: Complaint for unlawful dismissal filed by the employees of Philippine Airlines in the National Labor Relations Commission. A decision for or against the employees or for or against Philippine Airlines is adversarial in nature. A return to work order that may be issued in the process of an ongoing strike is designed to protect public interest. An administrative proceeding may be held ex-parte if there is an urgent and compelling reason to take an immediate action on a matter that is injurious to public interest, health and sanitation, public safety and morals. EXAMPLE: (1) An order directing policemen to confine lepers to Culion Leper Colony to protect the people from being adversely affected by the contagious disease of leprosy; (2) An order directing that restaurants operating as fronts of prostitution and illegal gambling activities be closed to protect morals. ##840 JURISDICTION 11. WHAT IS JURISDICTION? Jurisdiction is the authority to hear and determine a case; the right to act in a particular case (Palma vs. Q.S., Inc., 17 SCRA 97). The authority to decide a case and not the decision rendered therein is what makes up jurisdiction. Where there is jurisdiction over the person and the subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. Any error that the Court may commit in the exercise of its jurisdiction is merely an error of judgment, and it is a settled rule in this jurisdiction that, while errors of jurisdiction may be reviewed and corrected by certiorari, errors of judgment may be reviewed only by appeal. Q - What are the classifications of jurisdiction as to its nature? A - General Jurisdiction - Extends to all controversies which may be brought before a court within the legal bounds of rights and remedies. Limited or Special Jurisdiction - Jurisdiction which is confined to particular cases, or which can be exercised only under the limitations and circumstances prescribed by the statute. Original Jurisdiction - Jurisdiction conferred upon, or inherent in a court in the first instance. Original jurisdiction is the jurisdiction of regional trial courts, when it is exclusive or concurrent; exclusive jurisdiction exists when no other court has the power to render a judgment in a particular case or class of cases; concurrent jurisdiction exists when anyone of several distinct courts has the power to render a judgment in a particular case or class of cases; appellate jurisdiction is the power to hear, reverse, affirm or modify a judgment rendered by an inferior court, whether a city/municipal trial court or regional trial court; general jurisdiction is the largest power any regional trial court can have in that political unit. Appellate Jurisdiction - The power and authority conferred upon a superior court to rehear and determine cases which have been tried in the lower court, or the review by a superior court of the final judgment or order of some lower courts. 175

Exclusive Jurisdiction - Jurisdiction conjoined to a particular tribunal or grade of courts to the exclusion of all others. Criminal Jurisdiction - That which exists for the punishment of crimes. Civil Jurisdiction - That which exists for the determination of controversies that are civil in character. Territorial Jurisdiction - The power of the tribunal considered with reference to the territory within which it is to be exercised. ##841 This classification, however, is applicable to jurisdiction in civil and criminal cases tried by the regular courts. Q - Who has exclusive jurisdiction over courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk? A - This Court, in the case of Sanz Maceda vs. Vasquez, 221 SCRA 464, held that: "Article VIII, Section 6 of the 1987 Constitution exclusively vests in the Supreme Court 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. By virtue of this power, it is only the Supreme Court that can oversee the judge's 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. Public respondent Ombudsman cannot justify its investigation of petitioner on the powers granted to it by the Constitution, for such a justification not only runs counter to the specific mandate of the Constitution granting supervisory powers to the Supreme court over all courts and their personnel, but likewise undermines the independence of the judiciary." 12. SOURCE OF AUTHORITY AND JURISDICTION OF ADMINISTRATIVE BOARDS, BUREAUS, AND OFFICES. Said authority and jurisdiction is derived from the Constitution, or from the statute that created the administrative boards, bureaus, and offices. The administrative agencies created under the 1987 Constitution are the Civil Service Commission, the Commission on Elections, and the Commission on Audit. All other agencies are created by law or by the legislature. 13. ARE THE ORDERS AND THE DECISIONS OF ADMINISTRATIVE BOARDS, BUREAUS AND OFFICES FINAL? The factual findings of said administrative boards, bureaus and offices are final if they are supported by substantial evidence. They are, however, appealable on questions of law and jurisdiction. ##842 14. WHEN IS AN ADMINISTRATIVE DECISION CONSIDERED RES JUDICATA? The Supreme Court ruled that whenever any board, tribunal or person is by law vested with authority to judicially determine a question, such determination, when it has become final, 176

is as conclusive between the same parties litigating for the same cause as though the adjudication had been made by a court of general jurisdiction. (174 SCRA 258) 15. WHAT IS THE DOCTRINE OF RES JUDICATA IN ADMINISTRATIVE PROEEDINGS? The decisions and orders of administrative agencies, rendered pursuant to their quasijudicial authority, have upon their finality, the force and binding effect of a final judgment. (Brillantes vs. Castro, 99 Phil. 497) ROXAS VS. SAYOC 200 PHIL. 448 FACTS: The petitioner claimed that when Republic Act No. 650, also known as the Import Control Law, expired, the Commissioner of Customs also lost jurisdiction over the case involving the forfeiture of goods in favor of the government. The said forfeiture was declared by the Collector of Customs on May 19, 1953 and was affirmed by the Commissioner of Customs on June 16, 1953. ISSUE: Did the Commissioner of Customs retain the jurisdiction of the case when Republic Act No. 650 expired on June 16, 1953? HELD: The Supreme Court held that once the Commissioner of Customs has acquired jurisdiction over the case, the expiration of Republic Act No. 650 did not divest said Commissioner of his jurisdiction duly acquired while said law was in force. RCPI VS. BOARD OF COMMUNICATIONS 80 SCRA 471 FACTS: There were two separate complaints for damages that were filed against petitioner RCPI, one is BC Case No. 75-01-C where a certain Diego Morales alleged that he failed to receive a telegram sent by his daughter to him through RCPI on October 15, 1974, informing him about the death of his wife. He prayed for damages. Another case is BC Case No. 75-08-OC where a certain Pacifico Inocencio alleged that he also failed to receive a telegram sent by Lourdes Inocencio to him through RCPI on July 13, 1975. As a result, he was not allowed to attend the internment of his father at Moncada, Tarlac. He also prayed for damages. The Board of Communications imposed a disciplinary fine of P200.00 against RCPI pursuant to Section 21 of Commonwealth Act No. 146, as amended and held that RCPI's service was inadequate and unsatisfactory. RCPI filed two petitions to review by certiorari which were consolidated. ##843 ISSUE: 177

Does the Board of Communications have jurisdiction over the said claims for damages arising from the failure to receive telegrams through RCPI's facilities? HELD: The Supreme Court held that the complaints that were filed do not involve RCPI's failure to comply with its certificate of public convenience or any order, decision or regulation of the respondent Board of Communications. The claim for damages should be ventilated in the proper courts and not in the Board of Communications. The only power of the latter is to fix rates. It could not take to task a radio company for any negligence or misfeasance. It was not vested with such authority. The claim for damages should be ventilated in the proper courts and not in the Board of Communications. The only power of the latter is to fix rates. It could not take to task a radio company for any negligence or misfeasance. It was not vested with such authority. Hence, the decisions of the Board of Communications in both cases were set aside and nullified for lack of jurisdiction to take cognizance of both cases. MONTEMAYOR VS. ARANETA UNIVERSITY FOUNDATION 77 SCRA 321 FACTS: On two separate occasions in 1974, a complaint was filed against petitioner, a full time professor of Araneta University and was serving as head of the Department of Humanities and Psychology. The first is a complaint of immorality filed on April 17, 1974. The second is a complaint for conduct unbecoming of a faculty member which was filed on November 8, 1974. On the first complaint, an investigation was conducted by a committee created by the President. Petitioner was able to cross-examine the witnesses against him and he filed an affidavit to explain his defenses. The committee's recommendation was to demote petitioner's ranking by one degree. This was digested by the President and later was referred to the Board of Trustees. ##844 On the second complaint, another committee was created. After investigation, the committee recommended his separation from the university the charges against him having been established. Subsequently, his dismissal was ordered on December 10, 1974, effective on November 15, 1974. On December 12, 1974, an application for clearance to terminate him was filed. Petitioner filed a complaint for reinstatement in the NLRC on November 21, 1974, with a prayer for payment of back salaries and all the benefits payable to him. The NLRC granted the petition but the University appealed to the Secretary of Labor. The latter ruled that the dismissal was justified. Hence, a petition for certiorari was filed in the Supreme Court on the ground that there was a denial of due process. ISSUE: Is petitioner's contention tenable? 178

HELD: There was compliance with procedural due process regarding the first complaint but it appears that the hearing of the committee on the second complaint proceeded despite the absence of petitioner who, in fact filed a motion for postponement of the hearing on November 18 and 19, 1974. This deficiency, however, was cured because petitioner was able to present his case as well as his evidence before the NLRC. More than this, the entire record of the proceedings were elevated to NLRC for review. He was therefore afforded his day in court. Montemayor's petition for certiorari was dismissed. IV. IMPORTANT PRINCIPLES IN ADMINISTRATIVE LAW Q - What are the important principles in administrative law? A - Among the many principles discussed in the books of administrative law, and oftentimes referred to by the Supreme Court in cases involving administrative law, the following are considered to be important, to wit: PRINCIPLES OF MAJOR IMPORTANCE 1) Doctrine of finality of administrative decisions 2) Doctrine of exhaustion of administrative remedies 3) Doctrine of primary jurisdiction 4) Doctrine of qualified political agency 5) Doctrine of res judicata in administrative proceedings 6) Due process in administrative proceedings 7) Requisites of judicial review ##845 DISCUSSION OF EACH PRINCIPLE 1. DOCTRINE OF FINALITY OF ADMINISTRATIVE DECISIONS Q - What is necessary before a decision of an administrative body may be subject of judicial review? A - Administrative action must have been fully completed before a decision of an administrative body may be subject of judicial review. Otherwise, it will only cause delay to the disposition of administrative proceedings. Q - Is there an instance when the court can intervene prior to the completion of an administrative action? A - Yes, such as in the following cases: 1. When the administrative officer assumes to act in violation of the Constitution and other laws; 2. When a questioned order is not reviewable in any other way, and the complainant will suffer great and obvious damage if the order is carried out, or when such relief is expressly allowed by law; 179

3. When the questioned order is made in excess of power and therefore a deprivation of a right granted by the statute. (2 Am. Jur. 2nd, pp. 424-425) Q - Are the orders and decisions of administrative boards, bureaus and offices, final? A - Already answered. Q - What is the doctrine of res judicata in administrative proceedings? A - Already answered. 2. DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES Q - What is the doctrine of exhaustion of administrative remedies? A - Where the enabling statute indicates a procedure for administrative review, and provides a system of administrative appeal, or reconsideration, the courts for reasons of law, comity and convenience, will not entertain a case unless available administrative remedies have been resorted to and the appropriate authorities have been given opportunity to act and correct errors committed in the administrative forum. (Teotico vs. Ageda, Jr., G.R. No. 87437, May 29, 1991) ##846 The doctrine of administrative remedies calls for resort first to the appropriate administrative authorities in the resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice for review. (Sunville limber Products, Inc. vs. Judge Abad, G.R. No. 85502, February 24, 1991) Q - What is the consequence of the non-observance of the doctrine of exhaustion of administrative remedies? A - It results in lack of a cause of action which is one of the grounds allowed in the Rules of Court for the dismissal of the complaint. (Sunville Timber Products, Inc. vs. Judge Abad, G.R. No. 85502, February 24, 1991) Q - Is the deficiency (non-observance of the doctrine of exhaustion of administrative remedies) jurisdictional? A - It is not jurisdictional. Failure to invoke it operates as a waiver of the objection as a ground for a motion to dismiss and the court may then proceed with the case as if the doctrine had been observed. (Sunville Timber Products, Inc. vs. Judge Abad, G.R. No. 85502, February 24, 1991) Q - What are the reasons for the doctrine of exhaustion of administrative remedies? A - Under the principle of separation of powers, the judiciary is enjoined not to interfere on matters which are within the competence of the other departments. The theory is that the administrative authorities are in a better position to resolve questions addressed to their particular expertise and that errors committed by subordinates in their resolution may be rectified by their superiors if given a chance to do so. (Sunville Timber Products, Inc. vs. Judge Abad, G.R. No. 85502, February 24, 1991) 180

##847 Q - Is the observance of the doctrine of exhaustion of administrative remedies absolute? A - No. The said doctrine yields to the following exceptions as enumerated in Paat vs. Court of Appeals (266 SCRA 167): 1. When there is violation of due process; 2. When the issue involved is purely legal; (see also Duenas vs. SSHA, G.R. No. 14917, June 4, 2004) 3. When the administrative action is patently illegal amounting to lack or excess of jurisdiction; (see also Mangubat vs. Osmeña, 105 Phil. 1308) 4. When there is estoppel on the part of the administrative agency concerned; (see also Tan vs. Veterans Backpay Commission, 105 Phil. 377) 5. When there is irreparable injury; (see also De Lara vs. Plaribel, 14 SCRA 291) 6. When the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter; (see also Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinlupa, Inc. vs. Dominguez, G.R. No. 85439) 7. When to require exhaustion of administrative remedies would be unreasonable; 8. When it would amount to a nullification of the claim; 9. When the subject matter is a private land in land case proceedings; (see also Marcoso vs. Court of Appeals, G.R. No. 96605, May 8, 1992) 10. When the rule does not provide a plain, speedy and adequate remedy; (see also National Development Co. vs. Collector of Customs, 9 SCRA 429; National Food Authority vs. Court of Appeals, G.R. Nos. 115121-25, 68 SCAD 246, February 9, 1996) and 11. When there are circumstances indicating the urgency of judicial intervention. (see also Aquino vs. Luntok, 184 SCRA 177) Other exceptions: 1. When the claim involved is small; (Cipriano vs. Marcelino, 43 SCRA 291) 2. When strong public interest is involved; (Arrow Transportation Corp. vs. Board of Transportation, 63 SCRA 193; Sison vs. Court of Appeals, G.R. No. 124086, June 26, 2006) 3. In quo warranto proceedings; (Corpus vs. Cuaderno, 4 SCRA 749); and 4. When the issue is rendered moot and academic. (Land Bank of the Philippines vs. Celada, G.R. No. 164876, January 23, 2006) OLD CASES: 1. Pascual vs. Provincial Board, 106 Phil. 466 2. Dimaisip vs. Court of Appeals, 106 Phil. 237 3. Mangubat vs. Osmeña, 105 Phil. 1308 4. Gonzales vs. Hechanova, 9 SCRA 230 5. Tapales vs. President, 7 SCRA 553 ##848 SUBSEQUENT CASES: 181

1. Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinlupa, et al. vs. Dominguez, G.R.No. 85439, January 13, 1992 2. Bunye, et a!. vs. Sandiganbayan, G.R. No. 91927, January 13, 1992 3. Heirs of Tanjuan vs. Office of the President, et a!., G.R. No. 126847, December 4, 1996 SUNVILLE TIMBER PRODUCTS, INC. VS. JUDGE ABAD G.R. NO. 85502, FEBRUARY 24, 1992 FACTS: A Timber License Agreement (TLA) was granted to Sunville Timber Products, Inc. for a period of ten (10) years expiring on September 31, 1992. On July 31, 1987, Gilbolingco filed a petition with the DENR praying for the cancellation of the said TLA on the ground of serious violations of its conditions, and forestry laws and regulations. The same charges were later made in complaint for injunction with damages against Sunville. Sunville moved for the dismissal of the case on the following grounds: (1) The court had no jurisdiction over the complaint; (2) The plaintiffs had not yet exhausted administrative remedies; and (3) The injunction was expressly prohibited by Section 1 of Presidential Decree No. 605. The said motion to dismiss was denied by the trial judge and this was sustained by the Court of Appeals on the ground that administrative remedies need not be exhausted if there is an urgent need for judicial intervention. The Court of Appeals also declared invalid Section 1 of Presidential Decree No. 605 as this is an encroachment on the judicial power vested in the Supreme Court and the lower courts by Article VII, Section 1 of the Constitution. ISSUE: Does the alleged urgent necessity for judicial action justify the court's intervention without giving the DENR the opportunity to rule first on the alleged unlawful logging activities of Sunville? HELD: No. The charge involves factual issues calling for the presentation of supporting evidence. Such evidence is best evaluated first by the administrative authorities employing their specialized knowledge of the agreement and the rules allegedly violated before the courts may step in to exercise their powers of review. ##849 There is no need to declare the unconstitutionality of Section 1, PD No. 605. The rule is that a question of unconstitutionality of Section 1, PD No. 605. The rule is that a question of unconstitutionality must be avoided where the cases can be decided on some other available ground. The resolution of this question must await another case, where all the indispensable requisites of judicial inquiry into a constitutional question are satisfactorily established. In such an event, it will be time for the Court to make the hammer fall, and heavily. MORCOSO VS. COURT OF APPEALS G.R. NO. 96605, MAY 8, 1992 182

FACTS: Tirol claims to be the owner of a 4.5 hectares of land by way of inheritance from his father in 1930. On December 28, 1979, she entered into a lease agreement with Morcoso, allowing the latter without paying rental and for a period of six years, to develop a fishpond in a 85,880 sq. meters of land within the 4.5 hectares of land, with usufructuary rights. While working on the fishpond, Morcoso was informed by the personnel of the Bureau of Fisheries and Aquatic Resources that said portion of land which Tirol leased to Morosco is within the alienable and public land. Records show that Morcoso applied for a fishpond permit with BFAR in 1973, and that Morocoso refused to surrender possession of the fishpond to Tirol in 1976 when the term of the lease expired. It is for this reason that Tirol filed an unlawful detainer case against Morcoso but the same was dismissed for not having been filed on time. The trial court ruled that the fishpond belongs to Tirol, and this was sustained by the Court of Appeals. Morcoso questioned the said decision on the ground that the trial court erred in taking cognizance of a conflict of claims involving a parcel of land under the administration and control of another government agency. ISSUE: Is the contention of Morcoso correct? HELD: No. The technical descriptions of the fishpond stated in the lease contract and in the sketch plan of the BFAR personnel who conducted an ocular inspection of the fishpond areas applied for by Morcoso explicitly show that the latter was the subject of the lease contract between Tirol and Morcoso. The fishpond not having been part of the public domain, the trial court correctly adjudged Tirol as the rightful owner thereof. Hence, the doctrine of exhaustion of administrative remedies is not applicable, it being clear that the subject of controversy is a private land. ##850 NATIONAL FOOD AUTHORITY, ETAL. VS. COURT OF APPEALS, ET AL. G.R. NOS. 115121-25, 68 SCAD 246 FEBRUARY 9, 1996 FACTS: Private respondent's contacts were terminated in the midst of bidding preparation and their replacements were hired barely five days after the termination. Masada, another respondent, is a pre-qualified bidder who submitted all requirements and was preparing for the public bidding only to find out that contract had already been awarded by negotiation. Because of the urgency of the situation, the private respondents were compelled to go to court to stop the implementation of said negotiated security contracts. ISSUE: Should there still be an exhaustion of administrative remedies before going to court to stop implementation of the negotiated security contracts? 183

HELD: The case is an exception to the doctrine of exhaustion of administrative remedies. An appeal to the NFA Board of Council of Trustees and to the Secretary of Agriculture pursuant to the provisions of the Administrative Code of 1987 was not plain, speedy and adequate remedy in the ordinary course of law. ESPIRITU VS. MELGAR G.R. NO. 100874, FEBRUARY 13, 1992 FACTS: Ramir Garing filed three complaints against Mayor Melgar of Narjan, Oriental Mindoro. The first is a letter-complaint for grave misconduct, oppression, abuse of authority, culpable violation of the Constitution and conduct prejudicial to the best interest of public service, filed with the Secretary of the Department of Interior and Local Government. The same lettercomplaint was filed with the Provincial Governor of Mindoro requesting that the Mayor be placed under preventive suspension pending investigation. The third complaint was filed with the Presidential Action Center, Office of the President, which forwarded the same to the Governor. ##851 After Mayor Melgar submitted his answer to the Sangguniang Panlalawigan, the latter recommended to the Provincial Governor that the Mayor be preventively suspended for fortyfive (45) days pending the investigation of the complaint. Mayor Melgar moved to dismiss the complaint but the same was denied by the Sangguniang Panlalawigan. Meanwhile, Governor Espiritu placed Mayor Melgar under preventive suspension on May 28, 1991. Upon receipt of the order of suspension, Mayor Melgar filed a petition for certiorari with Preliminary Inspection with prayer for a restraining order in the Regional Trial Court which was granted. ISSUE: Whether the judge of the Regional Trial Court has jurisdiction to stop the governor from placing a municipal mayor under preventive suspension pending the investigation of administrative charges against the latter? Can Mayor Melgar go to court without exhausting administrative remedies? HELD: The Regional Trial Court had no jurisdiction over the special civil action and gravely abused its discretion in refusing to dismiss the case. There is nothing improper in suspending an officer before the charges against him are heard and before he is given an opportunity to prove his innocence. Preventive suspension is allowed so that the respondent may not hamper the normal course of the investigation through the use of his influence and authority over possible witnesses. Mayor Melgar's direct recourse to the courts without exhausting administrative remedies was premature. 184

NEW CASES: NICANOR T. SANTOS DEV'T. CORP. VS. HON. SEC., DAR G.R. NO. 159654, FEBRUARY 28, 2006 FACTS: Petitioner is a domestic corporation which owns a large tract of land known as the Santos Farm in Tuba, Benguet. A portion of said farm, according to the Municipal Agrarian Reform Officer (MARO) of Tuba, Benguet, would be placed under the coverage of the Comprehensive Agrarian Reform Program (CARP) for acquisition and distribution to prospective beneficiaries. Petitioner wrote to the DAR Secretary and to the MARO that the Santos Farm should be exempted from the coverage of the CARP program because the property is untenanted, mountainous and is not planted with rice and corn. ##852 The DAR Regional Director advised petitioner to pursue the exemption of the Santos Farm in accordance with the mandates of two DAR Administrative Orders. Instead, petitioner filed a Protest with the DAR and a protest letter to the DAR Secretary reiterating the grounds for the exemption of the Santos Farm from the CARP program. Petitioner also filed a Complaint before DARAB. DARAB ruled that it has no jurisdiction and referred the Complaint to the DAR Regional Director. The Complaint was dismissed for being time-barred and for failure to observe proper formalities. Aggrieved, petitioner instituted a Petition for Mandamus with the CA to compel the DAR, DARAB, and MARO to act on its petition for exemption of the Santos Farm from the CARP coverage. The CA dismissed the petition for lack of merit and for being the improper remedy. ISSUE: Whether petitioner was able to exhaust all the administrative remedies. RULING: Petitioner was not able to exhaust all administrative remedies hence the CA rightfully dismissed the Complaint. As a general rule, before a party may be allowed to invoke the jurisdiction of the courts of justice, he is expected to have exhausted all means of administrative redress. In the instant case, it is beyond dispute that petitioner failed to resort to proper administrative recourse in resisting the Notice of Coverage issued by respondent MARO. Unsuccessful in its attempt to oppose the Notice of Coverage when it lodged its protest with the incorrect administrative offices, petitioner resorted to a judicial remedy. The petition for mandamus, which it filed, however, was correctly denied by the CA. Truly, a petition for mandamus is premature if there are administrative remedies available to petitioner. There are instances when judicial action may be resorted to immediately. Among these exceptions are: (1) when the question raised is purely legal; (2) when the administrative body is in estoppels; (3) when the act complained of is patently illegal; (4) when there is urgent need for judicial intervention; (5) when the respondent acted in disregard of due process; (6) when the respondent is a department secretary whose acts, as an alter ego of the President, bear the 185

implied or assumed approval of the latter; (7) when irreparable damage will be suffered; (8) when there is no other plain, speedy and adequate remedy; (9) when strong public interest is involved; (10) when the subject of the controversy is private land; and (11) in quo warranto proceedings. In the case at bar, none of these exceptions are present. Hence, petitioner should have exhausted all administrative remedies before he can invoke the jurisdiction of the courts of justice. ##853 LAGUNA CATV NETWORK, INC. VS. MARAAN G.R. NO. 139492, NOVEMBER 19, 2002 FACTS: Private respondents filed with the Department of Labor and Employment, Regional Office No. IV (DOLE Region IV), separate complaints for underpayment of wages and nonpayment of other employee benefits against their employer, Laguna CATV Network, Inc., petitioner herein. DOLE Regional Director Maraan, after a summary investigation, issued an Order directing petitioner to pay the concerned employees their unpaid claims. Petitioner filed a motion for reconsideration. Petitioner failed to comply with said Order so DOLE Regional Director issued a writ of execution. Petitioner filed a motion to quash but the same was denied. Instead of appealing to the Secretary of Labor, petitioner filed with the Court of Appeals a motion for extension of time to file a petition for review. Petitioner was of the view that an appeal to the Secretary of Labor ‘would be an exercise in futility considering that the said appeal will be filed with the Regional Office and it will surely be disapproved.' The Court of Appeals denied said motion ruling, among others, that petitioner failed to exhaust administrative remedies. ISSUE: Whether the Court of Appeals erred in denying its motion for extension and in dismissing the case on the ground that petitioner failed to exhaust administrative remedies. RULING: No. The Court of Appeals was correct in holding that petitioner failed to exhaust all administrative remedies. As provided under Article 128 of the Labor Code, as amended, an order issued by the duly authorized representative of the Secretary of Labor may be appealed to the latter. Thus, petitioner should have first appealed to the Secretary of Labor instead of filing with the Court of Appeals a motion for extension of time to file a petition for review. This Court, in a long line of cases, has consistently held that if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the court's judicial power can be sought. The party with an administrative remedy must not merely initiate the prescribed administrative procedure to obtain relief but also pursue it to its appropriate conclusion before seeking judicial intervention 186

in order to give the administrative agency an opportunity to decide the matter itself correctly and prevent unnecessary and premature resort to the court. The underlying principle of the rule rests on the presumption that the administrative agency, if afforded a complete chance to pass upon the matter will decide the same correctly. Therefore, petitioner should have completed the administrative process by appealing the questioned Orders to the Secretary of Labor. ##854 CSC vs. DBP G.R. NO. 158791, JULY 22, 2005 FACTS: The CSC (petitioner) via the present petition for mandamus seeks to compel the Department of Budget and Management (respondent) to release the balance of its budget for fiscal year 2002. At the same time, it seeks a determination by this Court of the extent of the constitutional concept of fiscal autonomy. According to petitioner, the balance was intentionally withheld by respondent on the basis of it's "no report, no release" policy whereby allocations for agencies are withheld pending their submission of documents mentioned in the National Budget Circular No. 478. Petitioner contends that the application of the "no report, no release" policy upon independent constitutional bodies (of which it is one) is a violation of the principle of fiscal autonomy and, therefore, unconstitutional. Respondent, at the outset, opposes the petition on procedural grounds. It contends, among others, that petitioner did not exhaust administrative remedies as it could have sought clarification from respondent's Secretary regarding the extent of fiscal autonomy before resorting to this Court. ISSUE: Whether the doctrine of exhaustion of administrative remedies applies. RULING: The rule on exhaustion of administrative remedies invoked by respondent applies only where there is an express legal provision requiring such administrative step as a condition precedent to taking action in court. As petitioner is not mandated by any law to seek clarification from the Secretary of Budget and Management prior to filing the present action, its failure to do so does not call for the application of the rule. ##855 LAND BANK OF THE PHILIPPINES (LBP) VS. CELADA G.R. NO. 164876, JANUARY 23, 2006 FACTS: The Department of Agrarian Reform (DAR) expropriated 14.19343 hectares of respondent Celada's land in Bohol. Petitioner LBP valued respondent's land at P21,106.22 per hectare. DAR offered said amount to respondent but the latter rejected it. Nevertheless, LBP deposited said sum in the name of respondent. The matter was referred to the DAR Adjudication Board (DARAB) for summary administrative hearing on determination of just compensation. While the case was pending 187

before the DARAB, respondent filed a petition for judicial determination of just compensation against LBP, DAR and the Municipal Agrarian Reform Officer (MARO) of Carmen, Bohol before the RTC. Respondent claims that her land is worth at least P15,000 per hectare. LBP, in its answer, raised non-exhaustion of administrative remedies and forum shopping. It contended that respondent should first await the outcome of the DARAB case before taking any judicial recourse. The DARAB Provincial Adjudicator (PARAD) issued an order affirming the valuation of LBP. Thereafter, the Special Agrarian Court (SAC) ruled that recourse to DARAB is only for purposes of conciliation. ISSUE: Whether or not the doctrine of exhaustion of administrative remedies is still applicable despite the order issued affirming the valuation made by LBP. RULING: There is no merit to petitioner's contention that respondent failed to exhaust administrative remedies when she directly filed the petition for determination of just compensation with the SAC even before the DARAB case could be resolved. The issue is now moot considering that the valuation made by petitioner had long been affirmed by the DARAB in its Order dated April 12, 2000. As held in LBP vs. Wycoco, (419 SCRA 67 [2004]) the doctrine of exhaustion of administrative remedies is not applicable when the issue is rendered moot and academic, as in the instant case. CORSIGA VS. DEFENSOR G.R. NO. 139302, OCTOBER 28, 2002 FACTS: Private respondent Ortizo was the Senior Engineer B in the National Irrigation Administration (NIA), Jalaur-Suague River Irrigation System, Region VI. Petitioner Corsiga, then Regional Irrigation Manager of NIA, Region VI, reassigned private respondent to AgananSta. Barbara River Irrigation System. Aggrieved, private respondent wrote petitioner requesting exemption from the policy of rotation. When petitioner denied the said request, private respondent filed with the RTC of Iloilo City a complaint for prohibition and injunction. Petitioner moved to dismiss the petition for lack of jurisdiction and non-exhaustion of administrative remedies but the motion was denied. The appellate court affirmed the trial court's decision saying that the doctrine of exhaustion of administrative remedies does not apply where the controverted act is patently illegal, arbitrary, and oppressive. ##856 ISSUE: Whether private respondent has a cause of action despite his failure to exhaust administrative remedies. RULING: 188

Being a NIA employee covered by the Civil Service Law, in our view, private respondent should have first complained to the NIA Administrator, and if necessary, then appeal to the Civil Service Commission. As ruled in Abe-Abe vs. Manila, 90 SCRA 524 (1979), if a litigant goes to court without first pursuing his administrative remedies, his action is premature, and he has no cause of action to ventilate in court. Hence, petitioner asserts that private respondent's case is not ripe for judicial determination. There is no convincing evidence of grave abuse of discretion on petitioner's part. Private respondent's arguments are mere allegation which he failed to substantiate. Official functions are presumed to be regular unless proven otherwise. Therefore, the instant case is not an exception to the general rule on exhaustion of administrative remedies. 3. DOCTRINE OF PRIMARY JURISDICTION OR PRIOR RESORT Q - What is the doctrine of primary jurisdiction or prior resort? A - The doctrine of primary jurisdiction dictates that courts cannot determine a dispute on a question requiring the special knowledge and expertise of the administrative tribunals (Septimo vs. Judge Villarama, G.R. No. 101943, February 18, 1992). If the case therefore is such that its determination requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are involved, then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the jurisdiction of a court. (Industrial Enterprises, Inc. vs. Court of Appeals, G.R. No. 88550, April 18, 1990) Q - What happens when a claim which is originally cognizable in court, requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body? A - In such a case, the judicial process is suspended pending referral of such issues to the administrative body for its view. (Industrial Enterprises, Inc. vs. Court of Appeals, G.R. No. 88550, April 18, 1990) ##857 Q - What is the rationale behind the observance of the doctrine of primary jurisdiction or prior resort? A1. Uniformity and consistency in the regulation of business entrusted to an administrative agency are secured. 2. The limited function of review by the judiciary are more rationally exercised, by preliminary report, for ascertaining and interpreting the circumstances underlying legal issues, to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure. (Ibid.; Antipolo Realty Corp. vs. National Housing Authority, 153 SCRA 399) Q - What is the purpose of the doctrine of primary administrative jurisdiction? 189

A - The purpose of the doctrine of primary administrative jurisdiction, as enunciated in Director of Lands vs. Court of Appeals (G.R. No. 79684, February 19, 1991), is more in consonance with reality. Its purpose, according to the Supreme Court, is "not only to give the administrative agency the opportunity to decide the controversy by itself correctly, but also to prevent unnecessary and premature resort to courts." Q - What is the difference between the doctrine of exhaustion of administrative remedies and the doctrine of primary jurisdiction? ADoctrine of exhaustion of administrative remedies 1. The administrative agency has authority to pass on every question raised by a person resorting to judicial relief and enables the court to withhold its aid entirely until the administrative remedies had been exhausted. 2. The claim or matter is cognizable in the first instance by an administrative agency alone. 3. The purpose of the rule is to control the timing of judicial relief from adjudicative action of an agency. Doctrine of primary jurisdiction 1. Both the court and administrative agency have jurisdiction to pass on a question when a particular case is presented to court, as an original matter, rather than a matter of review. 2. The claim or matter is cognizable by both the court and administrative agency. 3. Doctrine of primary jurisdiction is not concerned with judicial review but determines in some instances whether initial action should be taken by a court or administrative agency. ##858 Note: Both principles do not apply where the issue involved is a pure question of law. 4. DOCTRINE OF QUALIFIED POLITICAL AGENCY Q - What is the doctrine of qualified political agency? A - The doctrine of qualified political agency is a corollary rule to the control powers of the President. Under this doctrine, which recognizes the establishment of a single executive, "all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by Constitution or law to act in person as the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive." (Carpio vs. Executive Secretary, G.R. No. 96409, February 14, 1992, En Banc, Paras, J.) Q - What is the extent of the President's power of control over the executive branch of the government? 190

A - The presidential power of control over the executive branch of the government extends over all executive officers from Cabinet Secretary to the lowliest clerk and has been held to mean, "the power of the President to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with that of the latter. It is at the very heart of the meaning of Chief Executive." (Carpio vs. Executive Secretary, G.R. No. 96409, February 14, 1992, En Banc, Paras, J.) The President's power of control is directly exercised by him over the members of the Cabinet, who, in turn, and by his authority, control the bureaus and other offices under their respective jurisdictions in the executive department. (Supra) 5. DOCTRINE OF RES JUDICATA IN ADMINISTRATIVE PROCEEDINGS Q - What is the doctrine of resjudicata in administrative proceedings? A - The doctrine of res judicata forbids the reopening of a matter that has been determined by competent authority. The prevailing rule is that the doctrine applies to judicial and quasijudicial acts of public, executive and administrative officers acting within their jurisdiction. The principle of conclusiveness of prior adjudication extends to all bodies upon whom judicial power has been confirmed. ##859 Q - What is the basis of the doctrine of res judicata in administrative proceedings? A - The judgment of courts and awards of quasi-judicial agencies must become final at some definite date fixed by law. (Carreon vs. W C. C., 77 SCRA 297) Q - What are the instances when the doctrine of res judicata is not applicable to administrative proceedings? A - In Nasipit Lumber Company, Inc. vs. NLRC, (Section 5, Rule XIII, Books of Rules and Regulations Implementing the Labor Code) for instance, the Supreme Court ruled that the doctrine of resjudicata does not apply to labor relations proceedings "considering that Section 5, Rule XIII, Book V of the Rules and Regulations Implementing the Labor Code provides that such proceedings are non-litigious and summary in nature without regard to legal technicalities obtaining in courts of law." Said pronouncement, added the Court, is in consonance with the jurisprudential dictum that the doctrine of resjudicata applies only to judicial or quasi-judicial proceedings and not to exercise of administrative powers. Neither does the doctrine apply to judgments based on prohibited or void contracts. (B.F. Goodrich Philippines, Inc. vs. Workmen Compensation Commission, 159 SCRA 355) NEW CASE: MONTEMAYOR VS. BUNDALIAN G.R. NO. 149335, JULY 1, 2003 FACTS: In a letter-complaint addressed to the Philippine Consulate General in San Francisco, California, USA, private respondent accused petitioner, then OIC-Regional Director, Region 191

III, of the DPWH, of accumulating unexplained wealth, in violation of Section 8 of RA No. 3019. The letter was indorsed to the Philippine Commission Against Graft and Corruption (PCAGC) for investigation. Petitioner pointed out that the charge against him was the subject of similar cases filed before the Ombudsman. He attached to his counter-affidavit the Consolidated report of the Ombudsman dismissing similar charges for insufficiency of evidence. Nevertheless, the PCAGC conducted its own investigation. Based on its findings, PCAGC recommended petitioner's dismissal from service. The Office of the President, concurring with the findings and adopting the recommendation of the PCAGC, issued Administrative Order No. 12, ordering petitioner's dismissal from service with forfeiture of all government benefits. ##860 ISSUE: Whether the earlier dismissal of similar cases before the Ombudsman rendered the administrative case before the PCAGC moot and academic. RULING: No. The earlier dismissal of similar cases before the Ombudsman does not render the administrative case before the PCAGC moot and academic. The decision of the Ombudsman does not operate as res judicata in the PCAGC case subject of this review. The doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of administrative powers. Petitioner was investigated by the Ombudsman for his possible criminal liability for the acquisition of the Burbank property in violation of the Anti-Graft and Corrupt Practices Act and the Revised Penal Code. For the same alleged misconduct, petitioner, as a presidential appointee, was investigated by the PCAGC by virtue of the administrative power and control of the President over him. As the PCAGC's investigation of petitioner was administrative in nature, the doctrine of res judicata finds no application in the case at bar. 6. DUE PROCESS IN ADMINISTRATIVE PROCEEDINGS Q - What is the common requirement of procedural due process, whether in judicial or administrative proceedings? A - There is a common requirement of procedural due process, whether in judicial or administrative proceedings, and this is the element of NOTICE AND OPPORTUNITY TO BE HEARD. For as long therefore as the defendant, or anyone similarly situated, is given a notice and an opportunity to be heard, he cannot later on complain that he was declared in default or that the decision has been rendered against him in his absence, for he has already been notified and given the opportunity to be heard. Q - What is procedural due process as understood in administrative proceedings? A - For the Supreme Court to sustain the findings of an administrative body exercising quasijudicial functions, such body must abide by the elementary rules of due process. However, procedural due process as understood in administrative proceedings accepts of a more 192

flexible standard as long as the proceeding were undertaken in an atmosphere of fairness and justice. (Valderama and Sons, Inc. vs. Drilon, G.R. No. 78212, January 22, 1999, First Division, Gancayco J.) Q - How can an "atmosphere of fairness and justice," as referred to in Valderama and Sons, Inc. vs. Drilon be attained? A - The answer would still be to comply with the cardinal rights to be observed in administrative proceedings, as pronounced in Ang Tibay vs. CIR (69 Phil. 635) as follows: ##861 1. The right to a hearing, which includes the right to present one's case and submit evidence in support thereof; 2. The tribunal must consider the evidence presented; 3. The decision must have something to support itself; 4. The evidence must be substantial; 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. The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy and not simply accept the views of a subordinate in arriving at a decision; 7. The board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered. EXPLANATION OF EACH REQUISITE FIRST REQUISITE: The right to a hearing - The element of notice and opportunity to be heard is part and parcel of due process, whether in judicial or administrative proceedings. In the absence of this element, there can be no fair play. Q - Is notice and hearing always necessary in administrative determinations? A - It is necessary only when some constitutional right is claimed to be invaded. Q - When is notice and hearing not necessary? A 1. It is not necessary if the purpose of an administrative determination is to decide whether a right or privilege which an applicant does not possess shall be granted to him or withheld in the exercise of a discretion vested by statute. 2. It is not also necessary if the power exercised is essentially administrative or executive and not judicial or quasi-judicial, unless otherwise required by law. 3. Even if the power exercised is quasi-judicial, notice or hearing may not be necessary to due process of law if no personal or property rights are involved. 4. When powers of determination and action of a quasi-judicial character are given to officers entrusted with duties of local or municipal administration by which not of the property, but 193

the lives of individuals, may be affected, and which, from their nature, must be exercised without a prior hearing or notice to the parties who may be affected. (42 Am. Jur., pp. 474475) ##862 Q - What are the instances of valid administrative determinations without prior notice and hearing? A - Nuisance per se may be the subject of summary abatement. (Article 704, New Civil Code) Permits to operate and maintain night clubs, cabaret, massage parlors, discohouses, may be revoked when found out to be used for immoral activities or fronts of prostitution. (Darling Apt. Co. vs. Springer 137 ALR 803) Preventive suspension of government employees on account of graft charges. (Anti-Graft and Corrupt Practices Act) SECOND REQUISITE: A tribunal must consider the evidence presented - The right of a party to present his own case and submit his evidence to support thereof will be a useless right if there is no corresponding duty on the part of administrative tribunal to consider the same. THIRD REQUISITE: The decision must have something to support itself - A decision which does not state clearly and distinctly the facts and the law on which it is based, deprives not only the parties but also the practitioners, professors and students as to the factual and legal considerations that guided the court, or even a quasi-judicial tribunal, in reaching a decision. Decisions of courts and administrative tribunals, particularly the decisions of the Supreme Court, are discussed, scrutinized and cited by lawyers and non-lawyers alike from time to time and in the years to come. This goes on and on even at a time when those who wrote them have banished from the broad face of the earth. Even dissenting opinions in yesteryears are made as references for, in several instances, they appear more convincing to the next generation of lawyers, judges, professors, scholars and law students. FOURTH REQUISITE: The evidence must be substantial - It is not enough that there is an evidence to support a finding or conclusion, but the evidence must be substantial. Substantial evidence "is more than a mere scintilla." It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This is precisely the difference between an administrative proceeding and a criminal case where the evidence required is proof beyond reasonable doubt. Q - What must be the reason for this rule? A - The obvious purpose of this rule is to free administrative bodies from the compulsion of technical rules of evidence and procedure. ##863 FIFTH REQUISITE: The decision must be rendered on the basis of the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected - Any other evidence not presented or disclosed during the proceedings cannot be made the basis of the decision. They are not known to the parties and neither are they brought to the attention of the administrative tribunal making the decision. 194

It is sufficient, however, that administrative findings of facts are supported by evidence. Such finding will not be disturbed so long as they are supported by substantial evidence, even if not overwhelming or preponderant (Earth Minerals Exploration, Inc. vs. Deputy Executive Secretary, Catalino Macaraig, G.R. No. 78569, February 11, 1991, 2nd Div, Paras, J.), and except when the former have acted without or in excess with their jurisdiction, or with grave abuse of discretion. (Biak na Bato Mining Company vs. Tanco, Jr., G.R. No. 342670-68, January 25, 1991, 2nd Div., Paras, J.) SIXTH REQUISITE: The board or its judges must act on its or their own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision - This means that the administrative officer who is entrusted with the duty to decide a case, must be the one to make a decision based on the factual findings laid on his table and based on his own interpretation of the law entrusted to him for implementation. Necessarily, he cannot entrust the same to anyone in his office for his determination and appreciation of the facts of the case and of the law, involved is certainly different from anyone in his staff. SEVENTH REQUISITE: In all controversial questions, the decision must be rendered in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. The performance of this duty is inseparable from the authority conferred upon it - It is a part and parcel of fair play that the reasons involved, particularly the reasons for the decision, should be stated clearly in the decision so that the parties will know not only the factual findings but also how the one making the decision appreciates the totality of the circumstances involved in the case and his own appreciation of what law applies to the facts and the evidence presented before him. 7. REQUISITES OF JUDICIAL REVIEW Q - What are the requisites before an administrative decision may be subject of judicial review? A - Before an administrative decision may be subject of judicial review, the following requisites should be complied with: 1) The administrative action has already been fully completed and has therefore become final; (This is known as Doctrine of Finality of Administrative Action) 2) The administrative remedies have been exhausted. (This is known as the Doctrine of Exhaustion of Administrative Remedies) ##864 Q - How can a party appeal from a final award, order or decision of an administrative agency, board or tribunal? A1. With respect to the decision, order/rulings of the three independent commissions created under and by virtue of 1987 Constitution, namely: (1) Civil Service Commission; (2) Comelec; and (3) Commission on Audit: The aggrieved party has to file a petition for certiorari within thirty (30) days from receipt of said decision, order or ruling. This petition is actually a special civil action for certiorari under Rule 65 and, therefore, the ground or the 195

issue to be brought to the Supreme Court for decision is limited to grave abuse of discretion amounting to lack of jurisdiction or excess of jurisdiction. (Art. IX Section 7, 1987 Constitution) 2. With respect to Appeals from the Court of Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals: Sees. 1, 2, 3, 4, and 5 of the Revised Rules of Court in the Philippines, provides as follows: "Sec. 1. Scope - This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law." "Sec. 2. Cases not covered - This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines." "Sec. 3. Whereto appeal - An Appeal under this Rule may be taken to the Court of Appeals within the period and in the manner herein provided, whether the appeal involves questions of fact, of law, or mixed questions of fact and law." ##865 "Sec. 4. Period of appeal - The appeal shall be taken within 15 days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner's motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days." "Sec. 5. How appeal taken - Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party and on the court or agency a quo. The original copy of the petition intended for the Court of Appeals shall be indicated as such by the petitioner. Upon the filing of the petition, the petitioner shall pay to the clerk of court of the Court of Appeals the docketing and other lawful fees and deposit the sum of P500.00 for costs. Exemption from payment of docketing and other lawful fees and the deposit for costs may be granted by the Court of Appeals upon a verified motion setting forth valid grounds therefor. If 196

the Court of Appeals denies the motion, the petitioner shall pay the docketing and other lawful fees and deposit for costs within fifteen (15) days from notice of the denial." 3. Regarding appeal by certiorari to the Supreme Court: Section 1, Rule 45 of the 1997 Rules of Civil Procedure, as amended, provides as follows: Section 1. Filing of petition with Supreme Court. - A Party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may, file with the Supreme Court a verged petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. Q - What question can be raised in an appeal by certiorari to the Supreme Court? A - Only questions of law may be raised in the petition and must be distinctly set forth. If no record on appeal has been filed in the Court of Appeals, the Clerk of the Supreme Court, upon admission of the petition, shall demand from the Court of Appeals the elevation of the whole record of the case. ##866 Q - Is this mode of appeal different from certiorari as a special civil action under Rule 65? A - An appeal by certiorari to the Supreme Court under Rule 45 is different from the special action of certiorari under Rule 65. Q - What is the difference? AAPPEAL BY CERTIORARI UNDER RULE 45 1. The petition is based on questions of law which the appellant desires the appellate court to resolve. 2. Involves the review of the judgment, award, or final order on the merits. 3. Must be made within the reglementary period for appeal. 4. Stays with the judgment, award, or order appealed from. 5. Petitioner and respondent are the original parties to the action, and the lower court or quasijudicial agency is not to be impleaded. 6. Prior filing of a motion for reconsideration is not required (Sec. 1, Rule 45) 7. The appellate court is in the exercise of its appellate jurisdiction and power of review. SPECIAL CIVIL ACTION FOR CERTIORARI UNDER RULE 65 1. The Petition raises the issues as to whether the lower court acted without in excess of jurisdiction or with grave abuse of discretion. 2. May be directed against an interlocutory order of the court prior to appeal from the judgment or where is there not appeal or other plain, speedy or adequate remedy. 3. May be filed not less than sixty (60) from notice of the judgment order or resolution sought to be assailed. 4. Does not stay the challenged proceeding unless a writ of preliminary injunction or a temporary restraining order shall have been issued. 197

5. The parties are the aggrieved party against the lower court or quasi-judicial agency and the prevailing parties, who thereby respectively become the petitioner and respondents. 6. A motion for reconsideration is a condition precedent (Villa-Rey Transit vs. Belo, L-18957, April 23, 1963) 7. The Higher court exercises original jurisdiction under it power of control and supervision over the proceedings of lower courts. (In Re: Petition for Assistance in the Liquidation of the Rural Bank of Bokod vs. BIR, G.R. No. 158261, December 18, 2006, citing the case of Paa vs. CA) ##867 Q - Can a petition be categorized as a petition under Rules 65 and 45 of the Rules of Court? A - No and neither may a petitioner or petitioners delegate upon the court the task of determining which rule the petition should fall. The Supreme Court ruled that under Circular No. 2-90, wrong or inappropriate mode of appeal merits an outright dismissal. (See Ibañez vs. Court of Appeals, 253 SCRA 540) Q - In an appeal by certiorari under Rule 45, only questions of law may be raised. What is the reason for this? A - The Supreme Court is not a trier of facts. The resolution of factual issues is the function of lower courts, whose findings on these matters are received with respect and are in fact binding on the Supreme Court subject to certain exceptions. (FNCB vs. Estavillo, G.R. No. 93394, December 20, 1990, 192 SCRA 514; Universal Motors vs. Court of Appeals, G.R. No. L-47432, January 27, 1992) Q - Distinguish questions of law from questions of facts. AQUESTIONS OF LAW If the facts are established or admitted, their legal effect is a question of law for the court to determine. There is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts. (Ramos vs. Pepsi-Cola Bottling Co. of the P.I., 19 SCRA 289) QUESTIONS OF FACTS A question of fact arises when there is a conflict in testimony. The question must be resolved by the court. No question of fact exists if only one conclusion is possible from the facts established. There is a question of fact when the doubt or difference arises as to the truth or the falsehood of alleged facts. (Ramos vs. Pepsi-Cola Bottling Co. of the P.I., 19 SCRA 289) Q - What is the test of whether a question is one of law or of fact? A - Whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise, it is a question of fact. 198

(Crisostomo vs. Garcia, G.R. No. 164787, January 31, 2006; Velayo-Fong vs. Spouses Velayo, G.R. 155488, December 6, 2006; L&L Lawrence Footwear Inc. vs. PCI Leasing and Finance Corp., G.R. No. 160531, August 30, 2005) Q - Is the finding of negligence a question of law or of fact? A - The finding of negligence is a question of fact. In the same vein, whether one acted in good faith or in bad faith is a question of fact. Hence, they are not proper subjects of the Supreme Court's discretionary power of judicial review under Rule 45 of the Rules of Court which is concerned solely with questions of law. (PNB vs. Campos, G.R. No. 167270, June 30, 2006) ##868 Q - What are the exceptions to conclusiveness of facts? A 1. When the conclusion is a finding grounded entirely on speculations, surmises or conjecture; 2. When the interference made is manifestly absurd, mistaken or impossible; 3. When there is grave abuse of discretion; 4. When the judgment is premised on a misapprehension of facts; 5. When the findings of facts are conflicting; 6. When the Court of Appeals in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellants and appellees; 7. When the findings of fact are contrary to those of the trial court; 8. When the findings of fact are conclusions without citation of specific evidence on which they are based; 9. When the facts set forth in the petition as well as in the petitioners' main and reply briefs are not disputed by respondents; and 10. When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record. (Ontimare vs. Elep, G.R. No. 159224, January 20, 2006; Citibank vs. Sabeniano, G.R. No. 156132, October 16, 2006) Q - Within what period can a party appeal by a certiorari from a judgment of the Court of Appeals? A - The petition shall be filed within 15 days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioners motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may, for justifiable reasons, grant an extension of 30 days only within to file the petition. (Section 2, Rule 45, Appeal by certiorari to the Supreme Court, Comments on the 1997 Rules of Civil Procedure, as amended) Q - Besides the foregoing reliefs and remedies, what is the general relief that may also be availed of under the 1987 Constitution? 199

A - General relief when proper, may also be availed of under the provisions of Section 1, Article VIII of the 1987 Constitution, which provides as follows: "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." (Underlining Supplied) ##869 (NOTE: New definition of judicial power as well as the case of Manila Prince Hotel vs. GSIS, Manila Hotel Corporation, et al., G.R. No. 122156 has already been discussed in Chapter VI). Q - What are the most common remedies available to an aggrieved party with respect to a decision or order of administrative agencies and offices? A - The common remedies are the following: 1. A special civil action for certiorari under Rule 65, Section 1 of the New Rules of Court. 2. A petition for prohibition may also be filed under Section 2, Rule 65 of the New Rules of Court. 3. A petition for mandamus may also be filed under Rule 65, Section 3 of the New Rules of Court. 4. A quo-warranto proceeding may also be filed under Section 1, Rule 66 of the New Rules of Court. 5. Petition for habeas corpus may also be filed under Section 1, Rule 102 of the New Rules of Court. V. OTHER ANCILLIARY PRINCIPLES OF ADMINISTRATIVE LAW Q - What are the other principles of administrative law? A - They are the following: 1. Administrative agencies are not bound by the technical rules of evidence and procedure. 2. The findings of facts of administrative bodies are binding to the courts if they are supported by substantial evidence. 3. Administrative bodies can resolve questions of law in the exercise of their quasi-judicial function but (a) the same is only an incident to their primary power of regulation and to perform executive duties; and (b) their resolution is subject to judicial review. 4. Requisites for validity of administrative rules and regulations. 5. Requisites for validity of administrative regulations with penal sanctions. 6. Legal force and effects of administrative rules and regulations. 7. Legal effects of duly executed acts of an administrative body. 8. "Republic of the Philippines" and "National Government" are not interchangeable. ##870 BRIEF EXPLANATION OF EACH PRINCIPLE 200

1. ADMINISTRATIVE AGENCIES ARE NOT BOUND BY THE TECHNICAL RULES OF EVIDENCE AND PROCEDURE Administrative agencies charged with the task of adjudicating contested cases are necessarily involved in exercising functions which are judicial in nature. This does not mean, however, that they are bound to observe the technical rules of evidence and procedure observed by the regular courts of justice. The reason for this is because administrative tribunals are expected to adjudicate cases expeditiously and without unnecessary delay. The main function of administrative agencies is primarily to enforce the law entrusted to them for implementation. The exercise of quasijudicial power is only incidental to their main function of enforcing the law. AL-AMANAH ISLAMIC INVESTMENT BANK OF THE PHILIPPINES VS. CIVIL SERVICE COMMISSION, ETAL. G.R. NO. 100599, APRIL 8, 1992 The Civil Service Commission is free from the rigidity of certain procedural requirements. FACTS: The investigating committee found Malbun guilty of neglect of duty and imposed the penalty of forced registration without prejudice to reinstatement. The Merit Systems Protection Board agreed with the investigating committee's findings that there is no proof that Malbun tolerated the anomalies nor is there any showing that he has benefited directly or indirectly from the transactions to the detriment of the Bank, and is therefore presumed to have acted in good faith. The Civil Service Commission found Malbun guilty not only of "gross neglect of duty" which is a less grave offense under Civil Service Commission Memorandum Circular No. 8, 1970, but also of "Grave Misconduct and Conduct Prejudicial to the best interest of the Service," which are grave offenses under the said Memorandum Circular. ##871 Philippines Al-Almanah Bank moved to reconsider the said finding of the Civil Service Commission and urged that the previous conviction of Malbun in 1979, for "Neglect of Duty" and subsequent suspension from the service, should be considered in determining the proper penalty against Malbun. The Bank contends that the proper penalty should be dismissal. The Civil Service Commission refused, however, to consider the prior conviction of Malbun on the ground that this is not a newly discovered evidence and that the Bank in the exercise of its reasonable diligence could have discovered and produced the document during the hearing conducted or could have presented they same in its appeal to the Merit Systems Protection Board as well as in the Commission. ISSUE: Is the said contention of Civil Service Commission correct? HELD: 201

No. The prior conviction should have been considered by the Commission in imposing the proper penalty on Malbun, although it was presented only in the bank's motion for reconsideration or for new trial. Malbun's prior conviction in 1979 is not a newly discovered evidence but "forgotten evidence." It already existed or was already available before or during the trial which was known and obtainable by the bank and could have been presented were it not for the oversight or forgetfulness of Malbun. Therefore, applying rigid technical rules, such document is not admissible as evidence against Malbun. However, administrative agencies like the Civil Service Commission exercising quasijudicial functions are free from the rigidity of certain procedural requirements. Therefore, the Commission should have admitted the document showing the prior conviction of Malbun, considering that it is a public document and within the judicial notice of the Commission. 2. THE FINDINGS OF FACTS OF ADMINISTRATIVE BODIES ARE BINDING TO THE COURTS IF THEY ARE SUPPORTED BY SUBSTANTIAL EVIDENCE In Villanueva vs. Court of Appeals (G.R. No. 99357, January 27, 1992), the Supreme Court ruled as follows: 1. Factual findings of administrative agencies are accorded not only respect but finality, because of the special knowledge and expertise gained by these quasi-judicial tribunals from handling specific matters falling under their jurisdiction. 2. Courts cannot take cognizance of such factual issues. 3. In reviewing administrative decisions, the reviewing court cannot re-examine the sufficiency of the evidence. ##872 4. The findings of fact must be respected, as long as they are supported by substantial evidence. "Factual findings of administrative bodies should be accorded not only respect but even finality if they are supported by substantial evidence even if not overwhelming or preponderant." (Casa Realty Filipino vs. Office of the President) "The factual findings of the Ombudsman are conclusive on the parties absent any showing of grave abuse of discretion. The findings of administrative agencies which have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but even finality." (Sesbreno vs. Ala, et al., G.R. No. 95393, and Sesbreno vs. Cahig, et al., G.R. No. 103471, May 5, 1992, En Banc, Paras, J.) "Administrative decisions on matters within the jurisdiction of the executive department can only be set aside on proof of gross abuse of jurisdiction, fraud or error of law. There being no motion for its reconsideration, the decision of the Secretary of Agriculture and Natural Resources became final on July 3, 1959, 30 days from receipt by the parties of the copies of the decision." (Heirs of Proceso Bautista vs. Barza, G.R. No. 79167, May 7, 1992, Third Division, Romero, J.) "Factual findings of administrative agencies are accorded not only respect but also even finality if they are supported by substantial evidence. However, deviation from this rule must be made when the administrative agency clearly misappreciated the facts. In the present case, the 202

factual findings of the Court of Appeals are at variance with those of the Secretary of Agriculture and Natural Resources (DANR). Petitioners have not sufficiently proved that the findings of fact of the "Court of Appeals are totally devoid of support in the records, or that they are so glaringly erroneous as to constitute serious abuse of discretion. Wherefore, the findings of fact made by the Court of Appeals are conclusive and binding on this Court even if contrary to those of the DANR, so long as such findings are supported by the records or based on substantial evidence. - (Mendizabel vs. Apao, G.R. No. 143185, February 20, 2006) NOTE: The Court of Appeals held that the evidence presented by respondents ‘tend to disprove the factual findings of administrative bodies.' 3. ADMINISTRATIVE BODIES CAN RESOLVE QUESTIONS OF LAW IN THE EXERCISE OF THEIR QUASI-JUDICIAL. ##873 FUNCTION BUT (A) THE SAME IS ONLY AN INCIDENT TO THEIR PRIMARY POWER OF REGULATION AND TO PERFORM EXECUTIVE DUTIES; AND (B) THEIR RESOLUTION IS SUBJECT TO JUDICIAL REVIEW In the exercise of quasi-judicial functions, administrative agencies are necessarily involved in the resolution of contested cases brought to their determination. On matters involving questions of law, the authority vested in administrative agencies is merely to interpret the law entrusted to them for implementation. But such interpretation, however, is only incidental to their primary power of regulation and to perform executive duties. More than this, the resolution is subject to judicial review. This means that an administrative action or decision may be disturbed or set aside by the judicial department if there is an error of law, or abuse of power or lack of jurisdiction or grave abuse of discretion clearly conflicting with either the letter or the spirit of a legislative enactment. (Peralta vs. Civil Service Commission, G.R. No. 95832, May 10, 1992, En Banc, Padilla, J.) Before an administrative determination may be subject of judicial review, it is required, however: 1. That the administrative action has already been fully completed and has become final; and 2. That all the administrative remedies have been exhausted. The first requirement is what is known and referred to as the Principle of Finality of Administrative Requirement and the second requirement is what is known and referred to as the Doctrine of Exhaustion of Administrative Remedies. REVIEW OF DECISIONS OF ADMINISTRATIVE AGENCIES Decisions of administrative agencies may be subject to review by any court specified by the statute, or in the absence thereof, it is subject to review by any court of competent jurisdiction in accordance with the provision on venue of the Rules of Court. (Board of Commissioners vs. Judge Capulong, G.R. No. 95612, May 31, 1991) 203

Batas Pambansa Blg. 129 did not intend to raise all quasi-judicial bodies to the same level or rank of the Regional Trial Court except those specifically provided for under the law. As the Bureau of Immigration is not of equal rank as the Regional Trial Court, its decisions may be appealable to, and may be reviewed through a special civil action for certiorari by the Regional Trial Court. (Sec. 2[1], Batas Pambansa Blg. 129) ##874 4. REQUISITES FOR VALIDITY OF ADMINISTRATIVE RULES AND REGULATIONS Already discussed. Just remember the important points, as discussed earlier, thus: 1. Requisites of a valid administrative regulation 2. Requirement as to publication of all laws as a condition for their effectivity 3. Requisites for validity of administrative regulations with penal sanctions 4. Cases: Old Cases: a) People vs. Maceren (79 SCRA 450) b) Metropolitan Traffic Command vs. Gonong (187 SCRA 432) c) Bautista vs. Junio (127 SCRA 239) d) Agustin vs. Edu (88 SCRA 195) e) Tablarin vs. Gutierrez (152 SCRA 730) New Cases: a) MMDA vs. Dante Garin, G.R. No. 130230, April 15, 2005 VI. IS THERE A RELIEF FROM WITHIN THE ADMINISTRATIVE AGENCY ITSELF? A - Unless otherwise provided by law or executive order, an action or decision of lower administrative authorities may be appealed to, or reviewed by, higher administrative authorities or superiors like the Department Head (EO 292, Book VII, Chapter 4, Section 19), or to the Commission or Board en banc (e.g. National Labor Relations Commission, Securities and Exchange Commission, National Telecommunications Commission). In fact, an appeal need not be filed at once. A motion for reconsideration may suffice to obtain desired changes in the decision so long as no rights have vested in the meantime and so long as they have not passed beyond the control of the administrative authorities. A resolution therefore of a labor arbiter, is reviewable by any of the divisions of the National Labor Relations Commission, and thereafter, whoever is the aggrieved party may appeal the decision to the Commission En Banc. The hierarchy of authorities within the framework of the National Labor Relations Commission ends here. The decision of the Commission En Banc is now appealable to the Court of Appeals, not to the Supreme Court, unlike before. ##875 EXAMPLE: NOTICE OF JUDGMENT/DECISION GREETINGS: 204

You are hereby notified that on ____, JUDGMENT/DECISION, copy attached, was rendered in the above-entitled case. Under Article 232 of the Labor Code (as amended by R.A. No. 6715) and pertinent provisions of the Revised Rules of the NLRC, no motion for reconsideration from said judgment shall be entertained, but only an appeal, a notice of memorandum thereof, in 5 typewritten copies must be filed before the Labor Arbiter or the Executive Labor Arbiter of this Office within 10 calendar days upon receipt thereof. An appeal shall be deemed perfected only upon the payment of an appeal fee. PROVIDED, that in case of judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of cash or surety bond issued by a reputable and duly accredited bonding company, an amount equivalent to the monetary award in the judgment appealed from. The decision of the Labor Arbiters reinstating a dismissed employee, in so far as the reinstatement is concerned shall immediately be executory, even pending appeal. The same terms and conditions prevailing prior to his dismissal or separation, at the option of the employer, merely reinstated in the payroll. Quezon City, Philippines, ____ Labor Arbitration Officer VII. RELIEF AFTER RESOLUTION OF THE HIGHEST LEVEL OF AUTHORITY IN THE ADMINISTRATIVE AGENCY CONCERNED Q - What relief is available as against an action or decision of an administrative bureau, agency, or office? A - It depends. If the law that created the said administrative bureau, agency or office provides for an appeal as well as the procedure and the requisites for taking that appeal, the specific relief or reliefs provided for in the law itself can be obtained. If the law does not provide for an appeal, or for judicial relief or review, the questioned decision can nevertheless be the subject of judicial review under Rule 65 of the New Rules of Court on the ground of lack or jurisdiction, grave abuse of discretion amounting to lack or excess of jurisdiction. ##876 Q - What is required prior to judicial review of an administrative decision? A1. That the administrative action has already been completed; and 2. That all the administrative remedies have been exhausted. Q - Is compliance with the said requirements absolute? A - No. The said requirements need not be complied with in the following instances: 1. When the question involved is purely legal, or where the questioned act is patently illegal, arbitrary or oppresive (Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinlupa, et al. vs. Dominguez, G.R. No. 85439; Bunye, et al. vs. Sandiganbayan, G.R. No. 91927, January 13, 1992); 205

2. When there is an urgent need for judicial intervention (Aquino vs. Luntok, 184 SCRA 177); 3. When the administrative body is in estoppel (Tan vs. Veterans Backpay Commission, 105 Phil. 377); 4. When the claim involved is small (Cipriano vs. Marcelino, 43 SCRA 291); 5. When irreparable damage will be suffered (De Lara vs. Plaribel, 14 SCRA 269); 6. When there is no other plain, speedy and adequate remedy (National Development Co. vs. Collector of Customs, 9 SCRA 429); 7. When strong public interest is involved (Arrow Transportation Corp. vs. Board of Transportation, 63 SCRA 193); and 8. When the subject of controversy is private land (Morcoso vs. Court of Appeals, G.R. No. 96605, May 8, 1992). Q - Can the reviewing court re-examine the sufficiency of the evidence and receive additional evidence that was not submitted to the administrative agency concerned? A - As a rule, factual findings of administrative agencies will not be disturbed by the courts except in the following cases: (Ang Tibay vs. CIR, supra; Alejandro vs. Court of Appeals, 191 SCRA 700; Nestle Philippines, Inc. vs. Court of Appeals, 203 SCRA 504 [1991]) 1. When it is not supported by substantial evidence; 2. When it is vitiated by fraud, imposition or collusion; 3. When the procedure which led to the factual findings is irregular; 4. When palpable errors are committed; 5. When abuse of discretion, arbitrariness or capriciousness is manifest. ##877 Q - What are the other matters that may not be interfered with by the courts? A1. Purely administrative and discretionary functions may not be interfered by the courts except if an agency or official concerned has acted arbitrarily and with grave abuse of discretion. (Beautifont vs. Court of Appeals, 157 SCRA 481 [1988]). Example: Power granted to LTFRB to grant provisional increase in transportation fares. 2. Appeal to the courts will not lie from an interlocutory order. Example: Order of NLRC to set a motion for execution for hearing by the Labor Arbiter a quo. Q - Assuming that an order is interlocutory, is there a relief that is available to a party aggrieved by the said kind of order? A - Yes, a special civil action for certiorari is available if the administrative agency, board or tribunal concerned acted without jurisdiction, in excess of jurisdiction or with grave abuse of discretion, or if petitioner's right to due process is disregarded. (Philippine Airlines vs. Civil Aeronautic Board, 20 SCRA 727 [1967) PHILIPPINE AIRLINES, INC. VS. CIVIL AERONAUTICS BOARD 20 SCRA 727 FACTS: 206

Philippine Airlines questioned the provisional permit to operate four aircrafts on the following grounds: (1) alleged violation of due process for failure to hear its evidence; (2) alleged absence of factual basis for granting said provisional permit; (3) there is no public need; (4) documents to support legality of the grant were not disclosed to it. CAB countered that petitioner was notified about the hearing and it was represented during the hearing when the proposed service and feasibility of operations were subject of discussion and debate. CAB and private respondent claimed that the promised grant is interlocutory. ISSUE: Is PAL's petition for certiorari tenable? Is there abuse of discretion in granting the said provisional permit to operate four aircrafts? ##878 HELD: PAL's petition for certiorari was sustained as a special civil action which allows an aggrieved party to complain against any tribunal, board or officer exercising functions judicial in character without or in excess of jurisdiction or with grave abuse of discretion. The claim, however, that there was violation of due process was not sustained for there was notice and hearing. Besides, CAB has the power to issue, deny, amend, revise, alter, modify, cancel, suspend or revoke, in whole or in part the temporary permit it has issued. VIII. APPEAL FROM, OR REVIEW OF ORDERS, ACTIONS AND DECISIONS OF THE DIFFERENT EXECUTIVE DEPARTMENTS, BUREAUS AND OFFICES OLD CASES PHILIPPINE MERCHANT MARINE SCHOOL, INC. VS. COURT OF APPEALS G.R. NO. 112844, JUNE 2, 1995 61 SCAD 720 (As long as the parties were given opportunity to be heard before the judgment was rendered, the demands of due process were sufficiently met) FACTS: Despite prior disapproval of petitioner's request for renewal of permit to operate, the DECS Inter-Agency Technical Committee (IATCOM) recommended the grant of permit to the school in 1987, provided that it improves its buildings, laboratory and library facilities before the start of school year 1987-1988. Petitioner continued to fail to improve itself in 1988. In 1989, the TPME (DECS Technical Panel for Maritime Education) recommended the gradual phase-out of the courses in Bachelor of Science in Marine Education and eventual closure should the school fail to meet minimum standards. On August 8, 1989, despite another inspection, the inspection team reiterated the recommendation for the gradual phase-out of the school and for the non-acceptance of freshman beginning SY 1990-1991. DECS approved and implemented the recommendation and accordingly issued the phase-out order. Petitioner moved for reconsideration. When motion was denied, it appealed to the Office of the President. While the appeal was pending, DECS issued a 207

closure order dated August 27, 1991, effective the second semester of SY 1991-1992. Petitioner moved for reconsideration of said order of closure. While the said motion for reconsideration was pending in the DECS, the Office of the President dismissed the appeal filed earlier. Again, petitioner moved for the reconsideration but the same was denied. ##879 Due to the denial, petitioner filed a petition for certiorari in the Court of Appeals on the following grounds: (1) There was violation of due process because the basis for affirmance of the DECS phase-out and closure orders was not sufficiently disclosed; (2) that it had presented incontrovertible proof that it had introduced substantial improvements on its facilities for the past two and a half years. The Court of Appeals denied the petition as well as the subsequent motion for reconsideration. Hence, a petition for certiorari was filed by the petitioner to the Supreme Court faulting the Court of Appeals in not setting aside the questioned resolution which was allegedly rendered without due process since it is not fully afforded opportunity to present evidence, and was not sufficiently informed of the basis for the closure orders which were not yet final and executory. ISSUE: Was there a violation of due process? Is the closure order valid? Is the basis of the affirmance of the DECS' phase-out and closure orders disclosed to the petitioner? HELD: Before the DECS issued the phase-out and closure orders, petitioner was duly notified, warned and given several opportunities to correct its deficiencies and to comply with pertinent orders and regulations. Petitioner has gone all the way up to the Office of the President to seek a reversal of the phase-out and closure orders. There is thus no reason to complain of lack of opportunity to explain its side as well as to comply with the alleged deficiencies (Board of Medical Education vs. Alfonso, 176 SCRA 304 [1989]). As long as the parties were given opportunity to be heard before the judgment was rendered, the demands of due process were sufficiently met (Lindo vs. COMELEC, 194 SCRA 25). It should also be noted that petitioner herein repeatedly sought reconsideration of the various orders of respondent DECS and its motion were duly considered by respondent DECS to the extent of allowing and granting its request for re-inspection of its premises. The phase-out and closure orders were based not only on petitioner's deficiencies as a maritime institution but also on its continued operation without the requisite authorization for the DECS and acceptance of freshman students in blatant violation of the latter's order and/or persistent warnings not to do so. Verily, there are sufficient grounds to uphold the phase-out and closure orders of the DECS which were issued conformably with Sec. 28 of the Education Act of 1982. In the case at bench, it is not the function of this Court nor any other court for that matter - x x x to review the decisions and order of the Secretary on the issue of whether or not an educational institution meets the standards required for permission to operate and to continue 208

operating as such. On this question, no Court has the power or prerogative to substitute its opinion for that of the Secretary. Indeed, it is obviously not expected that any court would have the competence to do so. ##880 ILOCOS SUR ELECTRIC CORPORATION, INC. VS. NATIONAL LABOR RELATIONS COMMISSION G.R. NO. 106161, FEBRUARY 1, 1995 58 SCAD 679 (Under Section 10 of P.D. No. 269, as amended by P.D. No. 1645, the National Electrification Administration has no power to hear and decide termination cases of employees in electric corporations. That authority is vested in the Labor Arbiter.) FACTS: Engr. Egdon Sabio, Manager of the Engineering Department of the Ilocos Sur Electric Cooperative (ISECO) was dismissed on July 1, 1989, by virtue of ISECO's Bond Resolution No. 63, S. 1989, dated July 19, 1989. He was placed under preventive suspension without pay effective July l, 1989. Engr. Sabio filed a complaint for illegal dismissal with damages against petitioner in the Department of Labor. The Labor Arbiter ruled in favor of Engr. Sabio and ordered ISECO to reinstate the latter with full backwages. ISECO appealed the decision. ISSUE: Whether NLRC has jurisdiction over the case of Engr. Sabio. Whether the Board of Directors of ISECO dismissed Engr. Sabio in accordance with law. HELD: Under Section 10 of P.D. No. 269, as amended by P.D. No. 1645 only the power of supervisions and control over electric cooperatives and other borrowers, supervised or controlled, is given to the NEA. There is nothing in said law which provides that the NEA administration has the power to hear and decide termination of employees in electric cooperatives. That authority is vested in the Labor Arbiter. The dismissal arose from a purely labor dispute which falls within the original and exclusive jurisdiction of the Labor Arbiters and the NLRC. ##881 CONCERNED OFFICIALS OF THE METROPOLITAN WATERWORKS SYSTEM (MWSS) VS. VASQUEZ, ETAL. G.R. NO. 109113, JANUARY 25, 1995, 58 SCAD 409 (The decision to accept or reject a bid and award contracts is vested in the government agencies entrusted with that function. Neither the Court, nor Congress, nor the Ombudsman should interfere in the exercise of said discretion which is a policy decision, unless it is apparent that it is used as a shield to a fraudulent award.) 209

FACTS: MWSS published its invitation for pre-qualification and bids. Fourteen (14) contractors submitted applications to the Awards Committee for Construction Services and Technical Equipment (PBAC-CSTE). After evaluation, only 11 were pre-qualified to bid. Meanwhile, between February 10 and March 24, 1992, former MWSS Administrator Luis Sison, issued 6 addenda to the biding documents. that embodied some suggestions of respondent Philippine Large Diameter Pressure Pipes Manufacturer's Association (PLDPPMA). After the 3 lowest bidders for Project APM-01 and APM-02 were known, PBAC-CSTE recommended the rejection of all bids and to conduct a re-bidding because of ambiguity of Addendum No. 6 of the bidding documents, lack of provision of maintenance/repair materials for bidders who opted to use fiberglass reinforced pipes, and the use for a further review of the pipe design by the consultant, NJS. Finally, on June, 1992, PBAC-CSTE submitted to bid evaluation report. It recommended the second lowest but complying bidder, FF Cruz and Co., Inc. for APM-01. Meanwhile, on April 7, 1992, PLDPPMA, private respondent, through its President, filed a letter-complaint with the Office of the Ombudsman protesting the public bidding on APM-01 and APM-02, charging that there was an "apparent plan" on the part of MWSS to favor suppliers of fiberglass pipes, and urging the Ombudsman to investigate the complaint and hold in abeyance the award of the contracts. The Ombudsman, in its order dated October 19, 1992, directed the Board of Trustees of MWSS to set aside the recommendation of PBAC-CSTE. MWSS moved for reconsideration but it was denied. ISSUE: Can the Ombudsman interfere in the adjudicative responsibility of the MWSS Board of Trustees? ##882 HELD: The MWSS, a government-owned and controlled corporation created by law through R.A. No. 6234, is charged with the construction, maintenance and operation of waterworks system to insure an uninterrupted and adequate supply and distribution of potable water. It is the agency that should be in the best position to evaluate the feasibility of the projection of the bidders and to decide which bid is compatible with its development plans. The exercise of this discretion is a policy decision that necessitates, among other things, prior inquiry, investigation, comparison, evaluation, and deliberation - matters that can best be discharged by it. MWSS has passed Resolution No. 32-93 to likewise show its approval of the technical specification for fiberglass. All these should deserve weight. NOTE: This affirms the decision of the Supreme Court in Razon, Inc. vs. PPA (151 SCRA 233), thus: "x x x we have said that neither this Court nor congress and now perhaps the Ombudsman, could be expected to have the time and technical expertise to look into matters of this nature. While we cannot go so far as to say, MWSS would have the monopoly of technical 210

know-how in the waterworks system, by the very nature of its functions, however, it obviously must enjoy the advantage over other agencies on the subject at hand." Likewise, this affirms the decision in Felipe Ysmael, Jr. and Co., Inc. vs. Deputy Executive Secretary (190 SCRA 673) The decision in Bureau Veritas vs. Office of the President is emphatic. The Supreme Court said: "The discretion to accept or reject a bid and award contracts is vested in the Government agencies entrusted with that function. The discretion given to the authorities on this matter is of such wide latitude that the Courts will not interfere therewith, unless it is used as a shield to a fraudulent award." ##883 SECRETARY OF HEALTH, ETAL. VS. COURT OF APPEALS, ETAL. G.R. NO. 112243, FEBRUARY 23, 1995, 59 SCAD 270 (Jurisdiction once acquired by a court over a case remains with it until the full termination of the case, unless the law provides the contrary.) FACTS: For gross misconduct and dishonesty, Fe Siballuca, Administrative Officer III of the Provincial Health of Cagayan, was placed under a 90 day preventive suspension. She instituted an action to nullify the said order of suspension claiming that when the New Local Government Code took effect on January l, 1992, the Secretary of Health had lost his disciplinary power and authority over her, considering that such power of the provincial Health Office is now vested in the Provincial Governor. The Secretary of Health moved to dismiss the action and to quash the temporary restraining order obtained and opposed the issuance of a preliminary injunction, contending that the private respondent had failed to exhaust administrative remedies and that the New Local Government Code did not divest him of his disciplinary jurisdiction over the private respondent. The trial court ruled in favor of Siballuca and issued an order for execution of judgment. Petitioners moved for reconsideration but was denied. They filed a Notice of Appeal with the court a quo and moved to stay execution of the asserted decision. Both were denied. Petitioners filed a Petition for Certiorari and Prohibition under Rule 65 in the Court of Appeals but the same was dismissed on the ground that the petition could not be a substitute for a lost appeal. ISSUE: Is the decision of the Court of Appeals correct? HELD: No. At the time of the commencement of the administrative action, the operative laws are the Administrative Code of 1987 and Executive Order No. 119. Under the said laws, the Secretary of Health exercises control, direction and supervision over his subordinates, which include private respondent. Consequently, since jurisdiction has been acquired by the Secretary of Health over the person of private respondent before the effectivity of the Local Government Code on January 1, 1992, it continues until the final DISPOSITION of the administrative case. 211

Jurisdiction once acquired by a court over a case remains with it until the full termination of the case, unless a law provides the contrary. Respondent, a civil servant, cannot use the courts of justice as a shield to prevent the implementation of administrative sanctions of executive agencies against erring public servants. NEW CASES AMADORE VS. ROMULO G.R. NO. 161608, AUGUST 9, 2005 (Only one motion for reconsideration is allowed to be filed from a decision, resolution or order of the Office of the President. A second motion for reconsideration is allowed only in exceptionally meritorious cases.) ##884 FACTS: Petitioner Amadore, the Director of PAGASA entered into a contract with InterTechnical Pacific Philippines, Inc. (INTER PAC) for the supply, delivery, installation, testing and commissioning of S-Band Weather Surveillance Radar System and Other Related Equipment for Baguio and Tanay Radar Stations. The contract was approved by then Secretary Padolina of the Department of Science and Technology (DOST). The concerned employees of the DOST reported the rampant graft and corruption in the DOST. The charge of entering into a contract manifestly and grossly disadvantageous to the government was filed against petitioner, Director Ferraris and Deputy Director Angeles. The PCAGC found them guilty and recommended their dismissal from the service. Then Executive Secretary Romulo approved the recommendation of the PCAGC and dismissed petitioner, Deputy Director Ferraris and Deputy Director Angeles from government service. They filed a motion for reconsideration. The complaint against Deputy Director Ferraris was dismissed, while Deputy Director Angeles was suspended for six (6) months and petitioner's dismissal from the service was affirmed. An urgent motion to admit second motion for reconsideration was filed by petitioner and Deputy Director Angeles on the ground that they were unable to present documents which, if admitted, would probably alter the decision of the Office of the President. The second motion for reconsideration was denied with finality. ISSUE: Whether a second motion for reconsideration of the decision of the Office of the President is allowed. RULING: A second motion for reconsideration of the decision of the Office of the President may only be allowed in exceptionally meritorious cases. Administrative Order No. 18, Series of 1987, prescribes the rules and regulations governing appeals to the Office of the President of the Philippines. Section 7 and 9 read as follows:

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Sec. 7. Decision/resolutions/orders of the Office of the President shall, except as otherwise provided for by special laws, become final after the lapse of fifteen (15) days from receipt of a copy thereof by the parties, unless a motion for reconsideration thereof is filed within such period. ##885 Only one motion for reconsideration by any one party shall be allowed and entertained, save in exceptionally meritorious cases. Sec. 9. The Rules of Court shall apply in a suppletory character whenever practicable. It is clear from Sec. 7 of Administrative Order No. 18 that only one motion for reconsideration is allowed to be filed from a decision, resolution or order of the Office of the President. A second motion for reconsideration is allowed only in exceptionally meritorious cases. In the case of petitioner, he, together with a co-respondent, filed a second motion for reconsideration claiming he will be presenting evidence that he was not able to present during the hearings, which, if admitted, will probably change the judgment. SGMC REALTY CORPORATION VS. OFFICE OF THE PRESIDENT G.R. NO. 126999, AUGUST 30, 2000 (Unless otherwise governed by special laws, an appeal to the Office of the President shall be taken within thirty (30) days from receipt by the aggrieved party of the decision/resolution/order complained of or appealed from.) FACTS: Petitioners filed before the Housing and Land Use Regulatory Board (HLURB) a complaint for breach of contract, violation of property rights and damages against private respondents. Their complaint was dismissed. Petitioners then filed a petition for review with the Board of Commissioners of the HLURB. The petition was dismissed so they filed an appeal with public respondent. Public respondent, without delving into the merits of the case, dismissed the appeal for being filed out of time and denied their motion for reconsideration. Alleging that public respondent committed grave abuse of discretion amounting to lack or excess of jurisdiction in holding that the period to appeal from the HLURB to the Office of the President is fifteen (15) days and not thirty (30) days as mandated in the 1994 Rules of Procedure adopted by the HLURB, petitioners filed the instant petition. ISSUE: Whether public respondent committed grave abuse of discretion in ruling that the reglementary period within which to appeal the decision of HLURB to public respondent is fifteen days. ##886 RULING: 213

No. Public respondent did not commit grave abuse of discretion. Administrative Order No. 18, Series of 1987, issued by public respondent reads: "Section 1. Unless otherwise governed by special laws, an appeal to the Office of the President shall be taken within thirty (30) days from receipt by the aggrieved party of the decision/resolution/order complained of or appealed from." (Underlining supplied) The said thirty (30) day period mentioned under Administrative Order No. 18 is subject to the qualification that there are no other statutory periods of appeal applicable. If there are special laws governing particular cases which provide for a shorter or longer reglementary period, the same shall prevail over the thirty-period provided for in the administrative order. Indeed, there are special laws that mandate a shorter period of fifteen (15) days within which to appeal a case to public respondent. First, Section 15 of PD No. 957 provides that the decisions of the National Housing Authority (NHA) shall become final and executor after the lapse of fifteen (15) days from the date of receipt of the decision. Second, Section 2 of PD No. 1344 states that decisions of the NHA shall become final and executor after the lapse of fifteen (15) days from the date of its receipt. The latter decree provides that the decisions of NHA are appealable only to the Office of the President. Further, we note that the regulatory functions of the NHA relating to housing and land development has been transferred to Human Settlements Regulatory Commission, now known as the HLURB. Thus, said presidential issuances providing for a reglementary period of appeal of fifteen days apply in this case. Accordingly, the period of appeal of thirty (30) days set forth in Section 27 of HLURB 1994 Rules of Procedure no longer holds true for being in conflict with the provisions of aforesaid presidential decrees. For it is axiomatic that administrative rules derive their validity from the statute that they are intended to implement. CABRERA VS. LAPID G.R. NO. 129098, DECEMBER 6, 2006 (Direct resort to the SC from a resolution or order of the Ombudsman is not sanctioned by any rule of procedure.) FACTS: Petitioner Amelia Cabrera accused named respondents Manuel Lapid, Fernando Baltazar, Reynaldo F. Cabrera and Superintendent Diony Ventura, respectively, in their capacities of Governor of Pampanga, Mayor of Sasmuan, Pampanga, Vice-Mayor of Sasmuan, Pampanga, and Superintendent of the PNP-Region 3, Pampanga of violating Section 3(e) of the Anti-Graft and Corrupt Practices Act and Article 324 of the Revised Penal Code. ##887 In her Complaint-Affidavit filed with the Office of the Ombudsman, petitioner stated that she entered into a lease agreement with the Municipality of Sasmuan over a tract of land for the purpose of devoting it to fishpond operations. According to petitioner, she had spent approximately P5,000,000.00 for its construction before the fishpond operations commenced in August 1995. A month later, petitioner learned from newspaper reports of the impending demolition of her fishpond as it was purportedly illegal and blocked the flow of the Pasak 214

River. Thus, petitioner sent the fishpond administrator to dissuade respondents from destroying her property. Despite pleas from petitioner, respondents ordered the destruction of petitioner's fishpond. The property was demolished on 10 October 1995 by dynamite blasting. Petitioner alleged that the demolition was purposely carried out in the presence of media representatives and other government officials to gain media mileage. Petitioner imputed evident bad faith on respondents Mayor Baltazar and Vice-Mayor Cabrera in allowing the destruction of the fishpond despite their prior knowledge of the existence of the lease agreement. She also charged respondents Governor Lapid and Senior Superintendent Ventura with gross inexcusable negligence for ordering the destruction of the fishpond without first verifying its legality. On 13 May 1996, the Ombudsman issued assailed Resolution, dismissing petitioner's complaint. The dismissal was based on the declaration that the fishpond was a nuisance per se and, thus, may be abated by respondents in the exercise of the police power of the State. Petitioner sought reconsideration of the Resolution. In its May 21, 1997 Order, the Ombudsman affirmed its earlier Resolution. Petitioner elevated the matter to this Court via a petition for review on certiorari under Rule 45 of the Rules of Court to assail the Resolution and Order of the Ombudsman. ISSUE: Whether petitioner can resort directly to the Supreme Court from a resolution or order of the Ombudsman. RULING: Direct resort to the SC from a resolution or order of the Ombudsman is not sanctioned by any rule of procedure. Clearly, this is an appeal from the questioned issuances of the Ombudsman. However, such direct resort to this Court from a resolution or order of the Ombudsman is not sanctioned by any rule of procedure. ##888 Neither can petitioner avail of Sec. 27 of RA No. 6770, otherwise known as The Ombudsman Act of 1989. The provision allowed direct appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court. The right to appeal is granted only in respect to orders or decisions of the Ombudsman in administrative cases. The provision does not cover resolutions of the Ombudsman in criminal cases. More importantly, Sec. 27 of RA No. 6770 insofar as it allowed a direct appeal to this Court was declared unconstitutional in Fabian vs. Hon. Desierto (356 SCRA 787). However, an aggrieved party in criminal actions is not without any recourse. Where grave abuse of discretion amounting to lack or excess of jurisdiction taints the findings of the Ombudsman on the existence of probable cause, the aggrieved party may file a petition for certiorari under Rule 65. The remedy from resolutions of the Ombudsman in preliminary investigations of criminal cases is a petition for certiorari under Rule 65, not a petition for review on certiorari under Rule 45. 215

But in this case, petitioner has taken the position that the Ombudsman has decided questions of substance contrary to law and the applicable decisions of the Supreme Court. That is a ground under a Rule 45 petition. Indeed, from a reading of the assignment of errors, it is clear that petitioner does not impute grave abuse of discretion to the Ombudsman in issuing the assailed Resolution and Order. Rather, she merely questions his findings and conclusions. As stated earlier, direct appeal to the Supreme Court via a petition for review on certiorari is not sanctioned by any rule of procedure. By availing of a wrong remedy, the petition should be dismissed outright. Q - Should an order of preventive suspension be nullified because the Secretary of Health lost his disciplinary power and authority when the new Local Government Code took effect on January 1, 1992? A - No. The jurisdiction acquired by the Secretary of Health before the effectivity of the Local Government Code on January 1, 1992, continues until the final disposition of the administrative case. THE MECHANICS OR THE MANNER OF APPEALING THE DECISION OF THE COMMISSION ON AUDIT IS DIFFERENT BECAUSE IT IS A CONSTITUTIONAL BODY Both under the 1973 and 1987 Constitutions, any decision, order or ruling of the Commission on Audit may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof. The same is true with respect to any decision, order or ruling of the Commission on Elections and the Civil Service Commission. (Orocio vs. Commission on Audit, et al., G.R. No. 75959, August 31, 1992; Manalansang vs. Civil Service Commission, G.R. No. 93500, February 5, 1991; Villanueva vs. Commission on Audit, G.R. No. 97071, February 27, 1992) ##889 Q - What is the relief available against awards of sale of lots issued by NHA? A - An action to annul awards of sale of its lots should first be filed in the National Housing Authority. Thereafter, an appeal may be filed in the Office of the President within thirty three days from receipt of the NHA decision awarding the lot to another party. After which step, the aggrieved party can go to the Courts under Rule 65. (Swan, et al. vs. Court of Appeals, G.R. No. 97319; Swan, et al. vs. Abesamis, G.R. No. 101054, August 4, 1992) The old case of Raymundo vs. PHHC (114 SCRA 717) had this ruling: "The power to dispose of the lands placed under the administration of Philippine Homesite and Housing Corporation is lodged in said body. There is no provision of law authorizing courts to review decisions of respondent. PHHC and to take cognizance of actions to annul awards of sale or any other actions made by it pursuant to the authority granted it by law. If the courts are to take cognizance of cases involving errors or abuse of power exercised by the respondent PHHC, the remedy would be by means of an action for certiorari or prohibition to set aside the orders of decisions of the respondent PHHC, and not a direct action 216

for specific performance as the one instituted in this case. But this special civil action would not lie unless there is an allegation of abuse of discretion of lack of jurisdiction." Q - Can the courts interfere with the Ombudsman's exercise of his discretion to determine whether or not to file an information against an accused? A - GENERAL RULE The Ombudsman having authorized the Special Prosecutor to investigate the charges, and we cannot assume that the former acted without any justifiable cause, the latter is and should, at this stage, be the proper adjudicator of the question as to the existence of a case warranting the filing of an information in court. To deny said functionary of the opportunity to discharge such duty through this prohibitory recourse, under the obtaining circumstances herein before explained, would be violative of settled rules of criminal procedure and would, in effect grant an immunity against even an investigative proceeding. (Sesbreno vs. Deputy Ombudsman, G.R. No. 97289, March 21, 1991; Tabaa-Candang vs. Vasquez, G.R. No. 97127, March 21, 1991) ##890 EXCEPTION Except if there is a misapprehension of justice and the courts have to step in to prevent the respondents from using the iron arm of the law to harass, oppress, and persecute a member of the democratic opposition in the Philippines against whom an information for subversion had been filed. The petitioners, Fernando and Mison, are by no means, opposition men who need to be rescued from "the iron arm" of the law. IX. METHODS OF REVIEW OF ADMINISTRATIVE DECISION Q - What are the methods of review of administrative action? A - The methods of review of administrative action may be (l) Statutory or Non-Statutory; (2) Direct or Collateral. (a) Statutory Methods - They are those that are provided by a specific statutory provision. The manner and extent of its exercise is therefore governed by statutes. (b) Non-Statutory Methods - Are those methods which are not expressly provided for by law. they are resorted by courts on account of their inherent power to review such proceedings and to decide questions of jurisdiction and questions of law. (c) Direct Proceeding - This is a proceeding which includes a petition for review or relief from a judgment. The purpose of which is to seek relief other than to set aside judgment, although it may involve an attack on the judgment itself. (d) Collateral Attack - Through collateral attack, there is an attempt to question in a subsequent proceeding, the conclusiveness or validity of a prior administrative decision on the ground that the decision of invalid for lack of jurisdiction over the person, or over the subject matter, or because the decision attacked was not the act of the administrative body concerned which is vested with the power to make the said determination.

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STATUTORY METHODS (They are available on account of a specific law that allows it. If statutory methods for review are available, they are ordinarily exclusive, and the use of non-statutory methods will not likely be permitted.) ##891 Example: 1. Judicial review of the decisions of the Constitutional Commissions, those created under Article IX(A), Section 1 of the 1987 Constitution (Commission on Elections, Commission on Audit, and Civil Service Commission) "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 (30) days from receipt of a copy thereof" 2. Judicial Review of decisions and final orders under the Labor Code of the Philippines Judgments and final orders issued under the Labor Code of the Philippines may only be brought to the Supreme Court under Rule 65. The reliefs in Rule 65 are the following: (a) Petition for Certiorari, Section 1, Rule 65 (b) Petition for Prohibition, Section 2, Rule 65 Q - Within what period shall the petition for certiorari be filed? A - There is no rule which specifies the period within which a petition for certiorari should be filed. The yardstick to measure the timeliness of a petition for certiorari is the reasonableness of the duration of time that has expired from the commission of the act complained of, up to the institution of the proceedings to annul the same. NOTE: 1. In San Juan vs. Cuento (G.R. No. 45063, April 15, 1988, 160 SCRA 277), it was held that an interval of 2 years is too long. 2. In Allied Leasing Corporation vs. Court of Appeals (197 SCRA 71 [1991]). 3. In Claridad vs. Santos (120 SCRA 148), 99 days in filing certiorari after receipt of denial of the motion for reconsideration was considered as barred laches. 4. In People vs. Magallanes (G.R. No. 118013, 64 SCAD 968, October 11, 1995, citing Philex Workers Union vs. Young, January 22, 1992), 3 months in filing certiorari after receipt of the denial for the Motion for Reconsideration was accepted. 5. The period has now been settled to 60 days. NON-STATUTORY METHODS (If there is no specific law granting review, relief is obtained by means of the common law remedies, or by the prerogative writs of certiorari, mandamus, habeas corpus, quo-warranto or prohibition) ##892 Example: 1. A special civil action for certiorari under Rule 65, Section 1 of the New Rules of Court. 218

2. A petition for prohibition may also be filed under Section 2, Rule 65 of the New Rules of Court. 3. A petition for mandamus may also be filed under Rule 65, Section 3 of the New Rules of Court. 4. A quo-warranto proceeding may also be filed under Section 1, Rule 66 of the New Rules of Court. 5. Petition for habeas corpus may also be filed under Section 1, Rule 102 of the New Rules of Court. DIRECT PROCEEDING (Administrative action is being questioned in a subsequent proceeding on account of lack of jurisdiction, grave abuse of discretion amounting to lack or excess of jurisdiction. This also includes a petition for review or a relief from judgment.) Example: 1. A special civil action for certiorari under Rule 65, Section 1 of the New Rules of Court. 2. Appeal under Rule 43, Section 1 of the New Rules of Court. COLLATERAL ATTACK (The conclusiveness or validity of a prior administrative decision is being questioned on the ground that the decision is invalid for lack of jurisdiction over the person, or over the subject matter, or because the decision attacked was not the act of the administrative body concerned which is vested with the power to make the said determination). Q - Can the citizenship of an individual be attacked in a collateral proceeding? A - No. (Co vs. House of Representatives Electoral Tribunal, 199 SCRA 692) Q - Is a certificate of title issued under an administrative proceeding indefeasible as a certificate of title issued under a judicial registration proceeding? A - Yes, provided that the land covered by said certificate is a disposable public land within the contemplation of the public land law. (Ybañez vs. Intermediate Appellate Court, G.R. No. 68291, March 6, 1991) Q - Can a decree of registration and the certificate of title issued pursuant thereto be attacked on the ground of actual fraud in a collateral proceeding? A - No, such attack must be direct and not through a collateral proceeding. The validity of the certificate of title in this regard can be threshed out only in an action expressly filed for the purpose. (Ibid.) ##893 X. ADMINISTRATIVE AGENCIES CREATED BY THE CONSTITUTION Q - What specifically are the guarantees provided by the Constitution to said commissions? A - The Constitution provides for the following guarantees: 219

1. The Members of the Constitutional Commissions cannot be removed from office except by impeachment. (Article XI, Section 2) 2. The powers conferred to each of the said Commissions cannot be withdrawn or reduced by statute. (Article IX[B], [C], and [DJ) 3. The term of office of the Chairman and the Commissioners is seven (7) years without reappointment. (Ibid.) 4. Their term of office are staggered in order that the majority of them may not be appointed by the same President. (Ibid.) 5. They may not be re-appointed or appointed in an acting capacity. (Ibid.) 6. Their salaries are fixed by law and shall not be decreased during their tenure. (Section 3, Article IX[A]) 7. All the said commissions may promulgate its own procedural rules. (Section 5, Ibid.) 8. All the said commissions may promulgate its own procedural rules. (Section 6, Ibid.) 9. All the said commissions can appoint their own officials and employees in accordance with law. (Section 4, Ibid.) 10. The Chairman and members of all the said commissions are subject to certain disqualifications and inhibitions so they will not be distracted from performing their duties and functions. (Section 2, Ibid.) 11. All the said commissions are independent. (Section 1, Ibid.) 12. All the said commissions are created by the Constitution and they may not be abolished by statute. (Section 1, Ibid.) Q - What is the mechanics of staggering the terms? A - Every two (2) years, the term of one Commissioner expires leaving behind two experienced Commissioners. If a vacancy occurs, the commissioner so appointed to fill up the vacancy shall serve only for the unexpired term of the predecessor. Q - No member shall be appointed or designated in a temporary or acting capacity? A - The last sentence of Section 1 (2), Article IX[B] states: "In no case shall any member be appointed or designated in a temporary or acting capacity." ##894 Under this rule, the President may not fill up a vacancy by designating one of the Commissioners a temporary Chairman. BRILLANTES VS. YORAC 192 SCRA 358 FACTS: Commissioner Haydee Yorac, then an Associate Commissioner of the Commission on Elections, was designated by President Corazon C. Aquino as Acting Chairperson of the Commission because the regular chairman was appointed to another position in the government. The petitioner challenged the designation invoking the prohibition that "no member may be appointed or designated in a temporary capacity." 220

ISSUE: Is the said designation valid? HELD: The Chairman and the Commissioners of the Commission on Elections must be extended permanent appointments by the President but such appointments shall have the consent of the Commission on Appointments. The President has no power to designate a temporary Chairman. This prerogative may be exercised by the members of the Commission on Elections for they may, by a majority vote, designate one of them as temporary chairman pending the appointment of a permanent chairman by the President. Q - Within what period must a case or matter be decided by each commission? A - Section 7, Article IX[A] answers this question, thus: "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." Q - Who made the said decisions? A - Decisions are made by the said commissions, not by the individual members of said commissions. REASON: The said constitutional commissions are collegial bodies. The cases pending in said commissions should, therefore, be decided "by a majority vote of all its members and Section 7 fixes a period of sixty (60) days from the date of its submission within which to make that decision." Again, the sixty (60)-day period is counted from the filing of the last pleading, brief or memorandum required by the Rules of the Commission or by the Commission itself. ##895 Q - How many days within which to file a petition for certiorari? A - The aggrieved party has to file a petition for certiorari within thirty (30) days from receipt of said decision, order or ruling. This petition is actually a special civil action for certiorari under Rule 65 and, therefore, the ground or the issue to be brought to the Supreme Court for decision is limited to grave abuse of discretion amounting to lack of jurisdiction or excess of jurisdiction. There is lack of jurisdiction if the grave abuse of discretion was done in a capricious or whimsical manner. Excess of jurisdiction presupposes that the court has jurisdiction but it has overstepped the permissible bounds in the exercise thereof. (Galido vs. Comelec, 93 SCRA 78 [1991); Rivera vs. Comelec, 199 SCRA 178 [1991]) 221

It is now settled that in providing that the decisions, orders or rulings of Comelec "may be brought the Supreme Court on certiorari," the Constitution in its Article IX[A], Section 7, means the special civil action for certiorari under Rule 65, Section 1. For this reason, the aggrieved party must first file a motion for reconsideration before the petition for certiorari is brought to the Supreme Court. (Reyes vs. Regional Trial Court, et al., G.R. No. 108886, 61 SCAD 44, May 5, 1995) REYES VS. REGIONAL TRIAL COURT, ETAL. G.R. NO. 108886, MAY 5, 1995 61 SCAD 44 FACTS: After the May 11, 1992 synchronized elections, the Municipal Board of Canvassers proclaimed Aquiles U. Reyes as the 8th winning candidate for the position of member of the Sangguniang Bayan of Nauja, Oriental Mindoro. Thereafter, Adolfo G. Comia, a candidate for the same position, filed before the trial court an election protest alleging that the Board of Canvassers had committed a mistake in the mathematical computation of the total number of votes garnered by petitioner. After the mistake was admitted and rectified, the trial court annulled the proclamation of Reyes and declared Comia as the duly elected winner. Reyes filed a notice of appeal with the COMELEC and also a petition for mandamus and prohibition in the Court of Appeals. ##896 The COMELEC's First Division dismissed Reyes' appeal on the ground that he failed to pay the appeal fee within the prescribed period and the Court of Appeals dismissed his petition in view of his pending appeal in the COMELEC citing Supreme Court Circular No. 28-91 which prohibits the filing of multiple petitions involving the same issues. Reyes then brought the present action. Reyes contends that both the trial court and the COMELEC's First Division committed a grave abuse of discretion, the first, by assuming jurisdiction over the election contest filed by Comia despite the fact that the case was filed more than ten days after Reyes' proclamation, and the second, i.e., the COMELEC's First Division, by dismissing Reyes' appeal from the decision of the trial court for late payment of the appeal fee. The Supreme Court dismissed the petition. Reyes failed to first file a motion for reconsideration before the COMELEC en banc before filing his petition for certiorari before the Supreme Court contrary to Article IX(A), Section 7 of the Constitution. It likewise held that the COMELEC's First Division properly dismissed Reyes' appeal from the decision of the trial court for his failure to pay the appeal fee within the time for perfecting an appeal. The Solicitor General, in behalf of the COMELEC, raises a fundamental question. He contends that the filing of the present petition, without Reyes first filing a motion for reconsideration before the COMELEC en banc, violates Article IX, Section 7 of the Constitution because under this provision only decisions of the COMELEC en banc may be brought to the Supreme Court on certiorari. HELD: 222

This is correct. It is now settled that providing that the decisions, orders and rulings of COMELEC "may be brought to the Supreme Court on certiorari," the Constitution in its Article IX(A), Section 7 means the special civil action of certiorari under Rule 65, Section 1 (Galido vs. COMELEC, 193 SCRA 78 [1991]; Rivera vs. COMELEC, 199 SCRA 178 [1991]). Since a basic condition for bringing such action is that Reyes first file a motion for reconsideration (Regalado, Remedial Law, pp. 459-460 [1998]), it follows that Reyes' failure to file a motion for reconsideration of the decision of the First Division of the COMELEC is fatal to present action. Reyes argues that this requirement may be dispensed with because the only question raised in his petition is a question of law. This is not correct. The questions raised by Reyes involve the interpretation of constitutional and statutory provisions in the light of the facts of this case. The questions tendered are, therefore, not pure questions of law. ##897 Moreover, that a motion for reconsideration before the COMELEC En Banc is required for the filing of a petition for certiorari is clear from the provisions of Article IX(C), Sections 2 and 3 of the Constitution. Conformably to these provisions of the Constitution, all election cases, including pre-proclamation controversies, must be decided by the COMELEC in Division. Should a party be dissatisfied with the decision, he may file a motion for reconsideration before the COMELEC En Banc. It is, therefore, the decision, order or ruling of the COMELEC En Banc that is, in accordance with Article IX(A), Section 7, "may be brought to the Supreme Court on certiorari." Reyes also assails the decision of the trial court as having been rendered without jurisdiction. He contends that the election protest of Comia was filed more than 10 days after his (Reyes) proclamation. Reyes, however, is estopped to raise this question now. He did not only appeal from the decision of the trial court to the COMELEC raising this question, but he also filed a petition for mandamus and prohibition in the Court of Appeals. Having decided on this course of action, he should not be allowed to file the present petition just because he lost in those cases. MULTIPLE CHOICE QUESTIONS 1. The law, as passed and approved, said that its takes effect on November 15, 2010. A. The said law takes effect fifteen (15) days following the completion of its publication either in the official Gazette or in a newspaper of general circulation in the Philippines. B. The said law takes effect after fifteen (15) days following the completion of their publication either in the official Gazette or in a newspaper of general circulation in the Philippines. C. The said law takes effect upon its approval. D. The said law shall take effect on November 15, 2010. 2. A cabinet secretary resigned at the time when congress is in session. Can the president appoint an acting secretary of his choice while congress is in session? A. The law does not give the President such power.

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B. The President should not have made such an appointment because in case of a vacancy in the office of the Secretary, it is only the Undersecretary, who can be designated as Acting Secretary. C. Congress can impose on the President the obligation to appoint automatically the undersecretary as her alter ego. D. Congress cannot impose on the President the obligation to appoint automatically the undersecretary as his alter ego. Since the department Secretary is the alter ego of the President, the acting appointee to the office must necessarily have the confidence of the President. ##898 LAW OF PUBLIC OFFICES AND PUBLIC OFFICERS Guide: 1. Definition and general principles 2. Characteristics of a public office 3. Requirements for public office: (a) Appointment; (b) Designation; (c) Commission 4. Classification of appointment; (a) Regular appointment; (b) Ad Interim appointment; (c) Permanent appointment; (d) Temporary appointment 5. Different steps in the process of appointment 6. What is the best evidence of an appointment? 7. Kinds of acceptance: (a) Express; (b) Implied 8. Distinction, appointment and election 9. What is required for an office to be filled up either by an appointment or by election? 10. Eligibility and qualification (a) Meaning of the term "qualification" (b) Qualifications are continuing requirements 11. Disqualifications: Different disqualifications 12. Failure to qualify 13. De Facto officers; distinctions, de jure officer and de facto officer 14. Commencement of official relations 15. Eight (8) Important principles (1) Appointment (2) Torio vs. CSC (3) The next-in-rank rule (4) De facto/De jure (5) Matters that fall within the exclusive jurisdiction of the CSC (6) Kinds of Personnel Actions (7) Modes of termination of official relationship (8) Liability of Public Officers ##899 16. Explanation of each of the said principles 224

17. Eight (8) other ancilliary principles 18. Explanation of each ancilliary principle (1) Preference for appointment to new position (2) Can a person be compelled to accept an office? (3) Presidential power of appointment (4) Authority to determine the kind or nature of appointment (5) Revocation of appointment by CSC (6) Meaning of the term qualification (7) Determination through competitive examination (8) Hold over rule DISCUSSION LAW OF PUBLIC OFFICES AND PUBLIC OFFICERS 1. DEFINITION AND GENERAL PRINCIPLES Q - Define public office. A - It is the right, authority and duty, created and conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by the individual for the benefit of the public. (Fernandez vs. Sto. Tomas, 242 SCRA 192) Q - What are the elements of public office? A1. It must be created by law or by ordinance authorized by law; 2. It must possess some sovereign functions of government to be exercised for public interest; 3. The functions must be defined, expressly or impliedly, by law; 4. The functions must be exercised by an officer directly under the control of the law, not under that of a superior officer, unless they are functions conferred by the law upon inferior officers, who, by law, are under the control of a superior. 5. It must have some permanency or continuity, not temporary or occasional. (State vs. Hawkins, 257 Pac. 411, 53 A.L. R. 583) Q - How is a public office created? A - It is created either by the Constitution, by statute or by law. ##900 Example: Offices created by the Constitution - The three independent commissions (Commission on Elections, Civil Service Commission, Commission on Audit); the Office of the Ombudsman; the Office of the President; the Legislature and the Supreme Court. Statutory offices - Metro Manila Development Authority, National Food Authority, National Labor Relations Commission, Central Bank of the Philippines. Offices created by virtue of validly delegated power - The Philippine Overseas Employment Administration was created by virtue of Executive Order No. 797 dated May 1, 1992. Philippine Overseas Employment Administration (POEA) took over the functions of the 225

Overseas Employment Division Board. In turn, Executive Order No. 247 dated July 24, 1987, granted additional powers and functions to the POEA. The Public Service Commission was created under Commonwealth Act No. 146. Said commission is now known as the Board of Energy which was created by Presidential Decree No. 1208 dated October 6, 1977. Q - What is a public officer? A - Generally, it refers to an individual invested with a public office (Mechem, Public Office, Section 1). When it is used with reference to a person having to do a particular act or perform a particular function in the exercise of governmental power, it includes any government employee, agent or body having to do the act or exercise that function. (Section 2, Administrative Code of 1987) When used under the Revised Penal Code, it refers to any person, who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippines or performs in said Government or in any of its branches, public duties as an employee, agent or subordinate official, or of any rank or class. The term public officer, as it is understood under Section 2, Republic Act No. 3019, includes "elective and appointive officials and employees, permanent or temporary, whether in the classified, or exempt service, receiving compensation, even nominal from the government." Q - Define public official. A - A public official is an officer of the Government itself, as distinguished from the officers and employees of instrumentality of government. Hence, the duly authorized acts of the former are those of the government, unlike those of a government instrumentality which may have a personality of its own, separate and distinct from that of the government, as such. (Gonzales vs. Hechanova, 9 SCRA 230 [1964]) ##901 Q - Distinguish public office from employment. A - An office is a public position created by the Constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed. An employment is an agency, for a temporary purpose, which ceases when that purpose is accomplished. (Groves vs. Borden, 169 N. C. 8, 84 S.E. 1942; Lasher vs. People, 183 III. 226, 55 N.E. 663) Q - Distinguish an officer from an employee. A - An officer is distinguished from a mere employee in the sense that: (l) His position has greater importance, dignity and independence; (2) That he is required to take an official oath, and to give an official bond; (3) He has greater liability to account for misfeasance or nonfeasance in office; (4) That his tenure of office is usually different from that of an ordinary employee. (Martin, citing Goodnow, Comparative Administrative Law, Vol. II, 3) 226

Q - Distinguish public office from contract. AOFFICE: 1. It is a creation of sovereignty. 2. It is more lasting in nature. 3. Its object is to carry out sovereign as well as governmental functions which involves even persons who are not parties to the agreement. CONTRACT: 1. Contract arises from the agreement or will of the parties. 2. The effectivity of the contract may be for a long or short period of time, as may be agreed upon by the parties. 3. The obligations arising from a contract is, as a rule, enforceable only as between the parties to the contract. (Article 1311, New Civil Code) Q - What are the different classifications of a public officer? AI. Executive, Legislative, Judicial Executive Officers - Those whose duties are mainly to cause the laws to be executed. (Mechem, Pub. Off., Section 18) Legislative Officers - Those whose duties relate mainly to the enactment of laws. (Ibid., Section 9) Judicial Officers - Those whose duties are to decide controversies between individuals and accusations made in the name of the public against persons charged with a violation of the law. (Ibid., Section 20) ##902 De Jure or De Facto Officer De Jure - An officer dejure is one who has the lawful right to the office in all respects, but who has either been ousted from it, or who has never actually taken possession of it. (Mechem, Pub. Off, Section 326) Officer De Facto - An officer de facto is one who has the reputation of being the officer he assumes to be, and yet, is not the officer in point of law. (Ibid., Section 326) Other classifications: 1. Ministerial officers - Those whose duty is to execute the mandates, lawfully issued, of their superiors. (Ibid., Section 21) 2. Special agent - It is, in the sense in which these words are employed in Article 1903 of the Civil Code, one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official. This concept does not apply to any executive agent who is an employee of the active administration and who on his own responsibility performs the functions which are inherent in and naturally pertain to his office 227

and which are regulated by law and the regulations. (Merritt vs. Govt. of the P.I., March 24, 1924) 3. Notary public - Is a public officer whose function is to attest and certify, by his hand and official seal, certain classes of document, in order to give them credit and authenticity in foreign jurisdictions; to take acknowledgments of deeds and other conveyances, and certify the same; and to perform certain official acts, chiefly in commercial matters, such as the protesting of notes and bills, the noting of foreign drafts, and marine protests in cases of loss or damage. (46 C.J.S. 501) What is the nature of the office of Notary Public? Notaries public are public officers, but not in the sense that such term is used in the Administrative Code, because, while it is true that they perform necessary public duties, however, such duties are not in the discharge of governmental functions. They are not necessary to the administration of the government. Their office exists for the benefit and convenience of the public. They receive their fees from the party, whether it is the government itself or private individual, for whom the service is rendered. A lawyer, is first and foremost an officer of the court, although not necessarily a public officer. His duties to the court are more significant than those which he owes his client. (Salcedo vs. Hernandez, 61 Phil. 724; Coff-Perez vs. Lantin, 24 SCRA 391 [1968]) ##903 2. CHARACTERISTICS OF A PUBLIC OFFICE a. Public office is a public trust - Under this principle, public officials in all the ladders of our government should always remember that they were merely entrusted by the people to perform the duties and responsibilities of their offices for a fixed period of time. They were chosen to serve the people, not to cheat them. Their offices are not their own, nor can they be treated as private properties which they can manage or dispose of at their whim and caprice. b. Public office is not private property - It cannot be treated as a personal possession, legacy or gift. It is not transferable to another and it must be relinquished at the end of the term. c. A public office, like public trust, is built and founded by the people themselves - Trust, as it connotes, is reposed only to those who deserve the trust. Just as the people is the creator of that trust, so must the people have the right to withdraw it when there is no more reason for its continuity. When this happens, the public office remains but the public official who is no longer trusted by the sovereign electorate goes out of office. d. There can be no vested right in public office or its salary - At the will of the legislature, a public office may be changed or even abolished. Besides such abolition, its term, compensation and powers may be validly reduced even over the objection of the incumbent. 3. REQUIREMENTS FOR PUBLIC OFFICE: (a) appointment; (b) Designation; (c) Commission APPOINTMENT Q - Distinguish appointment from designation. 228

A - Appointment is the selection, by the authority vested with power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. (Sevilla vs. Court of Appeals, G.R. No. 88498, June 9, 1992, First Division, Griño-Aquino, J.) Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named. (Ibid.) Furthermore, designation merely connotes an imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment. It does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position. Without an appointment, a designation does not entitle the officer to receive the salary of the position. The legal basis of an employee's right to claim the salary attached thereto is a duly issued and approved appointment to the position, and not a mere designation. (National Amnesty Commission vs. Commission on Audit, G.R. No. 156982, September 8, 2004) ##904 Q - Who exercises appointing power? A - The determination of who among the several candidates for a vacant position has the best qualifications, is vested in the sound discretion of the department head or appointing authority and not in the Civil Service Commission. Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, and so forth, may be valuable but intangibles like resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests of the service are also valuable. Given the demands of a certain job, who can do it best should be left to the head of the office concerned provided the legal requirements for the office are satisfied. The Civil Service Commission cannot substitute its judgment for that of the head of office in this regard. (Español vs. Civil Service Commission, G.R. No. 85479, March 3, 1992, En Banc, Regalado, J.) Q - When does an appointment take effect? A - CSC Resolution No. 91-1631 expressly provides that in no case shall an appointment take effect earlier than the date of its issuance. Q - Distinguish the following terms: (1) Appointment; (2) Commission; (3) Designation AAppointment It is the selection, by the authority vested with the power of an individual who is to exercise the power of a given office. (Binamira vs. Garucho, 188 SCRA 154) 229

Designation Connotes merely the imposition by law of additional duties on an incumbent official. (Ibid.) Commission Is the written evidence of the appointment. ##905 4. CLASSIFICATION OF APPOINTMENT: (A) REGULAR APPOINTMENT; (B) AD INTERIM APPOINTMENT; C) PERMANENT APPOINTMENT; D) TEMPORARY APPOINTMENT Q - Distinguish regular from ad interim appointment. ARegular appointment It is an appointment made by the President while Congress is in session after the nomination is confirmed by the Commission on Appointments. It continues until the end of the term. Ad Interim It is an appointment made while Congress is not in session, before confirmation by the Commission on Appointments. It is immediately effective and ceases to be valid if disapproved or bypassed by the Commission on Appointments upon the next adjournment of Congress. Q - What is the nature of an ad interim appointment? A - An ad-interim appointment is permanent in nature, and the circumstance that it is subject to a confirmation by the Commission on Appointments does not alter its permanent character. (Summers vs. Ozaeta, G.R. No. L-1534, October 25, 1948; Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court, 140 SCRA 22) Q - Distinguish permanent appointment from temporary appointment. A Permanent Appointment - one issued to a person who has met the requirements of the position to which appointment is made, in accordance with the provisions of the Civil Service Act and the Rules and Standards promulgated in pursuance thereof. Temporary Appointment - one who holds temporary appointment has no fixed term of office and employment can be terminated at the pleasure of the appointing authority, there being no need to show that the separation is for cause (San Pedro vs. Civil Service Commission, G.R. No. 100321 February 12, 1992, En Banc). Hence, in the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is being 230

appointed except the appropriate civil service eligibility: Provided, that such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. (Chua vs. Civil Service Commission, G.R. No. 88979, February 7, 1992, En Banc, Padilla, J.) ##906 Q - Should an appointee with a temporary status possess the civil service eligibility required? A - Under Section 25, Presidential Decree 807, otherwise known as the Civil Service Decree of the Philippines, an appointee with a temporary status need not possess the civil service eligibility required by the position provided he meets the following qualifications: (a) it is necessary in the public interest to fill a vacancy; (b) there are no appropriate eligibles; (c) the temporary appointment shall not exceed twelve months; and (d) he may be replaced sooner if a qualified civil service eligible becomes available. (Torio vs. Civil Service Commission, G.R. No. 99336; Española vs. Civil Service Commission, G.R. No. 100178, June 9, 1992, En Banc, Gutierrez, Jr., I) Q - Is a person temporarily appointed to a Civil Service position entitled to security of tenure even if he lacks the needed qualifications for the said position? A - No. The holder of the position can only enjoy security of tenure if he or she possesses the qualifications and eligibility prescribed for it. (House of Representatives vs. Loanzon, G.R. No. 168267, February 16, 2006) Q - Who should be given preference for appointment to new positions? A - Section 4 of Republic Act No. 6656 provides: "Officers and employees holding permanent appointments shall be given preference for appointment to the new positions in approved staffing pattern comparable to their former positions or in case there are not enough comparable positions, to positions next lower in rank." (Torio vs. Civil Service Commission, G.R. No. 99336; Española vs. Civil Service Commission, G.R. No. 100178, June 9, 1992, En Banc, Gutierrez, Jr., J.) REASON: The preference given to permanent employees assumes that employees working in a Department for longer periods have gained not only superior skills but also greater dedication to the public service. (Ibid.) Q - If after considering all the current employees, the Department Secretary cannot find among them the person he needs to revive a moribund office, or to upgrade second rate performance, can he reach out to other departments or to the private sector in choosing a person he needs? A - The law does not preclude the infusion of new blood, younger dynamism or necessary talents into the government service. If, after considering all the current employees, the Department Secretary cannot find among them the person he needs to revive a moribund office or to upgrade second rate performance, there is nothing in the Civil Service Law to prevent him from reaching out to other Departments or to the private sector provided all his acts are bona fide and for the best interest of the public service and the person chosen has the needed qualifications. (Ibid.) ##907 231

5. DIFFERENT STEPS IN THE PROCESS OF APPOINTMENT For regular appointments which need confirmation of CA 1. Nomination by the President 2. Confirmation by the CA 3. Issuance of the commission 4. Acceptance by the appointee In case of ad interim appointments, the nomination, issuance of the appointment and acceptance by the appointee precede the confirmation by the CA For appointments which do not need confirmation of CA 1. Appointment by appointing authority 2. Issuance of the commission 3. Acceptance by the appointee Acceptance of the appointment by the appointee is the last act that completes the appointing process. (Lacson vs. Romero, 84 Phil. 740) For appointments to the career service of the civil service 1. An appointment to the career service of the Civil Service is not deemed complete until attestation approval by the Civil Service Commission. Without the favorable certification or approval of the CSC, no title to the office can be deemed to be permanently vested in favor of the appointee, and the appointment can still be revoked or withdrawn by the appointing authority. Q - Can a person be compelled to accept an office? A - No. REASON: There is no law which can compel a person to accept an office except as may be required under Section 4, Article II of the 1987 Constitution which provides as follows: "Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service." Q - Appointment has been made and the appointee has assumed the duties and functions of the position in the Civil Service Commission. Can the said appointment be revoked by the appointing authority on the ground that the protestant is more qualified than the first appointee? A - No. The person so appointed acquired a legal right to his position which is protected by law and the Constitution. 6. WHAT IS THE BEST EVIDENCE OF AN APPOINTMENT? 232

The best evidence of an appointment is his written commission. (The delivery of the commission is the last act required by the appointing power and the same completes the appointment.) ##908 7. KINDS OF ACCEPTANCE 1. Express - It may be made verbally or in writing; and 2. Implied - If the officer is in the actual occupation and exercise of the office, his acceptance of it would be presumed. (Mechem, Pub. Off., Section 252) Q - How is a public officer chosen? A - A public officer is chosen either by appointment or election. 8. DISTINCTION, APPOINTMENT AND ELECTION In appointment, the person who is to exercise the function of a given office is made by the executive officer, board, or body, to whom the power to designate is given (Appari vs. Court of Appeals, 127 SCRA 231). In election, the choice is made by an enfranchised citizenry by virtue of the right of suffrage. Example of elective officials: President, Vice-President, Members of Congress, Governor, Vice-Governor, Board Members, Mayor, Vice-Mayor, Councilors, Barangay Chairman and Councilmen Example of Appointed Officers by the President Cabinet members, Commissioners of different commissions, ambassadors, consuls, officers of the AFP, from rank of colonel or naval captain, all other officers of the government whose appointments are not provided bylaw, and those whom he may be authorized by law to appoint. Q - Can the power of appointment be delegated? Why? A - No, because appointment involves the exercise of discretion. Q - Is the presidential power of appointment absolute? A - No, it is subject to the following limitations: 1. 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 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. 233

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 disapproval by the Commission on Appointments or until the next adjournment of the Congress. ##909 2. 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 to the Office of the Ombudsman, or as secretaries, undersecretaries, chairman or heads of bureaus or offices including government-owned or controlled corporations and their subsidiaries. (Section 13, 2nd paragraph, Article VII, 1987 Constitution) 3. 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. 4. Appointments of an Acting President shall remain effective, unless revoked by the elected President within 90 days from his assumption or re-assumption of office. (Section 14, Article VII) 5. The appointees of the President must possess the required qualifications. The appointee concerned may be questioned in appropriate court proceedings. Q - When is confirmation of the Commission on Appointments required? A - It is required only for the offices mentioned in Section 16, first sentence, Article VII of the 1987 Constitution, to wit: Code: H-A-O-A H - eads of the executive department A - mbassadors, or other public ministers and consuls O - fficers of the armed forces from the rank of colonel or naval captain A - nyone whom he can appoint by authority to law. Q - When is confirmation of the Commission on Appointments not required? A1. Other officers whose appointments are vested in him in this Constitution. 2. All other officers of the government whose appointments are not provided for by law. ##910 Q - Does the appointment of the Chairman and the Commissioners of the Commission on Human Rights need the confirmation of the Commission on Appointments? A - No. REASON: The position of the Commission on Human Rights is not among the positions mentioned in Section 6, first sentence, of Article VII of the 1987 Constitution. (Bautista vs. Salonga, 72 SCRA 169) Q - Does the appointment of sectoral representatives need the confirmation of the Commission on Appointments? 234

A - Yes, because this position is covered by Section 16, first sentence, of Article VII of the 1987 Constitution. (Quintos-Deles vs. Commission on Appointments, 177 SCRA 259) Q - Does the appointment of Chairman and commissioners of the NLRC need the confirmation of the Commission on Appointments? A - No. They are not among the officers mentioned in Section 16, first sentence. Q - The appointment was described as permanent in the space provided for in Civil Service Form No. 33, but the words "Approved as Temporary" was stamped in the appointment. The appointee is qualified and other legal requirements are satisfied. Is the Civil Service Commission authorized to determine the kind or nature of the appointment extended by the appointing officer, or will it just attest to the appointment in accordance with Civil Service Laws? A - The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing power. What it can do is only either to approve or review the appointment to see to it that the requirements of the Civil Service Commission are complied with. When all legal requirements are complied with and the appointee is qualified what the Civil Service Commission has to do is only to attest to the appointment. (Luego vs. Civil Service Commission, 143 SCRA 327) Much later, in Lopez vs. Civil Service Commission (G.R. No. 92140, February 19, 1991), the Supreme Court ruled that what the Civil Service Commission may do is just to determine whether or not the appointee possesses the qualifications and requisite eligibility. If the appointee is qualified and eligible, his appointment is approved, and if riot, his appointment is disapproved. A month after the decision in Lopez vs. Civil Service Commission, the Supreme Court elucidated further the ruling in Lopez and said: "As long as the appointee possesses the minimum qualifications prescribed bylaw or regulations, there is no question that his appointment must be respected by the Civil Service Commission even if it be proved that there are others with superior credentials. However, this rule does not cover those cases where it is found by the Commission, after examining the appointment papers, that the appointee does not satisfy the minimum qualifications for the position in question. In these cases, the Commission would be well within its right - and responsibility - in refusing to approve the appointment." (Cortez vs. Civil Service Commission, G.R. No. 92673, March 13, 1991, En Banc, Cruz, J.) ##911 Q - Can the Civil Service Commission revoke an appointment in the belief that another is better qualified than the appointee? A - The Supreme Court ruled: "The Civil Service Commission has no authority to revoke an appointment simply because it is believed that another is better quaked than the appointee for that would have constituted an encroachment of the discretion vested solely in the appointing authority. The Commission cannot exceed its power by substituting its will for that of the appointing authority. (Lopez vs. Civil Service Commission, G.R. No. 92140, February 19, 1991, En Banc, Gutierrez, Jr, J.) 235

9. WHAT IS REQUIRED FOR AN OFFICE TO BE FILLED UP EITHER BY AN APPOINTMENT OR BY ELECTION? The office to be filled up should be vacant following the principle that no person may be an appointed to an office which is not vacant no matter how qualified he is for a certain position. (Jocom vs. Regalado, 24 SCRA 73) Q - Do the courts have jurisdiction over void appointments? A - Yes. While an appointment is an essentially discretionary executive power, it is subject to the limitation that the appointee should possess none of the disqualifications but all the qualifications required by law. Where the law prescribes certain qualifications for a given office or position, courts may determine whether the appointee has the requisite qualifications, absent which, his right thereto may be declared void. (Engaño vs. Court of Appeals, G.R. No. 156959, June 27, 2006) Q - When does vacancy exist? A - It exists when there is no person lawfully authorized to assume and exercise at present the duties of the office. Q - What are the different kinds of vacancies? A - CODE: O-C-A-A Original (There is an office which is created but no one has as yet been chosen to fill it.) Constructive (In this kind of vacancy, the incumbent has no legal right to the office and he may be replaced.) Accidental (When on account of death, resignation, removal or abandonment, the incumbent is separated from the service.) Absolute (There is no successor yet to the incumbent whose term expired.) 10. ELIGIBILITY AND QUALIFICATION A. MEANING OF THE TERM "QUALIFICATION" ##912 It is understood in different senses: (l) It may refer to the qualities or endowments required of the public officer in order that he may be considered eligible for public office (i.e. age, citizenship, and academic qualifications); (2) It may refer to the act of enabling a person to perform the duties and functions of his office (i.e. taking the oath of office). In the first one, the person appointed or elected must possess the prescribed qualifications at the time of his appointment or election and during the period of the official relationship. In the second, the failure to perform an act required by law could affect the officer's title to the given office. An oath of office is a qualifying requirement for a public office (Lecaroz vs. Sandiganbayan, G.R. No. 130872, March 25, 1999). Under Batas Pambansa Blg. 881, Section 11, thereof, it is provided that "the office of any official elected who fails or refuses to take his oath office within six months from his proclamation shall be considered vacant, unless said 236

failure is for a cause or causes beyond his control." [Example: (1) Taking an oath or affirmation to uphold and defend the Constitution; (2) Accountable officers are required to be properly bonded] Q - Can property qualifications be imposed for the exercise of the right to run for public office? A - A law which required all candidates to post a P20,000.00 bond upon the filing of their certificates of candidacy, and which provided its confiscation if they did not obtain at least 10% of the total votes cast in the constituency where they were running, was declared unconstitutional and null and void by the Supreme Court (Maquira vs. Borra, 15 SCRA 7). REASON: The said law is inconsistent with the nature and essence of the Republican System and the principle of social justice. Q - Who prescribes the qualifications? A - Qualifications may be prescribed by the Constitution or by statute. If the same are prescribed by the Constitution, the qualifications are specifically enumerated and the legislature cannot impose additional qualifications. If the qualifications are prescribed by law, it must do so in such a detailed manner so as not to leave any discretion to the appointing power in making a choice of the person to be appointed. Moreover, the qualification prescribed must be relevant to the position. ##913 Example: On The Matter Of Imposing Additional Qualifications Q - Can Congress pass a law requiring a college degree as an added qualification to be senator or congressman? A - No, because the said law is unconstitutional. Q - Can Congress pass a law requiring a college degree as an added qualification of the President and Vice-President of the Philippines? A - No, because the said law is unconstitutional. Q - Can the Constitutional Convention approve a constitutional provision requiring additional qualifications of a President, Vice-President, Senator and Congressman? A - Yes, because the power to amend the Constitution has been entrusted by the people to the delegates of the Constitutional Convention whom they have chosen to represent them in the said convention. Moreover, when the Constitution, drafted and approved by the said Constitutional Convention, was duly approved in a plebiscite, the people have necessarily approved the said constitutional provision. Q - Can the legislature prescribe qualifications in a general manner? A - Yes. This happens if the intention of the legislature is to allow a widest possible field of choice. Q - When can the legislature prescribe additional qualifications? 237

A - This becomes possible (1) when the Constitution does not prescribe a qualification or qualifications; or (2) When the Constitution prescribes only for minimum qualifications. Q - What is the restraint or limitation to Congress when it exercises its right to prescribe qualifications or disqualifications? A - The qualifications or disqualifications it prescribes should not violate the Constitution. Otherwise, it can be assailed as unconstitutional. Hence, if a law provides that the mere filing of a criminal information for disloyalty is prima facie evidence of guilt which is sufficient to disqualify a person from running for public office, the said law is, as it was considered, unconstitutional (Dumdao vs. Comelec, 95 SCRA 400). REASON: It violates the principle that a person is presumed innocent until his guilt is proved beyond reasonable doubt. B. QUALIFICATIONS ARE CONTINUING REQUIREMENTS Q - When should the prescribed qualifications be possessed by a person, who is either appointed or elected? A - They should be possessed on the date indicated by the Constitution or by law, and they are continuing requirements which means that they must be possessed not only on the date of selection or assumption but for the full duration of the officer's incumbency. (Aguila vs. Genato, 103 SCRA 380) Example: Under the 1987 Constitution, the age qualification must be possessed on the day of the election, not on the day of the proclamation of the winners of the board of canvassers, which was the reckoning period used in the case of Espinoza vs. Aquino. (Electoral Case No. 9, Senate Electoral Tribunal) ##914 Q - What happens if any of the qualifications is lost during the tenure? A - The right to the office is automatically forfeited. 11. DISQUALIFICATIONS Q - Who prescribes the disqualifications? A - Disqualifications may also be prescribed by the Constitution or by statute. SPECIFIC DISQUALIFICATIONS UNDER THE CONSTITUTION Judicial Department 1. The members of the Supreme Court and other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. (Section 12, Article VIII) Executive Department 1. The President, Vice-President, the Members of the Cabinet, and their deputies and assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure. (Section 13, Article VII) 238

2. 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. 3. 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. Legislative Department 1. 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. (Section 13, Article VI) ##915 Constitutional Commissions 1. 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. (Section 2, Article IX) 2. 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]) 3. 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 1[2]) Ombudsman and his deputies

239

1. 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. (Section 11, Article XI) NOTE: The National Amnesty Commission ex officio members' representatives are covered by the constitutional prohibitions against holding multiple positions in the government and receiving double compensation because there is no law or administrative order creating a new office or position and authorizing additional compensation therefor. (National Amnesty Commission vs. Commission on Audit, G.R. No. 156982, September 8, 2004) ##916 12. FAILURE TO QUALIFY Q - Does the delay in qualifying means that the office is automatically forfeited? A - No. It will only give a justification to appropriate superior authorities to prevent entry into the office until such time that the delay is explained by the appointee. Hence, mere delay in the taking of an oath does not mean that the office is rejected and when the oath is so taken, the default is waived. However, if the law requires qualification within a specified time and provides further that failure to do so will result in automatic loss of the right to the office, this has to be complied with. Otherwise, the right to the office is automatically lost. 13. DE FACTO OFFICERS; DISTINCTIONS, DE JURE OFFICER AND DE FACTO OFFICER Q - What is a defacto officer? A - A person is considered a defacto officer: 1. When, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; 2. When, there is a color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like; 3. When he exercised his duties under a color of a known appointment or election; or that there was a want of power, in the electing or appointing body; or there is some defect or irregularity in its exercise, and such ineligibility, want of power, or defect is unknown to the public. For said reasons, the acts of the defacto officer are void. 4. When there was color of an election or an appointment but such is based on an unconstitutional law. Here, the person exercising the duties is considered defacto officer before the said law is adjudged to be unconstitutional. (Martin, citing Conn, 449, 9 Am. Rep. 409; Luna vs. Rodriguez, 37 Phil. 186) ##917 In recent jurisprudence, the following are considered a de facto officer: 1. A public official or employee who assumed office under an incomplete appointment is merely a defacto officer for the duration of his occupancy of the office. (Corpuz vs. Court of Appeals, 285 SCRA 23) 240

2. A defacto officer is defined as one who derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and whose appointment is valid on its face. (Dimaandal vs. Commission on Audit, 291 SCRA 322) 3. A defacto officer is one who is in possession of an office, and is discharging its duties under color of authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent be not a mere volunteer. (Ibid.) 4. A defacto officer is one who is in possession of an office in the open exercise of its functions under color of an election or an appointment, even though such election or appointment may be irregular (Ibid.) Q - What is the basis of the rationale of the defacto officer? A - It is unreasonable to require the public to inquire into the title of an officer, or compel him to show title because the public do not have time and opportunity to investigate the title of the incumbent. As a matter of policy and necessity, the doctrine serves to protect the public and the individuals whenever their interests are involved in the official acts of persons exercising the duties of an office. (Tayko vs. Capistrano citing State vs. Caroll, 38 Conn. 449, 9 Am. Rep. 409) Q - Are the acts of a de facto officer, insofar as they affect the public, valid? A - They are valid and legal insofar as they affect the public. Q - What are the liabilities of a defacto officer? A(1) He is liable upon his bond (2) He is liable for his negligence (3) He is liable for his embezzlement (4) He is liable for malfeasance in his assumed office (Mechan on Public Officers, 336-338, 341) Q - What are the elements of a defacto office? A - Code: VAC V - alid and legitimate office A - ctual possession of said office in good faith C - olor of title to the office or general acquiescence by the public Q - When is there a color of title to the office? A - Same answer as in the first question and answer, No. 13, as above-mentioned. ##918 Q - Distinguish de jure officer from that of a defacto officer. ADe Facto Officer 241

1. A de facto officer may be ousted in a direct proceeding against him. 2. A de facto officer has the possession and performs the duties under color of right, without being legally qualified to act. (Martin citing Tayko vs. Capistrano. 53 Phil. 866) De Jure Officer 1. A de jure officer cannot be removed. 2. A de jure officer has the lawful right or title without the possession of the office. EXAMPLES OF THE ELEMENTS OF A DE FACTO OFFICE 1. Valid and Legitimate Q - If Mr. A was not validly elected or appointed, or he is not eligible, and he occupies a legitimate office, is he a dejure or defacto officer? A - He is a defacto officer. Q - Same example but the office itself is void, but Mr. A was validly elected or a appointed, is he a dejure or a defacto officer? A - He is neither a defacto officer nor a dejure officer for no office at all exists. Q - Suppose Mr. A, a candidate for public office was proclaimed in an election which was irregularly held, is he a de facto officer? A - He is a defacto officer before the said election is nullified. 2. Color of Title - When a judge in good faith remains in office after his previous valid appointment has lapsed and the public continues to acquiesce his acts, and during the time he was regarded as a judge, his successor has not been appointed, he is considered as a de facto judge. Another example is a case where one is qualified and eligible but he was appointed by one who was not empowered or authorized to make an appointment. A mayor who insisted to remain in his office despite the forfeiture of his office is a defacto officer. 3. Actual Possession of the Office - A decision promulgated by a judge who already ceased to be a judge of the Court presided by him, is void. REASON: He has no more authority to promulgate the said decision. ##919 The decision is likewise void if after he ceased as a judge, it was promulgated under another judge. (Solis vs. Court of Appeals, 38 SCRA 53) RIGHT TO COMPENSATION Q - Can a de facto officer claim salary or compensation for salaries rendered by him as such? A - The rule in Monroy vs. Court of Appeals is to the effect that a defacto officer, not having good title take the salaries at his risk and must therefore account to the dejure officer for 242

whatever amount of salary he received during the period of his wrongful retention of public office. (20 SCRA 620) The said rule, however, does not apply if there is no dejure public officer, in which case, the defacto officer shall be entitled to the salaries prescribed by law for the given office during the period when he actually discharged the functions of said office. NOTE: In the following cases, an officer, although de facto, was declared to be entitled to compensation: (1) RODRIGUEZ vs. TAN (91 Phil. 724) - The successful Protestant was claiming to recover the salaries collected by the protestee before he was ousted from the Senate. This was denied. REASON: The protestee was duly proclaimed as Senator and he assumed office as required by law, hence, he is entitled to compensation, emoluments and allowances which our Constitution provides for one position. (2) MENZON vs. PETILLA (197 SCRA 251) - Petitioner assumed the office of the ViceGovernor under color of a known appointment. He was appointed by the DILG Secretary, and thereafter, he took his oath of office. Later, the validity of his appointment became an issue and the recognition withdrawn. The Supreme Court ruled that it is iniquitous to deny the salary due to the petitioner for services be actually rendered as the Acting Vice-Governor of Leyte. Q - Can a defacto officer be made to reimburse funds disbursed by a de facto officer during his term of office? A - Yes. REASON: Because his acts are as valid as a dejure officer. Q - Is a defacto officer subject to the same liabilities that are imposed to a dejure officer? A - Yes. REASON: He assumed the office at his own risk and he must be prepared to be held responsible for the performance of his duties. ##920 ACTION TO TAKE AGAINST A DE FACTO OFFICER Q - Can a defacto officer be ousted in a collateral action? A - A defacto officer may be ousted in a direct proceeding, not in a collateral action. A direct and authorized proceeding is Quo Warranto under Section 1, Rules 66 of the New Rules of Court which provides as follows: "SECTION 1. Action by Government against individuals - An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: (a) A person who usurps, intrudes into, or unlawfully holds or exercise a public office, position or franchise; (b) A public officer who acts as a corporation which, by the provision of law, constitutes a ground for the forfeiture of his office; (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. (la) 243

14. COMMENCEMENT OF OFFICIAL RELATIONS Q - Earlier, it was mentioned that a public officer is chosen either by appointment or election. Is it also through appointment or election that official relations are commenced? A - Yes. NOTE: Before proceeding to the eight important principles (which is the next topic), remember thoroughly the discussion of the requirements for public office (the preceding topic), particularly the different kinds of appointments, distinction between appointment, designation and commission, distinction between appointment and election, different kinds of vacancies and eligibility and qualification 15. EIGHT (8) IMPORTANT PRINCIPLES CODE: AT NEXT-DM-PML 1). Appointment 2). Torio vs. CSC 3). The next-in-rank rule 4). De facto I De Jure 5). Matters that fall within the exclusive jurisdiction of the CSC 6). Kinds of Personnel Actions 7). Modes of termination of official relationship 8). Liability of Public Officers ##921 EXPLANATION OF EACH OF THE SAID PRINCIPLES 1. Appointment 7.

PRINCIPLES REGARDING POWER AND AUTHORITY TO MAKE AN APPOINTMENT a) Essentially a discretionary power b) The appointing authority, not the CSC, determines who, among the several candidates for a vacant position, has the best qualification c) CSC has no authority to direct the appointing authority to appoint a certain person d) Once appointment is issued and the moment the appointee assumes a position in the civil service under a complete appointment, he acquires a legal, not merely equitable right which is protected by the Law and the Constitution. e) Once the discretionary power of appointment has been exercised and the appointee assumed the duties and functions of the position, the said appointment cannot be revoked by the appointing authority, on the mere ground that the protestant is more qualified than the first appointee. f) An appointee with a temporary status need not possess the Civil Service eligibility required by the position. This is subject to the qualifications in Torio vs. CSC. g) The "next in rank" rule is not absolute. 244

Distinguish appointment from designation Already answered. 2. Torio vs. CSC An appointee with a temporary status need not possess the civil service eligibility required by the position provided he meets the following qualifications: (1) It is necessary in the public interest to fill up the vacancy (2.) There are no appropriate eligibles (3.) The temporary appointment shall not exceed 12 months (4.) He may be replaced sooner if a qualified Civil Service eligible becomes available. (Sec. 25, Presidential Decree No. 807; Torio vs. CSC, G.R. No. 99336; Esparol vs. CSC, G.R. No. 100198, June 9, 1992) ##922 3. The "Next-In-Rank" Rule This may be disregarded even in case of promotions, and even in promotions, it can be disregarded for sound reasons make known to the next-in-rank. The appointing authority under the CSC, is allowed to fill vacancies by promotion, transfer of present employees, reinstatement, re-employment and appointment of outsiders who have appropriate Civil Service eligibility, not necessarily in that order. THERE IS NO LEGAL FIAT THAT A VACANCY MUST BE FILLED ONLY BY PROMOTION. THE APPOINTING AUTHORITY IS GIVEN A WIDE DISCRETION TO FILL A VACANCY FROM AMONG THE SEVERAL ALTERNATIVES PROVIDED BY LAW. (Español vs. CSC G.R. No. 85479, March 3, 1992) 4. De Facto/De Jure Already discussed. Just remember the following important points, thus: 1. Distinctions, de jure and defacto officer 2. Elements of a de facto office: (a) Valid and legitimate office; (b) Actual possession of his office; (c) Color of title to the office 3. Liabilities of a defacto officer 4. A defacto officer may be ousted in a direct proceeding, not in a collateral action. Example of direct proceeding: Quo Warranto 5. Rationale for allowing a defacto officer to recover compensation 6. Basis of the rationale of the defacto officer 5. Matters that fall within the exclusive jurisdiction of the CSC Disciplinary cases, and cases involving "personnel actions" affecting employees in the civil service including "appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment, demotion and separation," and, of course, employment 245

status and qualification standards, are within the exclusive jurisdiction of the Civil Service Commission. 6. Kinds of personnel actions CODE: PAT-RE-RE-RE-DE Promotion A-ppointment through certification T-ransfer RE-employment RE-assignment RE-instatement DE-tail ##923 EXPLAIN EACH BRIEFLY Promotion It is a movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay. Appointment Through Certification It is issued to a person who has been selected from a list of qualified persons certified by the CSC from an appropriate register of eligibles, and who meets all the qualifications prescribed for the position. Transfer It is a movement from one position to another which is of equivalent rank, level or salary without break in service. Transfer may be imposed as an administrative penalty under current Civil Service Rules. Reemployment Names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/or reorganization, shall be entered in a list from which selection for re-employment shall be made. Reassignment An employee may be reassigned from one organizational unit to another in the same agency, provided that such reassignment shall not involve a reduction in rank, status or salary. Reinstatement Any person who has been permanently appointed to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified. Detail 246

It is the movement of an employee from one agency to another in the same agency, provided that such reassignment shall not involve reduction in rank, status or salary. This is a prerogative of the CSC. ##924 THE "NEXT-IN-RANK" RULE IS NOT ABSOLUTE This may be disregarded even in case of promotions. The next in rank rule is not absolute. It only applies in case of promotions. It only applies in cases of promotions. And even in promotions it can be disregarded for sound reasons made known to the next-in-rank. The appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer, or present employees, reinstatement, re-employment, and appointment of outsiders who have appropriate civil service eligibility, not necessarily in that order. There is no legal fiat that a vacancy must be filled only by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided by law. (Español vs. Civil Service Commission, G.R. No. 85479, March 3, 1992, En Banc, Regalado, J.) Must all appointments involved in a chain of promotions be submitted for approval of the Civil Service Commission? "All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission. The disapproval of the appointment of a person proposed to a higher positions invalidates the promotion of those in the lower positions and automatically restores them to their former positions. However, the affected persons are entitled to payment of salaries for services actually rendered at a rate fixed in the promotional appointments." This is known as the Automatic Reversion Rule. (Section 13, Omnibus Rules Implementing Book V E.O. 292) What are the requisites in order that said rules will apply? 1. There must be a series of promotions. 2. All promotional appointments are simultaneously submitted to the Commission for approval. 3. The Commission disapproves the appointment of a person to a higher position. (Divinagracia vs. Sto. Tomas, G.R. No. 110954, May 31, 1995) APPOINTMENT THROUGH CERTIFICATION What is required for this kind of appointment? 1. The person to be selected or selected is in a list of qualified persons certified by the CSC from an appropriate register of eligibles. 2. The person to be selected or selected meets all the qualifications prescribed for the position. TRANSFER Is the transfer of an employee from one position to another a violation of his security of tenure even if results to his promotion? Yes, if the said employee is removed without his consent. REASON: That amounts to removal from office. 247

##925 Is it possible that an employee is permanently transferred to another position without violating his security of tenure? This is possible if an employee is lawfully removed first from his position, and thereafter, he is appointed to another position which is of equivalent rank, level or salary. RE-EMPLOYMENT When is this possible? This happens when persons who were previously appointed permanently to positions in the career service have been separated from the service on account of re-organization or reduction in a list from which selection for reemployment shall be made. REASSIGNMENT Can an employee be reassigned from one organizational unit to another in the same agency? Yes, provided that such reassignment shall not involve reduction in rank, status or salary. As a result of the redefinition and re-numbering of the regional districts of the BIR, a BIR employee was reassigned from Pampanga to Cagayan. The said employee questioned the legality of the re-assignment alleging that it was a demotion. Is the said contention correct? No. Said contention will, in effect, subordinate government projects to his personal preference. Besides, he failed to exhaust administrative remedies because he should have questioned first the validity of his transfer by appeal to the Civil Service Commission. (Chato vs. Natividad, G.R. No. 113843, June 2, 1995) REINSTATEMENT Due to alleged dishonesty, A was separated from government service. Much later, he was granted executive clemency on the basis of findings that the charges are not true. Is A restored to his office upon the issuance of the clemency and is he entitled to back wages? Yes. REASON: The executive clemency completely obliterated the administrative effects of the administrative division. He is restored to his office ipso facto upon the issuance of the clemency. (Garcia vs. Chairman, COA, G.R. No. L-75025, September 14, 1993) Can reappointment be the subject of an application for mandamus? No. It is discretionary on the part of the appointing power. (Gloria vs. Judge De Guzman, G.R. No. 116183, October 6, 1995) ##926 Can the courts interfere in the exercise of the said discretion? No. (Ibid.) DETAIL What is the nature of "detail"?

248

It is temporary in nature, hence, it is allowed only for a limited period in the case of employees occupying professional, technical and scientific positions. (Republic vs. Court of Appeals, 182 SCRA 721) 7. Modes of Termination of Official Relationship CODE: ERRRRAP-DIFAACO-FILING 7.1 Expiration of term or tenure 7.2 Resignation 7.3 R-ecall 7.4 Removal 7.5 Reaching age limit 7.6 Abandonment 7.7 P-rescription of right to office 7.8 Death 7.9 I-mpeachment 7.10 Failure to assume election office 7.11 A-cceptance of incompatible office 7.12 A-bolition of office 7.13 CO-nviction of a crime 7.14 FILING of certificate of candidacy EXPLANATION OF EACH 7.1 EXPIRATION OF TERM OR TENURE Distinction of term and tenure Term means the time during which the public officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another. (Olivares vs. Villaluz, 57 SCRA 163) Tenure represents the actual period during which the incumbent holds office. The tenure may be shorter than the term for reasons beyond the power of the incumbent. (Nueno vs. Angeles, 76 Phil. 12) ##927 Q - After the EDSA People Revolution in 1986, the new President accepted the courtesy resignations of constitutional officers with fixed terms of office. What is the legal effect of said acceptance of courtesy resignations? A1. It resulted in the expiration of the term. 2. The public officers concerned are entitled to retirement benefits. (Ortiz vs. Comelec, 162 SCRA 812; In Re Retirement of Justice Britanico, 173 SCRA 421) Q - What is the effect of replacement of a public officer who holds office at the pleasure of the appointing power? 249

A - The replacement is regarded as termination through expiration of the term, not removal. (Astraquillo vs. Manglapus, 190 SCRA 280) Q - When does the term of office begin? A - SIMPLIFICATION OF THE RULES 1. It begins upon qualification. - When the law fixes the period within a chosen officer may qualify for the office. 2. It begins from date of appointment (in case of appointment), or from the date of election (in case of elective office). - When no time is fixed by law. OTHER RULES 1. When a law fixing the term of public is ambiguous The law that fixes the term at the shortest period should be followed. 2. When the Constitution or the law fixed both the term of office and the time of its commencement or termination A person elected or appointed to fill a vacancy in such office shall hold the same only for the unexpired portion of the term. 3. When only the duration of the term is fixed but no time is established or the beginning or end of the term. The person selected to fill the vacancy may serve the full term and not merely the unexpired balance of the prior incumbent's term. 4. When an office is created, or an officer is appointed just to accomplish a specific purpose or purposes The office terminates and the authority of the public officer ceases when said purpose or purposes is/are accomplished. 7.2 RESIGNATION Resignation is the "act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. It implies an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and its acceptance by competent and lawful authority." (Nacaytuna vs. People of the Philippines, G.R. No. 171144, November 24, 2006). It need not be in any particular form unless some form is prescribed by law. It may therefore be in writing or by parol. However, in order that there could be a complete and expressive resignation of public office, there must be: (1) AN INTENTION TO RELINQUISH A PART OF THE TERM; (2) AN ACCOMPANYING ACT OF RELINQUISHMENT. (Martin, citing State vs. Augustine, 113 MO. 21, 20 S. W. 651, 35, A.S.R. 696; State vs. Allen, 21 Ind. 516, 83); (3) RESIGNATION MUST BE ACCEPTED BY PROPER AUTHORITY. (Sangguniang Bayan of San Andres, Catanduanes vs. Court of Appeals, G.R. No. 118883, January 16, 1998) 250

##928 Q - Why is acceptance of resignation necessary? A - A public officer who abandons his office to the detriment of the public before his resignation in accepted is liable under Article 238 of the Revised Penal Code. Q - When is resignation deemed complete? A - It is complete when it is accepted by the proper authority. However, if there is a provision authorizing the public officer to hold over until his successor is chosen and qualified, then resignation has no effect until after the successor has entered upon the duties of the office. Q - Can resignation be withdrawn? A1. It cannot be withdrawn in the following instances: (a) An unconditional resignation which takes immediate effect and has been transmitted to the power authorized to accept it cannot be withdrawn even with the consent of the officer with whom it is filed; (b) An unconditional resignation which will take effect in the future cannot be withdrawn if it has been duly accepted by the proper authority, although the time at which it is to take effect has not arrived; 2. Before a prospective resignation is accepted, it may be withdrawn even if it is unconditional, if the accepting authority consents and if no new rights have intervened. (State vs. Augustine, supra) Q - Can resignation be repudiated? A - Resignation can be repudiated in the following instances: 1. When it has been transmitted without the consent of the public officer; 2. When it was procured by fraud or by duress. Q - When shall resignation be effective? A - It is effective when the public officer receives notice of the acceptance of his resignation, not on the date of the letter or notice of acceptance. ##929 OFFICER AUTHORIZED TO ACCEPT RESIGNATION Q - Who are the officers authorized to accept resignation? A - Whoever is the competent authority as may be provided by law. EXAMPLE: 1. Resignation of President and Vice-President - Their resignation must be tendered to Congress. 2. Members of Congress - Their resignation must be tendered to either the Senate or House of Representatives. 251

3. Appointive public officers - Their resignation must be tendered to the appointing authority. 4. Local elective public officials - Their resignation must be tendered to the following officers, to wit: (a) Governors, Vice-governors, Mayors, Vice-Mayors of highly urbanized cities and independent component cities - Their resignation must be tendered to and accepted by the President. (b) Municipal Mayors, Vice-Mayors, City Mayors, and Vice-Mayors of component cities - Their resignation must be tendered to and accepted by the Governor. (c) Sangguniang Members - Their resignation must be tendered to and accepted by the Sangguniang concerned. (d) Barangay Officials - Their resignation must be tendered to and accepted by the City or Municipal Mayors. 7.3 RECALL It is a mode of terminating official relationship prior to the expiration of the term of a public officer on account of loss of confidence. Recall can be initiated either by (1) a preparatory recall assembly; or (2) by the registered voters of the local government unit. Q - What is recall? A - It is a mode of terminating official relationship prior to the expiration of the term of a public officer on account of loss of confidence. Recall can be initiated either by (1) a preparatory recall assembly; or (2) by the registered voters of the local government unit. ##930 Q - What is the composition of the Preparatory Recall Assembly? A - It is composed of the following: 1. Provincial level - All Mayors, Vice-Mayors and Sanggunian Members of the municipalities and component cities. 2. City level - All Punong Barangay and Sangguniang Barangay Members in the city. 3. Legislative District level - Where Sangguniang Panlalawigan Members are elected by district, all elective municipal officials in the district; and in cases where Sangguniang Panglungsod Members are elected by district, all elective barangay officials in the district. 4. Municipal level - All Punong Barangay and Sangguniang Barangay Members in the municipality. Q - What is the procedure for initiating recall by a preparatory recall assembly? A1. A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall proceeding against any elective official in the local government unit concerned. 252

2. Recall of provincial, city or municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for the purpose. Q - What is the procedure for initiating recall by registered voters? A - Recall of a provincial, city, municipal or barangay official may also be validly initiated upon petition by at least 25% of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected. a) A written petition for recall duly signed before the election registrar or his representative, and in the presence of a representative of the petitioner and representative of the official sought to be recalled, and in public place in the province, city, municipality or barangay, as the case may be, shall be filed with the Comelec through its office in the local government unit concerned. The Comelec or its duly authorized representative shall cause the publication of the petition in a public and conspicuous place for a period of not less than ten (10) days nor more than twenty (20) days for the purpose of verifying the authenticity and genuineness of the petition and the required percentage of voters. b) Upon the lapse of the aforesaid period, the Comelec or its duly authorized representative shall announce the acceptance of candidates to the position and thereafter prepare the list of candidates which shall include the name of the official sought to be recalled. ##931 PROCEDURE AFTER SAID RESOLUTION OR PETITION FOR RECALL IS FILED WITH THE COMELEC Q - What is the procedure after the resolution (of the PRA) or the petition (of the registered voters) is filed with the Comelec? A1. The Comelec shall set the date for the election on recall which shall not be later than thirty (30) days after the filing of the same (in the case of the barangay, city or municipal officials), and forty-five (45) days (in case of provincial officials) 2. The official or officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions and, like other candidates, shall be entitled to be voted upon. (Sec. 71, Republic Act No. 7160) Q - When is the recall of an elective local official effective? A - It is effective upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. (Section 72, Republic Act No. 7160) Q - What happens if the person sought to be recalled receive the highest number of votes? A - He shall continue in office. (Ibid.) LIMITATIONS ON RECALL 253

Q - Can an elective local official be the subject of a recall election at anytime during his term of office? A - No. REASON: (1) He can be the subject of recall election only once during his term of office for loss of confidence. (2) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election. Q - Are the said limitations applicable to the SK election? A - No. (Pacas vs. Comelec, G.R. No. 123166, November 4, 1996) 7.4 REMOVAL Q - Can an officer or employee be temporarily transferred or assigned without his consent as a preliminary step toward his removal? A - As held in Bentain vs. CA, while a temporary transfer or assignment of personnel is permissible even without the employee's prior consent, it cannot be done when the transfer is a preliminary step toward his removal, or is a scheme to lure him away from his permanent position, or designed to indirectly terminate his service, or force his resignation. Such a transfer would in effect circumvent the provision which safeguards the tenure of office of those who are in the Civil Service. (Batangas State University vs. Bonifacio, G.R. No. 167762, December 15, 2005) ##932 Q - Can an officer or employee of the civil service be removed or suspended? A - They can only be removed or suspended for cause provided by law. (Sec. 2[3] Article IX-B, 1987 Constitution) and in accordance with the procedure required by law. Q - In addition to the aforementioned rule, what else is the assurance that security of tenure is protected? The Administrative Code of 1987 lays down the following rules: 1. The grounds for discipline of civil servants are enumerated in Section 46, Book V(A). 2. The procedure of investigation is likewise provided in Section 46. 3. During the pendency of his administrative investigation the employee charged shall be subject to preventive suspension. 4. The preventive suspension shall, however, be lifted after ninety (90) days if he is not a presidential appointee unless the delay in the investigation is imputable to him. (Section 47, Book V[A]) DOMINGO VS. DEVELOPMENT BANK OF THE PHILIPPINES G.R. NO. 93355, APRIL 7, 1992, EN BANC, REGALADO, J. (NOTE: Already discussed in connection with Section 2[3], Article IX-B, 1987 Constitution). EFFECT OF REMOVAL WITHOUT JUST CAUSE 254

Q - What is the effect of removal without just cause and failure to comply with prescribed procedure? A - It is a reversible error and the officer or employee unlawfully removed shall be entitled to reinstatement with back salaries and without loss of seniority rights. He is considered as not having left his office and he is therefore entitled to all the rights and privileges that accrue to him. (Cristobal vs. Melchor, 101 SCRA 857) CONSIDERED AS REMOVAL EVEN IF AN EMPLOYEE IS NOT REMOVED Q - When is an officer or employee considered removed even if he was not actually removed from his office or position? A - Even if an officer or employee is not actually removed from his office or position, he is considered removed without just cause in the following instances: ##933 1. When he is demoted and no cause is shown to justify the same. (Floreza vs. Ongpin, 182 SCRA 692); 2. When there is unconsented transfer; 3. When the employee is being transferred to lure him away from his permanent position, and it is done without his consent. RULE IN CASE OF OFFICIALS AND EMPLOYEES HOLDING CONFIDENTIAL POSITIONS Q - Until when can they remain in their positions? A - They serve at the pleasure of the appointing power. Their cessation from office involves no removal but expiration of term of office. RULE IN CASE OF TEMPORARY OR ACTING APPOINTEES Q - Until when can they remain in their positions? A - They may be removed at anytime, without the need of just cause or a valid investigation. PREVENTIVE SUSPENSION Q - What is a preventive suspension? A - It is a disciplinary measure which is intended to enable the disciplinary authority to investigate charges against the respondent by preventing the latter from using his position or office to influence witnesses, to intimidate them, or to tamper with the records which may be vital in the prosecution of the case against him. Q - What is the duration of the preventive suspension? A - If the investigation is not finished and the decision is not rendered within a period of ninety (90) days, the suspension will be lifted and the respondent will be automatically reinstated with full pay for the period of suspension. Q - What is the effect if his conviction is affirmed? A - The period of suspension becomes part of the first penalty of suspension or dismissal. 255

Q - Is preventive suspension a penalty? A - Preventive suspension is not a penalty but merely a preventive measure, a preliminary step in an administrative investigation. The period served should not be considered part of the actual penalty of suspension. (Quimbo vs. Gervacio, G.R. No. 155620, August 9, 2005) ##934 REQUIREMENT BEFORE THE EXONERATED EMPLOYEE IS ENTITLED TO BACK WAGES Q - A, a civil service employee, was charged with dishonesty, oppression, grave misconduct, neglect of duty. Later, he was exonerated after investigation. Is he already entitled to payment of back wages after his exoneration? A - It is not enough that an employee is exonerated. It must also be shown that the suspension of the employee is unjustified. CABALITAN VS. DAR G.R. NO. 162805, JANUARY 23, 2006 FACTS: Petitioner is an employee of DAR. His officemates filed a complaint against him alleging that he sold to complainants cards ostensibly exempting the holder thereof from the Unified Vehicular Volume Reduction Program (UVVRP) of the MMDA, but that said cards were all a sham. The complainants demanded reimbursement of their money but petitioner made all kinds of excuses. The DAR Secretary formally charged petitioner with grave misconduct and found him guilty. Upon appeal, the CSC likewise found him guilty and ordered his dismissal. Petitioner filed a motion for reconsideration and the penalty was modified to nine months suspension. This was affirmed by the CA. Petitioner filed the present petition for review assailing the finding of guilt and the propriety of the penalty imposed. In addition, he asserts that he is entitled to back salaries not only due to the wrongful finding of guilt but also because he was allowed by his superiors to perform service and his employment contract had been duly renewed. ISSUE: Whether petitioner is entitled to back salaries. RULING: No. Petitioner is not entitled to back salaries because his appointment has not become effective. First, CSC Resolution No. 91-1631 expressly provides that in no case shall an appointment take effect earlier than the date of its issuance. Second, the appointment was not approved by the CSC. No proof was presented to show that the appointment paper was even transmitted to the CSC. The appointment thus fell short of a legal requirement under Section 12 of the Administrative Code of 1987 and its Implementing Rules and Regulations. The law requires that the appointment be submitted to the CSC, which 256

will ascertain, in the main, whether the proposed appointee is qualified to hold the position, and whether the rules pertinent to the process of appointment were observed. Thus, it is essential that the appointing officer and the CSC acting together, though not concurrently but consecutively, make an appointment complete. In acting on the appointment, the CSC determines whether the appointee possesses the appropriate civil service eligibility or the required qualifications. If the appointee is qualified, the appointment should be approved. If not, it should be disapproved. ##935 In the present case, the petitioner had been issued a retroactive appointment, but said appointment never became effective. The result is that petitioner could not be entitled to back salaries for the period January 1 to July 31, 2001. CSC Resolution No. 91-1631 provides that the appointing authority shall be liable for the salaries of the appointee whose appointment became ineffective. Hence, the person from whom he can demand accountability for the payment of his back salaries, if any, is the appointing authority who allowed him to report for work, for the cited period, if indeed he was so allowed. REMEDY OF THE PARTY ADVERSELY AFFECTED BY THE DECISION Q - What are the remedies of the party adversely affected by the decision? A - Appeal, if allowable, which shall be made within 15 days from the receipt of the decision, unless a petition for reconsideration is seasonably fled, which petition shall be decided within 15 days. Q - What are the grounds of the petition for reconsideration? A - It should be based in the following grounds: 1. New evidence which has been discovered which materially affects the decision rendered; 2. The decision is not supported by the evidence on record; or 3. Errors of law or irregularities have been committed which are prejudicial to the interest of the respondent. Q - What action can be taken if the complaining party is aggrieved by the Civil Service Commission resolution? A - The petitioner can file a petition for certiorari under Rule 65, not Rule 45, of the Rules of Court, within the 30 days from receipt of the copy of the resolution. Q - Can the Civil Service Commission appeal from the resolution of the Court of Appeals exonerating the respondent and which reversed the decision of the Civil Service Commission? A - Yes, it was allowed by the Supreme Court in Civil Service Commission vs. Dacuycuy, G.R. No. 135805, April 29, 1999. ##936 Q - Is it always necessary that motion for reconsideration must first be filed before resorting to Certiorari under Rule 65? 257

A - The Rule that motion for reconsideration must first be filed before resorting to Certiorari is merely a general rule. (D. C Crystal vs. Laya, 170 SCRA 734 [1989]; Purefoods Corp. vs. NLRC, 171 SCRA 415 [1989]; Philippine National Construction Corporation vs. National Labor Commission, July 7, 1995, 245 SCRA 66) The filing of such a motion is intended to afford public respondent an opportunity to correct any actual or fancied error attributed to it by way of re-examination of the legal and factual aspects of the case. Thus, petitioner's inaction or negligence under the circumstances is respondent's commission to cleanse itself of an error unwittingly committed or to vindicate itself of an act unfairly imputed. An improvident resort to certiorari cannot be used as a tool to circumvent the right of public respondent to review and purge its decision of an oversight, if any. Neither should this special action be resorted to as a shield from the adverse consequences of petitioner's own negligence or error in the choice of remedies. Having allowed the decision to become final and executory, petitioner cannot by an overdue strategy, question the correctness of the decision of the respondent commission when a timely motion for reconsideration was the legal remedy indicated. (Purefoods Corporation vs. NLRC, supra) The said rule admits several exceptions. In the following cases, a Motion for Reconsideration may be dispensed with: 1. Where public welfare and the advancement of public policy so dictates, and the broader interest of justice so requires; 2. Or where the orders complained of were issued in excess of or without jurisdiction (Philippine Consumer Foundation, Inc. vs. NTC, 125 SCRA 845); 3. Or where appeal was not considered the appropriate remedy, such as appeal from orders of preliminary attachment or appointment of a receiver (Enriquez vs. Rivera, 90 SCRA 641); 4. When it would raise the same points; 5. Where the error is patent or the order is void (Aquino vs. NLRC, 226 SCRA 76 [1993]); 6. Where relief is extremely urgent as when the court has already ordered execution of partial summary judgment (Guevara vs. CA, 124 SCRA 297). Where petitioner's property is scheduled to be sold on execution there is no need to wait for the resolution on a motion for reconsideration (Vda. de Sayman vs. CA, 121 SCRA 650 [1983]). ##937 COMMUTATION OR REMOVAL OF ADMINISTRATIVE PENALTIES Q - Can the President commute administrative or disabilities imposed upon officers in disciplinary cases? A - Yes, subject to such terms and conditions as he may deem proper to impose in the interest of the service. 7.5 REACHING AGE LIMIT Q - What is the compulsory retirement age for appointive government officers and employees? AMembers of the judiciary - 70 years Other government officers and employees - 65 years 258

Q - Can government officers and employees retire before reaching compulsory retirement age? A - This is allowed under Republic Act No. 1616 provided an officer has rendered a minimum number of years of government service. Q - Can the service of officers and employees who have reached the age of 65 years but who have not yet completed 15 years of government service be extended? A - Said extension may be allowed or disallowed at the discretion of the head of the agency concerned. However, this discretion has to be exercised in conformity with Civil Service Commission Memorandum Circular No. 27. (Rabor vs. Civil Service Commission, G.R. No. 111812, May 31, 1995) Q - Can extension of service of members of the judiciary be allowed? A - Yes, especially in the case of one who has served with competence, integrity and dedication to public service. (In-Re: Gregorio Pineda, 187 SCRA 469) 7.6 ABANDONMENT It is a cause for terminating public office indicated by the action of the incumbent in voluntarily surrendering it to another under a mistaken belief that the latter has been elected as his rightful successor, or even by the acquiescing on his own removal. In order to constitute an abandonment of office, it must be total, and under such circumstances as to clearly indicate an absolute relinquishment. When once abandoned the former incumbent cannot legally repossesses the office even if by forcible re-occupancy (Martin citing State vs. Jones, 19 Ind. 356, 81 A.m. Dec. 403). There must be clear proof of deliberate and unjustified intent to sever the employer-employee relationship. (Batangas State University vs. Bonifacio, G.R. No. 167762, December 15, 2005) Distinguish abandonment from resignation Abandonment - There is a clear proof of deliberate and unjustified intent to sever the employeremployee relationship. Resignation - Resignation in general is a formal relinquishment. ##938 Q - A, a civil service officer, was granted of one (1) year leave of absence without pay. He failed to return to the service after the expiration of one (1) year leave without pay. What action can be done for the said employee? A - He can be automatically separated from the service. Q - A, an employee, has been absent for more than three (3) months without pay, and without a proper leave of absence. What action can be taken against him? A - He can be considered absent without leave (AWOL), and he can be dropped from the service. 7.7 PRESCRIPTION OF THE RIGHT TO OFFICE 259

It is a mode of terminating official relationship caused by a public officer who has not been the subject of illegal ouster or dismissal. A petitioner for reinstatement or for recovery of a public office must be instituted within one (1) year from the date the petitioner is unlawfully ousted from his office. Q - What is the rationale behind the one (1) year requirement within which to file a petition for reinstatement? A - The interest of public welfare requires that the right or title to public office should not be left hanging and uncertain. Q - Is the said one (1) year requirement absolute? A - In one case, a petition was allowed by the Supreme Court, nine (9) years after the petitioner was dismissed from office on the ground of equity. 7.8 DEATH Why is death a mode of terminating official relationship? When the public official dies, he necessarily ceases to have a right to the office he holds, because he cannot, from that time, be able to perform his duties and responsibilities. 7.9 IMPEACHMENT See detailed discussion in Accountability of Public Officers, including the discussion of G.R Nos. 146710-15, March 2, 2001, entitled Joseph Estrada vs. Aniano Desierto in his capacity as Ombudsman, et a!. 7.10 FAILURE TO ASSUME ELECTIVE OFFICE Q - Besides the public official's eligibility for public office, he should, before entering into the performance of the functions of a public office, take the oath of office. Within what time shall said public official take his oath of office? A - Within six (6) months from his proclamation. (Section 11, Batas Pambansa Big. 881) ##939 Q - What is the consequence if he fails or refuses to take his oath of office within the said period? A - The office of any official elected shall be considered vacant, unless said failure is for a cause or causes beyond his control. (Ibid.) Q - During the time or in the meantime that the said official has not yet taken his oath of office, who is the rightful occupant of the office? A - The holdover officer. (Lecaroz vs. Sandiganbayan, G.R. No. 130872, March 25, 1999) 7.11 ACCEPTANCE OF INCOMPATIBLE OFFICE Q - What constitutes incompatibility? A - Offices are said to be incompatible when from the nature and relations to each other, of the two places, they ought not to be held by the same person, from the contrariety and 260

antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the incumbent of the other. (Mechem, Pub. Off, Sec. 422) Test of incompatibility One of the most important tests as to whether offices are incompatible, is found in the principle that the incompatibility is recognized whenever one is subordinate to the other in some of its important and principal duties, or is subject to supervision by the other, or where a contrariety and antagonism would result in the attempt by one person to discharge the duties of both. Under this principle two offices are incompatible where the incumbent of one has the power to remove the incumbent of the other though the contingency on which the power may be exercised is remote, and it also exists where the incumbent of one office has the power of appointments as to the other office. (Martin citing Atty. Gen. vs. Detroit, 112 Mich. 145, 70 N. W 450; Haymaker vs. State [NM] 163 Pac. 248). But in order that one office may be adjudged incompatible with another it must clearly appear that the two offices actually exist as distinct positions and that the second is not merely and ex officio extension of the duties of the incumbent of the first. (Martin citing Moore vs. Nation, 80 Kan 672, 103 Pac. 197, 18 Am. Cas. 397) Effect of holding incompatible offices Acceptance of the second office incompatible with the first ipso facto vacates the latter. No proceeding by quo warranto or otherwise, is necessary in order to declare or complete the vacation of the first office. It may be at once filled again either by appointment or election as the law provides. Even though the title to the second office fails, as where the election is void, the rule is still the same. (Martin citing Zandueta vs. De la Costa, 66 Phil. 615; Mechem Pub. Off, Sec. 425) ##940 CASE: ADAZA VS. PACANA, 135 SCRA 431 In Adaza vs. Pacana, the petitioner who was then the Governor of Misamis Oriental ran for the Batasang Pambansa but lost. He subsequently assumed the governorship when Adaza became qualified as Assemblyman. Adaza questioned Pacana's assumption of the governorship on the ground that under the parliamentary system a legislator could concurrently serve as governor, and for this reason, there was no vacancy in the governorship. The Supreme Court ruled that when Adaza took his oath as Assemblyman, he automatically forfeited the governorship. Q - In the case of Senators or Members of the House of Representatives, what is the rule on incompatible office? A - GENERAL RULE: A Senator or Member of the House of Representatives may not hold any other office or employment in the government, or any subdivision, agency, or 261

instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. EXCEPTION: Except if it is shown that said other office or employment is an extension of the legislative position or is in aid of legislative duties. Example: 1. Members of Congress who are appointed by the President to serve in the Peace Panel between the GRP and NDF. 2. Members of Congress who are appointed by the President to assist him during his renegotiation for renewal of the Amari Contract. 7.12 ABOLITION OF OFFICE Q - Who has the power to abolish an office? A - An office created by Congress may be abolished by it at anytime and even while the office is occupied by a duly elected or appointed incumbent. REASON: There is no obligation on Congress or the people to continue a useless office only for the benefit of the person who holds the office. Q - Is that not a deprivation of the contractual right or property interest on the office? A - No. The employee accepts the office with the understanding that it may be abolished at anytime, and the tenure of the office is not affected by the constitutional provision regarding impairment of obligation of contract. (63 Am Jur. 2d688) ##941 Q - Can the President or local governments abolish an office? A - Yes, if the said power has been delegated to them, or by the people themselves when they amend the constitution. Q - Can constitutional offices be abolished by Congress? A - No. REQUIREMENT TO ABOLISH OFFICE Q - Is the right to abolish absolute? A - The abolition must be made in good faith, and not for personal or political reasons. (De la Liana vs. Alba, 112 SCRA 294) Q - What is considered as justification in good faith? A - This is to be decided based on the facts of each case (Dario vs. Mison 176 SCRA 84). Fiscal restraint and economy, for instance, was considered as a justification. (Ginson vs. Municipality of Murcia, 185 SCRA 1) Q - Is reorganization of government offices a justification to abolish an office? A - Reorganization was authorized then by President Corazon C. Aquino under and by virtue of the Freedom Constitution, but the reorganization program, according to the Supreme Court, 262

was never intended to be an "automatic authority" to dismiss millions of government workers at the same stroke of the pen. Example: The reorganization of the Department of Agriculture under Executive Order No. 116 was set aside for failure to observe the guidelines in Executive Order No. 33 regarding removal of employees, thus: 1. Existence of a case for summary removal as provided in Sec. 40, Civil Service Law 2. Probable cause in violation of Republic Act No. 3019 3. Gross incompetence or inefficiency in the discharge of functions 4. Misuse of public office for partisan political activities 5. Analogous grounds showing that the incumbent is unfit to remain in the service. (Abaya vs CSC, G.R. No. 98027, October 4, 1994) Q - Can preventive suspension be ordered even without a hearing? A - Yes. REASON: Because suspension is not a penalty but only a preliminary step to administrative investigation. ##942 Q - What are the two (2) kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension? A(1) Preventive suspension pending investigation. (Section 51, Book V Title I, Subtitle A of the Administrative Code of 1987) (2) Preventive suspension pending appeal if the penalty imposed is suspension or dismissal and after review, the respondent is exonerated under Section 47 of the said Code. Q - The above-mentioned suspension refers to the suspension of civil service employees. Can members of Congress be suspended? A - Yes, by express provision of Section 16(3), Article VI of the 1987 Constitution, on the ground of disorderly behavior. Under this provision, it is Congress that can impose suspension. Q - Can our courts suspend members of Congress? A - In old cases (Alejandrino vs. Quezon and Osmeña vs. Pendatum, this matter was considered apolitical question, hence, the court refused to interfere. However, in Ceferino S. Paredes, Jr. vs. Sandiganbayan, et al., G.R. No. 118364, the Supreme Court affirmed the suspension of Congressman Ceferino S. Paredes, Jr. on the ground that the said suspension is based on alleged violation of R.A. 3019. The Supreme Court said. "x x x Petitioner's invocation of Section 16(3), Article VI of the Constitution x x x is unavailing as it appears to be quite distinct from the suspension spoken of in Section 13 of Republic Act No. 3019, which is not a penalty but a preliminary preventive measure 263

prescinding from the fact that the latter is not being imposed on petitioners for misbehavior as a member of the House of Representatives." x x x (Ceferino S. Paredes, Jr. vs. Sandiganbayan, et al., G.R. No. 118364) (Underlining Supplied) 7.13 CONVICTION OFA CRIME What automatically terminates official relationship? Conviction by final judgment automatically terminates official relationship. This arises when the penalty imposed to a public officer carries with it the accessory penalty of disqualification. Q - A, a public officer, was administratively charged for dishonesty. Later, he was found guilty and he was subsequently separated from the service. He was however, given a pardon. What is the effect of the said pardon? A - The pardon completely obliterated the adverse effects of the administrative decision. He is restored to his office ipso facto upon the issuance of clemency and he is entitled to back wages. (Vicente Garcia vs. Chairman, Commission on Audit, 226 SCRA 356) ##943 Q - Is the benefit arising from the said clemency applicable simply because a person is granted a pardon? A - When a person is given a pardon because he did not truly commit the offense, the pardon relieves him from all punitive consequences of his criminal act, and this restores his clean name, good reputation and unstained character prior to the finding of guilt. If a public officer was just granted a pardon but there is no finding that he did not truly commit the offense, the implication is that the pardon does not completely restore the clean name, good reputation and unstained character of the said public officer. Q - Suppose former Joseph Ejercito Estrada was convicted in the impeachment proceeding, what is the penalty that would have been imposed against him? A - (1) Section 7(3), Article Xl, specifies the following effects: a. Removal from office; b. Disqualification to hold any office under the Republic of the Philippines; c. In addition, the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. Q - If President Estrada was acquitted in the impeachment proceeding, can he be subsequently subject to prosecution, trial, conviction and punishment in the regular courts of justice? A - No. Because the last sentence of Section 3(7), Article XI, states that it is only in case of his conviction by the impeachment court that he shall be liable to prosecution, trial, and punishment according to law. This means that if he is acquitted, he cannot be liable and subject to prosecution, trial, and punishment.

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Q - If President Estrada was convicted in the impeachment proceeding and thereafter criminally prosecuted for the offense which warranted his conviction on impeachment, can he plead the defense of double jeopardy? A - No. As I already stated, the penalty which the Senate may impose shall be limited to removal from office and disqualification to hold any office under the Republic of the Philippines. This penalty is beyond the reach of the President's power of executive clemency, but does not place the officer beyond liability to criminal prosecution. When criminally prosecuted, therefore, for the offense which warranted his conviction on impeachment, the officer cannot plead the defense of double jeopardy. ##944 Q - If President Estrada resigned before the rendition of judgment by the impeachment court, does his resignation place him beyond the reach of impeachment for offenses committed during his tenure? A - No. REASON: While it is true that he is already resigned and can no longer be removed from his office, there is still a penalty which can be imposed even after his resignation and that is the penalty of "disqualification to hold any office under the Republic of the Philippines." 7.14 FILING OF CERTIFICATE OF CANDIDACY Why is the filing of certificate of candidacy a mode of terminating official relationship? It is a mode of terminating official relationship by express provision of Sections 66 and 67, Batas Pambansa Blg. 881, which provides as follows: "Sec. 66, B.P. 881 provides: "Any person holding a public office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy." a) In PNOC Energy Development Corporation vs. NLRC, G.R. No. 100947, May 31, 1993, it was held that this section applies even to employees of government-owned or controlled corporations without an original charter." "Sec. 67, B.P. 881, provides: "Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice President, shall be considered ipso, facto resigned from his office upon the filing of his certificate of candidacy." 8. Liability of Public Officers What is the liability of a public officer for injuries sustained by another as a result of his official acts? If a public officer performs his official acts within the scope of his official authority, he is not liable for said injuries, unless otherwise provided by law. Same question, as aforementioned. Is he civilly liable? No, unless there is a clear showing of bad faith, malice or negligence. (Section 38[1], Chapter 9, Book I, Administrative Code of 1987) 265

What is the liability of the subordinate officer or employee for acts done by him in good faith in the performance of his duties? He is not civilly liable but he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he merely followed the orders or instructions of his superiors. (Ibid.) ##945 When may a public official be held liable, on his personal capacity, for exemplary damages? In the case of Sison vs. Court of Appeals, G.R. No. 124086, June 26, 2006. the Court held that by reason of petitioner's inordinate delay, damage was caused in resolving respondent's claims. As a public official, petitioner ought to have acted with the highest degree of excellence, professionalism, intelligence and skill. Thus, petitioner was held liable in his personal capacity, for exemplary damages. OTHER LIABILITIES OF A PUBLIC OFFICERS What is the liability of public officers in connection with the following: (1) TORT; (2) CONTRACTS; (3) ACTS OF THEIR SUBORDINATE (1) FOR TORTS - Unauthorized acts of government officials are not acts of the State, hence, a public officer may be personally liable for damages for such unauthorized acts. A public officer claims that he merely performed acts in connection with his official duties. Can he be held personally accountable for his said acts? No, unless it is proven that he acted in ultra vires, or in bad faith. Example: Dismissing employees on account of partisan political reasons (Rama vs. Court of Appeals, 148 SCRA 496) (2) FOR CONTRACTS - A public officer who acted without authority or in excess of his authority shall be personally liable on contracts he enters into. If he acted within the scope of his authority and in his official capacity, he is not personally liable on contracts he executed in behalf of the government unless he expressly and unequivocally agrees to be bound. (3) FOR ACTS OF SUBORDINATES - (1) Where there being charged with the duty of employing or retaining his subordinates, he negligently or willfully employs or retains unfit or improper persons; (2) Where, being charged with the duty to see that they are appointed or qualified in a proper manner, he negligently or willfully fails to require of them the due conformity to the prescribed regulations; (3) Where he so carelessly or negligently oversees, conducts or carries the business of his office as to furnish the opportunity for the default; or (4) And fortiori when he has directed, authorized, or cooperated in the wrong. (Mechem, Pub. Off, Section 790) ##946 16. EIGHT (8) OTHER ANCILLIARY PRINCIPLES 1. Preference for appointment to new position 2. Can a person be compelled to accept an office? 3. Presidential power of appointment 4. Authority to determine the kind or nature of appointment 266

5. Revocation of appointment of CSC 6. Meaning of the term qualification 7. Determination through competitive examination 8. Hold over rule EXPLANATION OF EACH ANCILLIARY PRINCIPLE 1. Preference for appointment to new position Section 4 of Republic Act No. 6656 provides: "Officers and employees holding permanent appointments shall be given preference for appointment to the new positions in approved staffing pattern comparable to their former positions or in case there are not enough comparable positions, to positions next lower in rank. (Torio vs. Civil Service Commission, G.R. No. 99336; Espanola vs. Civil Service Commission, G.R. 100178, June 9, 1992, En Banc, Gutierrez, Jr., J.) REASON: The preference given to permanent employees assumes that employees working in a Department for longer periods have gained not only superior skills but also greater dedication to the public service. (Ibid.) 2. Can a person be compelled to accept an office? No. REASON: There is no law which can compel a person to accept an office except as may be required under Section 4, Article II of the 1987 Constitution which provides as follows: "Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service." 3. Presidential power of appointment 1. 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 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 disapproval by the Commission on Appointments or until the next adjournment of the Congress. ##947 2. 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 to the Office of the Ombudsman, or as secretaries, undersecretaries, chairman or heads of bureaus or offices including government-owned or controlled 267

corporations and their subsidiaries. (Section 13, 2nd paragraph, Article VII, 1987 Constitution) 3. 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. 4. Appointments of an Acting President shall remain effective, unless revoked by the elected President within 90 days from his assumption or re-assumption of office. (Section 14, Article VII) 5. The appointees of the President must possess the required qualifications. The appointee concerned may be questioned in appropriate court proceedings. 4. Authority to determine the kind or nature of appointment The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing power. What it can do is only either to approve or review the appointment to see to it that the requirements of the Civil Service Commission are complied with. When all legal requirements are complied with and the appointee is qualified what the Civil Service Commission has to do is only to attest to the appointment. (Luego vs. Civil Service Commission, 143 SCRA 327) Much later, in Lopez vs. Civil Service Commission (G.R. No. 92140, February 19, 1991), the Supreme Court ruled that what the Civil Service Commission may do is just to determine whether or not the appointee possesses the qualifications and requisite eligibility. If the appointee is qualified and eligible, his appointment is approved, and if not, his appointment is disapproved. ##948 A month after the decision in Lopez vs. Civil Service Commission, the Supreme Court elucidated further the ruling in Lopez and said: "As long as the appointee possesses the minimum qualifications prescribed by law or regulations, there is no question that his appointment must be respected by the Civil Service Commission even if it be proved that there are others with superior credentials. However, this rule does not cover those cases where it is found by the Commission, after examining the appointment papers, that the appointee does not satisfy the minimum qualifications for the position in question. In these cases, the Commission would be well within its right - and responsibility - in refusing to approve the appointment." (Cortez vs. Civil Service Commission, G.R. No. 92673, March 13, 1991, En Banc, Cruz, J.) 5. Revocation of appointment by CSC The Supreme Court ruled: "The Civil Service Commission has no authority to revoke an appointment simply because it is believed that another is better qualified than the appointee for that would have constituted an encroachment of the discretion vested solely in the appointing authority. The Commission cannot exceed its power by substituting its will for that of the appointing authority. (Lopez vs. Civil Service Commission, G.R. No. 92140, February 19, 1991, En Banc, Gutierrez, Jr., J.) 268

6. Meaning of term qualification It is understood in different senses: (1) It may refer to the qualities or endowments required of the public officer in order that he may be considered eligible for public office (i.e., age, citizenship, and academic qualifications); (2) It may refer to the act of enabling a person to perform the duties and functions of his office (i.e., taking the oath of office) In the first one, the person appointed or elected must possess the prescribed qualifications at the time of his appointment or election and during the period of the official relationship. In the second, the failure to perform an act required by law could affect the officer's title to the given office. An oath of office is a qualifying requirement for a public office (Lecaroz vs. Sandiganbayan, G.R. No. 130872, March 25, 1999). Under Batas Pambansa Blg. 881, Section 11, thereof, it is provided that "the office of any official elected who fails or refuses to take his oath office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control. [Example: (1) Taking an oath or affirmation to uphold and defend the Constitution; (2) Accountable officers are required to be properly bonded] 7. Determination through competitive examination The following are exempted from the requirement of competitive examinations: ##949 1. Policy-determining position - A position held by one whose duty is to formulate policies and guidelines of the government. 2. Primarily confidential position - A position held by one in whom personal trust and confidence is reposed by the appointing power. 3. Highly technical position - A position held by one possessing superior technical training 8. Hold-over rule It is a rule which declares that in the absence of an express or implied constitutional or statutory provisions prohibiting hold-over, an officer is entitled to hold his office until his successor is appointed and qualified. This rule prevents disruption of public service in the meantime that a successor is not yet appointed and qualified to assume the functions of the office. CASES: PLAZA VS. CASSION, ET AL. G.R. NO. 136809, JULY 27, 2004 Being dropped from the roll of employees without prior notice is not a disciplinary measure. Change of respondents' place of work from the original CSSDO office to the DSWD building is not a transfer. It is merely a physical transfer. FACTS: Prior to the enactment of the Local Government Code (R.A. No. 7160), delivery of social services was dispensed by the national government through the DSWD. Upon the promulgation 269

of the said law, some of DSWD's functions were transferred to the local government units. The City of Butuan passed resolutions and orders reconstituting the City Social Services Department Office devolving and transferring thereto 19 DSWD employees. Their office was transferred from the original CSSDO Building to the DSWD Building. The respondents who composed the original CSSDO refused to report to work despite the orders of the Mayor. After an administrative investigation, they were charged administratively for grave misconduct and were preventively suspended for 60 days. Upon the recommendation of the CSC, the Mayor of Butuan City dropped the respondents from the roll of employees without prior notice. ISSUE: 1. Were the respondents denied due process on the ground that they were dropped from the roll of employees without prior notice? 2. Is the order of preventive suspension a violation of respondent's security of tenure as they were transferred from one office to another? ##950 HELD: 1. The dropping from the rolls of private respondents is not disciplinary in nature in accordance with the Memorandum Circular No. 38 of the Civil Service Commission, Series of 1993 and the ruling of the CSC. Since the dropping from the rolls is not an administrative sanction, their was no violation of due process and it is not necessary that they should be notified or heard. 2. The change of respondents' place of work from the original CSSDO office to the DSWD building is not a transfer. It was only a physical transfer of their office to a new one done in the interest of public service. There were no new movements or appointments from one position to another. Transfer is a movement from one position to another which is of equivalent rank, level or salary without break in service and may be imposed as an administrative penalty. CSC VS. SATURNINO DE LA CRUZ G.R. NO. 158737, AUGUST 31, 2004 The final choice of the appointing authority should be respected and left undisturbed. Judges should not substitute their judgment for that of the appointing authority. The power to appoint is in essence discretionary on the part of the proper authority. FACTS: The respondent was promotionally appointed as Chief of the Aviation Safety Regulation Office, Air Transportation Office (ATO). Prior to this appointment, he was a Check Pilot II in the ATO. He passed the rigid screening of the ATO personnel Selection/Promotion Board as well as the corresponding oral and written examination. However, it was claimed that respondent did not meet the 4-year supervisory requirement for the said position. The Civil Service Commission disapproved his appointment. The Court of Appeals reversed the decision of the Civil Service Commission. 270

ISSUE: Is the appellate court correct in setting aside and in reversing the decision of the Civil Service Commission? ##951 HELD: 1. The appellate court is correct REASON: The rule that appointees must possess the prescribed mandatory requirements cannot be so strictly interpreted as to curtail the agency's discretionary power to appoint, as long as the appointee possesses the other qualifications required by law, considering that the respondent's total work experience is sufficient to meet the supervisory standards thereby finding respondent qualified for appointment to the contested position. 2. Respondent's promotional appointment was issued in accordance with the petitioner's selection process. Respondent passed the rigid screening of the ATO personnel Selection/Promotion Board as well as the oral and written examinations of the DOTC Selection Board. 3. Respondent's multifarious experience and trainings in the air transportation were taken into account when he was chosen for the subject position. 4. It is elementary in the law of the public officers that the power to appoint is in essence discretionary on the part of the proper authority. Consequently, the appointing authority has the right of choice which he may exercise freely according to his best judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. The final choice of the appointing authority should be respected and left undisturbed. Judges should not substitute their judgment for that of the appointing authority. JOSE M. CARINGAL VS. PCSO G.R. NO. 161942, OCTOBER 13, 2005 An appointee to the civil service is entitled to security of tenure only if he possesses the appropriate civil service eligibility. Not being in possession of the required CES eligibility, petitioner has no security of tenure. It could be withdrawn at will by the appointing authority and "at a moment's notice," conformably to established jurisprudence. FACTS: Atty. Jose Caringal was appointed Assistant Department Manager II in PCSO's legal Department. When a new PCSO chairman was appointed, Atty. Caringal was appointed to the Assets and Investments Department. Atty. Caringal contested his reassignment as a constructive dismissal. Thereafter, he filed an administrative complaint for constructive dismissal and culpable violation of the Constitution on civil service appointments. Subsequently, the PCSO Board of Directors issued a resolution terminating Atty. Caringal's employment on the ground that he does not possess Career Executive Service Eligibility. Thereafter, he was informed that his temporary appointment as Assistant Manager II is terminated. The CSC, in the meantime dismissed petitioner's complaint for constructive dismissed on the ground that he does not enjoy security of tenure and his appointment is temporary in nature and he may be replaced with one 271

who has Career Executive Service Eligibility. He appealed to the Court of Appeals which affirmed the decision of the CSC. Atty. Caringal appealed to the Supreme Court. ##952 RULING: An appointee to the civil service is entitled to security of tenure only if he possesses the appropriate civil service eligibility. Not being in possession of the required CES eligibility, petitioner has no security of tenure. There is no question that petitioner does not possess the required CES eligibility. Hence, he has no security of tenure as his appointment is merely temporary. To be sure, his appointment did not attain permanency. Such being the case, it can be withdrawn from him anytime without violating the constitutionally guaranteed right to security of tenure. In Achacoso vs. Macaraig (195 SCRA 235 [1991]) we held: It is settled that a permanent appointment can be issued only "to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and "at a moment's notice," conformably to established jurisprudence DOH VS. COMPASANO G.R. NO. 157684, APRIL 27, 2005 The actual exercise of the disciplining authority's prerogative requires a prior independent consideration of the law and facts. Failure to comply with this requirement results in an invalid decision. FACTS: The resident Ombudsman in the Department of Health conducted an investigation regarding alleged anomalous purchases made by the respondents. The Secretary of Health filed a formal charge against the respondents. Thereafter, the Executive Secretary issued an administrative order creating an Ad Hoc Committee to investigate the administrative case filed against said respondents. The same was indorsed by the Presidential Commission Against Graft and Corruption, which took over the investigation from the Department of Health and resolved the case by recommending the dismissal of the respondents. Pursuant to the said resolution of PCGG, the Secretary of Health dismissed the respondents. ##953 ISSUE: 1. Is the dismissal valid and justified? HELD: 1. Non-compliance with the sixth requisite is evident from the Health Secretary's order dismissing the respondents. The Health Secretary has the competence and the authority to decide what action should be taken against officials and employees who have been administratively charged and investigated. However, the actual exercise of the disciplining authority's prerogative requires a prior independent consideration of the law and facts. 272

Failure to comply with this requirement results in an invalid decision. The disciplining authority should not merely and solely rely on an investigator's recommendation, but must personally weigh and assess the evidence gathered. 2. Due process in administrative proceedings requires compliance with the following cardinal principles: (1.) the respondents' right to 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 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 respondents would know the reasons for it and the various issues involved. NOTE: It is the sixth requisite, as aforementioned, which was not complied with. ATTY LELU P. CONTRERAS VS. TERESITA O. MONGE A.M. NO. P-05 2040, JANUARY 24, 2006 Monge's failure to notify her office of her absences is sufficient cause to discipline respondent. The Civil Service Rules require that in case of absence because of sickness, the employee is required to give notice of absence to the immediate supervisor and/or the agency head. ##954 FACTS: Complainant alleged that respondent, Clerk IV in the Regional Trial Court of Iriga City, verbally assaulted her on July 20, 2000, a few days after respondent returned from a long absence from office. On that day, Executive Judge Ernesto B. Amisola came to complainant's office. It was on this occasion when respondent complained to said Judge about a memorandum the complainant issued to respondent. Complainant heard respondent and tried to butt in but respondent prevented her and told her to shut up. Respondent continued her verbal tirage even after Judge Amisola left complainant's office. Thereafter, respondent left the office loudly uttering "Di ako makipag-level kanino ta pagtaod mo pirmi ikang tama!" (I will never level with you because you think you are always right!) The above-mentioned memorandum was issued by complainant to respondent on July 11, 2000 because of the latter's failure to give official notice of her sick leave of absence for a period of four weeks. Instead of acknowledging her fault, respondent mockingly stated that she received a memorandum instead of a get well card. When she finally came back to work she did not report to complainant personally. The investigating Judge submitted a report finding no evidence of gross insubordination or disrespect, but only a failure on the part of respondent to give notice of her absence to complainant or the office. He also found that the alleged alteration of respondent's performance rating was valid and not without authority and that complainant did not commit any misconduct 273

towards Judge Agawa. Complainant, however, admitted that she cross-stitched during break time and lull hours and that she directed employee Eleno Gonzales to do unofficial work. The Office of the Court Administrator, concurring with the findings of the Investigating Judge, recommended that respondent be reprimanded and sternly warned of more severe penalty in case of repetition of her violation of the Civil Service Rules for failing to give notice of her absence, and that complainant, for directing her subordinate to do extra work during office hours, be advised to be more circumspect in the performance of her duties. RULING: We agree with the Court Administrator and the Investigating Judge that Monge's failure to notify her office of her absences is sufficient cause to discipline respondent. The Civil Service Rules require that in case of absence because of sickness, the employee is required to give notice of absence to the immediate supervisor and/or the agency head. Since application for sick leave is filed after the absent employee returns to work, the office concerned should at least be properly notified of the absence due to an illness. Respondent Monge neither made a call to notify the office nor she did she have someone inform the office about her absence. She only made the call after the memorandum was sent to her. It was only when her co-workers brought some documents to her house for her to sign that they learned she was sick. Clearly, respondent failed to comply with the notice of absence required by the Rules. Considering that her failure is only a light offense, the imposable penalty is a reprimand, with warning that a more severe penalty will be imposed should she repeat the offense or commit a similar offense. ##955 MULTIPLE CHOICE QUESTIONS 1. Nature of an ad-interim appointment A. It is a temporary appointment B. It is an appointment made while Congress is not in session, hence, it is still subject to the confirmation of the Commission on Appointments, and therefore it is not yet a permanent appointment. C. An ad-interim appointment has no fixed term of office and employment and can be terminated at the pleasure of the appointing authority, it is still therefore of a temporary nature. D. An ad-interim appointment is permanent in nature, and the circumstance that it is subject to the confirmation by the Commission on Appointments does not alter its permanent character. 2. Is the Civil Service Commission authorized to determine the kind or nature of the appointment extended by the appointing officer, or will it just attest to the appointment in accordance with the Civil Service Law. A. When all the legal requirements are complied with and the appointee is qualified, what the Civil Service has to do is only to attest to the appointment. B. The function of the Civil Service Commission is precisely to see to it that the appointee is qualified and eligible, hence, it has the authority to do both. 274

C. As long as the appointee possesses the minimum qualifications prescribed by law or regulations, there is no question that his appointment must be respected by the Civil Service Commission even if it be proved that there are others with superior credentials. D. In cases where it is found by the Commission, after examining the appointment papers. that the appointee does not satisfy the minimum qualifications for the position in question the Commission would be well within its right and responsibility in refusing to approve the appointment. ##956 3. Mr. A was not validly appointed, he is not eligible, and he occupies a legitimate office. Is he a dejure or de facto officer. A. He is a dejure officer as long as nobody is questioning his appointment. B. He is a dejure officer because he occupies a legitimate office. C. He is neither a dejure nor a defacto officer because he was not validly appointed. D. He is a defacto officer because he is in possession of the office under color of right, without being legally qualified to act! 4. Can a defacto officer claim salary or compensation? A. Not having a good title, he cannot claim salary or compensation. B. He can claim salary or compensation if there is no de jure public officer. C. He can claim salary or compensation and even allowances because that is what our Constitution provides for one position. D. He can claim salary or compensation because it is iniquitous to deny the salary due to a de facto officer for services he actually rendered. 5. Mr. A was validly appointed but the office itself to which he was appointed is void. Is he a dejure or defacto officer? A. He is a dejure officer because he was validly appointed. B. He is a defacto officer because the office itself to which he was appointed is void. C. He is a dejure officer until his appointment is declared void by the court. D. He is neither a de facto officer nor a de jure officer for no office at all exist. 6. Suppose there is an EDSA PEOPLE POWER!!!, and the newly elected President calls for a revamp of his cabinet. Constitutional officers A & B submitted courtesy resignations. Constitutional officers E & F, refused to vacate their positions. What is the legal effect of all these developments? A. Upon the successful conclusion of EDSA PEOPLE POWER III, all the terms of these Constitutional Officers are deemed expired. B. Upon the successful conclusion of EDSA PEOPLE POWER III, the new President can appoint new Constitutional Officers to replace the former Constitutional Officers. C. Upon the successful conclusion of EDSA PEOPLE POWER III, the courtesy resignations of A & B resulted in the expiration of their terms. The new President may request C & D to submit their courtesy resignations, but if they refuse to do so, the new President may appoint new ones to replace them on the theory that the successful conclusion of EDSA PEOPLE 275

POWER III gives him a mandate to effect the changes in government as he may deem necessary and proper and which he thinks will be advantageous to the government and to the country as a whole. ##957 ELECTION LAW I. GENERAL PRINCIPLES Q - Define election. A - It is the means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being, as their representatives, the exercise of the powers of government. Q - What are the two (2) kinds of election? A - General election - is one provided for by law for the election of officers throughout the State, or certain subdivisions thereof, after the expiration of the full term of the former officers. Special election - is one provided for by law under special circumstances such as when an election is held to fill a vacancy in office, or when an election is being held because a certain proposal is submitted to the vote of the qualified electors. Q - Define suffrage. A - Suffrage is the right to vote in the election of all officers chosen by the people, and in the determination of all questions submitted to the people. Q - What are the different theories of suffrage? A(1) It is a natural and inherent right of every citizen by virtue of his membership in the State, provided he is not disqualified on account of his own reprehensible conduct or unfitness. (Natural right theory) (2) It is a public office or function conferred upon those who are fit and capable of discharging it. (Social expediency theory) (3) It is regarded as a necessary attribute of membership in the State. (Primitive tribal theory) (4) It is regarded as an adjunct of a particular status, generally tenurial in character. It is a vested privilege usually accompanying the ownership of land. (Feudal theory) (5) It regarded as a necessary and essential means for the development of industrial character. (Ethical theory) (Garner, Political Science and Government, 543) ##958 Q - Distinguish suffrage from election. A - Suffrage is a broader term than election because it includes not only the means by which public officers are chosen for public positions, but also the expression of the choice of the people on a proposed law or enactment submitted to them for decision. Election is limited to the expression of a choice of the voters in the selection of their officers. 276

Q - What is the system of election adopted in the Philippines? A - The Australian Ballot System which was first conceived in 1901 by Francis S. Dutton, a member of the Legislature of South Australia. This system is adopted by many countries in Europe and its distinguishing feature is strict secrecy in balloting. Q - Why is suffrage both a right and a privilege under the Constitution? A - It is a right because it is the expression of the sovereign will of the people (Lacson vs. Posadas, 72 SCRA 468 [1976]). It is a privilege because its exercise is granted not to everybody but only to "such persons or class of persons are as most likely to exercise it for the purpose of public good." (People vs. Corral, 62 Phil. 945, 948 [1936]) Q - What is the theory upon which suffrage is based? A - The right of suffrage is predicated on the theory that the people who bear the burden of government should share the privilege of choosing the officials of that government. Q - Explain the principle that "the enfranchised citizen or voter is the trustee of the people." A - In the scheme of our present republican government, the people are allowed to have a voice therein through the instrumentality of suffrage to be availed of by those possessing certain prescribed qualifications. The people in clothing a citizen with the relative franchise for the purpose of securing a consistent administration of the government they ordain, charge him with the performance of a duty in the nature of a public trust, and in that respect constitute him a representative of the whole people. This duty requires that the privilege thus bestowed should be exercised not exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and with an intelligent zeal for the general benefit and welfare of the state. (Abanil vs. Justice of the Peace of Bacolod, 70 Phil. 28, 31 [1940]; Lacson vs. Posadas, 72 SCRA 168 [1976]) Q - What is the importance of safeguarding the integrity of the ballot? A - A republic then to be true to its name requires that the government rests on the consent of the people, consent freely given, intelligently arrived at, honestly recorded, and thereafter counted. Only thus can they be really looked upon as the ultimate source of established authority. It is their undeniable right to have officials of their unfettered choice. The election law has no justification except as a means for assuring a free, honest and orderly expression of their views. It is of the essence that corruption and irregularities should not be permitted to taint the electoral process. (Bailles vs. Cabili, 27 SCRA 113, 121-122 [1969]) ##959 Q - Why do we condemn the derogation of the right of suffrage? A - To impede, without authority, valid in law, the free and orderly exercise of the right of suffrage, is to inflict the ultimate indignity on the democratic process. The sovereign right of suffrage must not be thwarted nor defiled without imposing upon those who attempt to do so the severest penalties of the law. (Hontiveros vs. Mobo, 39 Phil. 230 [1918]; Ozamis vs. Zosa, 34 SCRA 424 [1970]) CASES 277

Q - Does the power to enforce and administer election laws and to insure free, orderly and honest elections include the power to annul an election which may not have been free, orderly and honest? A - The power to decide election contests necessarily includes the power to determine the validity or nullity of the votes questioned by either of the contestants (Nacionalista Party vs. Commission on Elections, 85 Phil. 149). Further, in connection with the power to determine the validity or nullity of the questioned votes, the Supreme Court upheld the authority of the Commission on Elections to exclude election returns on the ground of statistical improbability (Lagumbay vs. Commission on Elections, 16 SCRA 175[1966]). Election returns which were the products of coercion were also excluded and the power of the Commission on Elections to exclude the same was also upheld (Antonio, Jr. vs. Commission on Elections, 32 SCRA 319 [1970]). Likewise, the Commission on Elections has also the power to obtain the testimony of handwriting experts to be able to determine if the election returns are falsified or not. (Usman vs. Commission on Elections, 42 SCRA 667 [1971]) Q - Is it the Comelec or the court which has the power to declare failure of election? A - In Antonio, Jr. vs. Comelec (32 SCRA 319 [1970]), the Supreme Court ruled that the power to declare a failure of election involved the power to decide election contests which belonged not to the Commission on Elections but to the courts and the proper Electoral Tribunals. This was also the same ruling in Abes vs. Comelec. (21 SCRA 1252 [1967]) The Supreme Court, however, upheld the power of the Commission on Elections to annul an entire municipal election on the ground of post election terrorism, not on the basis of its expanded jurisdiction over election contests. This ruling in Biliwang vs. Comelec (114 SCRA 454 [1982] which modified the ruling in Antonio vs. Comelec (32 SCRA 454 [1982]), is anchored on the broader power of the Commission on Elections to protect the integrity of the election so that the will of the electorate is not defeated. ##960 Q - Can the COMELEC refuse to hold elections due to operational, logistical and financial problems? A - In the case of Sambarani v. COMELEC, G.R. No. 160427, September 15, 2004, the Court held that the operational, logistical and financial problems which COMELEC claims it will encounter with the holding of a second special election can be solved with proper planning, coordination and cooperation among its personnel and other deputized agencies of the government. A special election will require extraordinary efforts, but it is not impossible. Q - Does the Comelec have the authority to call a special election? A - The authority to call a special election was upheld in Sanchez vs. Commission on Elections (32 SCRA 319 [1970]) on the ground that failure of election justifies the calling of a special election in order to make the Comelec truly effective in the discharge of its functions. Just like the Biliwang case, the justification in Sanchez is anchored again on the broader power to insure free, orderly and honest elections so that the will of the electorate is not defeated. 278

Q - Is the prohibition on conducting special elections after thirty days from cessation of the cause of the failure of elections absolute? A - The prohibition on conducting special elections after thirty days from the cessation of the cause of the failure of elections is not absolute. It is directory, not mandatory, and the COMELEC possesses residual power to conduct special elections even beyond the deadline prescribed by law. The deadline in Section 6 of the Omnibus Election Code cannot defeat the right of suffrage of the people as guaranteed by the Constitution. The COMELEC has broad power or authority to fix other dates for special elections to enable the people to exercise their right of suffrage. The COMELEC may fix other dates for the conduct of special elections when the same cannot be reasonably held within the period prescribed by law. (Sambarani vs. COMELEC, G.R. No. 160427, September 15, 2004) INTERPRETATION OF ELECTION LAWS Election laws are liberally and equitably construed to give fullest effect to the manifest will of our people, for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held: ##961 "x x x (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections." Hence, the Supreme Court ruled in Frivaldo vs. Comelec, thus: "The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people, would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote." (Frivaldo vs. Commission on Elections, et al., G.R. No. 120295; Lee vs. Commission on Elections, G.R. No. 123755, June 28, 1996, En Banc, Panganiban, J.) (Underlining Supplied) II. COMMISSION ON ELECTIONS (FULL DISCUSSION, INCLUDING THE CONSTITUTIONAL PROVISIONS AND THE CASES INVOLVED, ARE FOUND IN CHAPTER VI, ARTICLE IX, CONSTITUTIONAL COMMISSIONS) III. STAGES, POINTERS AND PROCEDURES BEFORE, DURING AND AFTER ELECTION 279

SIMPLIFICATION: PART I - BEFORE ELECTION 1. Registration 2. Challenge 3. Inclusion 4. Exclusion 5. Voters/Qualifications and Disqualifications 6. Certificate of Candidacy 7. Precincts and Polling Places 8. Ballot boxes 9. Watchers 10. Petition to Deny Course to or to Cancel a Certificate of Candidacy 11. Political parties 12. Election Campaign/Expenditures and Propaganda PART II - DURING ELECTION 1. Casting of votes 2. Challenge of illegal voters 3. Records of challenges and oaths a. Minutes of voting and counting of votes b. List of unused ballots PART III - AFTER ELECTION 1. Counting of votes 2. Board of Election Inspectors 3. Appreciation of Ballots 4. Election returns 5. Announcement of the results of the Election and issuance of the certificate of votes received 6. Canvass and Proclamation 7. Pre-proclamation controversy 8. Election protest against a proclaimed candidate 9. Original and exclusive jurisdiction 10. Appellate jurisdiction 11. Requisites of election protest 12. Quo warranto, its requisites 13. Election offenses 14. Appeal ##962 PART I. BEFORE THE ELECTIONS POINTERS 280

1. A voter must possess the qualifications for suffrage. If he possesses all the qualifications and none of the disqualifications, a qualified voter may vote in any election, plebiscite or referendum only if he is registered in the list of voters for the city or municipality in which he resides. (Section 115, B.P. 881) 2. Election Registration Board. There shall be as many Election Registration Boards as there are election officers in each city or municipality. 3. General Registration of voters. The Comelec shall undertake a general registration of voters. (Voters Registration Act of 1996) 4. System of continuing registration: The personal filing of application of registration of voters shall be conducted daily in the Office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting 120 days before a regular election and 90 days before the special election. (Section 8, Republic Act No. 8189) ##963 PROCEDURE: 1. Application for Registration may be challenged Requirements: (a) Challenge must be in writing, under oath and attached to the application, together with the proof of notice of hearing to the challenger and applicant. 2. Said challenge may be opposed (a) It must be filed not later than the second Monday of the month in which the same is scheduled to be heard or processed by the Election Registration Board. 3. Said challenge shall be heard (a) It shall be heard on the third Monday of the month and the decision shall be rendered before the end of the month. 4. Registration records may be deactivated by the Election Registration Board (a) What are the records that may be deactivated? The registration records of the following persons may be deactivated: 1. Those who have been sentenced by final judgment to suffer imprisonment for not less than one year, and such disability have not been removed by plenary pardon or amnesty. Can said persons automatically reacquire right to vote? Yes, upon expiration of 5 years after service of sentence as certified by the clerk of court. 2. Those who have been adjudged by final judgment by a competent court or tribunal of having caused/committed any crime involving disloyalty to the duly constituted government such as rebellion, sedition, violation of the anti-subversion and firearms laws, or any crime involving national security, unless restored to his full civil and political rights in accordance with law. Can they regain their right to vote? Yes, upon expiration of five years from service of sentence. 281

3. Those declared by competent authority to be insane or incompetent. Can they regain their right to vote? Yes, upon declaration of a proper authority that said persons are no longer insane or incompetent. 4. Those who did not vote in two successive regular elections (SK Elections are not included). 5. Those whose registration have been ordered excluded by the court. 6. Those who have lost their Filipino citizenship. (Section 27, Republic Act No. 8189) Q - How can a voter reactivate his registration? A - He may file with the Election Officer a sworn application for registration in the form of an affidavit stating that the grounds for deactivation no longer exist. ##964 Q - When should the said application be filed? A - Not later than 120 days before a regular election and 90 days before a special election. Q - Who shall decide this? A - The Election Officer shall submit such application to the Election Registration Board for appropriate action. (Section 28, Republic Act No. 8189) PROCEDURE FEW MONTHS BEFORE ELECTIONS 1. 90 DAYS BEFORE REGULAR ELECTION AND 60 DAYS BEFORE SPECIAL ELECTION The Election Registration Board shall prepare and post a certified list of voters, furnish copies thereof to the provincial, regional and national central files. What else shall be posted? Copies of the certified list, along with a list of deactivated voters categorized by precinct per barangay. Where shall it be posted? In the Office of the Election Officer and in the bulletin board of each city/municipal hall. 2. PETITION FOR INCLUSION 3. PETITION FOR EXCLUSION Q - Who may file a petition for inclusion? A - Any person whose application for registration has been disapproved by the Board or whose name has been stricken out from the list may file with the court a petition to include his name in the permanent list of voters in his precinct at any time except 105 days prior to a regular election or 75 days prior to a special election. It shall be supported by a certificate of disapproval of his application and proof of service of notice of his petition upon the Board. 282

The petition shall be decided within 15 days after its filing. (Section 34, Republic Act No. 8189) Q - Who may file a petition for exclusion? A - Any registered voter, representative of a political party or the Election Officer, may file with the court a sworn petition for the exclusion of a voter from the permanent list of voters giving the name, address and the precinct of the challenged voter at any time except 100 days prior to a special election. The petition shall be accompanied by proof of notice to the Board and to the challenged voter, and shall be decided within 10 days from its filing. (Section 35, R.A. 8189) ##965 Q - Can any book of voters be annulled? A - Yes, for the following grounds: 1. When the book of voters is not prepared in accordance with the provisions of Republic Act No. 8189. 2. When the book of voters was prepared through fraud, bribery, forgery, impersonation, force or any similar irregularity. 3. When the book of voters contains data that are statistically improbable. Q - What is the limitation regarding annulment of book of voters? A - An order, ruling or decision annulling a book of voters shall not be executed 90 days before an election. Q - Assuming that a book of voters is annulled, is it a ground for a pre-proclamation controversy? A - No. (Ututalum vs. Comelec, 181 SCRA 335) RULES REGARDING INCLUSION, EXCLUSION AND CORRECTION OF NAMES OF VOTERS PETITION 1. It shall be filed during office hours. 2. Upon filing of the petition, the members of the board and the challenged voter shall be notified of the place, date and time of the hearing of the petition. 3. The Election Registration Board shall be impleaded as respondents. 4. A petition shall refer only to one precinct. 5. Any voter, candidate or political party affected by the proceedings may intervene and present his evidence. 6. No costs shall be assessed against any party. 7. If the court finds that the application has been filed solely to harass the adverse party and cause him to incur expenses, it shall order the culpable party to pay the costs and incidental expenses. (Section 32, Republic Act No. 8189) HEARING AND DECISION 283

1. The petition shall be heard and decided within ten (10) days from date of its filing. 2. The decision shall be based on the evidence presented. 3. The decision shall not be rendered upon a stipulation of facts. 4. If the question is whether or not a voter is real or fictitious, his non-appearance on the day of the hearing shall be prima facie evidence that the challenged voter is fictitious. (Section 32. Republic Act No. 8189) ##966 APPEAL 1. If the decision of the MTC or MTC is appealed, the same shall be filed in the RTC which shall decide it within 10 days from receipt of appeal. 2. The petition shall be decided by the court not later than 15 days before the election and the decision shall become final and executory. (Section 32[g], Republic Act No. 8189) JURISDICTION IN INCLUSION AND EXCLUSION PROCEEDINGS Q - What court has jurisdiction over inclusion and exclusion proceedings? A - The Municipal Trial Court and the Metropolitan Trial Courts shall have original and exclusive jurisdiction in their respective cities and municipalities. Q - Can the decision of said courts be appealed? A - Yes, as aforementioned. VOTES IN FAVOR OF A POLITICAL PARTY Q - Can qualified voters cast their votes in favor of a political party? A - Yes, if said political party in registered under the party list system. (Section 7, Article IX-C) Q - What is a party? A - A party means either a political party or a sectoral party or a coalition of parties. Q - Define the following: (a) political party; (b) sectoral party; and (c) coalition of parties? A - Political Party Apolitical party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates some of its leaders and members as candidates for public office. When is a political party a national party? It is a national party when its constituency is spread over the geographical territory of at least a majority of the regions. ##967 When is a political party a regional party? It is a regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. 284

Sectoral Party - A sectoral party refers to an organized group of citizens belonging to any of the following sectors; labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers and professionals, whose principal advocacy pertains to the special interest and concerns of their sector. Sectoral Organization - A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interest or concerns. Coalition - A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes. REGISTRATION IS NEEDED TO BE ABLE TO PARTICIPATE IN THE PARTY-LIST SYSTEM Q - What is the procedure? A - A group that likes to participate in the party-list system must file a verified petition in the Comelec stating its desire to participate in the party-list system, either as a national, regional, sectoral party or organization or a coalition of such parties or organizations. Q - What cannot be registered as political parties? A1. Religious denominations or sects; 2. Those who seek to achieve their goals through violence or unlawful means; 3. Those who refuse to uphold and adhere to the Constitution; and 4. Those supported by foreign governments. (Section 2[5], Article IX-C) Q - Can registration of any national, regional, sectoral party, organization or coalition be cancelled? A - Yes, on the following grounds: 1. It is a religious sect or denomination, organization or association organized for religious purposes; 2. It advocates violence or unlawful means to seek its goal; 3. It is a foreign party or organization; 4. It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members, or indirectly through third parties, for partisan election purposes; 5. It violates or fails to comply with laws, rules or regulations relating to elections; 6. It declares untruthful statements in its petition; 7. It has ceased to exist for at least one year; and 8. It fails to participate in the last two preceding elections, or fails to obtain at least 2% of the votes cast under the party-list system in the two preceding elections for the constituency in which it was registered. ##968 285

Q - Are political parties registered under the party-list system entitled to poll watchers? A - Yes, by express constitutional provision. (Section 8, Article IX-C) JUST AS THERE ARE QUALIFICATIONS AND DISQUALIFICATIONS TO QUALIFY A CITIZEN TO VOTE, THE CANDIDATES HAVE ALSO THEIR OWN QUALIFICATIONS AND DISQUALIFICATIONS Q - What is a candidate? A - Under the Omnibus Election Code, the term candidate refers to any person aspiring for or seeking an elective public office, who has filed a certificate or candidacy by himself or through an accredited political party, aggroupment, or coalition of parties. (B.P. Blg. 881, Section 79[a]) Q - What are the qualifications of a candidate? A - It depends on the position he is aspiring for. For President and Vice-President. Section 2, Article VII provides for the following qualifications: 1. He must be a natural-born citizen of the Philippines; 2. He must be a registered voter; 3. He must be able to read and write; 4. He must at least be forty years of age on the day of the election; 5. He must be a resident of the Philippines for at least ten (10) years immediately preceding such election. (Section 2, Article VII) Senators 1. A natural-born citizen of the Philippines; 2. Thirty-five years of age on the day of the election; 3. Able to read and write; 4. A resident of the Philippines for not less than two years immediately preceding the day of the election. (Section 3, Article VI) ##969 Members of the House of Representatives 1. A natural-born citizen of the Philippines; 2. Thirty-five years of age on the day of the election; 3. Able to read and write; 4. A resident in the district for a period of not less than one (1) year immediately preceding the day of the election. (Section 6, Article VI) Elective Local Officials 1. Must be a citizen of the Philippines; 2. A registered voter in the barangay, municipality, city or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panglungsod, or sangguniang bayan, in the district where he intends to be elected; 286

3. A resident therein for at least one (1) year immediately preceding the day of the election; 4. Able to read and write Filipino or any other local language; 5. A resident of the Philippines for not less than two years immediately preceding the day of the election. (Section 39[a] of Republic Act No. 7160, Local Government Code) Section 39(b), (c), (d), (e) and (f) provides as follows: "(b) Candidates for the position of governor, vice-governor, or member of the sangguniang panlalawigan, or mayor, vice-mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day. "(c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least be twenty-one (21) years of age on election day. "(d) Candidates for the position of member of the sangguniang panlungsod or sangguniang bayan must be at least eighteen (18) years of age on election day. "(e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least eighteen (18) years of age on election day. "(f) Candidates for the sangguniang kabataan must be at least fifteen (15) years of age but not more than twenty-one (21) years of age on election day. ##970 DISQUALIFICATIONS OF CANDIDATES Q - What are the disqualifications of a candidate? A - "Section 68. Disqualification - Any candidate who, in an action or protest in which he is 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." NOTE: 1. Section 80 - Election campaign or partisan political activity outside campaign period 2. Section 83 - Removal, destruction or defacement of lawful election propaganda 3. Section 85 - Prohibited forms or election propaganda 4. Section 86 - Regulation of election propaganda through mass media 287

5. Section 261 - Prohibited acts which are considered as election offenses. (Batas Pambansa Blg. 881) Q - Who are disqualified as candidates for local elective office? A - a) Those sentenced by final judgment for an offense punishable by one year or more of imprisonment and within two years after serving sentence. In Dela Torre vs. Comelec, G.R. No. 121592, July 5, 1996, it was held that probation simply suspends the execution of the sentence; it does not erase the disqualification brought about by the conviction of a crime involving moral turpitude. b) Those removed from office as a result of an administrative case. In Grego vs. Comelec, G.R. No. 125955, June 19, 1997, it was held that an elective local official who was removed from office as a result of an administrative case prior to January 1, 1992 (the date of effectivity of the Local Government Code), is not disqualified from running for an elective local public office, because Section 40 of the Local Government Code cannot be given retroactive effect. ##971 c) Those convicted by final judgment for violating the oath of allegiance to the Republic of the Philippines. d) Those with dual citizenship. e) Fugitives from injustice in criminal and non-political case here and abroad. A "fugitive from justice," as defined by the Supreme Court in Marquez vs. Comelec, 243 SCRA 538, "includes not only those who flee after conviction to avoid punishment, but likewise those who, after being charged, flee to avoid prosecution." Rodriguez cannot be considered a "fugitive from justice," because his arrival in the Philippines from the U.S. preceded the filing of the felony complaint in the Los Angeles Court and the issuance of the arrest warrant by the same foreign court, by almost five months. (Rodriguez vs. Comelec, G.R. No. 120099, July 24, 1996) f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of the [Local Government] Code; and g) Those who are insane and feeble-minded. CASES: 1. Probation does not erase disqualification resulting from conviction of a crime involving moral turpitude - Probation only suspends the execution of the sentence. (Dela Torre vs. Comelec, G.R. No. 121592, July 5, 1996) 2. Effect if an elective local official was removed from office on account of an administrative case prior to the date when the Local Government Code became effective - he is not disqualified from running for an elective local public office because Section 40 of the Local Government Code cannot be given retroactive effect. (Grego vs. Comelec, G.R. No. 125955, June 19, 1997). 3. The electoral aspect of a disqualification case is not rendered inutile by the death of the petitioner provided there is proper substitution or intervention of parties while there is a pending case. (Lanot vs. COMELEC, G.R. No. 164858, November 16, 2006) 288

Q - What is the requirement in order that a candidate shall be eligible for any public office? A - No person shall be eligible for an elective public office unless he files a sworn certificate of candidacy within the period fixed by the Omnibus Election Code. ##972 Q - Can a certificate of candidacy be withdrawn? A - Yes, by submitting a written declaration under oath that a candidate is withdrawing the same. NUISANCE CANDIDATES Q - What is the rationale behind the prohibition against nuisance candidates? A - The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bonafide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These practical difficulties should, of course, never exempt the State from the conduct of a mandated electoral exercise. The COMELEC further pointed out in its Comment (in the promulgation of Resolution No. 6558) that there is a need to limit the number of candidates especially in the case of candidates for national positions because the election process becomes a mockery if even those who cannot clearly wage a national campaign are allowed to run. EFFECT OF FILING CERTIFICATE OF CANDIDACY Q - What is the effect of the filing of a certificate of candidacy by a person taking a public appointive office or position? A - He shall be considered ipso facto resigned upon the filing of his certificate of candidacy. Q - What is the effect of the filing of a certificate of candidacy by any elective official? A - The same. Q - What is the effect of two (2) certificates of candidacy filed by Mr. A for two different offices? A - Mr. A becomes ineligible for either position. (Section 73, Batas Pambansa Big. 881) Q - Can Mr. A become eligible again? A - Yes, if Mr. A withdraws one of his certificates before the deadline for the filing of certificates of candidacy. He can do this by filing a sworn declaration with the Comelec before the said deadline. (Ibid.) ##973 289

Q - Mr. A, an official candidate of X Party, dies after the last day for the filing of certificates of candidacy. Can another person file a certificate of candidacy as a replacement of Mr. A? A - Yes, but said person must belong to X Party and certified by said party as its candidate. (Section 77, Batas Pambansa Big. 881) Q - A, a Vice-Mayor, became an acting Mayor after Mayor B was suspended. A subsequently filed his certificate of candidacy for the position of Mayor. Is A considered resigned as ViceMayor? A - Yes, because he is not holding the office of Mayor in a permanent capacity. Q - A filed a certificate of candidacy which contains a false representation that he possesses the required residency in the municipality where he is serving as Mayor when in truth and in fact, he is not a resident thereof. Can B, his political opponent, file a petition to deny course to said petition or to cancel A's certificate of candidacy? A - Yes, by express provision of Section 78, Batas Pambansa Blg. 881. Q - What is the procedure? A - B should file a verified petition not later than 25 days from the time of the filing of the certificate of candidacy. After due notice and hearing, it shall be decided not later than 15 days before the election. (Ibid.) Q - Where should said petition be filed? A - It should be filed with the Comelec in division, not with the Commission En Banc. Q - A filed his certificate of candidacy beyond the statutory period. His political opponent did not question it. He won. Later A's opponents questioned it. DECIDE. A - The technicality should have been raised before the election. It can be disregarded after the people have expressed their choice. (Collado vs. Alonzo, 15 SCRA 502 [1965]) Q - Can a candidate whose certificate of candidacy was cancelled and denied due course be substituted by another of the same party? A - No. The Court held in Miranda vs. Abaya (311 SCRA 617 [1999]) that a candidate whose certificate of candidacy has been cancelled or not given due course cannot be substituted by another belonging to the same political party. The Court applied the principle of expressio unius est exclusio alterius because when the law enumerated the occasions where a candidate may be validly substituted, no mention was made of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. (Ong vs. Alegre, G.R. Nos. 163295, 163354, January 23, 2006) ##974 PRECINCTS AND POLLING PLACES Q - How many election precincts should there be in every barangay? 290

A - Every barangay shall have at least one (1) election precinct. (Section 41, Batas Pambansa Blg. 881) Q - May the commission introduced adjustments, changes, or new divisions, or abolish election precincts? A - The commission may do so if necessary, provided however, that the territory comprising an election precinct shall not be altered or a new precinct established within 45 days before a regular election and 30 days before a special election or a referendum or plebiscite. (Section 149, Batas Pambansa Blg. 881) Q - How many voters shall there be in an election precinct? A - Each election precincts contains more than three hundred voters and shall comprise, as far as practicable, contiguous and compact territory. (Section 150, Batas Pambansa Blg. 881) Q - Can the Commission divide a precinct when there are more than 300 voters in an election precinct? A - Yes, in the interest of an orderly election and in order to facilitate the casting of votes, but the polling place of all the precincts shall be located in the same building or compound where the polling place of the original precinct is located, and if this is not feasible, in a place as close as possible to the polling place of the original precinct. (Section 150[b], B.P. 881) BALLOT BOXES Q - How many ballot boxes shall there be in each polling place? A - There shall be in each polling place on the day of the voting a ballot box one side of which shall be transparent which shall be set in a manner visible to the voting public containing two compartments, namely, the compartment for valid ballots which is indicated by an interior cover painted white and the compartment for spoiled ballots which is indicated by an interior cover painted red. (Section 160[a], Batas Pambansa Blg. 881) Q - Are all ballot boxes uniform throughout the Philippines? A - Yes, and they shall be solidly constructed and shall be closed with three different locks as well as three numbered security locks and such other safety devices as the Commission may prescribe in such a way that they can not be opened except by means of three distinct keys and by destroying such safety devices. (Section 160, Batas Pambansa Blg. 881) ##975 WATCHERS Q - Who appoints the watchers? A - Each candidate and political party or coalition of political parties duly registered with the Commission and fielding candidates in the May 11, 1998 elections including those participating under the party-list system or representation, may appoint the watchers, to serve alternately, in every polling place. 291

Q - How many watchers can be appointed? A - Two watchers, to serve alternately, in every polling place. However, candidates for Sangguniang Panlalawigan, Sangguniang Panglugsod and Sangguniang Bayan, belonging to the same ticket or slate shall collectively be entitled to one watcher. Duly accredited citizens' arms of the Commission shall be entitled to appoint a watcher in every polling place. Other civic, religious, professional, business, service, youth and any other similar organizations, with prior authority from the Commission, shall be entitled collectively to appoint one watcher in every polling place. Q - What are the qualifications of the watchers? A - Qualified voter of the city or municipality, of good reputation, never been convicted of any election offense or any crime, knows how to read and write English, Filipino, or any of the prevailing local dialects, and not related within the 4th civil degree by consanguinity or affinity to any member of the BEI in the polling place where he seeks appointment as watcher. Q - What are the rights and duties of the watchers? A(1) Stay in the space reserved for them inside the polling place; (2) Witness and inform themselves of the proceedings of the BEI; (3) Take notes; photographs of proceedings; (4) File protest against any irregularity or violation of law; (5) Be furnished with a certificate of the number of votes cast for each candidate, duly signed and thumbmarked by the members of the BEI. Q - Who are entitled to watchers? A - Every registered political party, coalition of political parties and every independent candidate shall each be entitled to one watcher in every polling place. (Section 178, first sentence, Batas Pambansa Blg. 881) Q - Who may be appointed as watcher? A - No person shall be appointed watcher unless he is a qualified voter of the city or municipality, of good reputation and shall not have been convicted by final judgment of any election offense or of any other crime, must know how to read and write Filipino, English, Spanish or any of the prevailing local dialects, and not related within the fourth civil degree of consanguinity or affinity to the chairman or any member of the board of election inspectors in the polling place where he seeks appointment as a watcher. (Section 178, second sentence, Batas Pambansa Blg. 881) ##976 Q - Who are the other watchers who may be appointed? A - The duly accredited citizens arm of the Commission shall be entitled to appoint a watcher in every polling place. Other civic, religious, professional, business, service, youth and any other similar organizations, with prior authority of the Commission, shall be entitled 292

collectively to appoint one watcher in every polling place. (Section 180, Batas Pambansa Blg. 881) PETITION TO DENY DUE COURSE TO OR TO CANCEL A CERTIFICATE OF CANDIDACY Q - Who may file this petition and on what ground may it be filed? A - It may be filed by any person exclusively on the ground that any material representation contained in the certificate of candidacy is false. Q - When may it be filed? A - It may be filed at any time not later than 25 days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later that 15 days before the election. CAMPAIGN: ELECTION PROPAGANDA Q - What is election campaign or partisan political activity? A - The term election campaign or partisan political activity refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office. It includes forming organizations or groups of persons, holding political caucuses, meetings, rallies or other similar assemblies, making speeches or commentaries, and publishing or distributing campaign literature or materials for the purpose of soliciting votes and/or undertaking any campaign or propaganda to support or oppose the election of any candidate. It does not include public expressions of opinions or discussion of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention. (Batas Pambansa Blg. 881, Section 79) ##977 Q - What are the prohibited acts? A(1) It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period. (Batas Pambansa Blg. 881, Section 80) (2) It shall be unlawful for any foreigner, whether juridical or natural person, to aid any candidate or political party, directly or indirectly, or take part in or influence in any manner any election, or to contribute or make any expenditure in connection with any election campaign or partisan political activity. (Batas Pambansa Blg. 881, Section 81) (3) It shall be unlawful for any person during the campaign period to remove, destroy, obliterate, or in any manner deface or tamper with, or prevent the distribution of lawful election propaganda. (Batas Pambansa Blg. 881, Section 83) (4) It shall be unlawful for any candidate, political party, organization, or any person to give or accept, free of charge, directly or indirectly, transportation, food or drinks or things of value during the five (5) hours before and after a public meeting, on the day preceding the election, 293

and on the day of the election; or to give or contribute, directly or indirectly, money or things of value for such purpose. (Batas Pambansa Blg. 881, Section 84) Q - What is lawful election propaganda? A - Lawful election propaganda shall include: (1) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches in width and fourteen inches in length; (2) Handwritten or printed letters urging voters to vote for or against any particular candidate; (3) Cloth, paper or cardboard posters, whether framed or posted, with an area exceeding two feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three feet by eight in size, shall be allowed. However, said streamers may not be displayed except one week before the date of meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or (4) All other forms of election propaganda not prohibited by the Omnibus Election Code as the Commission on Elections may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard. The Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted. (Batas Pambansa Big. 881, Section 82) Q - What are the prohibited forms of election propaganda? A - It shall be unlawful: ##978 (1) To print, publish, post or distribute any poster, pamphlet, circular, handbill, or printed matter urging voters to vote for or against any candidate unless they bear the names and addresses of the printer and payor as required in Section 84; (2) To erect, put up, make use of, attach, float or display any billboard, tinplate-poster, balloons and the like, of whatever size, shape, form or kind, advertising for or against any candidate or political party; (3) To purchase, manufacture, request, distribute or accept electoral propaganda gadgets, such as pens, lighters, fans of whatever nature, flashlights, athletic goods or materials, wallets, shirts, hats, bandanas, matches, cigarettes and the like, except that campaign supporters accompanying a candidate shall be allowed to wear hats and/or shirts or T-shirts advertising a candidate; (4) To show or display publicly any advertisement or propaganda for or against any candidate by means of cinematography, audio-visual units or other screen projections except telecasts which may be allowed under certain conditions; and (5) For any radio broadcasting or television station to sell or give free of charge air time for campaign and other political purposes except as authorized in the Code under the rules and regulations promulgated by the Commission pursuant thereto. 294

Any prohibited election propaganda gadget or advertisement shall be stopped, confiscated or torn down by the representative of the Commission upon specific authority of the Commission. (Batas Pambansa Blg. 881, Section 85) CONTRIBUTIONS Q - What is included in the term "contribution"? A - As used in the Omnibus Election Code, the term contribution includes a gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute, whether or not legally enforceable, made for the purpose of influencing the results of the elections but shall not include services rendered without compensation by individuals volunteering a portion or all of their time in behalf of a candidate or political party. It shall also include the use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area. (Batas Pambansa Blg. 881, Section 94[a]) Q - What are the prohibited contributions? A - No contribution for purposes of partisan political activity shall be made directly or indirectly by any of the following: ##979 (1) Public or private financial institutions. However, they are not prohibited from making any loan to a candidate or political party if they are legally in the business of lending money, and that the loan is made in accordance with laws and regulations and in the ordinary course of business; (2) Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation; (3) Natural and juridical persons who hold contracts or sub-contracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works; (4) Natural and juridical persons who have been granted franchises, incentives, exceptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including government-owned or controlled corporations; (5) Natural and juridical persons who, within one (1) year prior to the date of the election, have been granted loans in excess of P25,000 by the government or any of its divisions, subdivisions or instrumentalities including government-owned or controlled corporations; (6) Educational institutions which have received grants of public funds amounting to no less than P100,000.00; (7) Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines; and (8) Foreigners and foreign corporations. (Batas Pambansa Blg. 881, Section 94[b]) EXPENDITURES Q - How much is the allowable expenditure of a candidate or registered political party? 295

A - Section 13, Republic Act No. 7166 provides that for the 1992 synchronized elections, the aggregate amount that a candidate or registered political party may spend for election campaign shall be as follows: (a) For candidates: P10 for President and Vice-President; and for other candidates P3.00 for every vote currently registered in the constituency where he filed his certificate of candidacy; Provided, that a candidate without any political party and without support from any political party may be allowed to spend P5.00 for every such voter; and (b) For political parties: P5.00 for every voter currently registered in the constituency or constituencies where it has official candidates. ##980 STATEMENT OF CONTRIBUTIONS AND EXPENSES Q - Who shall file this and when shall this be filed? A - Every candidate and treasurer of the political party shall, within 30 days after the day of the election, file in duplicate with the offices of the Commission, the full, true and itemized statement of all contributions and expenditures in connection with the election. (1) No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required. The same prohibition shall apply if the political party that nominated the winning candidate fails to file the statement required herein. (2) Except candidates for elective barangay office, failure to file the statements or reports in connection with electoral contributions and expenditures as required shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from P1,000 to P30,000, in the discretion of the Commission. The fine shall be paid within 30 days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender. For the commission of a second or subsequent offense the administrative fine shall range from P2,000 to P60,000, in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office. Q - Are candidates who withdraw after the filing of certificates of candidacies required to comply with the filing of the said statement of all contributions and expenditures? A - Yes, as decided in Pilar vs Comelec 245 SCRA 759. REASON: Section 14 of Republic Act No. 66 does not make any distinction. PART II. DURING THE ELECTIONS CASTING OF VOTES Voting Hours 7 a.m. to 3 p.m., except when there are voters present within thirty meters in front of the polling place who have not yet cast their votes, in which case the voting shall continue but only to allow said voters to cast their votes without interruption. ##981 Q - When this happens, what shall the poll clerk do? 296

A - The poll clerk shall, without delay, prepare a complete list containing the names of said voters consecutively numbered, and the voters so listed shall be called to vote by announcing each name repeatedly three times in the order in which they are listed. Any voter in the list who is not present when his name is called out shall not be permitted to vote. Q - What shall the BE! do before the voting? A(1) It shall meet at the polling place at 6:30 a.m. in of election day and shall have the book of voters containing all the approved applications of registration of voters pertaining to the polling place, the certified list of voters, the certified list of candidates, the ballot box, the official ballots, sufficient indelible pencils or ballpens for the use of the voters, the forms to be used, and all other materials which may be necessary. (2) Immediately thereafter, the chairman of the BET shall open the ballot box, empty both of its compartments, exhibit them to all those present and being empty, lock its interior covers with three padlocks. (3) The chairman shall forthwith show to the public and the watchers present the package of official ballots received from the city, or municipal treasurer duly wrapped and sealed and the number of pads, the serial numbers and the type of forms of the ballots in each pad appearing on the cover, and the book of voters duly sealed. The BET shall then break the seals of the package of official ballots and the book of voters. The BET shall then enter in the minutes the fact that the package of ballots, and the book of voters were shown to the public with their wrapping and corresponding seals intact and/or if they find that the wrapping and seals are broken, such fact must be stated in the minutes as well as the number of pads and the serial numbers of ballots that they find in the package. Ballots with separately printed serial numbers shall be deemed spurious and shall not be utilized by the board of election inspectors unless the Commission representative shall order their use in writing, stating the reasons therefor. (4) The chairman and the two party members of the BEI shall retain in their possession their respective keys to the padlocks during the voting. (5) The box shall remain locked until the voting is finished and the counting begins. However, if it should become necessary to make room for more ballots the BET may open the box in the presence of the whole board of election inspectors and watchers, and the chairman shall press down with his hands the ballots contained therein without removing any of them, after which the board of election inspectors shall close the box and lock it with three padlocks as herein before provided. Section 191 Preliminaries to the voting (See Section 15 of Republic Act No. 6646 and Section 24 of Republic Act No. 7168 for additional requirements) ##982 Q - Who are allowed in and around the polling place during the voting? A - No person shall be allowed in and around the polling place during the voting EXCEPT: The members of the BEI, the watchers, the representatives of the Commission, the voters casting their votes, the voters waiting for their turn to get inside the booths whose number shall 297

not exceed twice the number of booths and the voters waiting for their turn to cast their votes whose number shall not exceed twenty at any one time. Q - How about the watchers? A - They shall stay only in the space reserved for them, it being illegal for them to enter places reserved for the voters or for the BEI or to mingle and talk with the voters within the polling place. Q - How about the officers or members of the AFP, PC, INP, or peace officer or any armed person belonging to any extra-legal police agency, special forces, etc.? A - It shall be unlawful for them to enter any polling place, UNLESS it is his polling place where he will vote but in such case he should immediately leave the polling place. Q - Can any policeman or peace officer be allowed to enter or stay inside the polling place? A - No, except when there is an actual disturbance of the peace and order therein. However, the BEI, upon majority vote, if it deems necessary, may make a call in writing, duly entered in the minutes, for the detail of a policeman or any peace officer for their protection or for the protection of the election documents and paraphernalia, in which case, the said policeman or peace officer shall stay outside the polling place within a radius of thirty meters near enough to be easily called by the BEI at any time, but never at the door, and in no case shall the said policeman or peace officer hold any conversation with any voter or disturb or prevent or in any manner obstruct the free access of the voters of the polling place. It shall likewise be unlawful for any barangay official to enter and stay inside any polling place except to vote or except when serving as a watcher or member of the board of election inspectors, in which case, he shall leave the polling place immediately after voting. (Batas Pambansa Blg. 881, Section 192) ##983 Q - Can an illiterate or physically unable person be assisted in the preparation of his ballot? A - Yes, by express provision of Section 196. He can be assisted by his relative, by affinity or consanguinity within the fourth civil degree or if he has none, by any person of his confidence who belong to the same household or any member of the board of election inspectors, except the two party members: Provided, that no voter shall be allowed to vote as illiterate or physically disabled unless it is so indicated in his registration record: Provided, further, that in no case shall an assistor assist more than three times except the non-party members of the BEI. The person thus chosen shall prepare the ballot for the illiterate or disabled voter inside the voting booth. The person assisting shall bind himself in a formal document under oath to fill out the ballot strictly in accordance with the instructions of the voter and not to reveal the contents of the ballot prepared by him. Violation of this provision shall constitute an election offense. (Batas Pambansa Blg. 881, Section 196) Q - What shall be done if a voter should accidentally spoil or deface a ballot in such a way that it cannot lawfully be used? 298

A - He shall surrender it folded to the chairman who shall note in the corresponding space in the voting record that said ballot is spoiled. The voter shall then be entitled to another ballot which the chairman shall give him after announcing the serial number of the second ballot and recording said serial number in the corresponding spaces in the voting record. If the second ballot is again spoiled or defaced in such a way that it cannot lawfully be used, the same shall be surrendered to the chairman and recorded in the same manner as the first spoiled or defaced ballot. However, no voter shall change his ballot more than twice. The spoiled ballot shall, without being unfolded and without removing the detachable coupon, be distinctly marked with the word "spoiled" and signed by the BEI on the endorsement fold thereof and immediately placed in the compartment for spoiled ballots. (Section 197, Batas Pambansa Blg. 881) Q - Can illegal voters be challenged by any voter or watcher? A - Yes. Any voter or watcher may challenge any person offering to vote for not being registered, for using the name of another or suffering from existing disqualification. In such case, the board of election inspectors shall satisfy itself as to whether or not the ground for the challenge is true by requiring proof of registration or the identity of the voter. Q - What are the other grounds upon which the challenged may be based? A - (a) That the challenged person has received or expects to receive, has paid, offered or promised to pay, has contributed, offered or promised to contribute money or anything of value as consideration for his vote or for the vote of another; and (b) That he has made or received a promise to influence the giving or withholding of any such vote or that he has made a bet or is interested directly or indirectly in a bet which depends upon the result of the election. (Section 200, Batas Pambansa Blg. 881) ##984 Q - Who shall take the prescribed oath before the BEI? A - The challenged person shall take a prescribed oath before the BEI that he has not committed any of the acts alleged in the challenge. Upon the taking of such oath, the challenged shall be dismissed and the challenged voter shall be allowed to vote, but in case of his refusal to take such oath, the challenged shall be sustained and he shall not be allowed to vote. RECORDS OF CHALLENGES AND OATHS Q - What shall the poll clerk do in connection with the challenges and oaths? A - The poll clerk shall keep a prescribed record of challenges and oaths taken in connection therewith and the resolution of the board of election inspectors in each case and, upon the termination of the voting, shall certify that it contains all the challenges made. The original of this record shall be attached to the original copy of the minutes of the voting as provided in the succeeding section. (Section 202, Batas Pambansa Blg. 881) MINUTES OF VOTING AND COUNTING OF VOTES Q - What are contained in the minutes of voting in the counting of votes? 299

A - The board of election inspectors shall prepare and sign a statement in four copies setting forth the following: 1. The time the voting commenced and ended; 2. The serial numbers of the official ballots and election returns, special envelopes and seals received; 3. The number of official ballots used and the number unused; 4. The number of voters who cast their votes; 5. The number of voters challenged during the voting; 6. The names of the watchers present; 7. The time the counting of votes commenced and ended; 8. The number of official ballots found inside the compartment for valid ballots; 9. The number of official ballots, if any, retrieved from the compartment for spoiled ballots; 10. The number of ballots, if any, found folded together; 11. The number of spoiled ballots withdrawn from the compartment for valid ballots; 12. The number of excess ballots; 13. The number of marked ballots; 14. The number of ballots read and counted; 15. The time the election returns were signed and sealed in their respective special envelopes; 16. The number and nature of protests made by watchers; and 17. Such other matters that the Commission may require. ##985 PART III. AFTER THE ELECTIONS COUNTING OF VOTES Q - What shall the BEI do after the voting is finished? A - As soon as the voting is finished, the BEI shall publicly count in the polling place the votes cast and ascertain the results. The BEI shall not adjourn or postpone or delay the count until it has been fully completed, unless otherwise ordered by the Commission. The Commission, in the interest of free, orderly, and honest elections, may order the BEI to count the votes and to accomplish the election returns and other forms prescribed under this Code in any other place within a public building in the same municipality or city: Provided, that the said public building shall not be located within the perimeter of or inside a military or police camp or reservation nor inside a prison compound. (Section 206, Batas Pambansa Blg. 881) Q - Can the counting of votes be transferred to a safer place? A - Yes. If on account of imminent danger of violence, terrorism, disorder or similar causes it becomes necessary to transfer the counting of votes to a safer place, the board of inspectors may effect such transfer by unanimous approval by the board and concurrence by the majority of the watchers present. This fact shall be recorded in the minutes of voting and the members of the boards and the watchers shall manifest their approval or concurrence by affixing their signatures therein. The Commission shall issue rules and guidelines on the matter to secure the safety of the members of the board, the watchers, and all election documents and paraphernalia. (Section 18, Republic Act No. 6646) ##986 300

Q - What shall the BEI do before proceeding to count the votes? A - Before proceeding to count the votes, the BEI shall count the ballots in the compartment for valid ballots without unfolding them or exposing their contents, except so far as to ascertain that each ballot is single, and compare the number of ballots in the box with the number of voters who have voted. If there are excess ballots, they shall returned in the box and thoroughly mixed therein, and the poll clerk, without seeing the ballots and with his back to the box, shall publicly draw out as many ballots as may be equal to the excess and without unfolding them, place them in an envelope which shall be marked "excess ballots" and which shall be sealed and signed by the members of the BEI. The envelope shall be placed in the compartment for valid ballots, but its contents shall not be read in the counting of votes. If in the course of the examination of ballots are found folded together before they were deposited in the box, they shall be placed in the envelope for excess ballots. In case ballots with their detachable coupons be found in the box, such coupons shall be removed and deposited in the compartment for spoiled ballots, and the ballots shall be included in the file of valid ballots. If ballots with the words "spoiled" be found in the box, such ballots shall likewise be placed in the compartment for spoiled ballots. (Section 207, Batas Pambansa Blg. 881) Q - What else shall the BEI do? A - It shall determine whether there are any marked ballots. Q - If there are marked ballots, what shall the BEI do? A - The BEI shall place the "marked ballots" in an envelope labeled "marked ballots" which shall be sealed and signed by the members of the board of election inspectors and placed in the compartment for valid ballots and shall not be counted. A majority vote of the BEI shall be sufficient to determine whether the ballot is marked or not. Non-official ballots which the board of election inspectors may find, except those which have been used as emergency ballots, shall be considered as marked ballots. (Section 208, Batas Pambansa Blg. 881) Q - What is the manner of counting votes? A - The counting of votes shall be made in the following manner: 1. The BEI shall unfold the ballots and form separate piles of one hundred ballots each, which shall be held together with rubber bands, with cardboard of the size of the ballots to serve as folders. 2. The chairman of the BEI shall take the ballots of the first pile one by one and read the names of candidates voted for and the offices for which they were voted in the order in which they appear thereon, assuming such a position as to enable all of the watchers to read such names. 3. The chairman shall sign and affix his right hand thumbmark at the back of the ballot immediately after it is counted. ##987 4. The poll clerk, and the third member, respectively, shall record on the election returns and the tally board or sheet each vote as the names voted for each office are read. 301

5. Each vote shall be recorded by a vertical line, except every fifth vote which shall be recorded by a diagonal line crossing the previous four vertical lines. 6. One party member shall see to it that the chairman reads the vote as written on the ballot, and the other shall check the recording of the votes on the tally board or sheet and the election returns seeing to it that the same are correctly accomplished. 7. After finishing the first pile of ballots, the BEI shall determine the total number of votes recorded for each candidate, the sum being noted on the tally board or sheet and on the election returns. In case of discrepancy such recount as may be necessary shall be made. 8. The ballots shall then be grouped together again as before the reading. 9. Thereafter, the same procedure shall be followed with the second pile of ballots and so on successively. 10. After all the ballots have been read, the BEI shall sum up the totals recorded for each candidate, and the aggregate sum shall be recorded both on the tally board or sheet and on the election returns. It shall then place the counted ballots in an envelope provided for the purpose, which shall be closed signed and deposited in the compartment for valid ballots. The tally board or sheet as accomplished and certified by the board of election inspectors shall not be changed or destroyed but shall be kept in the compartment for valid ballots. (Section 210, Batas Pambansa Blg. 881) BOARD OF ELECTION INSPECTORS (BEI) Q - What are the powers of the BEI? A(1) To conduct the voting and counting of votes in the polling place; (2) To act as deputies of the Comelec in supervision and control of the polling place; (3) To maintain order within the polling place and its premises to keep access thereto open and unobstructed and to enforce obedience to its lawful orders; and (4) To perform such other functions as prescribed by the Code or by the rules of the Comelec. ##988 Q - What is the composition of the BEI? A - A chairman, a member and poll clerk, who must be public school teachers. Q - What are the qualifications of the BEI? A - A member must be of good moral character and irreproachable reputation, a registered voter of the City or municipality, never been convicted of any election offense or any other crime punishable by more than 6 months imprisonment, able to speak and write English or the local dialect. Q - What are the disqualifications of the BEI? A(a) Must not be related within the 4th civil degree by consanguinity or affinity to any member of the BEI or to any candidate to be voted for in the polling place. (b) Must not engage in any partisan political activity. 302

Q - Describe the proceedings of the BEI. A - It shall be public and held only in the polling place (although the counting of votes and preparation of the return may be done in the nearest safe barangay or school building within the municipality by unanimous vote of the board and concurred in by a majority of the watchers present, if there is imminent danger of violence, terrorism, disorder or similar causes). The BEI shall act through its Chairman, and shall decide without delay by majority vote all questions which may arise in the performance of its duties. BALLOTS Q - What are the different kinds of ballots? A1. Official ballots for national and local elections, regular or special, plebiscites and referendum. The same shall be of uniform size and shall be prescribed by the Commission. (Section 23, Republic Act No. 7166) 2. A different form of official ballot on the same watermarked security paper to facilitate voting by illiterate voter. (Section 23[e], Republic Act No. 7166) 3. Official ballot for cities and municipalities where arabic is of general use. (Section 23[d], Republic Act No. 7166) 4. Official sample ballots (Section 185, Batas Pambansa Blg. 881) Q - Can the Commission prescribe a different form of official ballot? A - The Commission is hereby empowered to prescribe a different form of ballot to facilitate voting by illiterate voters and to use or adopt the latest technological and electronic devices as authorized under paragraph (i) of Section 52 hereof. ##989 Q - Can other ballots be used other than the official ballots? A - No ballots other than the official ballots shall be used or counted. EXCEPTIONS: (1) Except if there is failure to receive the official ballots on time; (2) Where there are no sufficient ballots for all registered voters; or (3) Where they are destroyed at such time as shall render it impossible to provide other official ballots. IN SAID CASES, WHAT SHALL THE CITY OR MUNICIPAL TREASURER DO? The city or municipal treasurer shall provide other ballots which shall be similar to the official ones as circumstances will permit and which shall be uniform within each polling place. The treasurer shall immediately report such action to the Commission. The municipal treasurer shall not undertake the preparation of the emergency ballots unless the political parties, candidates and the organizations collectively authorized by the Commission to designate watchers have been sufficiently notified to send their representatives and have agreed in writing to the preparation and use of emergency ballots. Q - What shall the Commission provide the BEI? 303

A - The Commission shall provide the board of election inspectors with official sample ballots at the rate of thirty (30) ballots per polling place. Q - What are the limitations imposed by Section 185 of Batas Pambansa Blg. 881? A(1) The official sample ballots shall be printed on colored paper, in all respects like the official ballots but bearing instead the words "Official Sample Ballot" to be shown to the public and used in demonstrating how to fill out and fold the official ballots properly. (2) No name of any actual candidate shall be written on the spaces for voting on the official sample ballots provided by the Commission, nor shall they be used for voting. Section 185. (As amended by Republic Act No. 7904 "An Act Amending Section 185 of the Omnibus Election Code, as amended, by requiring the Commission on Elections to furnish every Registered Voter at least thirty (30) days before an Election with an Official Sample Ballot, Voters Information Sheet and List of Candidates. "Approved February 23, 1995) APPRECIATION OF BALLOTS Q - What is the guiding rule in the reading and appreciation of ballots? A - Every ballot shall be presumed to be valid unless there is clear and good reasons to justify its rejection. ##990 Q - What are the other basic rules to remember? A1. In the appreciation of the ballots, the object should be to ascertain and carry into effect the intention of the voter, if it could be determined with reasonable certainty. (Ferin vs. Gonzales, 53 SCRA 237 [1973]) 2. Outmost liberality must be observed in reading the ballot in order not to defeat the intention of the voters. 3. Technical rule should not be permitted to defeat the intention of the voter, if that intention is discernible from the ballot itself and not from evidence aliunde. 4. Extreme caution should be observed before a ballot is invalidated and doubts are to be resolved in favor of their validity. (Inting vs. Clarin, 21 SCRA [1967]; Silverio vs. Castro, 19 SCRA 520 [1967]) Q - Section 211 of Batas Pambansa Blg. 881 enumerates the different rules for the appreciation of ballots. Simplify the rules and give examples. RULES FOR APPRECIATION OF BALLOTS: 1. If only the first name or surname is written The vote for such candidate is valid, if there is no other candidate with the same first name or surname for the same office. Q - If there are two or more candidates having the same first name or surname, and only the first name or surname is written in the ballot. Is that a valid vote? 304

A - It is not a valid vote for any of the candidates. In order that the vote may be counted, the voter should add the correct name, surname or middle initial that will identify the candidate for whom he is voting. (Gonzaga vs. Seno, 7 SCRA 741 [1963]) 2. If the first name of the candidate is the surname or sound similar to the surname of the other candidate, the voter writes only said first name. Q - In whose favor should that vote be counted? A - It should be counted in favor of the candidate whose surname corresponds to the word. (Section 211[2], first sentence) Q - If there are two or more candidates, one of whom is an incumbent whose full name, first name, or surname is the same as the full name, first name or surname of the other candidate or candidates. Example: The name of the incumbent is Marcelo Suarez. The names of other candidates are Marcelo Suarez, Marcelo Arevalo, and Suarez, Marcelo. The voter voted for Marcelo Suarez. Another voter voted for Marcelo. Another voter voted for Suarez. In whose favor should the said votes be counted? A - The vote for Marcelo Suarez will be counted for the incumbent candidate. The vote for Marcelo will be counted in favor of the incumbent candidate. ##991 3. If candidate is a woman using maiden or married surname or both which is the same surname of incumbent, and what was written in the ballot is only such surname. Q - In whose favor shall the said vote be counted? A - It shall be counted in favor of the candidate who is the incumbent. (Rule 3, Section 211, Batas Pambansa Blg. 881) Q - If the ballot contains only the maiden surname of a candidate and if there is another candidate bearing the same surname, in whose favor shall the said vote counted? A - It shall be counted in her favor. 4. If two or more words are surnames of two or more candidates. Example: Delos Reyes are written in the line for Governor and there are two candidates whose names are Mario Delos Reyes and Pedro Delos Reyes. Q - In whose favor shall the said vote be counted? A - The ballot cannot be counted for either except when Pedro Delos Reyes is an incumbent, in which case it will be counted in his favor. Q - If there are two or more words written on different line on the ballot all of which are the surnames of two or more candidates bearing the same surname for an office for which the law authorizes the election of more than one and there are candidates with that surname, in whose favor shall the said vote be counted? A - The vote shall be counted in favor of all the candidates bearing the surname. (Section 211[4], second paragraph, Batas Pambansa Blg. 881) 305

5. If what is written in the ballot is the first name of a candidate which is at the same time is the surname of his opponent. Q - The word Albert is written on line for mayor, and the other candidates for mayor are Joey Albert and Albert Francisco. In whose favor is the ballot be counted? A - The ballot is counted in favor of Joey Albert. 6. When two words are written on the ballot, one of which is the first name and the other is the surname of his opponent. Q - The words written are "Ninoy Aquino" and the candidates for vice-mayor are Ninoy Segovia and Juan Aquino, in whose favor shall the ballot be counted? A - The ballot shall not be counted for either. ##992 7. IDEM SONAM RULE. Example: A name or surname is incorrectly written but when it was read it has a sound similar to the name or surname of a candidate when correctly written. This means that if the name as spelled in the ballot, although different from its orthographically correct spelling, sounds practically the same when pronounced, according to our methods of pronunciation, it is sufficient designation of the individual to whom if refers, and the error of the writer must not be taken into account. 8. If the name of a candidate is written twice. Q - If the name of the candidate is repeated twice, one in the space of the ballot for an office for which he is a candidate, and in another space for which he is not a candidate, will this invalidate the ballot? A - This will not invalidate the ballot. The vote in the correct space will be counted in his favor and the other shall be considered as stray EXCEPT if it is established that it is used as a means to identify the voter. In this case, the whole ballot shall be void. Example: The name of the candidate for governor was written twice, one on the line for governor and the other line for vice-governor. In this case, the vote for the office of governor shall be counted and the vote for vice-governor shall be considered be strayed vote. 9. If name is erased and another is clearly written. Q - In a space in the ballot, there appears a name of candidate that is erased and another was clearly written. Is the vote valid? A - The vote is valid with respect to the same that was clearly written. 10. Erroneous initial Q - An initial of the first name accompanies the correct surname of a candidate, or that the erroneous middle initial of the candidate. Will this annul the vote in favor of the latter? A - This shall not annul the vote in favor of the latter.

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Q - "Benito G. Mauleon" is a candidate for mayor. The voter wrote "A. Mauleon" on the ballot or "Benito U." or "Benito U. Mauleon." Is the vote valid? A - Any of the said votes is valid and will be counted in favor of Benito G. Mauleon. 11. If name of a non-candidate is the same as the first name or surname of the candidate. Q - Shall the said vote be counted? A - Section 211 [11] provides that "it shall not prevent the adjudication of the vote of the latter." 12. Ballots containing prefixes or suffixes. ##993 Q - Ballots contain prefixes like "Lakay," "Manong," "Dodo," "Don," "Doña," "Senorita" will invalidate the ballot? A - The use of any of the said prefixes does not invalidate the ballot except they are used as an identifying marks. Example: If the prefix "Atty." is used and written before the name of a candidate who is not an attorney, twice in one polling place and once in another, it shows a pattern or system to mark and identify the ballot. Hence, invalid. (Silverio vs. Castro, 19 SCRA 520 [1967]) 13. If nicknames and appellations of affection and friendship are used. Q - In Parañaque City, Councilor Fedelino Benzon, Jr. is publicly known as "Daddy Jun Benzon." If the voter writes the same in the ballot, does it annul the vote in favor of Fedelino Benzon? A - No, except if it was used as a means to identify the voter. In the same manner, the writing of a word which is merely descripto personae does not invalidate the ballot. Hence, "Barakong Indo," "Kabayan Noli de Casto," "Bomba Arienda" are more of a descripto personae than that of an identification mark. 14. If a vote contains initials only or which is illegible or which does' not sufficiently identify the candidate for whom it is intended. Q - Shall the vote be counted? A - The said vote shall be considered as stray vote but shall not invalidate the whole ballot. 15. If the first name of the candidate is correctly written in the ballot using a different surname and that the surname of the candidate is correctly written but wrote a different first name. Q - Will the said vote be counted? A - Section 211 [15] provides that the said vote shall not be counted in favor of any candidate having such first name and/or surname but the ballot shall be considered valid for other candidates. 16. Ballot written with crayon, lead pencil, or in ink. Q - Is the ballot counted? A - It is valid.

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17. If there are two or more candidates voted for in an office for which the law authorizes the election of only one. Q - Shall the said vote be counted? A - It shall not be counted in favor of any of them, but this shall not affect the validity of the other votes therein. ##994 18. If the candidates voted for exceed number of those to be elected. Q - Is the ballot valid? A - Yes. But the votes shall be counted only in favor of the candidates whose names were firstly written by the voter within the spaces provided for said office in the ballot until the authorized number is covered. 19. If there is a vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself. Q - Shall that invalidate the whole ballot? A - The said vote shall be considered as a stray vote but it shall not invalidate the whole ballot. 20. If a ballot contains the name of a candidate printed and pasted on a blank space of the ballot or affixed thereto through any mechanical process. Q - Is the said ballot valid? A - It is totally "null and void." 21. If circles, crosses or lines put on the spaces on which the voter has not voted. Q - Will the said vote be counted? A - They shall be considered as signs to indicate his desistance from voting and shall not invalidate the ballot. 22. If there are commas, dots, lines, or hyphens between the first name and surname of a candidate, or in other parts of the ballot, or if there are accidental flourishes. Q - Shall this invalidate the ballot? A - It shall not invalidate the ballot. 23. If a ballot clearly appears to have been filled. Q - Will the said ballot be counted? A - It is totally null and void. 23. If a candidate who has been disqualified by final judgment was voted for. Q - Shall the said vote be counted and shall it invalidate the ballot? A - It is considered as stray and shall not be counted but it shall not invalidate the ballot. 24. Ballots wholly written in localities where it is of general use in provinces. Q - Is the said ballot valid? 308

A - Yes. To read them, the BEI may employ an interpreter who shall take an oath that he shall read the votes correctly. ##995 25. Accidental tearing or perforation of a ballot. Q - Does this annul the ballot? A - It does not annul the ballot. 27. If there is a failure to remove the detachable coupon from a ballot. Q - Does this annul the ballot? A - It does not annul the ballot. 286. A vote for the President shall also be a vote of the Vice-President running under the same ticket of a political party. EXCEPTION: Unless the voter votes for a Vice-President who does not belong to such party. 29. If a disqualified candidate is voted for. Q - If a candidate is declared disqualified by final judgment before the election, will votes cast in his favor be counted? A - No. Any vote cast in favor of a candidate already disqualified by final judgment shall not be counted and shall be considered stray. Q - If for some reason, a candidate was not declared by final judgment to be disqualified before the election, will the votes in his favor be counted? A - Yes, and if said candidate receives the winning number of votes in such election, his violation of the provisions under Article IX of the Omnibus Election Code shall not prevent his proclamation and assumption to office. Q - If after assuming office, the winning mayoralty candidate is declared disqualified to hold public office, who shall succeed to the position of the disqualified candidate? A - In said situation, a permanent vacancy occurs and the law on succession under the Local Government Code shall apply. Pursuant to Section 44 thereof, if the governor or mayor is disqualified, the vice-governor or the vice-mayor shall become the governor or mayor. The COMELEC cannot proclaim a winner the candidate who obtained the second highest number of votes, should the winning candidate be declared ineligible or disqualified. A permanent vacancy shall occur and the vice mayor shall succeed as provided by law. (Kare vs. COMELEC, G.R. No. 15752; Moll vs. COMELEC, G.R. No. 157527, April 28, 2004) Q - The rule is that the COMELEC cannot proclaim as winner the candidate who obtains the second highest number of votes in case the winning candidate is ineligible or disqualified. Is this absolute? A - No. This rule admits an exception. This exception is predicated on the concurrence of two requisites: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate's disqualification so as to bring 309

such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. (Sinsuat vs. COMELEC, G.R. No. 169106, June 23, 2006) ##996 ELECTION RETURNS Q - When shall the BEI prepare the election returns? A - The BEI shall prepare the election returns simultaneously with the counting of the votes in the polling place as prescribed in Section 210. IMPORTANT POINTS REGARDING ELECTION RETURNS 1. The return shall be prepared in sextuplicate. The recording of votes shall be made as prescribed in Section 210. 2. The entry of votes in words and figures for each candidate shall be closed with the signature and the clear imprint of the thumbmark of the right hand of all the members, likewise to be affixed in full view of the public, immediately after the last vote recorded or immediately after the name of the candidate who did not receive any vote. 3. The returns shall also show the date of the election, the polling place, the barangay and the city or municipality in which it was held, the total number of ballots found in the compartment for valid ballots, the total number of valid ballots withdrawn from the compartment for spoiled ballots because they were erroneously placed therein, the total number of excess ballots, the total number of marked or void ballots, and the total number of votes obtained by each candidate, writing out the said number in words and figures and, at the end thereof, the BEI shall certify that the contents are correct. 4. The returns shall be accomplished in a single sheet of paper, but if this is not possible, additional sheets may be used which shall be prepared in the same manner as the first sheet and likewise certified by the BEI. 5. The Commission shall take steps so that the entries on the first copy of the election returns are clearly reproduced on the second, third, fourth, fifth, and sixth copies thereof, and for this purpose the Commission shall use a special kind of paper. 6. Immediately upon the accomplishment of the election returns, each copy thereof shall be sealed in the presence of the watchers and the public, and placed in the proper envelope, which shall likewise be sealed and distributed as herein provided. 7. Any election return with a separately printed serial number or which bears a different serial number from that signed to the particular polling place concerned shall not be canvassed. 8. This is to be determined by the board of canvassers prior to its canvassing on the basis of the certification of the provincial, city or municipal treasurer as to the serial number of the election return assigned to the said voting precinct unless the Commission shall order in writing for or its canvassing, stating the reason for the variance on serial numbers. 9. If the signatures and/or thumbmarks of the members of the BEI or some of them as required in this provision are missing in the election returns, the board of canvassers may summon the members of the BEI concerned to complete the returns. (Section 212, Batas Pambansa Blg. 881) ##997 ANNOUNCEMENT OF THE RESULTS OF THE ELECTION 310

Q - After the completion of the election returns, what shall the Chairman of the BEI do? A - The Chairman of the BEI shall orally and publicly announce the total number of votes received in the election in the polling place by each and every one of the candidates, stating their corresponding office. (Section 213, Batas Pambansa Blg. 881) Q - How are the election returns distributed? A1. In the election for President, Vice-President, Senators, and Members of the House of Representatives, and parties, organizations or coalitions participating under the party-list system, the returns shall be prepared in 7 copies, and distributed as follows: 1st - to city or municipal board of canvassers; 2nd - to Congress, directed to the President of the Senate; 3rd - to the Commission on Elections; 4th - to the dominant majority party as determined by the Commission; 5th - to the dominant minority party as determined by the Commission; 6th - to the citizen's are authorized by the Commission to conduct an unofficial count; 7th - deposited inside the compartment of the ballot box for valid ballots. 2. In the election of local officials: 1st - to city or municipal board of canvassers; 2nd - to the Commission on Elections; 3rd - to the provincial board of canvassers; 4th - to the dominant majority party as determined by the Commission; 5th - to the dominant minority party as determined by the Commission; 6th - to the citizen's are authorized by the Commission to conduct an unofficial count; 7th - to be deposited inside the compartment of the ballot box for valid ballots. ##998 ISSUANCE OF CERTIFICATE OF VOTES POINTERS: 1. The BEI shall issue a certificate of votes to watchers. This is issued upon request. 2. The certificate of votes must be signed and thumbmarked by each member of the BEI which issues the same. Q - Is the certificate of votes a valid basis for canvass? A - It is a not a valid basis for canvass. It can only be evidence to prove tampering, alteration, falsification or any other anomaly committed in the election returns concerned, when duly authenticated. A certificate of votes does not constitute sufficient evidence of the true and genuine results of the elections; only election returns are. In like manner, neither is the tally board sufficient evidence of the real results of the election. (Garay vs. Comelec, 261 SCRA 222) CANVASS AND PROCLAMATION BOARD OF CANVASSERS FOR EACH PROVINCE, CITY, MUNICIPALITY AND DISTRICT OF METROPOLITAN MANILA 311

COMPOSITIONATA GLANCE (Section 221, Batas Pambansa Blg. 881) PROVINCIAL BOARD OF CANVASSERS 1. Chairman: Provincial Election Supervisor or a senior lawyer in the regional office of the commission. 2. Vice-Chairman: Provincial Fiscal 3. Members: (a) Provincial Superintendent of Schools (b) One representative from each of the ruling party and the dominant political party in the constituency concerned to be represented. CITY BOARD OF CANVASSERS 1. Chairman: City Election Registrar of a lawyer of the commission 2. Members: (a) City Fiscal (b) Acting Superintendent of Schools (c) One representative from each of the ruling party and the dominant political party entitled to be represented. DISTRICT BOARD OF CANVASSERS OF METROPOLITAN MANILA 1. Chairman: Lawyer of the Commission 2. Members: (a) Ranking Fiscal in the district (b) Most senior district school supervisor to be appointed upon consultation of the Ministry of Justice and DECS (c) One representative from each of the ruling party and the dominant opposition political party in the constituency concerned. MUNICIPAL BOARD OF CANVASSERS 1. Chairman: Election registrar or a representative of the commission 2. Vice-Chairman: Municipal Treasurer 3. Members: (a) Most senior district school supervisor, or in his absence, a principal of school or the elementary school. 4. Substitute members: (a) Municipal administrator, Municipal Assessor, Clerk of Court nominated by the Executive Judge, or any other available appointive municipal officials. ##999 Q - Is there a board of canvassers for newly created political subdivisions? A - Yes. The Commission shall constitute a board of canvassers and appoint the members thereof for the first election in a newly created province, city, or municipality in case the 312

officials who shall act as members thereof have not yet assumed their duties and functions. (Section 221[e], Batas Pambansa Blg. 881) Q - Does the law impose a prohibition to the Chairman and the members of the Board of canvassers? A - Yes. They shall not be related within the fourth civil degree of consanguinity or affinity to any of the candidates whose votes will be canvassed by said board, or to any members of the same board. (Section 222, Batas Pambansa Big. 881) Q - Can any member or substitute member of the different board of canvassers be transferred, assigned or detailed outside of the official station? A - No, and neither can they leave said station without prior authority of the Commission. (Section 223, Batas Pambansa Blg. 881) ##1000 CANVASS OF ELECTION RETURNS OF PRESIDENT AND VICE-PRESIDENT Q - What is the role of the board of canvassers of each province or city, and what is the role of Congress with respect to the election returns of the President and Vice-President? A - The returns of every election for President and Vice-President shall be duly certified by the board of canvassers of each province or city, and the returns as certified shall be transmitted to Congress. Upon determination of the authority and due execution of the certificates of canvass, Congress shall canvass the votes. Q - What exactly is the procedure in the canvass of election returns and the proclamation of the President and Vice-President? A - The canvass of election returns and the proclamation of the President and Vice-President shall be conducted in accordance with the following procedures: 1. Transmission of returns - (a) The returns of every election for President and Vice-President shall be duly certified by the board of canvassers of each province or city. 2. Transmission of certified returns to the Congress - (a) The certified returns shall be transmitted to the Congress, directed to the President of the Senate. 3. Opening of certificates of canvass - (a) Upon receipt of the certificates of canvass, the President of the Senate shall, not later than 30 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. 4. Canvass of the votes by Congress - (a) Upon determination of the authenticity and the execution of the certificates of canvass, Congress shall canvass the votes. 5. Proclamation - (a) The person having the highest number of votes shall be proclaimed elected. 6. In case of tie - (a) In case of two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by a vote of a majority of all the members of Congress. 313

7. Promulgation of rules for canvassing of certificates - (a) the Congress shall promulgate its rules for the canvassing of the certificates. 8. Sole judge of all contests - (a) The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to: (a. 1) The election; (a.2) Returns; and (a.3) Qualifications of the President or Vice-President. (b) The Supreme Court may promulgate its rules for the purpose. (See Section 4, Article VII) ##1001 NATURE OF CANVASS PROCEEDINGS Q - What is the nature of canvass proceedings? A - It is administrative and primary in nature. Q - Are election returns conclusive proof that the results of the voting are true? A - They are not conclusive but they are accorded prima facie status as bonafide reports of the results of the voting, and cannot just be disregarded or excluded. Q - Can they be objected to? A - Yes, but written objections to the returns must be filed only during this stage. REASON: It is only at this stage that the exclusion of any return is in issue. (Grand Colliance for Democracy vs. Comelec, 150 SCRA 665) Q - Can election returns be invalidated on the mere allegation that there was duress, fraud or coercion? A - Election returns which are clean on their face cannot be invalidated on mere allegations of duress, fraud and coercion. (Ibid.) Q - Can the Comelec annul the certificate of canvass which it found to be tampered? A - Yes, if it finds the same to be tampered after examining the copies of the election returns of the Municipal Judge of the Comelec. (Mastura vs. Comelec, 285 SCRA 493) Q - Who has supervision and control over the board of canvassers? A - The Comelec. (Section 227, Batas Pambansa Blg. 881). In this connection, any member of the board of canvassers may, at any time, be relieved for cause and substituted motu propio by the Commission. Q - What is the right of any political party, or coalition of parties regarding election returns being canvassed? A - They have the right to examine the returns being canvassed without touching them, to make their observations thereon, and file their challenges in accordance with the rules of the Comelec. (Section 25, Republic Act No. 6646) Q - Who are not allowed to enter the canvassing room? A - Any officer or member of the AFP, including the PC or the INP, or any peace officer or any armed or unarmed persons belonging to an extra legal police agency, special forces, reaction 314

forces, strike forces, home defense forces, barangay self-defense units, barangay tanod or any member of the security or police organizations, etc., are not allowed to enter the room where the canvassing of the elections returns are held by the board of canvassers and within a radius of 50 meters from such room. (Section 232, Batas Pambansa Blg. 881) ##1002 IN CASE ELECTION RETURNS ARE DELAYED, LOST OR DESTROYED Q - In said cases, what can the Board of Canvassers do? A - It may use any of the authentic copies of said election returns or a certified copy of said election returns issued by the Commission, and forthwith direct its representative to investigate the case and immediately report the matter to the Commission. (Section 233, Batas Pambansa Blg. 881) Q - May it terminate the canvass and proclamation of the candidates elected on the basis of the available election returns? A - It may do so if the missing election returns will not affect the results of the election. (Ibid.) IN CASE OF DISCREPANCIES IN ELECTION RETURNS Q - In case there are discrepancies in the election returns and the difference affects the results of the election, what can the Commission do? A - Upon motion of the board of canvassers or any candidate affected and after due notice to all candidates concerned, the Commission shall proceed summarily to determine whether the integrity of the ballot box had been preserved, and once satisfied thereof shall order the opening of the ballot box to recount the votes in the polling place solely for the purpose of determining the true result of the count of votes of the candidates concerned. (Section 236, Batas Pambansa Blg. 881) WHEN INTEGRITY OF BALLOT IS VIOLATED Q - If upon the opening of ballot box as ordered by the Commission, it should appear that there are evidences or signs of replacement, tampering or violation of the integrity of the ballots, what shall the commission do? A - It shall not recount the ballots but shall forthwith seal the ballot box and order its safekeeping. (Section 237, Batas Pambansa Blg. 881) CANVASS OF REMAINING OR UNQUESTIONED ELECTION RETURNS Q - In cases under Sections 233, 234, 235 and 236 of Batas Pambansa Blg. 881, can the board of canvassers continue the canvass of the remaining or unquestioned election returns? A - Yes, and if after the canvass of all said returns, it should be determined that the returns which have been set aside will affect the results of the election, no proclamation shall be made except upon orders of the Commission after due notice and hearing. Any proclamation made in violation hereof shall be null and void. (Section 238, Batas Pambansa Blg. 881) ##1003 PRE-PROCLAMATION CONTROVERSY Q - What is a pre-proclamation controversy? 315

A - A pre-proclamation controversy refers 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 political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. (Section 241, Batas Pambansa Blg. 881) Q - What are the issues that may be raised in a pre-proclamation controversy? A(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 another 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 controversy polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. Q - Is pre-proclamation controversy allowed in the election of National Officials? A - For purposes of the elections for President, Vice-President, Senator and member of the House of Representatives, no proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of canvass, as the case may be. (Section 15, Republic Act No. 7166) Q - If the same is not allowed, can the canvassing body correct manifest errors in the certificate of canvass for election returns before it? A - Yes, the canvassing body may do so motu propio or upon written complaint of an interested person. (Ibid.) ##1004 Q - Can the parties adversely affected by a ruling of the board of canvassers affecting the composition or proceedings of the board, appeal the matter to the Commission? A - Yes, by express provision of Section 19, Republic Act No. 7166 but this has to be done within 3 days from a ruling thereon. When this happens, the Commission shall summarily decide the case within 5 days from the filing thereof. Q - If there are questions affecting the composition or proceedings of the board of canvassers, where shall they be brought? A - They may be initiated in the board of canvassers or directly with the Commission. (Section 15, Republic Act No. 7166) Q - May a petition for correction of errors in the certificate of canvass be filed at anytime before proclamation? 316

A - Yes. This can even be done even after proclamation if the validity of the proclamation itself is in question. (Torres vs. Comelec, 270 SCRA 583) REASON: In such a case, the proclamation is void and the Comelec therefore has the power to annul the same. JURISDICTION OVER PRE-PROCLAMATION CASES Q - Who has exclusive jurisdiction over pre-proclamation cases? A - The Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may motupropio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made, as the evidence shall warrant in accordance with the succeeding sections. (Section 242, Batas Pambansa Blg. 881) Q - What are the issues that may be raised in a pre-proclamation controversy? A - The following shall be proper issues that may be raised in a pre-proclamation controversy: (a) Illegal composition or proceeding 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 Batas Pambansa Blg. 881; (c) The election returns were prepared under duress, threats, coercion, 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. (Section 243, Batas Pambansa Blg. 881) ##1005 POWER OF THE BOARD OF CANVASSERS TO ORDER THE OPENING OF THE BALLOT BOX AND RE-COUNT THE VOTES OF THE CANDIDATES AFFECTED Q - Can the board of canvassers order the opening of the ballot box and re-count the votes of the candidates affected? A - As a rule, the board of canvassers may not inquire into issues beyond election return. However, there are certain instances when the board of canvassers can do so. Example: 1. When the election returns submitted to the board appear to be tampered with, altered or falsified after they have left the hand of the BEI. (Already discussed.) (Section 235, Batas Pambansa Blg. 881) 2. When there exists discrepancies in other authentic copies of the returns or discrepancies in the vote of any candidate in words and figures in the same return, and the difference affects the result of the election. In this case, the board of canvassers may order the opening of the ballot box to re-count the votes cast to determine the true result of the count of votes of the candidates concerned. (Section 236, Batas Pambansa Big. 881) 3. When there is any other anomaly in the preparation of the election return. 317

PROCEDURE IN CASE OF PRE-PROCLAMATION CONTROVERSY Q - If there are questions affecting the composition of proceedings of the board of canvassers, before whom shall those questions be raised? A - They may be initiated directly with the Commission. However, questions raised such as those mentioned above (Sections 233, 234, 235 and 236) shall be brought in the first instance before the board of canvassers only. PERIOD WITHIN WHICH TO DECIDE PRE-PROCLAMATION CONTROVERSIES Q - What is the time table for deciding said controversies? A - They shall be disposed of summarily by the Commission within 7 days from receipt thereof. This decision shall be executory from receipt by the losing party. ##1006 INCOMPLETE RETURNS Q - Can there be a proclamation based on incomplete returns? A - No. It is void. (Castromayor vs. Comelec, 250 SCRA 298) PARTIAL PROCLAMATION Q - During the pendency of a pre-proclamation controversy, may the Commission order the proclamation of other winning candidates? A - Yes, if their election will not be affected by the outcome of the controversies. OTHER IMPORTANT POINTS 1. The enumeration of issues which may be raised in a pre-proclamation controversy such as those enumerated in Section 243 in Batas Pambansa Blg. 881 is restrictive and exclusive. Hence, a petition for re-count or re-appreciation of ballots is not a ground for a preproclamation controversy. (Sanchez vs. Comelec, 153 SCRA 67) 2. It was alleged that the registry list of voters was padded. Is this a ground for pre-proclamation controversy? No. (Ututalum vs. Comelec, 181 SCRA 335) 3. Is the action taken by the Comelec in the following cases valid? (a) Inquiry as to the qualifications of the members of the board of canvassers. - valid (b) Annulling a proclamation for the reason that there was a mathematical error committed by the board of canvassers in the computation of votes received by both petitioner and private respondent. - valid (c) A correction of clerical error in the statement of votes. The Comelec may order the correction of the same in a pre-proclamation contest. (Villaroya vs. Comelec, 155 SCRA 633) 4. What are the matters that cannot be raised in a pre-proclamation contest, and which should instead be raised in an election protest? (a) When a winning candidate for Congressman has been duly proclaimed upon orders of the Comelec and has taken the oath of office. (Lazatin vs. Comelec, 157 SCRA 337) (b) Technical examination of signatures and thumbmarks of voters are issues which should be raised in election protest. (Matalam vs. Comelec, 272 SCRA 733) 318

(c) Errors in appreciation of ballots by the BEI should be raised in an election protest. (d) After a candidate for Mayor has already been proclaimed winner and had assumed office, the proper remedy is an election protest, not a pre-proclamation controversy. ##1007 ELECTION CONTESTS PROCEDURE IN ELECTION CONTESTS Q - What is the procedure in election contests? A - Section 254. Procedure in election contests. - "x x x (a) Notice of the protest contesting the election of a candidate for a municipal or barangay office shall be served upon the candidate by means of a summons at the postal address stated in his certificate of candidacy except when the protestee, without waiting for the summons, has made the court understand that he has been notified of the protest or has filed his answer hereto; (b) The protestee shall answer the protest within five days after receipt of the summons, or, in case there has been no summons from the date of his appearance and in all cases before the commencement of the hearing of the protest or contest. The answer shall deal only with the election in the polling places which are covered by the allegations of the contest; (c) Should the protestee desire to impugn the votes received by the protestant in other polling places, he shall file a counter-protest within the same period fixed for the answer serving a copy thereof upon the protestant by registered mail or by personal delivery or through the sheriff; (d) The protestant shall answer the counter-protest within five days after notice; (e) Within the period of five days counted from the filing of the protest any other candidate for the same office may intervene in the case as other contestants and ask for affirmative relief in his favor by a petition in intervention, which shall be considered as another contest, except that it shall be substantiated within the same proceedings. The protestant or protestee shall answer the protest in intervention within five days after notice; (f) If no answer shall be filed to the contest, counter-protest, or to the protest in intervention, within the time limits respectively fixed, a general denial shall be deemed to have been entered; (g) In election contest proceedings, the permanent registry list of voters shall be conclusive in regard to the question as to who had the right to vote in said election. ##1008 Simplification: (a) Service of the notice of protest; (b) Answer to the protest within five days after receipt of the summons. The answer shall deal only with the election in the polling places which are covered by the allegations of the contest; (c) Filing of the protestee's counter-protest within the same period fixed for the answer serving a copy thereof if the protestee desires to impugn the votes received by the protestant. The same shall be served by registered mail or by personal delivery or through the sheriff; (d) The protestant shall answer the counter-protest within five days after notice; 319

(e) Any other candidate for the same office may intervene in the case as other contestants and ask for affirmative relief; (f) If no answer shall be filed to the contest, counter-protest, or to the protest in intervention, within the time limits respectively fixed, a general denial shall be deemed to have been entered; (g) In election contest proceedings, the permanent registry list of voters shall be conclusive in regard to the question as to who had the right to vote in said election. Q - How are election contests construed? A - Election contests are to be liberally construed to the end that the will of the people in the choice of public officers may not be defeated. (Idulza vs. COMELEC, G.R. No. 160130, April 14, 2004) RULES PECULIAR TO CONTEST INVOLVING LOCAL OFFICIALS POINTERS: 1. The rules governing election contests relating to municipal and barangay officials are silent with respect to the filing of a motion to dismiss a petition of protest. It has been held that such silence implies that a motion to dismiss may be filed with reference to an election contests involving municipal and barangay officials. (Torres vs. Ribo, 83 Phil. 642 [1949]; Gallares vs. Casenas, 48 Phil, 362) 2. After the time for filing protest has expired, it is too late to amend the protest by dropping certain polling places and adding others or by protesting the results in new polling places (Almeda vs. Silvosa, 54 O. G. 3521, Robles vs. Del Rosario, 53 O. G. 3071). The reason for this stringent rule is to avoid delay or to underscore the necessity of speedy determination of who actually is the real choice of the electorate (Fernando vs. Endencia, 66 Phil. 14 [1938]). Moreover, a dissatisfied candidate must be vigilant. (Tengco vs. Jocson, 43 Phil. 715) 3. Amendments which do not change the cause of action or the grounds of protest may be made within a reasonable time before the commencement of the trial, and even afterwards if there are special reasons therefor. (Rosales vs. Tupaz, G.R. No. 10654, September 23, 1958) ##1009 4. The law permits other candidates, who may have an interest, to intervene in the election protest within five (5) days from the filing of the protest. Within the period of five days counted from the filing of the protest any other candidate for the same office may intervene in the case as other contestants and ask for affirmative relief in his favor by a petition in intervention, which shall be considered as another contests, except that it shall be substantiated within the same proceedings. The protestant or protestee shall answer the protest in intervention within five days after notice (Section 254[e], Election Code). However, to be entertained, the petition to intervene must be filed within the prescribed period, otherwise it is barred, even if the original protestant does not subject to its delayed presentation. (Deliso vs. De los Santos, 81 Phil. 361 [1948]) 5. A protestee who fails to file his answer within the prescribed period may be deemed to have entered a general denial. 6. A protestee may raise any and all defenses which will defeat the protest (Valenzuela vs. CFI of Bulacan; 40 Phil. 163 [1919]). However, the ineligibility of protestant in an election 320

protest is not a defense in such protest not only because it is incongruous with the only issue therein, which is who obtained the higher number of votes, but is also premature, inasmuch as such issue may be raised only after the candidate has been proclaimed and the protestant is not proclaimed until after he has been declared winner. Moreover, if a protest is dismissed only because the protestant is ineligible, the result would be that protestee would be in office though in fact he received fewer votes than the former. (Moraleja vs. Relova, G.R. No. 30828, October 22, 1971, 42 SCRA 10; Caesa vs. Garrido, 53 Phil. 97) 7. A protestee may file a counter-protest as part of his answer. In such a counter-protest, he may allege and thereafter prove that by reason of fraud and irregularities the protestant cannot be declared elected, but that notwithstanding such fraud and irregularities as alleged by protestant the protestee is still entitled to be proclaimed elected. (Morente vs. Filamor, 52 Phil. 280 [1928]; Valenzuela vs. CFI of Bulacan, 40 Phil. 163 [1919]) 8. A counter-protest is tantamount to a counter-claim in a civil action and may therefore be presented as part of the answer within the time the protestee is required to answer. 9. Where there is a motion to dismiss, it may be filed within the period left after the motion to dismiss is denied. Where a motion for extension of time to answer is filed, it may be presented within the extended period. (Maliwanag vs. Hererra, G.R. No. 29193, September 26, 1968, 25 SCRA 175) ##1010 RULES OR PRINCIPLES APPLICABLE TO CONTESTS RELATING TO REGIONAL, PROVINCIAL, CITY, MUNICIPAL AND BARANGAY OFFICIALS POINTERS: 1. There are differences, procedure-wise, between contests relating to regional, provincial and city officials on the one hand, and local and barangay officials on the other hand. However, the principles, rulings and provisions previously discussed as well as those which are herein below discussed, unless otherwise indicated, apply equally to all election contests without distinction. 2. The purpose of an election protest is to ascertain whether the candidate proclaimed elected by the board of canvassers is really the lawful choice of the electorate. (De Castro vs. Ginete, G.R. No. 30058, March 20, 1969, 27 SCRA 623) 3. Public policy demands that an election protest, duly commenced, be not abated by the death of either the protestant or the protestee (Lomugdang vs. Javier, G.R. No. 27535, September 30, 1967, 21 SCRA 402). In case of death of either party in an election protest, Section 17, Rule 3 of the Rules of Court providing for the substitution of a party litigant who dies in the course of the litigation, is applicable to election protests. 4. However, the deceased's legal representative who may be substituted in place of the deceased must be one who is entitled to the office in the event the deceased's cause prevails, and not his widow or legal heirs or his political party as none of them is entitled to the office. (De Mesa vs. Mencias, G.R. No. 24583, October 29, 1966, 18 SCRA 533) 5. The pendency of an election protest is not sufficient basis to enjoin protestee from assuming office as required of him by law. The efficiency of public administration should not be impaired. Until and unless the election protest is decided against the protestee, he has a 321

lawful right to assume and perform the duties of the office to which he has been elected. (Cereno vs. Dictado, 160 SCRA 759) JURISDICTION OVER ELECTION OFFENSES 1. Investigation and prosecution. The Commission on Elections has exclusive jurisdiction to investigate and prosecute cases involving violations of election laws (Section 2[6], Article IX-C, Constitution; De Jesus vs. People, 120 SCRA 760; Corpus vs. Tanodbayan, 149 SCRA 281); but it may validly delegate the power to the Provincial Prosecutor, as it did when it promulgated Resolution No. 1862, dated March 2, 1987. (People vs. Judge Basilia, 179 SCRA 87) a) But it is not the duty of the Comelec, as investigator and prosecutor, to gather proof in support of a complaint filed before it. (Kilos bayan vs. Comelec, G.R. No. 128054, October 16, 1997) ##1011 2. Section 268. Jurisdiction of courts - The regional trial court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases. PREFERENTIAL DISPOSITION OF ELECTION OFFENSES Q - What preference and priority should be given by the Comelec and prosecuting officials regarding election offenses? A - Section 269. Preferential disposition of election offenses. - The investigation and prosecution of cases involving violations of the election laws shall be given preference and priority by the Commission on Elections and prosecuting officials. Their investigation shall be commenced without delay, and shall be resolved by the investigating officer within five days from its submission for resolution. The courts shall likewise give preference to election offenses over all other cases, except petitions for writ of habeas corpus. Their trial shall likewise be commenced without delay, and shall be conducted continuously until terminated, and the case shall be decided within thirty days from its submission for decision. PRESCRIPTION PERIOD FOR ELECTION OFFENSES Q - What is the prescription period for election offenses? A - Five (5) years from date of commission. PROMULGATION OF DECISION Q - When shall the decision of the Regional Trial Court be promulgated? A - The Comelec Rules of Procedure require that a decision of the trial court or of the Commission shall be promulgated on a date set by it of which due notice must be given the parties. It has been held that promulgation is the process by which a decision is published, officially announced, made known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their counsel. 322

Q - Is notice in advance of promulgation part of the process of promulgation? A - The additional requirement of the Comelec Rules of Procedure of notice in advance of promulgation is not part of the process of promulgation, and failure to serve the notice in advance of the promulgation is a procedural lapse or error which will not vitiate the decision except when the error is shown to have caused harm or prejudice; and that fact that the adverse party's counsel received copy of the decision shows that no such harm is caused thereby and precludes the decision from being infirmed. (Lindo vs. Comelec, 194 SCRA 25) ##1012 POST-ELECTION DISPUTES Q - What is referred to as post-election disputes? A - Generally, they are those which arise or are instituted after proclamation of the winning candidate. More specifically, post-election disputes may refer to any of the following: (a) It may pertain to the casting and counting of votes and raise the question of who actually received the majority of the legal ballots, known as election contests. (b) It may pertain to the eligibility or disloyalty of the winning candidates, called proceedings for quo warranto. (Topacio vs. Paredes, 23 Phil. 238 [1912]) (c) There is another post-election dispute, insofar as it disqualifies a winning candidate from holding office, namely, a criminal prosecution for violation of an election offense against the candidate elect. (Gorospe vs. Penaflorida, 101 Phil. 886 [1957]) Q - What is the difference between election protest and quo warranto? AELECTION PROTEST: 1. It is strictly a contest between the defeated and winning candidates, based on grounds of election frauds or irregularities, as to who actually obtained the majority of the legal votes and therefore is entitled to hold the office. 2. It can only be filed by a candidate who has duly filed a certificate of candidacy and has been voted for. 3. A protestee may be ousted and the protestant seated in the office vacated. QUO-WARRANTO: 1. It refers to questions of disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the ineligible person from office, but not to install the protestant in his place. 2. It can only be filed by any voter. It is for this reason that it is not considered a contest where the parties strive for supremacy. 3. While the respondent may be unseated the petitioner will not be seated. (Luison vs. Garcia, 103 Phil. 453 [1958]) ##1013 Q - What is the principal consideration to be considered in determining whether the action taken is for quo-warranto or an election protest? 323

A - It is not the title or caption of the petition but the allegations contained therein which determines if the action taken is for quo-warranto or an election protest. Hence, a petition may allege that the candidate elect is not qualified and it may be labeled as election protest, but actually it is a quo-warranto proceeding. (Luison vs. Comelec, Ibid.) Q - Can an election protest and petition for quo-warranto be availed of jointly and in the same proceeding? A - No, considering the differences already mentioned. However, they can be separately filed, with the second case suspended until the earlier one is resolved. (Ibid.) Q - Can an action for quo-warranto be converted into an election protest? A - No. (Asuncion vs. Legarda, 124 SCRA 729) EFFECT OF FILING AN ELECTION PROTEST OR A PETITION FOR QUO WARRANTO Q - What is the effect of filing an election protest or a petition for quo warranto? A - As a rule, it bars the subsequent filing of a pre-proclamation controversy or a petition to annul proclamation. It also amounts to the abandonment of one filed earlier. It deprives the Commission, in said pre-proclamation case, of the authority to inquire into and pass upon the title of the protestee or the validity of his proclamation. (Patis vs. Comelec, 22 SCRA 539). REASON: Once an appropriate tribunal has acquired jurisdiction on account of the filing of an election protest or a petition for quo-warranto, all questions relative thereto will be decided in the case itself and not in another proceeding. Q - Is the said rule absolute? A - No. In the following instances, the pre-proclamation case may still proceed to conclusion. 1. If what is filed is not really a quo warranto contest or election protest but a petition to avail a proclamation. 2. If quo warranto is not the proper remedy. 3. If the Board of Canvassers is improperly constituted. (Patis vs. Comelec, supra) 4. If the filing of a quo warranto or an election protest is expressly made without prejudice to pre-proclamation contest, or is made ad cautela. (Tuburan vs. Ballener, 24 SCRA 941 [1968]) 5. If the proclamation is null and void. (Mutuc vs. Comelec, 22 SCRA 662) ##1014 IMPORTANT POINTS: 1. After a proclamation which is validly made, the remedy of the defeated candidate is to file an election protest or a petition for quo warranto within the prescribed period. 2. If the proclamation is null and void, or is claimed to be null and void, the Commission has the authority to inquire whether such proclamation is null and void.

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3. If the proclamation is null and void, it is a settled jurisprudence that it is no proclamation at all and the Commission has the power to declare such nullity and annul the proclamation even if the proclaimed candidate already assumed office. (Mutuc vs. Comelec, supra). ELECTION PROTEST Q - What is an election protest? A - It is a special summary proceeding. The purpose of which is to settle the controversy between the defeated and winning candidate as to who between them actually receives the majority of the legal ballots. Q - What is the purpose of an election protest? A - The purpose is to ascertain whatever the candidate proclaimed by thee board of canvassers is really the lawful choice of the electorate. What is sought in an election protest is the correction of the canvass of the votes, which is the basis of proclamation of the winning candidate. Q - How should a statute concerning election protest be construed? A - It should be literally construed so that the will of the people in the choice of public officers may not be defeated by mere technical objections. Hence, immaterial defects and pleadings should be disregarded and necessary and proper amendments should be allowed as much as possible. On the procedural aspect, it is established that amendments to pleadings may be permitted by the Supreme Court even for the first time on appeal in order to substitute the name of the real party in interest, provided that such an amendment would not involve a change in the cause of action or result in undue prejudice to the adverse party. In one case, the death of a protestee was stricken off and substituted by the person who would succeed him under the law as the real party in interest in the continuation of the case. (Unda vs. Comelec, 190 SCRA 827) ##1015 JURISDICTION OVER ELECTION CONTESTS Q - Who has original and exclusive jurisdiction over election contests? A1. The Supreme court in the case of the President and Vice-President. 2. The Senate Electoral tribunal in the case of Senator. 3. The HR Electoral Tribunal in the case of Representative. 4. The Comelec in the case of Regional/Provincial/City. 5. The RTC in the case of Municipal. 6. The Municipal/Metropolitan Trial Court in the case of Barangay. Q - Are decisions of the RTC and Municipal Courts appealable? A - Yes. The appeal shall be made exclusive to the Comelec whose decision shall be final, executory and unappealable.

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Q - If the decisions, orders, rulings of the Comelec in appealed cases involving elective municipal barangay officials are final executory and unappealable, that this preclude the filing of a petition for certiorari under Rule 65? A - No. (Galido vs. Comelec, 193 SCRA 78) Q - May the decision of the HRET be reviewed by the Supreme Court? A - This is possible only if there is a capricious, arbitrary and despotic exercise of power. APPELLATE JURISDICTION APPEAL FROM DECISIONS OF RTC AND MUNICIPAL COURTS/CITY COURTS Q - Are the decisions of the RTC, Municipal Courts, City Courts appealable? A - Yes, said appeal shall be made exclusively to the Comelec whose decision shall be final, executory and unappealable. ELECTION CONTESTS INVOLVING MUNICIPAL OFFICES Q - Is the decision of the RTC appealable? A - Yes, the decision may be appealable to the Commission within 5 days from promulgation or receipt of a copy thereof by the aggrieved party. (Section 22, Republic Act No. 7166) Q - Within what period shall the said appeal be decided? A - Within 60 days after it is submitted for decision but not later than 6 months after the filing of the appeal, which decision shall be final, appealable and executory. (Ibid.) ##1016 Q - Instead of filing an appeal, can the aggrieved party just file a motion to reconsider the decision of the RTC? A - No. It is a prohibited pleading and it does not interrupt the running of the 5-day period of appeal. (Veloria vs. Comelec, 211 SCRA 907) Q - Can the RTC order the execution of its decision pending appeal? A - Yes. REASON: It is a judicial prerogative of the RTC. Q - What are the powers of the Comelec in the exercise of its exclusive appellate jurisdiction? A - It has the power to issue writs of prohibition, mandamus or certiorari. RELAMPAGOS VS. CUMBA, ET AL. G.R. NO. 118861, APRIL 27, 1995 FACTS: Emmanuel Relampagos and Rosita Cumba were Mayoralty candidates in Magallanes, Agusan Del Norte, in the synchronized elections of May 11, 1992. Rosita Cumba was proclaimed the winning candidate, with a margin of only 22 votes over the former. Unwilling to accept defeat. Relampagos filed an election protest with the RTC of Agusan Del Norte. On June 29, 1994, the said RTC found Relampagos to have won with a margin of 6 votes over Cumba. Relampagos was declared the Mayor elect. Copies of the decision were sent to and received by 326

Relampagos and Cumba on 1 July 1994. On July 4, 1994, Cumba appealed the decision to the Comelec by filing her notice of appeal and paying the appellate docket fees. On 8 July 1994, the trial court gave due course to the appeal. On 12 July 1994, Relampagos filed with the trial court a motion for execution pending appeal. On 3 August 1994, the trial court granted Relampagos' motion for execution pending appeal. The corresponding writ of execution was forthwith issued. Cumba then filed with the Comelec a petition for certiorari to annul the aforesaid order of the trial court granting the motion for execution pending appeal and the writ of execution. In upholding its jurisdiction in certiorari, prohibition, and mandamus cases, the Comelec maintains that there is a special law granting it such jurisdiction. Section 50 of BP Blg. 697, which remains in full force as it was not expressly repealed by the Omnibus Election Code (BP Blg. 881), and that it is not exactly correct that this law self-destructed after the May, 1984 election. It further reasoned out that in the performance of its judicial functions, the Comelec is the most logical body to issue the extraordinary writs of certiorari, prohibition, and mandamus in election cases where it has appellate jurisdiction. Relampagos assailed the said resolution and filed a special civil action of certiorari. ISSUE: Whether or not the Comelec has jurisdiction over petitions for certiorari, prohibition and mandamus in election cases where it has exclusive appellate jurisdiction. ##1017 HELD: The Court abandoned the ruling in the Garcia and Uy and Veloria cases and ruled: "We now hold that the last paragraph of Section 50 of B.P. Blg. 697 providing that the Commission is hereby vested with exclusive authority to hear and decide petitions for certiorari, prohibition, and mandamus involving election cases, remains in full force and effect but only in such cases where, under paragraph (2), Section 1, Article IX-C of the Constitution, it has exclusive appellate jurisdiction. Simply put, the Comelec has the authority to issue the extraordinary writs of certiorari prohibition and mandamus only in aid of its appellate jurisdiction. (Underlining Supplied) DECISIONS OF THE COMELEC Q - Are findings of fact by the COMELEC final and non-reviewable? A - Findings of fact by the COMELEC, if supported by substantial evidence, are final and nonreviewable. The appreciation of contested ballots and election documents involves a question of fact best left to the determination of the COMELEC, a specialized agency tasked with the supervision of elections all over the country. (Idulza vs. COMELEC, G.R. No. 16(1130, April 14, 2004) Q - Are orders or rulings of the COMELEC in appealed cases involving elective Municipal and Barangay officials final, executory and unappealable? Is there an available relief form said orders or rulings of the Comelec? A - A petition for review by certiorari may be filed with the Supreme Court within 30 days from receipt of a copy of questioned decision, and on the ground of grave abuse of discretion 327

amounting to lack or excess of jurisdiction or violation of due process. (Aratuc vs. Comelec, 88 SCRA 251) Q - Can the Supreme Court review via certiorari an interlocutory order or a final resolution of a Division of the COMELEC? A - No. The decision must be a final decision or resolution of the COMELEC en banc before the Supreme Court may review the same via certiorari. Q - When is a resolution or decision of the COMELEC considered complete? A - A resolution or decision of the COMELEC is considered complete and validly rendered or issued when there is concurrence by the required majority of the Commissioners. ##1018 ELECTORAL TRIBUNALS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES Q - What is the function of the Electoral Tribunals of the Senate and the House of Representatives? A - They were created by the Constitution "as sole judge of all contests relating to the election, returns and qualifications of their respective Members." (Section 17, Article VI, 1987 Constitution) The tribunal was created to function as a non-partisan court although twothirds of its members are politicians. It is a non-politic body in a sea of politicians. Q - What is the constitutional basis of the said tribunals? A - Section 17, Article VI of the 1987 Constitution provides as follows: "Section 17. The Senate and the House of Representatives shall 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 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." Q - Section 17, Article VI states that the said tribunal "shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members," does this mean that the said tribunal can act independently without interference from the leaders and members of the legislature? A - Said tribunals are independent bodies which can select their own employees, and to supervise and control them without legislative interference (Suanes vs. Chief Accountant of the Senate, 81 Phil. 818). To be able to exercise exclusive jurisdiction, the House Electoral Tribunal must be independent. Its jurisdiction to hear and decide congressional election contest is not to be shared by it with the Legislature nor with the Courts. The Supreme Court ruled that: "The Electoral Commission is a body separate from and independent of the 328

legislature and though not a power in the tripartite scheme of government, it is to all intents and purposes, when acting within the limits of its authority is an independent organ; while composed of a majority of members of the legislature it is a body separate from and independent of the legislature." ##1019 Q - Congressman Camasura, then a member of the House Electoral Tribunal, was a member of the LDP. However, he cast his vote in favor of Bondoc, a candidate of the Nationalista Party. Subsequently, the House of Representatives adopted a resolution removing Congressman Camasura from the House of Electoral Tribunal for disloyalty to the LDP. Can Congressman Camasura's membership in the HRET be terminated? May he be removed by the House of Representatives for party disloyalty? A - No. REASONS: (1) It is an impairment of the constitutional prerogative of the House Electoral Tribunal to be the sole judge of the election contest between Pineda and Bondoc; (2) To sanction such interference by the House of Representatives in the work of the House Electoral Tribunal would reduce the tribunal to a mere tool for the aggrandizement of the party in power (LDP) which the three Justices of the Supreme Court and the lone NP member would be powerless to stop; (3) In expelling Congressman Camasura from HRET for having cast a "conscience vote" in favor of Bondoc, based strictly on the result of the examination and appreciation of the ballots and the recount of the votes by the tribunal, the House of Representatives committed a grave abuse of discretion, an injustice, and a violation of the Constitution. Its resolution of expulsion against Congressman Camasura is therefore null and void; (4) It violates Congressman Camasura's right to security of tenure. Members of the HRET, as "sole judge" of congressional election contests are entitled to security of tenure just as members of the judiciary enjoy security of tenure under our Constitution. (Section 2, Article VIII, 1987 Constitution) Q - How may the members in the HRET be terminated? A - They may be terminated only for a just cause such as the expiration of the member's congressional term of office, his death, permanent disability, resignation from the political party he represents in the tribunal, formal affiliation with another political party or removal for other valid cause. JURISDICTION AFTER PROCLAMATION Q - After proclamation, does the COMELEC retain jurisdiction over disqualification cases? A - Yes. The case for disqualification exists, and survives, the election and proclamation of the winning candidate because an outright dismissal will unduly reward the challenged candidate and may even encourage him to employ delaying tactics to impede the resolution of the disqualification case until after he has been proclaimed. (Lanot vs. COMELEC, G.R. No. 164858, November 16, 2006) Q - Is the above-said rule absolute? A - No. The exception to the rule of retention of jurisdiction after proclamation applies when the challenged candidate becomes a member of the House of Representatives or of the 329

Senate, where the appropriate electoral tribunal would have jurisdiction. (Lanot vs. COMELEC, G.R. No. 164858, November 16, 2006) ##1020 Q - A congressional candidate has been proclaimed, taken his oath and assumed office. Does the Comelec still have the jurisdiction to annul the proclamation? A - The Comelec lost jurisdiction after a proclamation of a congressional candidate. The alleged invalidity of the proclamation is a matter for the House Electoral Tribunal to decide. (Ututalum vs. Comelec, 181 SCRA 335) Q - The winning candidate has taken his oath and assumed office already, however, there was an alleged error in the statement of votes. Does the COMELEC have the power to annul a proclamation? A - The COMELEC has the power to annul a proclamation of a winning candidate who has taken his oath and assumed office already, due to an alleged error in the tabulation of the statement of votes. The Statement of Votes forms the basis of the Certificate of Canvass and of the proclamation. Any error in the statement ultimately affects the validity of the proclamation. If a candidate's proclamation is based on a Statement of Votes which contains erroneous entries, it is null and void. It is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to annul the proclamation. (Alejandro vs. COMELEC, G.R. No. 167101, January 31, 2006) REVIEW OF THE TRIBUNAL'S DECISION Q - May the Supreme Court review and set aside the decision of the said Electoral Tribunal? A - Yes, if the decision of the said tribunal was rendered without or in excess of its jurisdiction, or with grave abuse of discretion, or upon a clear showing of such arbitrary and improvident use by the tribunal of its power which constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting such a grave abuse of discretion that there has to be a remedy for such abuse of discretion. (Lerias vs. House of Representatives Electoral Tribunal, G.R. No. 97105, October 15, 1991) Q - What course of action could be taken if there is a showing of arbitrary and improvident use of the power which constitutes a denial of due process of law? A - Judicial review of decision or final resolutions of the Senate or House Electoral Tribunal is possible only in the exercise of this Court's so-called supervisory or extraordinary, not its appellate jurisdiction, and that extraordinary jurisdiction may be invoked and called into play through the special civil action or certiorari or prohibition. This form of review does not authorize reversal or modification of the tribunal's adjudgment on the theory that it is tainted by error in its findings of fact or of law, as in appellate proceedings generally. Such a reversal or modification is permissible only upon a determination that the tribunal's decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion, or if there is a denial of due process of law, or upon a demonstration of "clear and unmitigated ERROR constituting GRAVE ABUSE OF DISCRETION." ##1021 330

JURISDICTIONAL FACTS NECESSARY TO CONFER JURISDICTION TO TRY AN ELECTION PROTEST Q - What are the jurisdictional facts necessary to confer jurisdiction to try an election protest? A - They are the following: (1) That the protestant was a candidate who had duly filed a certificate of candidacy and had been voted for the same office; (2) That the protestee has been proclaimed; (3) That the petition was filed within 10 days after proclamation; (Miro vs. Comelec, G.R. No. 97574, April 20, 1938, 121 SCRA 466; Maquinay vs. Bleza, G.R. No. 54230, October 30, 1980, 100 SCRA 702); and (4) That the fraud and election irregularities vitiated the conduct of elections and affected the legality thereof. (Badelles vs. Cabili, G.R. No. 29333, February 27, 1967, 27 SCRA 113; De Castro vs. Ginere, G.R. No. 300058, March 28, 1969, 27 SCRA 623) NOTE: 1. That the protestant was a candidate who had duly filed a certificate of candidacy and had been voted for the same office - The law provides that the person entitled to file an election protest is a "candidate who has duly filed a certificate of candidacy and has been voted to the same office" (Sections 250, 251, 252, Election Code). However, precision in the use of terms in an election protest is not indispensable. Substantial compliance is sufficient. In other words, the jurisdictional allegation need not be in exact language of the law nor the verbatim use thereof a condition sine qua non to the conferring of jurisdiction upon the Commission or the court, as the case may be, to take cognizance of the election protest. As long as the jurisdictional requirements are alleged in some words that convey substantially the idea, there is substantial compliance. (Maquinay vs. Bleza, 100 SCRA 702; Miro vs. Comelec, 121 SCRA 466; Macias vs. Comelec, 182 SCRA 137) 2. That the protestee has been proclaimed - As already explained earlier, when a congressional candidate has been proclaimed, taking his oath, assumed office, the Comelec has no jurisdiction to annul the proclamation. The alleged invalidity of the proclamation is a matter for the HET to decide. (Ututalum vs. Comelec, supra) ##1022 3. That the petition was filed within 10 days after proclamation - The law requires that an election protest shall be filed within 10 days after proclamation of the winning candidates. The filing of a petition to annul or suspend the proclamation suspends the running of this 10day period (Section 248, Batas Pambansa Blg. 881), and it begins to run again from notice of the dismissal of the pre-proclamation case (Esquivel vs. Comelec, G.R. No. 53475, April 28, 1983, 121 SCRA 786). The 10-day period to file election protest is mandatory, and the filing of an election protest beyond the period deprives the court or the Commission of the jurisdiction over the protest (Robes vs. Comelec, 123 SCRA 193). However, a protestee may be estopped from claiming that the protest was not timely and validly filed. 4. That the fraud and election irregularities vitiated the conduct of elections and affected the legality thereof - Where an election protest alleges fraud and irregularities in the conduct of election, a sufficient cause of action exists, even if no averment is made that the true result of the election would be in protestant's favor, for it gives rise to doubt as to who were the duly elected officials. (Badelles vs. Cabili, 27 SCRA 113) 331

QUO WARRANTO Q - What are the requisites to be able to file a petition for quo warranto? A1. The petition is filed by any registered voter in the constituency; 2. The said petition is filed on the ground of ineligibility or disloyalty to the Republic of the Philippines; and 3. The said petition is filed within ten (10) days from the proclamation of the results of the election. Q - What is the difference between quo warranto in elective appointive office? A - In an elective office, the issue is eligibility of the officer-elect. The court or tribunal cannot declare the protestant (or the candidate who obtained the second highest number of votes) as having been elected. (Sunga vs. Comelec, 288 SCRA 76) 1. In an appointive office, the issue is the legality of the appointment. The court determines who of the parties has legal title to the office. ELECTION OFFENSES Q - What are considered as election offenses? A - They are actually the prohibited acts mentioned in Section 261 of Batas Pambansa Blg. 881 which, if committed, are considered as election offenses. They are as follows: ##1023 (1) Vote-buying and vote-selling (2) Conspiracy to bribe voters (3) Wagering upon result of election (4) Coercion of subordinates (5) Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion (6) Coercion of election officials and employees (7) Appointment of new employees, creation of new position, promotion, or giving salary increases (8) Transfer of officers and employees in the civil service (9) Intervention of public officers and employees (10) Undue influence (11) Unlawful electioneering (12) Prohibition against dismissal of employees, laborers, or tenants (13) Appointment or use of special policemen, special agents, confidential agents or the like (14) Illegal release of prisoners before and after election (15) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign (16) Deadly weapons (17) Carrying firearms outside residence or place of business (18) Use of armored land, water or air craft 332

(19) Wearing of uniforms and bearing arms (20) Policemen and provincial guards acting as bodyguards or security guards (21) Organization or maintenance of reaction forces, strike forces, or other similar forces (22) Prohibition against release, disbursement or expenditure of public funds (23) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices (24) Suspension of elective provincial, city, municipal or barangay officer (25) On registration of voters: ##1024 1. Any person who, having all the qualifications and none of the disqualifications of a voter, fails without justifiable excuse to register as a voter in an election, plebiscite or referendum in which he is qualified to vote. 2. Any person who knowingly makes any false or untruthful statement relative to any of the data or information required in the application for registration. 3. Any person who deliberately imprints or causes the imprinting of blurred or indistinct fingerprints on any of the copies of the application for registration or on the voter's affidavit; or any person in charge of the registration of voters who deliberately or through negligence, cause or allows the imprinting of blurred or indistinct fingerprints on any of the aforementioned registration forms, or any person who tampers with the fingerprints in said registration records. 4. Any member of the board of election inspectors who approves any application which on its face shows that the applicant does not possess all the qualifications prescribed by law for a voter; or who disapproves any application which on its face shows that the applicant possesses all such qualifications. 5. Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration. 6. Any person who registers in substitution for another whether with or without the latter's knowledge or consent. 7. Any person who tampers with or changes without authority any data or entry in any voter's application for registration. 8. Any person who delays, hinders or obstruct another from registering. 9. Any person who falsely certifies or identifies another as bona fide resident of a particular place or locality for the purpose of securing the latter's registration as a voter. 10. Any person who uses the voter's affidavit of another for the purpose of voting, whether or not he actually succeeds in voting. 11. Any person who places, inserts or otherwise includes, as approved application for registration in the book of voters or in the provincial or national central files of registered voters, the application of any fictitious voter or any application that has not been approved; or removes from, or otherwise takes out of the book of voters or the provincial or national central files of registered voters any duly approved voter's application, except upon lawful order of the Commission or of a competent court or after proper cancellation as provided in Sections 122, 123, 124 and 125. ##1025 333

12. Any person who transfers or causes the transfer of the registration record of a voter to the book of voters of another polling place, unless said transfer was due to a change of address of the voter and the voter was duly notified of his new polling place. 13. Any person who asks, demands, takes, accepts or possesses, directly or indirectly, the voter's affidavit of another, in order to induce the latter to withhold his vote, or to vote for or against any candidate in an election or any issue in a plebiscite or referendum. It shall be presumed prima facie that the asking, demanding, taking, accepting, or possessing is with such intent if done within the period beginning ten days before election day and ending ten days after election day, unless the voter's affidavit of another and the latter are both members of the same family. 14. Any person who delivers, hands over, entrusts, gives, directly or indirectly his voter's affidavit to another in consideration of money or other benefit or promises thereof, or takes or accepts such voter's affidavit directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the making of a promise thereof. 15. Any person who alters in any manner, tears, defaces, removes or destroys any certified list of voters. 16. Any person who takes, carries or possesses any blank or unused registration form already issued to a city or municipality outside of said city or municipality except as otherwise provided in this Code or when directed by express order of the court or of the Commission. 17. Any person who maliciously omits, tampers or transfers to another list the name of a registered voter from the official list of voters posted outside the polling place. (26) On voting: There are 24 prohibited acts enumerated under Section 261(z). See enumeration. (27) On canvassing: There are 4 prohibited acts enumerated under Section 261(aa). See enumeration. (28) Common to all BEI and Board of Canvassers: There are 5 prohibited acts enumerated under Section 261(bb). See enumeration. (29) On candidacy and campaign: There are 6 prohibited acts enumerated under Section 261 (cc). See enumeration. (30) Other prohibitions: There are 5 prohibited acts enumerated under Section 261 (dd). See enumeration. (31) Other election offenses (See Section 27 of Republic Act No. 6646 providing additional election offenses): Violation of the provisions, or pertinent portions, of the following sections of this Code shall constitute election offenses: Sections 9, 18, 74, 75, 76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 95, 96, 97, 98, 99, 100, 101, 102,103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 122, 123, 127, 128, 129, 132, 134, 135, 145, 148, 150, 152, 172, 173, 174, 178, 180, 182, 184, 185, 186, 189, 190, 191, 192, 194, 195, 196, 197, 198, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 223, 229, 230, 231, 233, 234, 235, 236, 239 and 240. ##1026 PERSONS CRIMINALLY LIABLE Q - Who are the persons criminally liable for election offenses? 334

A - The principals, accomplices, and accessories, as defined in the Revised Penal Code, shall be criminally liable for election offenses. (Section 263, 1st sentence, Batas Pambansa Big. 881) Q - If the one responsible is a political party or an entity, who, in particular are liable? A - If the one responsible is a political party or an entity, its president or head, the officials and employees of the same, performing duties connected with the offense committed and its members who may be principals, accomplices, or accessories shall be liable, in addition to the liability of such party or entity. (Section 263, 2nd sentence, Batas Pambansa Blg. 881) PENALTIES Q - What are the penalties imposed under Batas Pambansa Blg. 881? A1. Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than 1 year but not more than 6 years and shall not be subject to probation. 2. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. 3. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served. 4. If a political party is found guilty, it shall be sentenced to pay a fine of not less than P10,000.00, which shall be imposed upon such party after criminal action has been instituted in which their corresponding officials have been found guilty. ##1027 5. In case of prisoner or prisoners illegally released from any penitentiary or jail during the prohibited period as provided in Section 261, paragraph (n) of this Code, the director of prisons, provincial warden, keeper of the jail or prison, or persons who are required by law to keep said prisoner in their custody shall, if convicted by a competent court, be sentenced to suffer the penalty of prision mayor in its maximum period if the prisoner or prisoners so illegally released commit act of intimidation, terrorism or interference in the election. 6. Any person found guilty of the offense of failure to register or failure to vote shall, upon conviction, be fined P100.00. In addition, he shall suffer disqualification to run for public office in the next succeeding election following his conviction or be appointed to a public office for a period of 1 year following his conviction. (Section 264, Batas Pambansa Blg. 881) PROSECUTION Q - Who has exclusive power to conduct preliminary investigation of all election offenses? A - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. If the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. (Section 265, Batas Pambansa Blg. 881) 335

ARREST IN CONNECTION WITH THE ELECTION CAMPAIGN Q - If an alleged election offense is committed during and in connection with any election, what are the requirements before a warrant of arrest could be issued? A1. No person shall be arrested and/or detained at any time for any alleged offense committed during and in connection with any election through any act or language tending to support or oppose any candidate, political party or coalition of political parties under or pursuant to any order or whatever name or nature and by whomsoever issued except only upon a warrant of arrest issued by a competent judge after all the requirements of the Constitution shall have been strictly complied with. 2. If the offense charged is punishable under a presidential decree whether originally or by amendment of a previous law, the death penalty shall not be imposed upon the offender except where murder, rape or arson is involved. ##1028 3. In all cases, the penalty shall not be higher than reclusion perpetua and the offender shall be entitled to reasonable bail upon sufficient sureties to be granted speedily by the competent court. 4. Loss of the right of citizenship and confiscation of property shall not be imposed. 5. Any officer or a person who shall violate any provision of this section shall be punishable by imprisonment of not less than 6 years and I day nor more than 12 years, with the accessory penalties for election offenses. The provision of Section 267 of Batas Pambansa Blg. 881 shall not apply to prosecution under this section. (Section 266, Batas Pambansa Blg. 881) PRESCRIPTION Q - What is the prescriptive period for election offenses? A - Election offenses shall prescribe after 5 years from the date of their commission. If the discovery of the offense be made in an election contest proceedings, the period of prescription shall commence on the date on which the judgment in such proceedings becomes final and executory. (Section 267, Batas Pambansa Blg. 881) JURISDICTION OF COURTS Q - Who have exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of Batas Pambansa Blg. 881? A - The RTC except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases. (Section 268, Batas Pambansa Blg. 881) PREFERENTIAL DISPOSITION OF ELECTION OFFENSES Q - What is the preference and priority given by the Comelec regarding investigation and prosecution of election offenses? A336

1. They shall be given preference and priority. Their investigation shall be commenced without delay, and shall be resolved by the investigating officer within 5 days from its submission for resolution. 2. The courts shall likewise give preference to election offenses over all other cases, except petitions for writ of habeas corpus. Their trial shall likewise be commenced without delay, and shall be conducted continuously until terminated, and the case shall be decided within 30 days from its submission for decision. (Section 269, Batas Pambansa Blg. 881) ##1029 CASES: MAKALINTAL VS. COMELEC G.R. NO. 157013, JULY 10, 2003 Section 5(d) of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003) allows the registration of voters who are immigrants or permanent residents in other countries by their mere act of executing an affidavit expressing their intention to return to the Philippines. Does this violate the six-month/one-year residency requirement in Section 1, Article V of the Constitution? RULING: No. The interpretation here of "residence" is synonymous with "domicile." Under our election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residence in the Philippines as residence is considered synonymous with domicile. Domicile means an individual's "permanent home" or "a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent." Section 2, Article V of the Constitution which states "the Congress shall provide a system for... absentee voting by qualified Filipinos abroad" was added to avoid any problems that could impede the implementation of its objective to enfranchise the largest number of qualified Filipinos who are not in the Philippines. The reason Section 2, Article V was placed immediately after the six-month/one-year residency requirement is to demonstrate unmistakably that Section 2 which authorizes absentee voting is an exception to the six-month/one-year residency requirement. LEGARDA VS. DE CASTRO P.E.T. CASE NO. 003, MARCH 31, 2005 Presidency; Article VII, Section 4; The constitutional function as well as the power and the duty to be the sole judge of all contests relating to the election, returns and qualification of the President and Vice-President is expressly vested in the Presidential Electoral Tribunal (PET), in Section 4, Article VII of the Constitution. FACTS: The Presidential Electoral Tribunal (PET) in its Resolution dated January 18, 2005 confirmed the jurisdiction over the protest of Loren B. Legarda and denied the motion of protestee Noli L. de Castro for its outright dismissal. The Tribunal further ordered to undertake 337

measures for the protection and preservation of the ballot boxes and election documents subject of the protest. ##1030 On February 4, 2005, protestee filed a motion for reconsideration assailing the said resolution. Protestee contends therein that: 1. The PET cannot correct the manifest errors on the statements of votes (SOV) and certificates of canvass (COC) because 2. The PET erred in ruling that the petition filed by Legarda is sufficient in form and in substance. ISSUE: Whether or not questions on the validity, authenticity and correctness of the SOVs and COCs are outside of the PET's jurisdiction? Corollarily, is it within the grant of authority of the tribunal to re-canvass the ballots in cases of protests? Is the petition filed sufficient in form and substance? HELD: The Court held that the tribunal has the authority to correct manifest errors on the statements of votes (SOV) and certificates of canvass (COC). The constitutional function as well as the power and the duty to be the sole judge of all contests relating to the election, returns and qualification of the President and Vice-President is expressly vested in the PET, in Section 4, Article VII of the. Constitution. Included therein is the duty to correct manifest errors in the SOVs and COCs. As held in Pena vs. House of Representatives Electoral Tribunal, the requisite for the sufficiency of election protest is to specify the results in the contested precincts. In the instant protest, protestant enumerated all the provinces, municipalities and cities where she questions all the results in all the precincts therein. The protest here is sufficient in form and substantively, serious enough on its face to pose a challenge to protestee's title to his office. Although the Court find that the protest is sufficient in form and substance, it further stressed that nothing as yet has been proved as to the veracity of the allegations. The protest is only sufficient for the Tribunal to proceed and give the protestant the opportunity to prove her case pursuant to Rule 61 of the PET Rules. Although said rule only pertains to revision of ballots, nothing herein prevents the Tribunal from allowing or including the correction of manifest errors, pursuant to the Tribunal's rule-making power under Section 4, Article VII of the Constitution. ##1031 ALAN PETER CAYETANO VS. COMMISSION ON ELECTIONS, ET AL. G.R. NOS. 166388 and 166652, JANUARY 23, 2006 Regarding petitioner's allegations that the matters being raised - The alleged incomplete canvass of plebiscite votes during the revision proceeding and irregularities, frauds and anomalies purportedly committed. 338

Can these questions be raised in a special civil action for certiorari under Rule 65, and do they fall under the Supreme Court's power of review? RULING: 1. They are factual in nature. They involve an examination of the admissibility and sufficiency of the evidence presented during the revision proceedings before the Comelec. 2. The factual findings of the Comelec supported by evidence, are accorded not only respect but finality. This is so because "the conduct of plebiscite and determination of its result have always been the business of the Comelec and not the regular courts. As an independent constitutional body exclusively charged with the power of enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, the Comelec has the indisputable expertise in the field of election and related laws. Its acts therefore, enjoy the presumption of regularity in the performance of official duties. PARTIDO NG MANGGAGAWA, ET AL. VS. COMELEC G.R. NO. 164712, MARCH 12, 2006 The four (4) inviolable parameters of the party-list system under the Constitution and R.A. No. 7941: 1. The 20% ALLOCATION - The combined number of all party-list Congressmen shall not exceed 20% of the total membership of the House of Representatives including those elected under the party-list. 2. The 2% THRESHOLD - Only those parties garnering a maximum of 2% of the total valid votes cast for the party-list system are qualified to have a seat in the House of Representatives. 3. The Three-seat Limit - Each qualified party regardless of the number of votes it actually obtained is entitled to a maximum of three seats, that is one "qualifying" and two-additional seats. 4. Proportional Representation - The additional seats which a qualified party is entitled to shall be computed "in proportion to their number of votes." The formula for computing the additional seats in the party list system under the Constitution and R.A. No. 7941: ##1032 First step a) Is to rank all participating parties, organizations and coalitions from the highest to the lowest based on the number of votes they each received. b) Then the ratio for each party is computed by dividing its votes by the total votes cast for all the parties participating in the system. c) All parties with at least 2% of the total votes are guaranteed one seat each. Only these parties shall be considered in the computation of additional seats. 339

d) The party receiving the highest number of votes shall henceforth be referred to as the "first party." Second step - is to determine the number of seats the first party is entitled to, in order to be able to compute that for the other parties. Since the distribution is based on proportional representation, the number of seats to be allotted to other parties cannot possibly exceed that to which the first party is entitled by virtue of its obtaining the number of votes. Qualification: 1. If the proportion of votes received by the first party without rounding it off is equal to at least six percent of the total valid votes cast for all the party list groups, then the first party should be entitled to two (2) additional seats or a total of three (3) seats overall. 2. If the proportion is less than 4%, then the first party shall not be entitled to any additional seat. Third step - is to solve for the number of additional seats that the other qualified parties are entitled to, based on proportional representation. The formula in simplified form is written as follows: Additional Seats for Concerned Party = No. of votes of concerned party ÷ No. of votes of First party = No. of votes of allocated to the first Party ANTONIO F. TRILLANES IV VS. HON. OSCAR PIMENTEL, SR., IN HIS CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL COURT-BRANCH 148, MAKATI CITY, ET AL. G.R. NO. 179817, JUNE 27, 2008 Legislative; doctrine of condonation; the performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. Congress continues to function well in the physical absence of one or a few of its members. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. ##1033 FACTS: In the aftermath of the "Oakwood Incident," petitioner Antonio F. Trillanes IV was charged, along with his comrades, with coup d'etat defined under Article 134-A of the Revised Penal Code before the Regional Trial Court (RTC) of Makati. Petitioner, who has remained in detention, won a seat in the Senate with a six-year term commencing at noon on June 30, 2007. Before the commencement of his term, the petitioner filed an "Omnibus Motion for Leave of Court to be allowed to Attend Senate Sessions and Related Requests." The trial court denied all the requests in the Omnibus Motion. Hence, this present petition ISSUE: 1. Is the doctrine of condonation available in criminal cases? 340

2. Is the denial of the Omnibus Motion tantamount to removing the respondent from his office and depriving the people of proper representation? Corollary, is it tantamount to disenfranchising the electorate? HELD: 1. ON WHETHER THE DOCTRINE OF CONDONATION APPLIES IN CRIMINAL CASES - Petitioner's contention hinges on the doctrine in administrative law that "a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor." The assertion is unavailing. The case against petitioner is not administrative in nature. And there is no "prior term" to speak of. [T]he Court categorically held that the doctrine of condonation does not apply to criminal cases. Election, or more precisely, re-election to office, does not obliterate a criminal charge. Petitioner's electoral victory only signifies pertinently that when the voters elected him to the Senate, "they did so with full awareness of the limitations on his freedom of action [and] x x x with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison." 2. ON THE DISENFRANCHISEMENT ARGUMENT - In debunking the disenfranchisement argument, it is opportune to wipe out the lingering misimpression that the call of duty conferred by the voice of the people is louder than the litany of lawful restraints articulated in the Constitution and echoed by jurisprudence. The apparent discord may be harmonized by the overarching tenet that the mandate of the people yields to the Constitution which the people themselves ordained to govern all under the rule of law. ##1034 The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. (Underscoring supplied) x x x Allowing accused-appellant to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accusedappellant's status to that of a special class, it also would be a mockery of the purposes of the correction system. LAMBINO VS. COMMISSION ON ELECTIONS G.R. NO. 1741563, OCTOBER 25, 2006 Q - Can the 1987 Constitution of the Republic of the Philippines be revised through People's Initiative? 341

A - No. REASONS: 1. The proposed changes of the petitioner will overhaul two (2) articles, thus: (a) Article VI on the Legislature; (b) Article VII on the Executive. 2. The proposed changes alter substantially the basic plan of government from presidential to parliamentary, and from a bicameral to unicameral legislature. 3. Section 2, Article XVII of the Constitution does not allow revision through initiative. People's initiative to change the Constitution applies only to an amendment of the Constitution, not to its revision. ##1035 PUBLIC INTERNATIONAL LAW FOR SIMPLIFICATION, THE SUBJECTS COVERED ARE DIVIDED INTO THREE: I. MAIN TOPICS: II. ATA GLANCE: TERMS/PHRASES/MAXIMS/PRINCIPLES/DOCTRINES IN PUBLIC INTERNATIONAL LAW III. OTHER RELEVANT INFORMATION I. MAIN TOPICS: 1. PIL - PIL - Distinction, Private International Law and Public International Law 2. PIL - ML - Distinction, Public International Law and Municipal Law 3. Recognition - Recognition of States. Kinds of recognition 4. DE-DE - De Facto and De Jure Government 5. SS - SG - Succession of States, Succession of Government 6. SO - Subjects and objects of Public International Law 7. VC - HS - Vatican City and the Holy See 8. DSC - Doctrine of State Continuity 9. ASD - Act of State Doctrine 10. BIC - Belligerent and insurgent communities 11. UN - United Nations, principles of UN, organs of UN 12. RS - Rights of States (Code: ESEP - LEG) E-xistence S-overeignty E-quality P-roperty and jurisdiction LEG-ation 13. J - Jurisdiction of States (Basis is territorial principle, Nationality principle, Protective principle, Universality principle, Passive Personality principle) 14 EJ - Exemptions from jurisdiction (Doctrine of Sovereign Immunity, Act of State Doctrine, Diplomatic Immunity) 15 Treaties - Principles concerning treaties 16. War - Law of War, rules of warfare, sanctions, prisoners of war 342

17. P - Peaceful and forcible Sanctions 18. Beli - Mill - Belligerent occupation, military occupation 19. EFFECT - Of belligerent occupation on the sovereignty of the legitimate government 20. SP - Rights of stateless persons 21. LOS - Law of the Sea 22. ASL - Air and Space Law ##1036 II. AT A GLANCE (Terms/Phrases/Maxims/Principles/Doctrines in Public International Law) I. In connection with treaties 1. Pacta Sunt Servanda 2. Rebus Sic Stantibus 3. Lex Posterior derogat priori 4. Pact 5. Convention 6. Concordats 7. Declaration 8. Jus Cogens 9. Most Favored Nation Clause 10. Treaty as distinguished from Executive Agreement 11. Reversales 12. Lettres reversals 13. Alternate 14. Plein pouvoir 15. Reservation II. In connection with the right of property and jurisdiction 1. Continental Shelf 2. Easement of Innocent Passage 3. Territorial Sea 4. Freedom of the Seas 5. Freedom of Navigation 6. Contiguous Zone 7. Exclusive Economic Zone 8. Archipelago Doctrine III. In connection with the right of legation or diplomatic intercourse 1. Right of Legation 2. Ambassadors 3. Ministers Plenipotentiary 4. Minister Resident 5. Charges d' affaires 6. Diplomatic Corps 343

7. Agreation 8. Letre de creance 9. Diplomatic passport 10. Diplomatic mission ##1037 IV. In connection with diplomatic immunities and privileges 1. Asylum 2. Territorial Asylum 3. Exterritorial Asylum V. In connection with consular officials 1. Consul 2. Consules Missi (consuls de carriere) 3. Consules electi 4. Letre de provision 5. Exequator VI. In connection with exemptions from jurisdiction 1. Doctrine of sovereign immunity 2. Acta jure imperii 3. Acta jure gestiones VII. In connection with participants in the war 1. Non-privileged combatants 2. Privileged combatants VIII. In connection with termination of war 1. Status quo anti vellum 2. Doctrine of postliminium IX. In connection with forbidden methods of warfare 1. No quarter method 2. Starvation method 3. Reprisals 4. Perfidy or Treachery X. In connection with peaceful and forcible sanctions 1. Diplomatic negotiations 2. Tender and exercise of good offices 3. Mediation 4. Enquiry and conciliation 5. Arbitration 6. Reference to the Security Council of the UN 344

7. Reference to the International Court of Justice ##1038 XI. In connection with international custom/customary international law. 1. Cabotage 2. Angary 3. Opinio juris 4. Equity infra legem 5. Equity praeter legem 6. Equity contra legem XII. In connection with modes of acquiring territories 1. Discovery 2. Prescription 3. Cession 4. Conquest 5. Accretion XIII. In connection with subjects of international law 1. State 2. Colony 3. Dependencies 4. Belligerent 5. Mandates 6. Trust territories XIV. Other terms/phrases/doctrines: 1. Par in parem non habet imperium 2. Ex aequio et bono 3. Res inter alias acta 4. Terra nullius 5. Doctrine of auto limitation 6. Doctrine of contingent sovereignty 7. Drago Doctrine 8. Hinterland Doctrine 9. Thalweg Doctrine 10. Extradition 11. Deportation 12. Double Veto 13. Genocide 14. Torture 15. Slavery 16. Reprisal 17. Embargo 345

18. Blockade 19. Boycott 20. Aggression 21. Persona non grata 22. Aide Memoaire ##1039 EXPLANATION OF THE MAIN TOPICS 1. Private International Law 1. Deals with private individuals. 2. It is really municipal or national in character because each State has its own conflict rules. 3. Relief or reliefs prayed for may be obtained from municipal tribunals. Public International Law 1. It governs the relation of sovereign States and other entities with an international personality. 2. They are generally accepted principles of public international law, giving to the subject an international nature. 3. Sanctions may be in the form of peaceful remedies. Example: diplomatic negotiation, mediation, conciliation, arbitration, diplomatic efforts, settlement by the international court of justice. In extreme cases, forcible measures may be employed like war and reprisal. BASIS OR FOUNDATION OF PUBLIC INTERNATIONAL LAW In actual practice, common consent and natural moral law are determinative factors in interstate relationship. This is founded on the reason that common consent necessarily commands the faithful compliance of commitments made, or arrived at, in the course of a common agreement. There are three schools of thought on this matter: (1) Natural Law School of Thought - which claims that the basis is the natural common law, which, in turn, is based on the rule of human conduct implanted by the Creator in the very nature of man in his conscience to do what is right and to avoid what is evil. (2) Positivist School of Thought - According to this school of thought, the basis is the common consent of States. (3) Eclectic School of Thought - This school of thought holds the view that Public International Law is premised both on the natural moral law and on common consent. Q - Why is public international law observed? A - States observe public international law because: (a) they believe in the reasonableness of the law of nations; (b) they fear reprisal from the other States; and (c) they fear being unconventional. ##1040 Q - Why is public international law observed by private individuals? 346

A - Private individuals observe public international law because as rational beings, they realize that the laws of nations are founded on natural moral law and on common consent and that these are for their own good. In fact, it will be observed that there is an increasing diplomatic and economic intercourse among nations represented by their respective heads of states and ambassadors, As the saying goes, “No man is an island" and each country needs the other not only in terms of goods, products and commodities of all kinds that may be needed in the pursuit of their respective business or trade but also in terms of technology and funding. Q - What is the relation between public international law and municipal law in general? A - Although international in character, public international law could be considered part of the municipal law of a State because of the doctrine of incorporation in political law. Under this doctrine, a State is, by reason of its membership in the family of nations, bound by the generally accepted principles of international law, the same being considered as part of its own laws. In consonance with this doctrine, the Philippines is bound by any resolution which is duly approved by the United Nations General Assembly, or by any treaty, commitment, or agreement, reached in an international convention, especially when the Philippines is a party or a signatory to the said agreement or treaty. But even if it is not a signatory, the Philippines is bound by the Hague Convention because it embodied the generally accepted principles of international law binding upon all States. 2. Public International Law 1. It is more difficult to enforce because it is enforced by the collective wills of equals (sovereign states). 2. The principal sanctions are reprisals and war. 3. The international order is relatively decentralized. 4. Collective responsibility is the rule for failures or omissions. Municipal Law 1. Obedience to municipal law is easier to enforce because the citizens recognize the superiority of their government and its duly constituted authorities. 2. Law is enforced through criminal punishment or execution of judgment. 3. It is relatively a centralized coercive order because there is one central authority (the municipal government) generally legislates for everybody within the State. 4. Individual responsibility generally prevails. ##1041 RELATIONSHIP BETWEEN PUBLIC INTERNATIONAL LAW AND MUNICIPAL LAW Although international in character, public international law could be considered part of the municipal law of a State because of the doctrine of incorporation in political law. Q - Is public international law independent from municipal law?

347

A - According to the Monistic View: Both law depend on each other and both are ultimately directed to the same individual because a State is composed of individuals. While ostensibly, public international law deals with foreign affairs and national law concerns itself with domestic affairs, every so-called domestic affair of a State can be made the subject matter of an international agreement. Hence, it is transformed into a foreign affair. According to the Dualistic or Pluralistic View: Public international law is completely distinct from municipal law; and international law and national law are mutually independent of each other and because the subject matter of public international law is foreign affairs and the subject matter of municipal law is domestic affairs. Besides, public international law is created by the cooperation of two or more States while national law is created by acts of one State, and even by actuations which are not officially "acts of State." What is the conflict between public international law and municipal law? It depends. If the conflict is to be decided by a local court and the case is with respect to the conflict of public international law and our Constitution, then our Constitution should be upheld being the highest law of the land. REASON: Section 5[2][a], Article VIII of the 1987 Constitution which provides that the Supreme Court shall have the power to "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: x x x (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." x x x If the conflict is with respect to international law and a statute, the rules of international law are given equal standing with, but are not superior to, national legislative enactments. A treaty may repeal a statute, and a statute may repeal a treaty; thus, the principle of lex posterior derogat priori, that which comes last in time, will usually be upheld by the municipal tribunal. If the conflict is to be decided by an internationally created tribunal, the recognized principle is that national laws must yield to the laws of nations. REASON: International law provides the standards by which legality of State's conduct is to be determined. ##1042 Q - What prevails in case of conflict between a treaty and a municipal constitution? A - From the point of view of the State itself, our Constitution provides that a treaty may be declared unconstitutional by the courts. From this point of view, the municipal law prevails. The example is the case of Ichong vs. Hernandez where it was then held that the Retail Trade Nationalization Law prevails over the Treaty of Amity with China. NOTE: The decision in Ichong vs. Hernandez no longer holds true because under the new law, otherwise known as the Retail Trade Liberalization Act of 2000, Republic Act No. 8762, foreign individuals or corporations can now engage in retail trade subject to the conditions and limitations prescribed by the said law. BAR QUESTION, 1980 348

Q - The 1968 Vienna Convention on Road Signs and Signal, which was ratified by the Philippine Government under Presidential Decree No. 207 recommended the enactment of the local legislation of the safety signs devices. Acting on that recommendation, Letter of Instruction No. 229 was issued requiring the procurement by all motor vehicle owners of reflectorized triangular early warning devices as a means of preventing nighttime vehicular accidents. Discuss briefly the validity or invalidity of said LOI from the standpoints of (1) international law; (2) police power; and (3) due process. A - The Government of the Republic of the Philippines ratified the 1968 Vienna Convention on Road Signs and Signals, hence the said LOI was issued precisely to be able to fulfill its obligation to install safety signs and devices and to carry out the recommendation of the said convention. The said LOI is therefore valid. The said letter of instruction is a valid exercise of police power. It is a measure designed to insure traffic safety and to avoid traffic accident. The said LOI did not violate due process. As mentioned, the said LOI is a valid police power measure which is precisely for the protection of motorists. Conjectural claims of petitioner as to number of nighttime vehicular collisions cannot be a basis for setting aside a requirement of law that was promulgated after a careful study by the Executive Department. The Letter of Instruction is issued in the exercise of police power for traffic safety. Furthermore, there is nothing in Letter of Instruction No. 229 which compels car owners to purchase the prescribed early warning device. Vehicle owners can produce the device themselves with a little ingenuity. (Agustin vs. Edu, SCRA 195) ##1043 Q - The Department of Health (DOH) issued an administrative order implementing a resolution adopted by the World Health Organization (WHO) to the effect that public officers are not allowed to smoke inside the premises of government buildings. It is on account of this resolution that the petitioner asked that President Noynoy Aquino be sanctioned for violating the said order of DOH. President Aquino claims that the said order is not applicable because there is no enabling law since the same is not incorporated in the municipal law. Which contention is correct? A - The said resolution of WHO is not binding unless and until it becomes a law or it is established as a customary rule. In otherwords, legislation is necessary to transform the said resolution into a domestic law. (Pharmaceutical and Health Care Association of the Philippines, vs. Duque, G.R. No. 173034, October 9, 2007) Q - In the meantime that the said resolution is not yet transformed into a domestic law, how shall it be treated? A - It only partakes of the nature of a soft law and not a treaty, which means that it is only an expression of non-binding norms, principles and practices that merely influence state behavior. (Ibid.)

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Q - If the said resolution is embodied in a treaty which became the basis of the order of the DOH, and it is a treaty where the Philippines is a signatory, how shall it be treated? A - The said order, which is based on the resolution of WHO, becomes obligatory, because the Philippines is a signatory to the treaty, and it is bound by its commitment to comply with the same. Q - What is a soft law? A - As above-mentioned, a soft law is merely an expression of non-binding norms, principles and practices that merely influence state behavior. Hence, it is not binding because it is not yet transformed into a domestic law. For it to be binding, the same must be established as a customary rule. Q - What is the purpose of international law? A - Public international law strives to regulate the actuation of States insofar as they affect the international scene and in some instances, international law allows a State to legally perform acts within the territory of another State. ##1044 3. RECOGNITION OF STATES Recognition of a State - Recognition is the act of acknowledging the existence of a State, a government or belligerency. It is a political act which is exercised by the political department of the State. It is therefore discretionary on the part of a State whether it desires to recognize another State. There are two theories on recognition: (1) the majority view, also known as the declarative view, which holds that recognition merely affirms an existing fact. (i.e., if a State possesses all the essential elements it depends on the recognizing State if it will affirm or not that such State being recognized has indeed all the essential elements of the State; (2) the minority view, also known as the constitutive view, which holds that recognition is compulsory and legal. This means that the recognizing State may be compelled to extend recognition if the elements of a State are established. What is required in order that a government may be recognized? The government must enjoy the support and popular consent or approval of the people and it must show willingness and ability to discharge its international obligations. Different doctrines regarding recognition of any government (1) Under the Stimson Doctrine, no recognition shall be extended to a government established by and through external aggression. (2) Under the Tobar/Wilson Doctrine, recognition of government which is established by revolutionary means shall not be extended until the said government shall have established a constitutional reorganization and shall have freely elected its representatives. (3) Under the Estrada Doctrine, a recognizing State will not issue a declaration giving recognition to another government which is established through a political upheaval. Instead, 350

it will merely accept whatever government has effective control without making a judgment on whether the government that is recognized is legitimate or not. When will recognition be accorded by the recognizing State? This is within the discretion of the recognizing State. The bulk of the practice of States probably supports the view that governments do not deem themselves free to grant or refuse recognition to a new State in an arbitrary manner, by exclusive reference to their own political interests and regardless of legal principles. Different kinds of recognition (1) Express recognition; (2) Implied recognition; (3) De Facto recognition; and (4) De Jure recognition ##1045 Distinguish defacto recognition from de jure recognition De Facto De facto recognition does not bring about full diplomatic intercourse. It is generally provisional and it is extended on the belief of the recognizing State that some of the requirements for recognition are absent. It does not give title to assets of the State held or situated abroad. De Jure De jure recognition brings about full diplomatic intercourse and observance of diplomatic immunities and confers title to assets abroad. 4. DE FACTO AND DE JURE GOVERNMENT Q - Distinguish dejure government from defacto government. A - A dejure government is an organized government of a State which has the general support of its people. A defacto government is characterized by the fact that it is not founded upon the existing constitutional law of the State. (28 C.J. 75) Q - What are the different kinds of defacto government? A(a) That government which gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter, such as the government of England under the Commonwealth, first by parliament and later by Cromwell as protector. (b) That which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is denominated as a government of paramount force, as in the cases of Castine, in Maine, which was reduced to British 351

possession in the War of 1812, and of Tampico, Mexico, occupied during the war with Mexico by the troops of the United States. (c) That established as an independent government by the inhabitants of a country who rise in insurrection against the parent state, such as the government of the Southern Confederacy, in revolt against the Union during the war of secession. (Co Kim Cham [alias] Co Cham vs. Dizon and Tan Keh, 75 Phil. 113) ##1046 Q - What are the characteristics of "de facto" government of paramount force? A - Its distinguishing characteristics are: 1. That its existence is maintained by active military power within the territories, and against the rightful authority of an established and lawful government; and 2. That while it exists it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, as wrongdoers, for those acts, though not warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered by military authority, but they may be administered also by civil authority, supported more or less directly by military force. (Ibid.) Remember my discussion through question and answer in the textbook, Constitutional Law, Volume 1 Q - Corazon C. Aquino took her oath of office on February 25, 1986, the last day of a four-day "people power" revolt. This culminated in the ouster of President Ferdinand E. Marcos. Before she took her oath of office, she read Proclamation No. 1 wherein she declared that she and her Vice-President were "taking power in the name and by the will of the Filipino people." Was the government under Corazon C. Aquino a revolutionary government? A - It is submitted that the provisional government that was established thereunder was revolutionary in character because it was installed by the direct action of the people or by "people power." Hence, it derived its existence and authority directly from the people themselves, not from the 1973 Constitution which was then in existence. Q - Was it a dejure government or a defacto government? A - Initially, the government was a de facto government because there was no constitutional basis of its creation, the same not having been sanctioned either under the 1935 or the 1973 Constitution. However, the de facto government at the start acquired a de jure status when it obtained the continuous public acceptance and support of the people and the recognition of practically all foreign governments. Q - If the said government is a revolutionary government, what was its effect on the Bill of Rights under the 1973 Constitution? A - The Bill of Rights under the 1973 Constitution was not operative during the interval between February 28, 1986 and March 24, 1986 when the Freedom Constitution took effect by presidential proclamation. 352

Q - How about the government under Gloria Macapagal-Arroyo that was established after the ouster of President Joseph Estrada, is it de jure or defacto? A - The Supreme Court considered it a dejure government because President Joseph Estrada already gave up the presidency. ##1047 The Supreme Court said: "xxx Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of government, and without any support from the Armed Forces of the Philippines and the Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary. What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioner's claim of inability. In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure President made by a coequal branch of government cannot be reviewed by this Court." (Underlining Supplied) 5. SUCCESSION OF STATE AND SUCCESSION OF GOVERNMENT Distinguish succession of State and succession of government SUCCESSION OF STATE 1. Political laws are abrogated while municipal laws remain in force. 2. Treaties are discontinued except those dealing with local rights and duties. 3. All rights of the predecessor State are inherited, but the successor State has the discretion to assume or reject liabilities. SUCCESSION OF GOVERNMENT The State continues as the same international person except that its lawful representative is changed. When this happens, what are the consequences? All rights of the predecessor government are inherited by the successor. If the new government was organized due to a constitutional reform, which is duly ratified in a plebiscite, all obligations of the predecessor are also assumed. However, if the new government is established through violence, the new government may lawfully dishonor the personal or political obligations of the predecessor, but not those obligations or contracts entered into in the ordinary course of official business. ##1048 6. SUBJECTS AND OBJECTS OF PUBLIC INTERNATIONAL LAW SUBJECTS AND OBJECTS OF PUBLIC INTERNATIONAL LAW 353

Q - Distinguish each from the other. ASubject of International Law - is an entity directly endowed with rights as well as obligations in the international legal order. Example: In the exercise of its rights, the Philippines, as a sovereign State, can enforce said right and may even sue in the International Court of Justice. On the other hand, the Philippine Republic may be sued in the international tribunal for its official actuations. Object of International Law - An object is a person or thing indirectly vested with rights and obligations in the international order. Example: A Filipino private citizen has rights which owe to be respected by other States but if he has some grievances, he has to course the same through the Republic and its diplomatic offices. Q - What are the subjects of international law? A1. States 2. Colonies 3. Dependencies 4. Belligerent Q - Are private individuals regarded as subjects of international law? A - The rights of individuals as against States are now protected. In fact, in case of crimes against humanity like genocide, victims are afforded the opportunity to participate in the proceedings. NOTE: In cases where international law does not give an individual direct rights and obligations on account of a treaty or a general principle, the individual, in such a case, may only be treated as an object of international law, and for which reason, such individual does not have a standing to espouse a direct claim in the international legal order. BAR QUESTION, 1982 Q - What is the status of an individual under International Law? A - Individuals may be regarded as true subjects of International Law. Individuals are also directly and individually subjects of obligations, responsibilities and rights established by International Law. The statement that States as juristic persons are subjects of International Law only means that individual human beings are indirectly and collectively, in their capacity as organs or members of the State, subjects of the obligations, responsibilities, and rights presented as obligations, responsibilities and rights of the State. (Kelsen, 114) ##1049 7. VATICAN CITY AND THE HOLY SEE Is the Vatican or the Holy See a State? Yes, it possesses the essential elements of a State. REASONS: 354

1. There are around 1,000 people almost all of whom are individuals residing therein by virtue of their office; 2. There is a definite territory (approximately 100 acres); 3. There is a government (under the Pope himself); 4. There is independence (the State of the Vatican City was created by the Lateran Treaty of February 11, 1929 between Italy and the Holy See. Under the terms of the Treaty, Italy "recognizes the full ownership, exclusive dominion, and sovereign authority and jurisdiction of the Holy See over the Vatican"); 5. The Vatican City has a "sufficient degree of civilization"; 6. The Vatican City has been recognized by almost all the countries of the world including Communist Russia. Difference between the Vatican City and the Roman Catholic Church The Vatican City is concerned with material things and occupies a definite territory, while the Roman Catholic Church is preoccupied with things of the soul and the spirit, hence, it is "tied to no limited territory." Both, however, are subjects of international law; both have some international rights, the violations of which can amount to international delicts. Can the Holy Father, as head of the Catholic Church, enter into treaties? Yes. As head of the Catholic Church, the Holy Father can enter into ordinary treaties for and in behalf of the Vatican City. He may also enter into special treaties which regulates ecclesiastical matters. 8. DOCTRINE OF STATE CONTINUITY Doctrine of State continuity - Under this doctrine, a State does not lose its identity but remains one and the same international person notwithstanding changes in the form of its Government, in its headship, in its rank and title, in its dynasty. Example: France which retained her personal identity from the time the law of Nations came into existence until the present day, although she acquired, lost, and regained parts of her territory, changed her dynasty, was a kingdom, a republican empire, again a kingdom, again a republic, again an empire, and is now, finally as it seems a republic. ##1050 9. ACT OF STATE DOCTRINE Act of State doctrine - Under this doctrine, the foreign court chooses to uphold and respect the foreign State's act done within its territory on the reasoning that if it will not do so, it would "imperil the amicable relations between governments and vex the peace of nations." The doctrine was applied in the case of Banco Nacional de Cuba vs. Sabatino (376 U.S. 398 [1964]), which upheld the nationalization of sugar produced in Cuba. This was criticized and for which reason, the U.S. Supreme Court adopted the position formulated in "Sabatino Amendment" (22 U.S. C.A. 2370 [e] [1]), to the effect that no court in the U.S. should decline because the Act of State doctrine seems to make a determination on the validity of a confiscation of property by a foreign State in violation of the principles of international law. 355

Since then, the Act of State doctrine was abandoned by the courts. In First National City Bank vs. Banco Nacional de Cuba (406, U.S. 759 [1965]), the U.S Supreme Court held that the doctrine should not be applied where the Executive Branch expressly represents to the court that the application of the doctrine would not advance the interests of American foreign policy. ACT OF STATE DOCTRINE AS APPLIED IN CREDIT SUISSE VS. U.S. DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, 130 7.3d 342, 1347-48 In relation to PNB VS. U.S. DISTRICT COURT OF HAWAII 04-71843 (D.C. NO. MDL-00840-MLR) FEBRUARY 4, 2005 In this case, the Swiss assets of the Marcos estate had been frozen by the Swiss government at the request of the Republic of the Philippines, which seeks to recover them. The class plaintiffs obtained an injunction from the U.S. District Court of Hawaii requiring the Swiss Banks to hold the assets for the benefit of the class plaintiffs. The U.S. 9th Circuit Court of Appeals issued a writ of mandamus and held that the injunction violated the Act of State doctrine, which precludes American Courts from declaring "invalid" a foreign sovereign's official act, that is, the freeze order of the Swiss government. ##1051 The Swiss government released the funds frozen in Switzerland for transfer to the Philippine National Bank in escrow pending a determination of proper disposal by a competent court in the Philippines. The said funds were deposited by the PNB in Singapore. Thereafter, the assets were forfeited to the Republic of the Philippines following the decision of the Philippine Supreme Court. The U.S. District Court of Hawaii ruled and ordered as follows: 1. The Philippine Supreme Court had violated "due process by any standard" and that its judgment was entitled to no deference. 2. "Any such transfer, without first appearing and showing cause in this court as to how such transfer might occur without violating the Court's injunction shall be considered contempt of the Court's earlier order. Any and all persons and banking institutions participating in such transfers are hereby notified that such transfer would be considered in contempt of the Court's injunction." 3. PNB, which was not a party to the litigation in the district court, was required to show why it should not be held in contempt for violating the court's injunction against transfer of assets by the estate.

356

Hence, PNB filed a petition for mandamus in the U.S. 9th Circuit Court of Appeals to restrain the District Court from enforcing its "Order to Show Cause" and from pursuing discovery against the Bank officer. This case is: PNB VS. U.S. DISTRICT COURT OF HAWAII 04-71843 (D.C. No. MDL-00840-MLR) [FEBRUARY 4, 2005) PNB contended that the entire proceeding against it for its transfer of funds to the Republic of the Philippines violated the "Act of State Doctrine," and that the transfer of funds was made in accordance with the judgment of the Philippine Supreme Court. ISSUE: Are the orders of the U.S. District Court of Hawaii a violation of the "Act of State Doctrine." HELD: 1. The U.S. 9th Circuit Court of Appeals held that the orders of the U.S. District Court of Hawaii had violated the "Act of State Doctrine and reasoned out as follows: ##1052 A) To obtain assets from PNB, or to hold PNB in contempt for the transfer of those assets to the Republic of the Philippines, the District Court necessarily held invalid the forfeiture judgment of the Philippine Supreme Court. B) Regarding the argument of class plaintiffs that the Act of State Doctrine is directed at the executive and legislative branches of foreign governments and did not apply to judicial decisions; the U.S. 9th Circuit Court of Appeals said: (b. 1) A judgment of a court may be an Act of State. (b.2) There was no question that the judgment of the Philippine Supreme Court gave effect to the public interest of the Philippine Government. The forfeiture action was not a mere dispute between private parties. It was an action initiated by the Philippine Government pursuant to its "statutory mandate to recover property allegedly stolen from the treasury." (In re Estate of Ferdinand E. Marcos - Human Rights Litigation, 94F 3d at 546) (b.3) The U.S. 9th Circuit Court of Appeals had earlier characterized the collection efforts of the Republic of the Philippines to be governmental. (b.4) The subject matter of the forfeiture action thus qualified for treatment as an Act of State. C) Regarding the other argument of class plaintiffs that the Act of State Doctrine was "inapplicable" because the judgment of the Philippine Supreme Court did not concern matters within its own territory, the U.S. 9th Circuit Court of Appeals ruled, thus: "The act of the Philippine Supreme Court was not wholly external. Its judgment which the district court declared invalid, was issued in the Philippines and much of its force upon the Philippine National Bank arose from the fact that the Bank is a Philippine Corporation. (Callejo vs. Bancomer S.A. 764 F 2d 1101, 1121-25 (5th Cir. 1985) 357

"Even if we assume for purposes of decision that the assets were located in Singapore, we conclude that this fact does not preclude treatment of the Philippine judgment as an act of State in the extraordinary circumstances of this case." D) Further agreements of the U.S. 9th Circuit Court of Appeals: (a) The interest of the Republic of the Philippines in the enforcement of its laws does not end at its boarders. The fact that the escrow funds were deposited in Singapore does not preclude the application of the Act of State Doctrine. ##1053 xxx" (b) The Republic of the Philippines did not simply intrude into Singapore in exercising its forfeiture jurisdiction. The presence of the assets in Singapore was a direct result of events that were the subject of the decision in Credit Suisse, supra, where the U.S. 9th Circuit Court of Appeals upheld as an Act of State a freeze order by the Swiss government, enacted in anticipation of the request of the Philippine government to preserve the Philippine government's claims against the very assets in issue today." (Credit Suisse, 130 F 3d at 13464 7) 10. BELLIGERENT AND INSURGENT COMMUNITIES Who are referred to as insurgents or rebels? Insurgents or rebels are regarded as organized groups who are in a state of armed hostility towards an established government on account of political reasons or purposes. What, if any, are the rights of insurgents or rebels under international law? None, but if the civil strife has reached a stage where the sovereignty of the State over the insurgent community is already threatened and jeopardized, certain insurgent rights may be tacitly admitted. When this happens, the following principles shall govern the so-called insurgent right: 1. A foreign State shall refrain from interfering in the hostilities involving the parent State and insurgent community. Example: (1) The foreign State shall not extend hospitality to the rebels; (2) The foreign State should not extradite the insurgent to the parent State. 2. If the insurgents committed hostile acts against the foreign state, it may punish them, or turn them over to the parent State. 3. If the acts committed are in the nature of "piracy," they are considered private in character, hence, no insurgent rights arise. 4. If the existence of insurgent rights is admitted by a foreign State, the parent State is still liable for the acts committed by the insurgent community within the jurisdiction of the said parent State. 5. If an insurgent community has been given insurgent rights, it does not mean that the community has acquired the status of a belligerent and neither is there an official recognition of the insurgents as a belligerent community. 358

##1054 When are the "insurgents" considered as "belligerents" and when is their community considered as a "belligerent community"? When the insurgency has reached a serious proportion, the rebels, instead of being merely considered insurgents, may be properly called "belligerents" and their community a "belligerent community." This is, however, subject to the following conditions: 1. The hostilities must be of the character of war and carried on in accordance with the laws of war. 2. The end must be political in character. 3. The proportions of the revolt must be such as to render the issue uncertain and to make its continuance for a considerable time possible. 4. The conduct of hostilities and general government of the revolting community must be in the hands of the responsible organization. (Wilson and Tucker; International Law, p. 69) 11. THE UNITED NATIONS Historical background of the United Nations The League of Nations was organized in 1919, five years after World War I broke out in 1914. Its purpose is to achieve international peace and encourage international cooperation. The United States was not a member of the League of Nations. The League of Nations was officially dissolved on April 19, 1946. What caused the creation of the United Nations after the collapse of the League of Nations? We have already suffered two world wars since the beginning of the 19th century. All nations, whether or not they were involved, shared equally in the ills of war. When battles are fought, the lives of men and women, including innocent children, disabled and even those who are too old to fight, are either endangered, severely damaged or lost. Costs of living are inflated, and after the war, depression and starvation occur, economic ills and immense losses to business are extensive. Wars, after all, are not instruments of achievements. They cannot decide international disputes to the satisfaction of warring nations. Wars cannot make peace. They destroy. Dr. Oswaldo Araha, Ex-President of the General Assembly of the United Nations, said: "The First World War cost 8,000,000 dead, 15, 000, 000 mutilated, 3,000,000 wounded... more than the entire population of Brazil... and 400 billion dollars went up in smoke of battle, a sum of which according to Murray Butler, would have given every family in the countries engaged in the struggle, a furnished house with lands to cultivate, with a surplus sufficient to purchase all the private properties in France and Belgium and construct a university and library in the most important cities of the nations which were devastated in this terrible catastrophe." ##1055 “If we consider the global cost of the last war (World War II) and add the amount required for the re-establishment of the world situation as it was prior to the war, we should arrive at the conclusion never imagined by man as possible, that there has been a waste per 359

capita of the world population of $10,000 or 200 Brazilian contos... This cost can never be paid by us who made the war possible, but will have to be paid by many innocent generations, and its liquidation would require more than a century of work on the part of the victors and vanquished alike. History does not record a peace completed by the generation which raged the war... War sacrifices the present, but much more it compromises the future." x x x Indeed, after every war and after all the bitterness that results from war, mankind is taught that it is peace, after all, that is needed by all the countries of the world to enable them and their people to live in happiness. Peace is what we need to build the world, and peace comes from the heart, and not from the minds of men. This desire for peace overwhelmed the hearts of the great men and women who survived the war. They have agreed to establish and pursue the idea of organizing the United Nations. PURPOSES OF THE UNITED NATIONS Four (4) salient purposes of the United Nations The four (4) salient purposes of the United Nations are the following: (1) The attainment of international peace and security; (2) The development of friendly relations; (3) The achieving of international cooperation; (4) The use of the United Nations as the center for the harmonizing of actions to attain these three aims. PRINCIPLES OF THE UNITED NATIONS Principles of the United Nations The Organization is supposed to act in accordance with the following principles: (1) Sovereign equality; (2) Good faith; (3) Peaceful settlement of disputes; (4) Avoidance of threat or use of force; (5) Members to assist United Nations; (6) United Nations to ensure that non-members will act properly; (7) Non-intervention. ##1056 ORGANS OF THE UN Principal organs of the United Nations The principal organs of the United Nations are the following: (1) General Assembly; (2) Security Council; (3) Economic and Social Council; (4) The Trusteeship Council; 360

(5) International Court of Justice; (6) Secretariat (Article 7, No. 1, UN Charter) Explain each. (1) General Assembly Composition: Consists of all the members of the organization, each of which is entitled to send not more than 5 representatives and 5 alternates. Voting power: Each member has only one vote. Classification of functions: (1) Deliberative, like initiating studies and making recommendations for the development of international law, etc.; (2) Supervisory, such as receiving and considering annual and special reports from other organs of the UN; (3) Financial, like consideration and approval of the budget of the organization, the apportionment of expenses, etc.; (4) Elective, such as the election of the non-permanent members of the Security Council; and (5) Constituent, such as the admission of members and the amendment of the Charter. Session of the General Assembly: Its regular session is held once a year. It may hold special sessions called by the Secretary General at the request of the Security Council or a majority of the members. Required vote on several questions: (a) On important questions (i.e., peace, security, membership, elections, trusteeship system, budget) 2/3 vote of the members present and voting is required; (b) On other questions, a simple majority is sufficient. To classify a question as important, the vote required is a simple majority. ##1057 (2) Security Council - It is the key organ in the maintenance of international peace and security. Composition: It is composed of five (5) permanent members, namely: China, France, Russia, the United Kingdom and the United States; and ten (10) elective members, elected for twoyear terms by the General Assembly, five from African and Asian States, two from Latin American States, two from Western European and other States, and one from Eastern European States. Voting power: For the elective members, no immediate reelection is allowed. Classification of functions: The Security Council is expected to function continuously, and sessions may be called at any time; thus, the representative of the member States should always be available. Required vote on several questions: Each member of the Security Council shall have one vote, but distinction is made between the permanent members and the non-permanent members in the resolution of substantive questions. 361

BAR QUESTION, 1984 Q - Is the United Nations authorized to resort to enforcement action, including the use of force, in regard to the Iran-Iraq war? If so, through what agency? State the legal basis of the power and conditions for its exercise A - The Security Council may exert effort to settle the dispute but if this fails, it may resort to enforcement action like the use of air, naval and land forces to restore international peace or it may require the member states to put into effect interruption of economic, transportation or communications relation with Iran or Iraq using as basis the provision of Article 33 in relation to Articles 41 & 42 of the U.N. Charter. The U.N. Charter requires the affirmative both of seven of the eleven members constituting the Council, and said seven votes must include the concurrent vote of all five permanent members of the Council like U.S., Russia, China, Great Britain and France. This is needed for the Security Council to assume jurisdiction and make the resolution as aforementioned. ##1058 BAR QUESTION, 1984 Q - At the Unites Nations, the Arab League, through Syria, sponsors a move to include in the agenda of the General Assembly the discussion of this matter: "The Muslim population of Mindanao, Philippines has expressed the desire to secede from the Republic of the Philippines in order to constitute a separate and independent state and has drawn attention to the probability that the continuation of the armed conflict in Mindanao constitutes a threat to peace." You are asked by the Philippine Government to draft a position paper opposing the move. Briefly outline your arguments supporting the Philippine position, specifically discussing the tenability of the Arab League's action from the standpoint of International Law. A - The motion being sponsored by the Arab League is a matter within the domestic jurisdiction of the Philippines. Besides, the movement to secede from the Republic of the Philippines is not an international dispute which a U.N. member may bring to the attention of the Security Council or of the General Assembly. (3) Economic and Social Council Composition: Composed of fifty-four (54) members elected by the General Assembly for a three-year term. Functions: (1) It shall exert efforts towards higher standards of living, conditions of economic and social progress and development; (2) It shall exert efforts to solutions of international economic, social, health and related problems; (3) It shall exert efforts for universal respect for and observance of human rights and fundamental freedoms. 362

Voting Power: Decisions are reached by a simple majority vote. (4) The Trusteeship Council Composition: (a) It is composed of members of the UN administering trust territories; (b) It is composed of permanent members of the Security Council not administering trust territories; and (c) It is composed by as many other members elected by the General Assembly as may be necessary to ensure that the total number of members is equally divided between those members of the UN which administer trust territories and those which do not. Voting Power: (a) Each member of the Trusteeship Council shall have one vote. (b) Decisions of the Trusteeship Council shall be made by a majority of the members present and voting. (Article 89, UN Chapter) ##1059 (5) International Court of Justice Function: It is the principal judicial organ of the UN (Article 1, Statute of the International Court of Justice) Composition and Qualification: The court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries, or are jurisconsults of recognized competence in international law. The Court shall consist of 15 members, no two of whom may be nationals of the same State. (Article 2 and 3, ibid) How are they elected? They shall be elected by the General Assembly and the Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration. (Article 4, ibid.) Term of office: They are elected for 9 years and may be re-elected; provided, however, that of the judges elected at the first election, the term of 5 judges shall expire at the end of 3 years and the terms of five more judges shall expire at the end of 6 years. Court is permanently in session: The court shall remain permanently in session except during the judicial vacations, the dates and duration of which shall be fixed by the Court. (Article 23, ibid.) Jurisdiction of the case: The jurisdiction of the court comprises all cases which the parties refer to it and all matters specifically provided for in the Charter of the UN or in treaties and conventions in force. (Article 36, ibid.) 363

Basis of Court's jurisdiction: It is based on the consent of the parties. Art. 36 of the Statute of the International Court of Justice provides: "The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto, and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court, disputes concerning: (a) The interpretation of a treaty; (b) Any question of international law; (c) The existence of any fact which, if established, could constitute a breach of an international obligation; (d) The nature or extent of the reparation to be made for the breach of an international obligation." Can it give advisory opinion? The Court may give an advisory opinion on any legal question at the request of whatever body that may be authorized by or in accordance with the UN Charter to make such a request (Article 65, ibid) (i.e., General Assembly or the Security Council) or other organs of the UN when authorized by the General Assembly. ##1060 Official languages of the Court: French and English. If the parties agreed that the case shall be conducted in French, the judgment shall be delivered in French. If the parties agree that the case shall be conducted in English, the judgment shall be delivered in English. (Article 39[1], ibid.) Can other languages be used? Yes, if requested by the parties or by any of the parties (Article 39[3], ibid.) BAR QUESTION, 1979 Q - May the United States be sued in our courts for the value of private properties requisitioned by its Army during the last World War, as well as Japan for the "Mickey Mouse" money in payment for private properties, which have not been redeemed until now? May the suit be brought to the International Court of Justice? A - The said suit may not be brought to the international law of justice without the consent of the USA. REASON: In contentious cases such as this one, consent of the parties is needed. BAR QUESTION, 2006 Q - (a.) Where is the seat of the International Court of Justice? (b.) How many are its members? (c.) What is the term of term of the office? (d.) Who is its incumbent President? What is his/her nationality? A - (a.) The seat of the ICJ "is at the Peace Palace, Hague (Netherlands)." (b.) Members of ICJ: fifteen members, no two of whom may be nationals of the same State. (c.) Term of their Office: members of ICJ are elected for nine years and may be re-elected. (d.) Incumbent President of ICJ: Rosalyn Higgins, a British. 364

(6) Secretariat - The chief administrative organ of the UN. Composition - Headed by a Secretary-General who is chosen by the General Assembly upon recommendation of the Security Council. He shall be the chief administrative officer of the Organization. (Article 97, UN Charter) Functions (1) The Secretary-General is the highest representative of the UN, and is authorized to act in its behalf. (2) Acts as Secretary in all meetings of the General Assembly, the Security Council, the Economic and Social Council, and the Trusteeship Council. (3) The Secretary-General and his staff are international civil servants, and they cannot receive instructions from any government or source outside the UN. (4) The Secretary-General enjoys the right of political initiative, and may bring to the attention of the UN Security Council any matter which, in his opinion, may threaten international peace and security. ##1061 MEMBERS OF THE UNITED NATIONS Category of members of the United Nations (a) The original members; and (b) Those who were subsequently admitted as members. Who are the original members? The original members are the States who signed the UN Charter and ratified it. Who are the additional members? The additional members are those who were subsequently admitted. Qualifications for membership Membership in the UN is open to all peace-loving states which accept the obligations under the charter and are able and willing to carry out their obligations. Vote needed to admit, suspend or expel a member of the UN TO ADMIT The decision of 2/3 of those present and voting in the General Assembly upon the recommendation of at least nine (9) members of the Security Council, including all the permanent members of the Security Council. TO SUSPEND The same vote is required to suspend. TO EXPEL 365

2/3 vote of those present and voting in the General Assembly upon recommendation of a qualified majority of the Security Council on grounds of persistently violating the principles in the Charter. THE UN CHARTER (It serves as the Constitution that governs the relations of international persons) ##1062 Can it be amended? Yes, it may be amended in the following manner: By 2/3 vote of the General Assembly and ratified with their respective constitutional processes by 2/3 of the members of the UN, including all the permanent members of the Security Council; A general conference, called by a majority vote of the General Assembly and any nine (9) members of the Security Council, may propose amendments by a 2/3 vote of the conference. When shall the amendment take effect? It shall take effect when ratified by 2/3 of the members of the UN, including the permanent members of the Security Council. 12. FUNDAMENTAL RIGHTS OF STATES 1. Rights of existence, integrity and self-preservation 2. Right of sovereignty and independence 3. Right of equality 4. Right of property and jurisdiction 5. Right of legation or diplomatic intercourse CODE: ESEP-LEG E-xistence Sovereignty Equality Property and jurisdiction LEG-ation RIGHT OF EXISTENCE - A State exists because it possesses the essential elements, thus: (1) People; (2) Territory; (3) Government; and (4) Sovereignty. It is on this basis that it acquires a personality in the international order, and arising from this personality are corresponding rights and responsibilities. Its success and ability to exercise its expected role in the world order depends on its continued existence. In fact, to be able to insure its survival, Article 5 of the UN Charter grants it the RIGHT OF INDIVIDUAL OR COLLECTIVE SELFDEFENSE. SELF-DEFENSE 366

Self-defense - It is right of a State to defend itself from an external aggression. The necessity for self-defense is determined by the party attacked and in the exercise of this right, it has the right to repel force with force. ##1063 Requisites of self-defense under Article 51 1. There is an armed attack 2. The attack must be against a UN Member 3. The Security Council must not have acted yet Define "armed attack" The UN Charter has no definition of "armed attack." Whether or not an attack exists and who is responsible for the same will be determined by the Security Council. COLLECTIVE SELF-DEFENSE Collective self-defense - It is the collective right of the members of a particular organization to defend themselves from an aggression or attack which endangers their peace and safety. Example: a. NATO (North Atlantic Treaty Organization) - This is a treaty signed in Washington on April 4, 1949, composed of Nations in the North Atlantic area. Their agreement: The parties agreed, among others, that an armed attack against one or more of them in Europe or in North America is considered as an attack against all of them. b. SEATO (Southeast Asia Treaty Organization) - This is also known as the Manila Pact or the South East Asia Collective Defense Treaty of September, 1954. Their agreement: An aggression against any of the signatories will be considered as endangering their peace and safety, in which case, they obligate themselves to meet the common danger in accordance with their constitutional processes. Rationale behind collective self-defense or alliances 1. There is strength in union and there is security in collective strength. 2. To give the members the feeling of safety through mutual protection and outright combination of strength. ##1064 CASES: 1. Nuclear power facility in Iraq was destroyed by war planes of Israel sometime in 1981. Israel claims that it was justified in doing so and interposed the ground of preemptive self-defense. The matter reached the UN Security Council for resolution. RULING: It was condemned as a clear violation of the UN Charter and the norms of international conduct, hence, Israel was directed to refrain from such act. 2. In connection with U.S. missile attack which resulted to the destruction of two Iranian offshore oil production installations, alleging that Iranian oil platforms were used as a staging facility for attacks by Iranian forces against shipping in the Gulf, the U.S. justified its attack as a legitimate use of force and self-defense. RULING: The ICJ was not convinced 367

that the U.S. attack was necessary as a response to the shipping incidents in the Gulf. In other words, the force was not considered a proportionate use of force in self defense. The U.S. could claim the right of self-defense only if it is the victim of an armed attack by Iran. (Iran vs. U.S., November 6, 2003) 3. A State may not exercise the collective right of self-defense without the explicit request for assistance from the State or States on whose behalf the right is to be exercised. This is the ruling of the International Court of Justice when the U.S. came to the defense of El Salvador, Honduras and Costa Rica. In this case, the court noted that there was no explicit request for assistance by the said countries, hence, the ICJ ruled that the condition sine qua non required for the exercise of the right of collective self-defense was not fulfilled. (Nicaragua vs. U.S. 1986). (I.CJ Rep. 14, June 27, 1986) 2. RIGHT OF SOVEREIGNTY AND JURISDICTION Sovereignty - Sovereignty is defined as the supreme power in a State by which that State is governed (Moore, Digest of International Law), or the supreme, absolute, uncontrollable power by which any State is governed. (Cooley's Constitutional Limit) It is also defined as the union and exercise of all human powers possessed in a State; it is a combination of all powers; it is the power to do everything in a State without accountability to make laws, to execute and apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or commerce with foreign nations, and the like. (Story, Constitution, Section 207) BAR QUESTION, 2000 Q - The Philippines has become a member of the World Trade Organization (WTO) and resultantly agreed that it "shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements." This is assailed for being unconstitutional because this undertaking unduly limits, restricts and impairs Philippine sovereignty and means among others that Congress could not pass legislation that will be good for our national interest and general welfare if such legislation will not conform to the WTO Agreements. Refute this argument. ##1065 A - Law of nations are founded in natural moral law and common consent and that these are for their own good. In fact, it will be observed that there is an increasing diplomatic and economic intercourse among nations represented by their respective Heads of States and Ambassadors. As the saying goes, "no man is an island" and each country needs the other not only in terms of goods, products and commodities of all kinds that may be needed in the pursuit of their respective business or trade but also in terms of technology and funding. The Philippines "adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, freedom, cooperation and amity with all nations." A contract entered into and executed by the State is binding to it, and it may, if necessary, pass or approve a law to be able to fulfill the obligations it has undertaken. (Tañada vs. Angara, G.R. No. 118295, May 2, 1997) 368

Distinguish sovereignty from independence Sovereignty is the supreme, power of the State by which that State is governed. It has two aspects: internal and external. In its internal, aspect, sovereignty is the power inherent in the people or vested in its ruler by the Constitution to govern the State. Such sovereignty does not, in any degree, depend upon its recognition by other States. A new State, springing into existence, does not require the recognition of other States to confirm its internal sovereignty. In its external aspect, sovereignty consists in the independence of one political society in respect to all other political societies. The external sovereignty of any State requires the recognition by other States in order to render it perfect and complete. This external manifestation is what is called independence. (Malcolm, Constitutional Law) Simply stated, independence is freedom from external control in the conduct of external and internal affairs. If the sovereignty of a country within its territory is more or less recognized by other States, said country is referred to as independent. Is the sovereignty and independence of a State absolute? No. It is subject to the limitations imposed by treaty stipulations, or those arising from membership in the UN. Rights and benefits arising from State's sovereignty and independence 1. It determines its own form of government 2. It manages its own government 3. It can enter into treaties and conduct foreign relations 4. It can determine its national policies regarding national defense, natural resources, immigration, currency, etc. 5. It manages its own affairs free from control, dictation or intervention of other States. ##1066 Obligations erga omnes - Obligation of a State towards the international community as a whole. (i.e., prohibition against piracy, genocide, racial discrimination, obligations related to or for the protection of human rights, environment and self-determination) Q - In case of breach of obligation erga omnes, are the States affected by such breach or the States to which the obligation is owed, entitled to any remedy? A - Yes. They, and even if they are not affected, may claim from the responsible Sate the following: 1. Cessation of the internationally wrongful act; 2. Performance of the obligations of reparation in the interest of the State, entity or individual which is especially affected by the breach; 3. Restitution should be effected unless materially impossible. BAR QUESTION, 2006 Q - What is the principle of auto limitation? 369

A - Any State may, by its consent, express or implied, submit to a restriction of its sovereign rights. It may, if it chooses to, refrain from the exercise of what otherwise is illimitable competence. (Reagan vs. Commission of Internal Revenue, G.R. No. L-26379, December 27, 1969) Different kinds of intervention 1. Internal and External Intervention a. Internal intervention - is the interference by one State in the purely domestic affairs of another state. b. External intervention - is the interference by one State in the foreign relations of another State. 2. Individual and Collective Intervention a. Individual intervention - exists when only one State interferes. b. Collective intervention - exists when two or more States interfere as a group. 3. Diplomatic and Armed Intervention a. Diplomatic intervention (also called "intercession”) - is interference through diplomatic channels. b. Armed (sometimes called "punitive ") intervention - intervention through the use of armed force. It would seem that today armed intervention is unlawful under at least two provisions of the UN Charter: ##1067 1. Article 2, par. 3 - "All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered." 2. Article 2, par. 4 - "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations." 3. RIGHT OF EQUALITY Meaning of equality in public international law It does not mean absolute equality. It means legal equality or equality before the law, which means that the rights of a State, regardless of its size, population, power, degree of civilization, wealth, etc. must be respected, and if a State has obligations, it has to respect them and comply with them. Example of legal equality: 1. Each State has one vote. 2. The vote of the smallest State has the same right as the vote of the most powerful State. 3. No State can claim jurisdiction over another State (Par in parem non habet imperium). 4. Equality can only be retained if there is dignity. 5. The courts of one State do not, as a rule, question the validity or legality of the official acts of another sovereign State. 370

ARTICLE 2 OF THE UN CHARTER REGARDING THE PRINCIPLE OF SOVEREIGN EQUALITY OF ITS MEMBERS Weakness or limitation of the principle of sovereign equality It is difficult, if not absolutely impossible, to enforce the said principle because (1) a permanent member has a veto power; and (2) there are permanent and temporary members in the Security Council. 4. RIGHT OF PROPERTY AND JURISDICTION Three domains of a State 1. Terrestrial domain 2. Fluvial or maritime domain 3. Aerial domain ##1068 EXPLANATION OF THE THREE DOMAINS OF THE STATE 1. TERRESTRIAL DOMAIN - (refers to the area of land which the State occupies) POINTS TO REMEMBER: 1. Definition of our National territory (Section 1, Article 1, 1987 Constitution) 2. Archipelagic doctrine - (Already discussed) 3. Effect of the words "and all other territories over which the Philippines has sovereignty or jurisdiction." (Already discussed) 4. What definitely fixes the extent of Philippine territory? (Already discussed) MODES OF ACQUIRING TERRITORIES Different modes of acquiring territories 1. Discovery and occupation 2. Prescription 3. Cession 4. Conquest and subjugation 5. Accretion EXPLANATION OF EACH DISCOVERY AND OCCUPATION - this is an old mode of acquiring ownership when territories which were not yet discovered and occupied can be acquired by the discovering State under the principle of "Terra Nulius" which means that since it is a territory which is not yet owned by or belonging to any State (stateless territory), it can be acquired under the principle of discovery and occupation. Q - X State discovered a Stateless territory and immediately, it took the following steps: (a) it proclaimed sovereignty over the area; (2) planted several flags in different parts of the territory. Will that be sufficient to ripen into "actual or real title"? 371

A - No. Mere discovery is not enough. Aside from discovery, there had to be an effective occupation and administration. X State merely had an "inchoate title" which means that its alleged discovery did not ripen into an actual or real title by effective possession and administration. ##1069 Q - What right arises from discovery and effective occupation and administration? A 1. Actual or real title of the territory acquired by effective possession and administration (Island of Palmas Arbitration Case); 2. The "continental shelf" of the territory discovered and effectively occupied should also belong to the acquiring State. "Continental shell" of a country - It is that part of the seabed and subsoil of the submarine areas contiguous to the coast but outside the area of the maritime zone. Why is the "continental shelf" important? It is important because of the rich natural resources found therein. This is, in fact, incorporated in the Petroleum Act. Q - Are the Kalayaan Islands (those discovered then by Tomas Cloma) subject to the sovereignty of the Philippines? A - There are justifiable reasons supporting the view that the Kalayaan Islands are subject to Philippine sovereignty. First, there was discovery by Tomas Cloma, a Filipino, who subsequently ceded these rights to the Philippine Government. Second, the Philippines exercised its jurisdiction over the islands; Third, the Philippines laid formal claim to the islands by virtue of occupation; Fourth, the islands are part of Palawan Province; Fifth, the Philippines registered its claim with the UN Secretariat. PRESCRIPTION Elements of prescription as a mode of acquiring territory. 1. Possession which must be continuous, public and adverse. 2. Lapse of a reasonable period of time (which is a question of fact and dependent on the circumstances of each case.) CESSION Cession - It is a mode of acquiring territory made either voluntarily (sale or donation) or involuntarily (on account of or as a result of war). Example: 1. Cession of Alaska by Russia to the US in 1867. 2. Cession of the Philippines by Spain to the US. (Treaty of Paris, December 10, 1896) 372

CONQUEST AND SUBJUGATION Conquest - It is the acquisition of sovereignty of a country by force of arms, exercised by an independent power, which reduces the vanquished to the submission of its empire. ##1070 Is physical conquest enough for the title to ripen to real ownership? It is not enough. Annexation or subjugation must follow. When is there an annexation or subjugation? It takes place if a formal cession is made in the treaty of peace. Q - Is conquest a legitimate mode of acquiring territory under the UN Charter? A - No. REASON: "All members shall refrain in their international relations from the threat to use of force against the territorial integrity or political independence of any State, or in other manner inconsistent with purpose of the UN." (Article 2[4], UN Charter) ACCRETION Accretion - It is a mode of acquiring property produced by or which is attached or united to a thing already owned by a person. In Roman Law, this is known as accessio which may either be: Accessio Continua - Accession occurring as a consequence of forces external of the thing itself. Accessio Discreta - Accession occurring as a consequence of forces inherent in the thing itself. Accessio Continua may be natural or artificial. NATURAL ACCESSIO CONTINUA 1. Alluvion - Gradual and imperceptible addition to the bank of rivers. 2. Avulsion - Accretion which takes place when the current of a river, creek or torrent segregates a known portion of land from an estate on its banks and transfers it to another estate. 3. Insula Nata - An island formed in the sea. It is the property of the first occupant but it belongs to no one before it was occupied. If it is formed in a river, and it occupies the middle of the river, it belongs to the owner of the nearer margin. If it is nearer to one side than the other, it belongs to the person who possess lands contiguous to the bank on that side. 4. Alveus Derelictus - Whenever there is a change in the course of the river, the old riverbed belongs to those who possess the lands adjoining its banks in proportion to the extent along the banks of their respective estates. The new river bed becomes a public property. NOTE: The same are old Roman Law Principles which are still found and discussed in our Civil Code, particularly in connection with the law on property. ##1071 THE SAID PRINCIPLES BECAME THE BASIS OF THE PRINCIPLE THAT WHEN ISLANDS ARE FORMED OFF THE COAST OF A STATE BY ALLUVION, VOLCANIC ACTION, OR OTHER CAUSES, THEY BECOME PART OF THE STATE TO WHICH THE COAST BELONGS. 373

2. FLUVIAL DOMAIN - (it refers to the internal and external waters) Q - What is included in the fluvial or maritime domain? A1. Internal waters - (These are completely within the territory) (a) Rivers (b) Bays and gulfs (c) Straits (d) Canals 3. Archipelagic waters (2nd sentence of Section 1, Article 1, 1987 Constitution) - "The waters around, between, and connecting the islands of the archipelago, regardless of their dimensions, form part of the internal waters of the Philippines." Q - What is the archipelagic doctrine? A - Under this doctrine, the Philippine Archipelago is considered as one integrated unit instead of being divided into more than seven thousand islands. This assertion, together with the application of the "straight base line method," is what is referred to as the Archipelagic Doctrine. By using this method, the outermost points of our archipelago are connected with straight baselines and all waters inside the baselines are considered as internal waters. Q - Can vessels be allowed innocent passage within the archipelagic waters? A - Yes, but this right may be suspended, after publication in the interest of international security. Q - Can the archipelagic sea lanes be designated for continuous, unobstructed transit of vessels? A - Yes. Q - What is the easement of innocent passage? A - It is the right of foreign vessels to pass through territorial waters, especially those connecting two open seas, provided: 1. That the passage is "innocent" which means that there is no ulterior motive for the passage, and all the regulations of the State concerned must have been complied with; and 2. That there is only a passage which means that there is merely a passing through, with no loading or unloading of any person or goods. ##1072 Q - (A.) What is the "archipelagic theory" as proposed by the Philippines in the U.N. Conference on "The Law of the Sea," and give its justification, legal or practical, from the standpoint of the Philippine position? A - (a) Under the archipelago theory, "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 and this is provided in Article 1, Section 1 of the 1973 374

Constitution, now Article 1 of the 1987 Constitution. In this connection, our position is that the 7,100 islands comprising our terrestrial domain should be considered as one integrated unit instead of being fragmented or separate components to be provided with its own territorial sea, as this would make the intervening waters open seas and will be available to uses of other States to the prejudice of our country Q - (B.) How can the observance of our law on national theory be enforced upon individuals, and upon States? A - Our State has power and jurisdiction over persons and things within its territory. Those who are exempt from this power and jurisdiction are the following: a) Foreign states, heads of state, diplomatic representatives, and consuls to a certain degree; b) Foreign state property, including embassies, consulates, and public vessels engaged in noncommercial activities; c) Acts of state; d) Foreign merchant vessels exercising the rights of innocent passage or involuntary entry, such as arrival under stress; e) Foreign armies passing through or stationed in its territory with its permission; and f) Such other persons or property, including organizations like the United Nations, over which it may, by agreement, waive jurisdiction. BAR QUESTIONS, 1979 Q - (C.) May the USA lay exclusive claim over the moon, having explored it and having planted her flag thereon to the exclusion of the other States? A - The USA cannot do so because the moon, the outer space and all celestial bodies therein are res communes. Q - A crime was committed in a private vessel registered in Japan by a Filipino against an Englishman while the vessel is anchored in a part of State "A." Where can he be tried? If both are members of the crew, where will the trial be? A - The crime will be triable by the local State, if the crime committed is a serious one, otherwise, it will be triable by the flag state, Japan, if the members of the crew are the ones involved and the crime alleged to have been committed is such which is petty which does not disturb the peace of the local state. ##1073 Q - The United States Ambassador to the Philippines and the American Consul General also in the Philippines quarreled in the Manila Hotel and shot at each other. May the Philippine Courts take jurisdiction over them for trial and punishment for the crime they may have committed? A - The US Ambassador enjoys immunity from prosecution for the crime he committed, whether officially or in private capacity. The American Consul General enjoys immunity from criminal prosecution only for the acts committed by him in connection with his official functions. 375

Q - May the United Nations be sued for unpaid rentals of buildings used by it for its sessions in the Philippines? A - If the lease of the building is covered by a contract of lease which was entered into by the UN and signed by the latter and the owner of the building, then the UN is deemed to have waived its immunities and may be sued for unpaid rentals under and by virtue of the said contract of lease. TERRITORIAL SEA - (This is also known as the maritime belt. It is that portion of the sea adjacent to the coast of a State which is under its jurisdictional control) Q - What is the breadth or width of the territorial sea? A - During the 18th century - 3 nautical miles. REASON: Because at that time, the range of artillery was about 3 miles. Now, this is extended to 12 nautical miles from the low water mark, or in the case of archipelagic States, from the baselines. NOTE: Please refer to a more extensive discussion of this subject in connection with the Convention on the Law of the Sea. (Last topic) OPEN SEAS - (That part of the sea which is not included in the territorial sea or in the internal waters of any State) Q - Are the open seas included in the maritime zone of any State? A - No. By its very nature, the sea cannot be the property of any State. Q - What is the principle of "The Freedom of the Seas"? A - It means that no part of the sea as such can be subjected to the sovereignty of any State. It cannot therefore be incorporated into the territory of any State through occupation. ##1074 Q - What then is the meaning of the statement that the open seas is not property of any State? A - This means that "it is the common highway of all, appropriated to the use of all; and no one can arrogate to himself a superior or exclusive prerogative there. Every ship sails there with an unquestionable right or pursuing her own lawful business without interruption. And whatever may be that business, she is bound to pursue it in such a manner as not to violate others under the Latin Maxim, SIC UTERE TUO, NON ALIENUMLAEDAS." (Paras, quoting Justice Story) In other words, they are open and available to the use of all States for a variety of purposes (i.e., navigation, flight over them, laying submarine cables and papers, fishing, research, mining, or in pursuing any lawful business). Under Art. 88 of the UN Conference on the Law of the Sea, the high seas shall be reserved for peaceful purposes. Q - Is this rule absolute? A - No. This may be regulated by a treaty. 376

Q - What is the freedom of navigation? A - It refers to the right to sail ships on the high seas, subject only to international law and the laws of the flag state. Q - What is referred to as the contiguous zone? A - It is the zone extending up to 12 nautical miles from the territorial sea. Although it is not technically a part of the territory of the State, the coastal State may exercise limited jurisdiction over the contiguous zone as a preventive measure to insure that customs laws, immigration and sanitary laws are properly and effectively enforced. Q - What is referred to as the exclusive economic zone? A - It is the zone which extends up to 200 miles from the low water mark or the baselines as the case may be. Q - It was mentioned earlier that the area beyond the territorial sea is not part of the territory of a State. Does this mean that the coastal State has absolutely no rights over the said area? A - While it is true that the said area is not owned by any State, it does not mean that other States have absolutely no rights whatsoever to the use of the same. They may enjoy the following rights: 1. As already mentioned earlier, other States may enjoy the right of innocent passage through the said area on two conditions, as aforementioned. 2. The coastal State may exercise sovereign rights over economic resources of the sea, seabed, subsoil. 3. Other States shall have freedom of navigation and over-flight, to lay submarine cables and proper lines and other lawful uses. ##1075 An example of the Philippine exclusive economic zone is the SCARBOROUGH SHOAL, which is situated about 135 kilometers from Iba, Zambales. Q - What is referred to as the continental shelf? A - It is the sea-bed and the subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 miles from the baselines from which the territorial sea as measured where the outer edge of the continental margin does not extend up to that distance. Q - Can the coastal State enjoy the right of exploitation of oil deposits and other resources in the continental shelf? A - Yes. 3. AERIAL DOMAIN - (it refers to the air space above the land and waters) Q - What are the important principles regarding aerial jurisdiction? A377

1. AIR SPACE ABOVE THE TERRITORY OF THE STATE - They are completely subject to the sovereignty of the State just like the fluvial domain. 2. FREE AERIAL NAVIGATION - Air, like the high and open seas, is open to free navigation by all aircraft, domestic and foreign, subject to the right of the State to provide for the security of the territory. 3. TWO-ZONE THEORY - There is a lower zone of territorial air space and a higher unlimited zone of free air space. 4. SOVEREIGNTY IS SUBJECT TO EASEMENT - While the sovereignty over the air space remains with the subjacent State, it is subject to the easement of innocent passage for foreign aircraft. Q - What are the present rules on international aviation? A1. Regular Airline Services - Scheduled landings and departures 2. All other forms of international aviation (a) Flights in transit is recognized without prior permission. (b) Refueling stops is recognized without prior permission. (c) Right of cabotage - Right to transport goods and persons between points in the same State. (d) Aircraft carry the nationality of the State of registration. ##1076 Q - What are the other rules to remember? A1. Every State has complete and exclusive sovereignty over the airspace above its territory. This shall not include outer space. 2. No other States have right of innocent passage over the air territory of another State. 3. Outer space is res communes, like the high seas. It is free for exploration and use by all States but it cannot be annexed by any State (Outer Space Treaty of 1967). And they may be used only for peaceful purposes, (i.e., nuclear weapons of mass destruction may not be placed in orbit around the earth. 5. RIGHT OF LEGATION OR DIPLOMATIC INTERCOURSE Q - What is the right of legation? A - This is the right of a State to send envoys or establish diplomatic missions, or the right to receive such envoys or missions. The first is known as the active right of legation. The second is known as the passive right of legation. Q - Who are the agents of diplomatic intercourse? A1. Head of State - He represents the sovereignty of the State. Pointers: 1. The conduct of foreign relations is essentially an executive function. 378

2. The President alone cannot, however, execute and implement our foreign policies. The DFA, represented by the Secretary of Foreign Affairs, executes our foreign policies through the various diplomatic and consular officials. 3. The Head of State may conduct diplomatic intercourse personally in the following instances: a. When he attends a summit conference; b. When he visits foreign states officially. b.1. In case of official visit, the head of State is entitled to full diplomatic honors and privileges. b.2. If the head of State travels incognito, he cannot claim diplomatic immunity unless he decides to reveal and prove his identity. b.3. If the incognito visit is with the knowledge of the State concerned, he receives diplomatic privileges. However, to preserve the "unofficial" character of the mission, he does not get ceremonial honors. ##1077 FOUR CLASSES OF DIPLOMATIC OFFICERS 1. Ambassadors - they are the political, cultural, economic, and social representatives of their countries to a foreign State. Their offices are called as embassies. 2. Ministers plenipotentiary or envoys extraordinary - they are ministers assigned to attend to a special function (i.e., signing a treaty). 3. Ministers resident - they are the political, cultural, economic, and social representatives of their countries to a foreign principal city. Their offices are known as legations. 4. The Charges d'affaires (in charge of affairs) - They are those officially below the rank of the ministers resident. They take over when the latter is absent. In other words, they are temporarily in charge no matter what their official rank or designation may be. Q - Who assist the Heads of Mission? A1. Diplomatic Staff (Engage in diplomatic activities and accorded diplomatic rank) 2. Administrative and Technical Staff (those employed in the administrative and technical service of the mission). 3. Service Staff (those engaged in the domestic service of the mission) Q - What is the meaning of "Diplomatic Corps"? A - All diplomatic envoys accredited to the same State form a body known as a "Diplomatic Corps." The head of this body is usually the Papal Nuncio, if there is one, or the oldest ambassador. If there are no ambassadors, it is the oldest minister plenipotentiary who is the head of the "diplomatic corps." APPOINTMENT OF DIPLOMATIC OFFICIALS Q - Who appoints ambassadors, other public ministers and consuls?

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A - The President shall nominate and, with the consent of the Commission on Appointments, appoint ambassadors, other public ministers and consuls. (Section 16, Article VII, 1987 Constitution) Q - Is the sending State absolutely free in the choice of diplomatic representatives or officials? A - No. The receiving State has the right to refuse to receive as envoy of another State one whom it considers as persona non grata. Q - What is agreation? A - It is an informal inquiry (enquiry) to find out the acceptability of a proposed envoy and an informal conformity (agremen) of the receiving State to the appointment of the said envoy. Q - What happens if an appointment is made without agreation? A - This amounts to diplomatic faux pas because without agreation, there may possibly be an embarrassment. ##1078 Q - What are the papers that the envoy presents to the receiving State? A1. A letter of credence (letre de creance) - This states the name of the representative, his rank, the character and general object of this mission. It also contains a request for favorable reception and full credence. It is sealed but the ambassador has copies of the same. 2. A diplomatic passport - This authorizes his travel and describes both his person and his office. 3. His instructions - Special diplomatic agents receive a document of general full powers (plein pouvoirs) with authority to negotiate on extraordinary or special business. 4. The cipher or code or secret key - For communication with his country. Q - What are the functions and duties of a diplomatic mission? A - The main functions of a diplomatic mission are: a) To promote friendly relations between the sending State and the receiving State, and the development of their economic, cultural and scientific relations; b) To observe and report to his country the developments in the receiving State; c) To protect the interests of the nationals of his country within the limits allowed by international law; d) To represent his country in the receiving State; e) To negotiate with the government of the receiving State. WAIVER OF IMMUNITIES Q - Can diplomatic immunities and privileges be waived? A(1) If purely personal, the individual concerned may make the waiver. (2) If the right is not personal but official, the home government must make the waiver in behalf of the chief of mission. 380

(3) In the case of subordinates, the waiver of non-personal rights is done either by the home government or by the chief of mission himself. Q - How may the waiver be made? A - Waiver may be made in the following ways: (1) Express waiver - as already discussed; (2) Implied waiver - failure to assert immunity at the time of suit; (3) Presumed waiver - when the envoy himself sues, he necessarily should allow a counterclaim against himself if it should arise from the same transaction; and sometimes even if the countersuit comes from an unrelated claim. (National City Bank of New York vs. Rep. of China, 348 U.S. 356) ##1079 ASYLUM Q - What is the "right of asylum"? A - The "right of asylum" is the authority of a State to allow an alien who has sought refuge from prosecution or persecution to remain within the territory and under its protection. (Oppenheim-Lauterpact, Public International Law, Vol. I, p. 618) Q - What are the two species of asylum? A - (1.) Territorial asylum - refuge within the territory of the sheltering state, the protection which a refugee obtain by escaping to, or remaining upon, the territory of a State other than that the State that "wants" him, until the protection is terminated by his extradition. (McNair, Law on Treaties, Vol. II, p. 67) (2.) Exterritorial asylum - asylum in what are considered the "extensions" of a State's territory. This type includes: (a) asylum in foreign public ships; (b) diplomatic asylum - the protection afforded by a State to a refugee by granting him an asylum in or upon its diplomatic buildings within the territory of the State that wants him. (Ibid.) Q - What is the duration of the said immunities and privileges? A - The same are enjoyed by the envoy from the moment he enters the territory of the receiving State and shall cease when he leaves the country. With respect to official acts, however, immunity shall continue indefinitely. Q - Are the said immunities and privileges available when the envoy is not in the territory of the receiving State? A - Yes. They are available even in transitu, or while travelling through a third State on the way to or from the receiving State. 381

Q - When is a diplomatic mission terminated? A - It is terminated in case of death, resignation, removal or abolition of office, recall by the sending State, dismissal by the receiving State, war between the receiving and the sending State, or by the extinction of the State. ##1080 EXTRADITION BAR QUESTION, 1937, 1941, 1946, 1949 Q - What is extradition? A - Extradition is the removal of an accused from the requested State (the Asylum State) with the object of placing him at the disposal of foreign authorities to enable the requesting State or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting State or government. (Presidential Decree No. 1069, Philippine Extradition Law, Article 2[a]) BAR QUESTION, 1922, 1924, 1930, 1931, 1937, 1939, 1941, and 1946 Q - Briefly State (a) under what authority a fugitive from justice may be extradited, (b) the persons, and (c) offenses subject to extradition. A(a) the extradition may be implemented on the basis of an extradition treaty between the parties (the party requesting the same and the party being requested). (b) they are those charged or convicted of offenses which under the treaty are grounds for extradition. (c) they are those offenses which are defined and listed in the extradition treaty. Q - Can the State being requested be compelled to surrender a criminal to a requesting State? A - Yes, if there is an extradition treaty to that effect. Of course, a State may voluntarily extradite a criminal even without an extradition treaty. BAR QUESTION, 1993 Q - What is the difference, if any, between extradition and deportation? AExtradition 1. The surrender by force of a wanted person by the requested State to the requesting State. 2. May only be made pursuant to a treaty between the requesting State and the requested State. 3. It is for the benefit of the requesting State. Deportation 1. The expulsion of an unwanted or undesirable alien. 2. It is an exercise of sovereignty and a decision made by a State. 3. It is an order of a State acting on its own and according to its laws, interest and processes. ##1081 382

BAR QUESTION, 1969 Q - A Japanese woman came to the Philippines and was admitted as a transient. It was found a few days later that her passport was forged. Deportation proceedings were then started against her. Ten days later, she married a Filipino. Could she still be subject of deportation? A - The Government of the Republic of Philippines has absolutely the right to allow, prohibit or deport any alien whose presence is inimical to its interest. The continuing stay of any alien is therefore subject to the approval and consent of our government and if it decides to deport an alien, that is purely a matter of right on the part of our government. CONSULAR OFFICIALS Q - What is a consul? A - A consul is a commercial agent appointed by his Government to reside in a foreign city, and permitted by the foreign State to do so in order that he may watch over the commercial rights and privileges of his own country therein and thus protect the rights of his country's nationals. (Paras citing Wilson and Tucker, International Law) Q - What are the different finds of consuls? A - As to character a) Consules missi (consuls de carriere) - Literally this means "consuls of career." They are professional consuls, hence, they are not allowed to engage in any other profession or business; b) Consules electi - They are also known as honorary or commercial consuls. They are selected by the appointing Government either from its own citizens engaged in business in the country in which they will be allowed to exercise consular functions, or from among the nationals of the foreign state involved. As to rank a) Consul-general - He heads several consular districts, or one exceptionally large consular district; b) Consul - He takes charge of a small district or town or port; c) Vice-consul - He assists the consul; d) Consular-agent - He is usually entrusted with the performance of certain functions of the consul. ##1082 Q - What are the two important documents necessary before the assumption of consular functions? A1) Letter patent (lettre de provision) - This is the letter of appointment or commission which is transmitted by the sending State to the Secretary of Foreign Affairs of the country in which the consul is to serve; and 2) Exequator - This is the authorization given by the sovereign of the receiving State to the consul, allowing him to exercise his functions within the territory (See Lawrence, Principles 383

of International Law, p. 297). The exequator may be granted conditionally; the grant may even be refused for any or no reason; once granted, the exequator may be unilaterally withdrawn. Q - What are the functions of consular officers? A - Generally, the functions pertain to commerce and navigation and other administrative functions like issuing visas (permits to visit his country), as contradistinguished from passports (permits to leave the country, and which are usually issued by the Department of Foreign Affairs). Under Article 10 of the Family Code of the Philippines, "marriages between Filipino citizens abroad may be solemnized by a consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official." Q - What are the immunities and privileges of consular officials? A - Unless given some diplomatic functions, consuls are not generally entitled to diplomatic immunity (U.S. vs. Wong Kim Ark, 167 U.S. 649). They are, however, granted some privileges and immunities which may be essential for the proper performance of their consular duties, such as those granted under the 1963 Vienna Convention on Consular Relations, to wit: 1. They are not allowed freedom of communication in cipher or otherwise; 2. Inviolability of archives, but not of the premises where legal processes may be served and arrests made; 3. They are exempt from local jurisdiction for offenses committed in the discharge of official functions, but not other offenses except minor infractions; 4. They are exempt from testifying on official communications or on matters pertaining to consular functions; 5. They are exempt from taxes, customs duties, military or jury service; and 6. They may display their national flag and emblem in the consulate. ##1083 Q - What are the causes of termination of consular functions? A1) Death of consular official 2) Recall or dismissal of the consul 3) Withdrawal of the exequator 4) Outbreak of war between the two states involved 5) Expiration of the period of appointment (if such period had been specified) 6) Disruption of consular relations. 13. JURISDICTION OF STATES Q - What is referred to as the jurisdiction of a State? 384

A - It is the power exercised by the State over persons, property, transactions or events. Q - What must be considered by a State in the definition of its jurisdiction over persons, property, transactions or events? A - A State must give due consideration to the interests of the international community as a whole and it should avoid undue encroachments on the interests of the other members of the community. Q - What is the basis of jurisdiction of a State? A - It is based on the following principles: 1. Territorial principle 2. Nationality principle 3. Protective principle 4. Universality principle 5. Passive personality principle EXPLANATION OF EACH 1. TERRITORIAL PRINCIPLE a. With respect to all persons, things, transactions or happenings within its territorial limits A State exercises exclusive jurisdiction (executive, legislative, and judicial) b. Extent to which a State exercises jurisdiction over persons or acts done outside its territory. It is narrower and depends on the kind of jurisdiction it seeks to invoke. ##1084 Example: There are no territorial limitations on the exercise of legislative functions in civil matters but the State, as a rule, has criminal jurisdiction only over offenses committed within its territory except in the following instances: (a) If the same are continuing offenses which means that the commission of the crime has started in one State and is consummated in another State, in which case, both States have jurisdiction. The State where the crime is committed assumes what may be called "subjective" jurisdiction, while the State where the crime is completed assumes "objective" territorial jurisdiction. NOTE: The exemptions from territorial power and jurisdiction, as discussed later. 2. NATIONALITY PRINCIPLE - This means that the State may punish offenses committed by its nationals anywhere in the world. In civil matters, the personal laws of many countries which have adopted the continental legal system follow their nationals wherever they are. (i.e., Income tax laws also apply to persons on the basis of nationality rather than territoriality).

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Example: Article 15 of our New Civil Code which provides as follows: "Laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad." 3. PROTECTIVE PRINCIPLE - States claim extraterritorial criminal jurisdiction to punish crimes committed abroad which are prejudicial to their national security or vital interests, even where the offenses are perpetrated by non-nationals. Article 2 of our Revised Penal Code provides as follows: ‘Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: 1. Should commit an offense while on a Philippine ship or airship; 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; 3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the preceding number; 4. While being public officers or employees, should commit an offense in the exercise of their functions; or 5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code." ##1085 4. THE UNIVERSALITY PRINCIPLE - Under this principle, a State also claims extraterritorial jurisdiction over all crimes regardless of where they are committed or who committed them, whether nationals or non-nationals. Although this principle is generally considered as forbidden by international law, it is recognized with respect to crimes which threaten the international community as a whole and which are considered criminal offenses in all countries. These are referred to as universal crimes (i.e., terrorism, genocide, piracy, slavery and hijacking). The recognition, however, does not extend with respect to the enforcement of an action (i.e., The agents of a State cannot effect an arrest or make an apprehension in the territory of another State without the latter's consent). This is considered as a serious violation of international law and an infringement of the sovereignty of the nonconsenting State. 5. PASSIVE PERSONALITY PRINCIPLE The State exercises jurisdiction over crimes against its own nationals even if committed outside its territory. Q - What is the power and jurisdiction of the State (1) over persons and things within its territory; (2) over its nationals; (3) outside its territory? A1. Territorial power and jurisdiction - The State has power and jurisdiction over persons and things within its territory. Those who are exempt from this power and jurisdiction are the following: 386

1.a) Foreign states, heads of state, diplomatic representatives, and consuls to a certain degree; 1.b) Foreign state property, including embassies, consulates, and public vessels engaged in non-commercial activities; 1.c) Acts of state; 1.d) Foreign merchant vessels exercising the rights of innocent passage or involuntary entry, such as arrival under stress; 1.e) Foreign armies passing through or stationed in its territory with its permission; and 1.f) Such other persons or property, including organizations like the United Nations, over which it may, by agreement, waive jurisdiction. CASE CALLADO VS. INTERNATIONAL RICE RESEARCH INSTITUTE G.R. NO. 106483, MAY 22, 1995 PARTICULAR SUBJECT IMMUNITY FROM SUIT PRINCIPLE: The International Rice Research Institute, Inc., enjoys immunity from penal, civil and administrative proceedings. FACTS: Ernesto Callado was employed as a driver at the International Rice Research Institute (IRRI) from April 11, 1983 to December 14, 1990. On February 11, 1990, while driving an IRRI vehicle on an official trip to the Ninoy Aquino International Airport and back to the IRRI, petitioner figured in an accident. ##1086 IRRI issued a notice of termination to Callado on December 7, 1990. Thereafter, Callado filed a complaint on December 19, 1990, before the Labor Arbiter for illegal dismissal, illegal suspension and indemnity pay with moral and exemplary damages and attorney's fees. On January 2, 1991, IRRI, through counsel, wrote the Labor Arbiter to inform him that the Institute enjoys immunity from legal process by virtue of Article 3 of Presidential Decree No. 1620, and that it invokes such diplomatic immunity and privileges as an international organization in the instant case filed by Callado, not having waived the same. While admitting IRRI's defense of immunity, the Labor Arbiter, nonetheless, cited an Order issued by the Institute on August 13, 1991 to the effect that "in all cases of termination, IRRI waives its immunity, and, accordingly, considered the defense of immunity no longer a legal obstacle in resolving the case." On October 31, 1991, the Labor Arbiter ordered to reinstate Callado and to pay him backwages. The NLRC found merit in IRRI's appeal and, finding that IRRI did not waive its immunity, set aside the Labor Arbiter's decision and dismissed the complaint. Callado contended that the immunity of the IRRI as an international organization granted by Article 3 of Presidential Decree No. 1620 may not be invoked in the case at bench inasmuch as it waived the same by virtue of its Memorandum on "Guidelines on the handling of dismissed employees in relation to P.D. 1620." 387

It is also Callado's position that a dismissal of his complaint before the Labor Arbiter leaves him no other remedy through which he can seek redress. He further states that since the investigation of his case was not referred to the Council of IRRI Employees and Management (CIEM), he was denied his constitutional right to due process. ISSUE: Is PD. No. 1620 constitutional? Is IRRI immured from the jurisdiction of the Department of Labor and Employment? HELD: Presidential Decree No. 1620, Article 3, provides: "Article 3. Immunity from Legal Process. The Institute shall enjoy immunity from any penal, civil and administrative proceedings, except insofar as that immunity has been expressly waived by the Director-General of the Institute or his authorized representatives." ##1087 The grant of immunity to IRRI is clear and unequivocal and an express waiver by its Director-General is the only way by which it may relinquish or abandon this immunity. On the matter of waiving its immunity from suit, IRRI had made it position clear. Through counsel, the Institute wrote the Labor Arbiter categorically informing him that the Institute will not waive its diplomatic immunity. In the second place, Callado's reliance on the Memorandum with "Guideline in handling cases of dismissal of employees in relation to P.D. 1620" dated July 26, 1983, is misplaced. The Memorandum reads, in part: "Time and again the Institute has reiterated that it will not use its immunity under PD. 1620 for the purpose of terminating the services of any of its employees. Despite continuing efforts on the part of IRRI to live up to his undertaking, there appears to be apprehension in the minds of some IRRI employees. To help allay these fears the following guidelines will be followed hereafter by the personnel/legal office while handling cases of dismissed employees." Callado's allegation that he was denied due process is unfounded and has no basis. He was informed of the findings and charges resulting from an investigation conducted of his case in accordance with IRRI policies and procedures. He had a chance to comment thereon in a Memorandum he submitted to the Manager of Human Resource and Development Department. Therefore, he was given proper notice and adequate opportunity to refute the charges and findings, hereby fulfilling the basic requirements of due process. Callado was not denied due process, and this, notwithstanding the non-referral to the Council of IRRI Employees and Management. IRRI correctly pointed out that Callado, having opted not to seek the help of the CIEM Grievance Committee, prepared his answer by his own self. He cannot now fault the Institute for not referring his case to the CIEM. OTHER CASES In International Catholic Migration Commission vs. Hon. Calleja, et al., and the Kapisanan ng Manggagawa at TAC sa IRRI vs. Secretary of Labor and Employment and IRRI, 190 SCRA 130 [1990] - In this case, the constitutionality of P.D. No. 1620 was sustained. The court took into consideration that the Acting Secretary of Foreign Affairs wrote a letter to the 388

Secretary of Labor and Employment. The Court stated that the opinion contained in the said letter constituted "a categorical recognition by the Executive Branch of the Government that IRRI enjoy immunities accorded to international organization," which determination has been held to be a political question conclusive upon the courts in order not to embarrass a political department of government. ##1088 In Southeast Asian Fisheries Development Center vs. NLRC, et aL., G.R. No. 82631, February 23, 1995 - In this case, Southeast Asian Fisheries Development Center-Aquaculture Department (SEAFDEC-AQD), an international agency, enjoys diplomatic immunity. Lasco, et al. vs. UNRFNRE, etc., G.R. No. 109095, February 23, 1995 - In this case, the diplomatic immunity of respondent was sustained. In World Health Organization vs. Aquino, 48 SCRA 242 119721 - In this case, the diplomatic immunity of World Health Organization was sustained. The Supreme Court justified its decision in this manner: "As a matter of state policy as expressed in the Constitution, the Philippine government adopts the generally accepted principles of international law (1987 Constitution, Article II, Section 20). Being a member of the United Nations and a party to the convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, the Philippine Government adheres to the doctrine of immunity granted to the United Nations and its specialized agencies. Both treaties have the force of law. It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government. It is the duty of the court to accept the claim of the immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is an accepted doctrine that in such cases the judicial department of the government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction. In Holy See vs. Rosario, G.R. No. 101949, December 1, 1994 - In this case, the diplomatic immunity of respondent was sufficiently established by the letter of the Department of Foreign Affairs recognizing and confirming the immunity of the UNRFNRE in accordance with the 1946 Convention on Privileges and Immunities of the United Nations where the Philippine government was a party. 2. Personal jurisdiction - The State has power of jurisdiction over its nationals, which may be exercised by the State even if the individual is outside the territory of the State. ##1089 3. Extraterritorial jurisdiction - The State has power and jurisdiction beyond or outside its territory:

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3.a. When it asserts its personal jurisdiction over its nationals abroad; or the exercise of its rights to punish certain offenses committed outside its territory against its national interests even if the offenders are non-resident aliens; 3.b. When the local state waives its jurisdiction over persons and things within its territory, such as when a foreign army stationed therein remains under the jurisdiction of the sending state; 3.c. When it establishes a colonial protectorate, or a condominium, or administers a trust territory, or occupies enemy territory in the course of war; 3.d. When it enjoys easements or servitudes (i.e., easement of innocent passage or arrival under stress; 3.e. When it exercises jurisdiction over its vessels in the high seas, or over pirates while doing a hot pursuit operation; 3.f. When it exercises limited jurisdiction over the contiguous zone and the patrimonial sea to prevent infringement of its customs, fiscal, immigration or sanitary regulations; 3.g. When it exercises the principle of exterritoriality (i.e., immunities of a head of state in a foreign country). 14. EXEMPTIONS FROM JURISDICTION Q - What are the exemptions from jurisdiction? A1) Doctrine of sovereign immunity a. Restrictive doctrine of sovereign immunity 2) Act of State doctrine 3) Diplomatic immunity EXPLANATION OF EACH 1. DOCTRINE OF STATE IMMUNITY Q - What is the doctrine of sovereign immunity? A - Under this doctrine, a State enjoys immunity from the exercise of jurisdiction by another State. The courts of one State may not assume jurisdiction over another State. Q - Is this rule absolute? A - Originally, it was absolute, hence, a State then may invoke sovereign immunity irrespective of the nature of its activities. However, the application of this doctrine was restricted and qualified in the following manner: ##1090 1. Sovereign immunity was granted only to acta jure imperil (government act) and not to acta jure gestionis (commercial act). Example: When a State engages in international trade, it shall be regarded as a private entity and may not claim the rights, privileges and immunities of a sovereign. (1.a) RESTRICTIVE DOCTRINE OF SOVEREIGN IMMUNITY 390

As already mentioned, absolute sovereign immunity is no longer recognized. This doctrine denies sovereign immunity with respect to State's activities of commercial nature. 2. ACT OF STATE DOCTRINE (Already discussed) 3. DIPLOMATIC IMMUNITY Q - What are the diplomatic immunities and privileges which are accorded by traditional usage? A1. Personal dignity and inviolability of diplomatic envoy; 2. Inviolability of the official residence, archives, and letters; 3. Freedom to communicate on official matters with the home state and with the envoy's nationals; 4. Exemption from local criminal and civil jurisdiction for official and private acts; 5. Exemption from being subpoenaed as a witness or from being forced to give testimony through a deposition; 6. Exemption from taxation and customs duties. (NOTE: This is granted because of international courtesy); 7. Right to display the national flags and coat of arms in the proper buildings; 8. Freedom of movement within the territory; 9. Right of transit through third states. (NOTE: A diplomat in transitu would be entitled to the same immunity as a diplomat in situ) (Bergmann vs. De Sieyes, 170 F 2nd 360). 10. Freedom of religion; 11. Right to exercise jurisdiction within his residential and official domicile (thus he may for instance arrest a member of his suite). 12. Right to precedence and to certain ceremonial honors, according to rank. (Opprenheim, op. cit., pp. 627-631); 13. Right to grant asylum. (In certain instances). ##1091 BAR QUESTION, 1980 Q - "J," a foreign national, is an official of specialized agency of the United Nations assigned to the Philippines. Almost a year after his arrival in Manila (where his office is located), 20 big crates all consigned to him arrived in the port of Manila and were immediately stored in a bonded warehouse. The Constabulary Anti-smuggling Unit, acting on a reliable tip that the crates contained an assortment of highly dutiable goods and also prohibited importations, apply to you, as a Judge of the Court of First Instance, to issue a search warrant. The application, under oath, describes particularly the goods to be searched as well as the place where they are located. (1) Would you, assuming you were a CFI Judge, issue the search warrant? Why? (2) Assuming that you decide to issue the search warrant, and the Solicitor General moves to quash the same because the owner of the goods to be searched is entitled to diplomatic privileges including immunity from search warrants, what will you do, convinced as you are that the crates in question contain highly dutiable goods and even prohibited items of importation? 391

A(1) If "T' is indeed an official of a specialized agency of the U.N. with an assignment in the Philippines and this is certified by the Department of Foreign Affairs and the Office of Solicitor General, I will, in the exercise of prudence and caution, act upon advice, consultation with and motion of the Office Solicitor General. (2) It is the duty of the court to accept the claim of the immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General or other officer acting under his direction. Hence, in adherence to the settled principle that cowls may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is an accepted doctrine that in such cases the judicial department of the government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction. NOTE: The decisions of the Supreme Court, as mentioned earlier: BAR QUESTION, 2005 Q - Adams and Baker are American citizens residing in the Philippines. Adams befriended Baker and became a frequent visitor at his house. One day Adams arrived with 30 members of the Philippine National Police, armed with a Search Warrant authorizing the search of Baker's house and its premises for dangerous drugs being trafficked to the United States. ##1092 The search purportedly yield positive results, and Baker was charged with Violation of the Dangerous Drugs Act. Adams was prosecution's principal witness. However, for failure to prove his guilt beyond reasonable doubt, Baker was acquitted. Baker then sued Adams for damages for filing trumped up charges against him. Among the defenses raised by Adams is that he has diplomatic immunity, conformably with Vienna Convention on Diplomatic Relations. He presented Diplomatic Notes from the U.S. Drug Enforcement agency tasked with "conducting surveillance operations" on suspected drug dealers in the Philippines believed to be the sources of prohibited drugs being shipped to the U.S. It was also stated that after having ascertained the target, Adams would then inform the Philippine narcotic agents to make the actual arrest. Q - As counsel of plaintiff Baker, argue why his complaint should not be dismissed on the ground of defendant Adam's diplomatic immunity. A - It is submitted that Adams allegation of being a diplomatic agent is not supported by more appropriate evidence usually accorded to diplomatic agents. He has no valid diplomatic passport or a diplomatic note to prove his assignment to diplomatic functions. His allegation that he was tasked with "conducting surveillance operations" is not a diplomatic function and for which reason his claim of diplomatic immunity cannot be sustained. Q - As counsel of defendant Adams, argue for the dismissal of the complaint. A - As counsel for defendant Adams, I will base my argument on the defense that my client was truly assigned to perform specific function as an agent of the U.S. Drug Enforcement Agency. As such, Adams is acting for in and behalf of his principal, the US, which is 392

immune from suit. To allow the suit therefore against Adams amounts to suing his principal which is the State itself. EXPLANATION OF IMPORTANT DIPLOMATIC IMMUNITIES AND PRIVILEGES 1. Personal dignity and inviolability: As a rule, he shall not be liable to any form of arrest or detention. Any person who inflicts physical harm to an ambassador or minister is criminally liable under Republic Act No. 75. Q - Is this rule absolute? ##1093 A - No. It is subject to the following exceptions: (1) A diplomatic envoy may be arrested temporarily if he commits an act of violence. He should, however, be released and sent home in due time. 2. Inviolability of official residence, archives and letters: The agents of the receiving State may not enter the premises occupied by a diplomatic mission except when it is necessary to enter the premises (i.e., when there is imminent danger that criminal violence will be perpetrated in the premises) Q - Suppose peace officers of the receiving State are pursuing a criminal or criminals who are taking refuge within the premises of the diplomatic mission, can they enter the premises so they can apprehend the said criminals? A - This is prohibited. However, the said criminals should be surrendered upon demand by local authorities except when the right of asylum exists. 3. Freedom of official communication: The diplomatic mission may send and receive messages, whether ordinary or in cipher, by any of the usual means of communication or by means of diplomatic couriers. 4. Exemption from local criminal and civil jurisdiction: A diplomatic agent cannot be arrested, prosecuted and punished for any offense he may commit, unless he waives his immunity. Diplomatic privilege does not import immunity from legal liability but only exemption from local jurisdiction (Dickinson vs. Del Solar, 1 K.B. 376). A complaint for legal separation may be dismissed on the ground of diplomatic immunity. (Tsiang vs. Tsiang, 86 N. Y.S. 2nd p. 556) Q - Are his properties subject to garnishment, seizure and execution? A - No, except in the following instances: 1. In an action relating to his professional or commercial activity in the receiving State outside his official functions. 2. In an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legacy as a private person and not on behalf of the sending State. 3. In any real action relating to private and movable property situated in the territory of the receiving State, unless the envoy holds it on behalf of the sending State for the purposes of the mission. 393

Can a diplomatic agent be compelled to testify before any judicial or administrative tribunal in the receiving State? No. It can only do so with the consent of his government. Can he be sued for unlawful acts committed by him in his private capacity? Yes. (Shauf vs. Court of Appeals, 191 SCRA 713) What is the effect of a writ or process issued out or prosecuted by any person in any court of the Philippines, or by any judge or justice whereby the person of any ambassador or public minister of any foreign State, authorized and received as such by the President, is arrested or in prison? ##1094 Said writ is void, subject to the rule on reciprocity. (Republic Act No. 75) Are there instances where these privileges are not granted? Yes. It is not granted: (a) to domestic servants of the ambassador or minister whose names are not registered with the DFA; (b) to citizens or inhabitants of the Philippines, if the process is founded upon a death contracted before its employment in the diplomatic service. What else is an envoy's immunity from local jurisdiction? If children are born to him while he possesses diplomatic status, said children are regarded as born in the territory of his home State. 5. Right of transit through third States: A diplomat in transitu is entitled to the same immunity as a diplomat in situ. (Bergmann vs. De Sieyes, 170 F 2nd 360) 6. Right to exercise jurisdiction within his residential and official domicile: This is recognized in cases where he makes an arrest of a member of his suite. 7. Exemption from taxes and customs duties: Diplomatic agents are exempt from all dues and taxes, whether they are personal or real, national, regional or municipal except the following: 1. Indirect taxes normally incorporated in the price of goods or services; 2. Dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for purpose of the mission; 3. Estate, succession or inheritance taxes levied by the receiving State; 4. Dues and taxes on private income having its source in the receiving State and capital taxes on investments in commercial ventures in the receiving State; 5. Charges levied for specific services rendered; and 6. Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property. (Vienna Convention) 15. PRINCIPLES CONCERNING TREATIES Q - What is a treaty? 394

A - It is an international agreement embodied in a single, formal instrument entered into by and between signatory States or international organizations of States, intended to create rights and obligations, or to establish relationships, governed by international law. ##1095 Various appellations have been given to treaties, thus: (a) Pact - this is a special treaty usually entered into for sentimental reasons. (b) Convention - this is an informal treaty which deals with specific subjects. (c) Agreement, arrangements, accord - this is an agreement on administrative or technical matters. (d) Concordats - agreements entered into by the Pope with various Heads of States. (e) Declarations - these are formal reciprocal agreements which may deal with: (1) the rights and privileges of the nationals of a state; or (2) principles in accordance with which States propose to act; or (3) grounds for mutual action on the part of States (Wilson and Tucker, op. cit. p. 209). There are two special kinds of declarations, to wit: (1) "reversales" - declarations that an error in etiquette or in the draftmanship of a treaty should not be considered as a precedent; (2) "lettres reversales" - declarations that an alteration in ceremonial practices is being made only as an exception to the general rule. (f) Protocol - this may refer either to a supplemental treaty or to an amendment to a treaty. (Paras, Public International Law, p. 192) Q - Is an executive agreement a treaty? A - Within the context of municipal law, it may not be considered as a treaty (Commissioner of Custom vs. Eastern Sea Trading, SCRA 351). It is, however, equally binding as a treaty from the standpoint of international law. Q - What, if any is the distinction between a treaty and executive agreement? A - A treaty is concluded by the President with the advice and consent of the Senate. No treaty or international agreement shall be valid and effective unless concurred in by at least twothirds of all the Members of the Senate (1987 Article VII, Section 21, 1987 Constitution). An executive agreement is concluded by the President based on authority granted by Congress or based on the inherent authority granted the President by the Constitution. ##1096 NOTE: CONCURRENCE OF CONGRESS TO THE TREATY OR INTERNATIONAL AGREEMENT IS NEEDED To guide the reviewee on the other ancilliary issues about this topic, and there being no test case that was raised in the Supreme Court on whether the "VFA" (Visiting Forces Agreement) is an agreement or a treaty, I share my thoughts on the matter as I have originally written in the textbook in 1999, thus:

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"The concurrence of all members of Congress is needed in order that a treaty or international agreement shall be valid and effective. The reason for this is because a treaty or international agreement contains terms and conditions which bind the whole country and its people and the consequences and responsibilities arising therefrom should not be taken lightly." The Visiting Forces Agreement, popularly known as VFA, has been approved by the Senate. Is it constitutional? Article 18, Section 25, provides as follows: "Section 25. 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." The above-quoted provision has four essential parts, which are as follows: 1. "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." 2. Said foreign military bases, troops, or facilities may be allowed in the Philippines if there is a "treaty duly concurred in by the Senate." 3. Even if there is a treaty duly concurred in by the Senate, the same has still to be "ratified by the majority of the votes cast by the people in a national referendum held for that purpose." when the Congress so requires. 4. Even if there is a treaty approved by the Senate and ratified by the people, the same has a still to be "recognized as a treat treaty by the other contracting Sate. ##1097 The prohibitions in the first sentence of Section 25, Article 18, supports the view of some legal luminaries that the said VFA agreement, even if approved and even if considered as a treaty, is still a violation of the Constitution. The last two requirements are restraints to the final approval of the VFA agreement. Assuming that it is approved as a treaty by our Senate, it will need ratification by a majority of the votes cast by the people in a national referendum, "when Congress so requires." If this happens, this will again entail a lot of time, debate and protracted deliberations especially so that Section 25 uses the word "Congress" which obviously refers to the two houses of Congress. Assuming further that all first three requirements are complied with, another question arises: Will it be recognized as a treaty by the other contracting State? This issue will be decided by the U.S. Senate and not by our government, nor by the Filipino people, and for this reason, all the effort, time, end resources of our Senate and the executive department, including those contributed by broadcast and print media, may, after all, end up as an exercise in futility. More than this, it will place our government in a ridiculous situation of having to take all the initiatives of having it approved, only eight years after rejecting the military bases 396

agreement in 1991, thereby raising speculations and serious doubt that our government is doing all it can to have it approved in exchange for alleged economic assistance from the U.S. government. Unfounded or not, what is disturbing is that the last say, after all, is the recognition of the treaty "by the other contracting State," when it is our country's permission and hospitability to the "visiting forces" that is precisely being sought for." Q - Recently, there was a suggestion coming from no less than President Benigno Simeon C. Aquino III and Senator Miriam Defensor Santiago, that the VFA should be reviewed and reexamined, what could be the possible areas of concern that should be addressed by Congress? A - There should be a definition on (1) whether it is a treaty or executive agreement; (2) the specific jurisdiction of the Philippines regarding crimes or offenses committed in our jurisdiction by officers/soldiers or any employee or staff of the U.S. Government who are in the Philippines on account of the visiting forces agreement; (3) fixed rentals due and payable to the Philippine Government for use of any land area or facility anywhere in the Philippines; (4) Respect and compliance with our local laws and with the processes, authority and jurisdiction of our courts of justice, among several others that may be decided by Congress. ##1098 Q - In case of conflict between the said constitutional provision and a provision in a treaty allowing friendly foreign troops participating in training exercises, which prevails? A - The said constitutional provision prevails by express provision of Article 8, Section 5(2)(a) of 1987 Constitution. Q - May the constitutionality or validity of a treaty, international or executive agreement be reviewed by the lower courts? A - The Supreme Court has the power to review, revise, modify, or affirm on appeal on certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in all cases in which the constitutionality or validity of any treaty, international or executive agreement, is in question (Article VIII, Section 5[2][a]). On the basis of this provision, the lower courts may, if warranted, review question or questions related to the same but the resolution is subject to review by the highest tribunal. Considering, however, that the resolution of lower courts will affect our relationship with a foreign country, lower courts should observe a becoming modesty in examining constitutional question. For the said reason, the lower courts should defer to the highest judgment of the Supreme Court in the consideration of its validity, which is better determined after a thorough deliberation by a collegiate body and with the concurrence of the majority of those who participated in its discussion. (Drilon vs. Lim, G.R. No. 112497, August 4, 1994) Q - May a treaty be nullified when it conflicts with our Constitution or when it is contrary to an act of Congress?

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A - Yes. Remember this was the ruling of the Supreme Court in Ichong vs. Hernandez where it was then held that the Retail Trade Nationalization Law prevails over the Treaty of Amity with China. Q - Name some treaties to which the Philippines is a party A1. RP-US Treaty of General Relation, 1946 2. UN charter, 1945 3. Genocide Convention, 1950 4. RP-US Mutual Defense Treaty, 1951 5. Treaty of Peace with Japan, 1951 6. SEATO, 1954 7. Convention on the Law of the Sea, 1982 8. RP-US Extradition Treaty, 1994 ##1099 Q - What are the restrictions on the subject matter of treaties? 1. Jus Cogens Restrictions - A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general International Law. (Vienna Convention, Article 53) 2. UN Charter Restrictions - In case of conflict between the obligations of the Members of the UN under the UN Charter and their obligations under any other international agreement, their obligations under the UN charter shall prevail. (Principle of Charter Supremacy, UN Charter; Article 103) Q - What is ajus cogens norm? A - It is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general International Law having the same character. (Vienna Convention, Article 53) THREE GROUPS OF JUS COGENS NORM First Group This group covers the maxims of International Law which protect the foundations of law, peace and humanity in the international order and which at present are considered by nations as the minimum standard for their mutual relation Second Group This group covers the rules of peaceful cooperation in sphere of International Law which presents fundamental common interests Third Group This covers the protection of humanity, especially the most essential human rights Distinction between Jus cogens and Jus dispositivum 398

Jus Dispositivum Refers to norms of ordinary Customary International Law which are derived from the consent of the states and therefore only bind states which consent thereto. Jus Cogens They are duties which every state owes to the international community as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general International Law having the same character. ##1100 Q - What is the classification of treaties? A1) From the viewpoint of the parties thereto (a) bipartite (two signatories); (b) tripartite (three signatories); (c) multipartite (more than three signatories) (Kelsen, Principles of International Law, p. 317) 2) From the viewpoint of who should shoulder the obligations (a) Unilateral (only one signatory is bound); (b) Bilateral (the two signatories are responsible); (c) Trilateral (three signatories are bound); (d) Multilateral (four or more or all of the signatories are given certain obligations). 3) From the Viewpoint of Presence or Absence of Conditions (a) Conditional (either suspensive or resolutory); (b) Unconditional. Q - What are the essential requisites for a valid treaty? A1) CAPACITY (which means that the parties which could either be a sovereign State, or an international organization, must have capacity to contract) 2) AUTHORITY (which means that the agents must be duly authorized and competent to act on behalf of the States represented) 3) CONSENT (which means that the parties must freely give their consent). 4) CONFORMITY (which means that the object and subject matter must be in conformity with the principles of international law) 5) RATIFICATION (which means that the treaty must be properly ratified by the various States concerned in accordance with their constitutional processes) Q - What are the steps in treaty-making? A1) Diplomatic negotiation 2) Signing of the treaty by the representatives 399

3) Ratification of the treaty by the constitutional organs of the respective States. In the Philippines, the power to ratify a treaty is vested in the President subject to the provision of Section 21, Article VII of the 1987 Constitution which provides as follows: "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." ##1101 3.a. A non-signatory State may be bound by a treaty through a process known as accession. (i.e., Upon permission of the contracting parties, a third party who did not participate or who did not ratify on time, may be bound by a treaty) 3.b. A State which signs, accedes or ratify a treaty may make a reservation to exclude or modify the legal effect of certain provisions of a treaty. The State remains a party to the treaty despite its reservation provided that it is compatible with the object and purpose of the treaty. 4) Exchange of the ratification instruments or deposit with the government of one of the contracting parties or with an organ of an international organization. 5) Registration with and publication by the Secretariat of the United Nations. (Article 102, No. 2 UN Charter) Q - When does a treaty become effective? A - It becomes effective on the date agreed upon by the negotiating parties. If there is none, the treaty becomes effective as soon as the consent of all the parties to be bound by the treaty is established. REPRESENTATIVE OF THE STATE FOR THE PURPOSE OF EXPRESSING THE CONSENT OF THE STATE TO BE BOUND BY A TREATY One who produces appropriate plein pouvoir (full powers) is considered as a representative of a State for such purpose. Q - Can said representative be considered as representing his Sate if he has no full powers or plein pouvoir? A - The following are considered as representing their State without having to produce full powers: 1. Heads of State, Heads of Government and Ministries for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; 2. Heads of Diplomatic missions, for the purposes of the text of a treaty between the accrediting State and the Sate to which they are accredited; 3. Representatives accredited by States to an international conference or to an international organization or one of its organs, for the purposes of adopting the text of a treaty in that conference, organization or organ. (Vienna Convention, Article 7[21) Q - What is alternat? 400

A - It is a principle whereby a States own name will be listed ahead of the other signatory, or signatories, in its own official copy of a treaty. It is a practice devised to handle sensitivities over precedence and to maintain the principle of equality between the contracting parties. ##1102 AQUILINO PIMENTEL, JR. VS. OFFICE OF THE EXEC. SEC., ET AL. G.R. NO. 158088, JULY 6, 2005 Q - After a treaty is signed by the State's representative, is it the legal or moral duty or obligation of the President to ratify a treaty? A - No. REASON: After the treaty is signed by the State's representative, the President, being accountable to the people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the State and its people. The President therefore has the discretion even after the signing by the Philippine Representative whether or not to ratify the same. Q - More specifically, what then are the respective roles of the President and the Senate with respect to ratification of a treaty? A - Under the Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate, or having secured its consent for its ratification, refuse to ratify it. Although the refusal of a State to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached upon by the Court via a writ of mandamus. (Ibid.) Q - What, if any, could be the basis behind the refusal to ratify a treaty? A - There is no legal obligation to ratify a treaty but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other State would be justified in taking offense. (Ibid.) ACCESSION TO TREATIES Q - What is accession? A - Accession is the process whereby a non-signatory State later becomes a party to a treaty. There are two (2) kinds of accession, namely: (a) A non-signatory becomes a party in all its provisions in which case the process is termed "accession proper." (b) A non-signatory becomes a party in some of the provisions in which case the process is called either "adhesion" or "adherence." ##1103 Q - Can a State which is not a party or signatory to a treaty be bound by the said treaty? A - Yes, in the following instances: (1) through the process of accession, as aforementioned; and (2) through the most favored nation clause. 401

Q - What is the most favored nation clause? A - A clause which provides that a State pledges to give to the other signatory whatever privileges or concessions the first State may give the third State. Example: If there is a such a clause in our treaty with Japan, we should also give to Japan whatever rights we may give to other countries. If the clause is reciprocal, we will also be given the same treatment by Japan. If in all treaties of the Philippines with the other States, there is such a clause, the result will be that all States will be equally favored. In such a case, none will be the "most favored." 15. FUNDAMENTAL PRINCIPLES CONCERNING TREATIES 1. "Pacta sunt servanda" (treaties must be observed in good faith). If a treaty is contrary to a signatory's national constitution, the international legal order demands faithful compliance with the treaty to avoid international embarrassment. If necessary, the State concerned must even modify its national legislation and constitution to make it conform to the treaty. 2. "Rebus sic stantibus" (a State may unilaterally withdraw from a treaty when there is a vital change of circumstances). The reason for this is because if the change in circumstances affects a signatory State, and to comply with the treaty provisions would seriously jeopardize its own existence, a withdrawal is allowed because its fundamental right to exist is stronger than its duty to comply with the treaty. Q - Is the said principle absolute? A - No, but it can be invoked if the following requisites are present: (1) There is a vital change of circumstances; (2) That the said change and circumstances so affect a signatory State that for it to continue to comply with the treaty provisions would seriously jeopardize its own existence; (3) The change must have been unforeseen or unforeseeable at the time a treaty was perfected; (4) The change must not have been caused by the party who is invoking the doctrine; (5) The doctrine must be invoked within a reasonable time; (6) The duration of the treaty must be indefinite; and (7) The doctrine cannot operate retroactively. ##1104 REVISION OF TREATIES Q - May the General Assembly make recommendations on the revision of treaties? A - Article 14 of the UN Charter answers this question, thus: "Article 14. Subject to the provisions of Article 12, the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations. 402

INTERPRETATION OF TREATIES Q - How are treaties interpreted? A - Rules in the interpretation of contracts are followed in the interpretation of treaties. Interpretations made by the national courts of one State cannot bind the other but that made by an international tribunal ought to have a conclusive effect. (Tunis-Morocco Nationality Decrees Case, PC.I. J. Pub. Ser. B. No. 4, pp. 29-30) TERMINATION OF TREATIES Q - What are the causes for termination of treaties? A - Treaties may: (1) Expire - (a) because the period of its duration has come to an end; (b) because a resolutory condition has occurred; (c) because its purpose has been achieved; (d) because its objective has become an impossible thing to accomplish. (2) Be dissolved - (a) because a party to a bipartite treaty has become extinct; (b) because of mutual withdrawal or cancellation; (c) because of a unilateral denunciation (but only if such a right to unilaterally denounce is given in the treaty); (d) because of unilateral act of termination if the other party has violated the terms of the treaty; (e) because of "rebus sic stantibus "; (f) because of a subsequent change in status of one of the parties; (g) because war has broken out (however, in some cases, the treaties may only be suspended; in still other instances, the treaties may be specially applicable only DURING the war); (h) because of the conclusion of a subsequent inconsistent treaty (Be it noted, however, that in case of conflict between the UN Charter and subsequent treaties between or among States, the former prevails). (Article 103, UN Charter) (3) Be annulled or voided - (a) because one of the signatories to the treaty was at the time of perfection incapacitated; (b) because error or fraud (but not force, pressure, or undue influence) may have vitiated the consent of the contracting parties; (c) because the object of the treaty is contrary to the principles of international law; (d) because the subject matter of the contract is outside the commerce of nations. (Wilson and Tucker, International Law, pp. 223-225; Fenwick, International Law, p. 350; Kelsen, Principles of International Law, pp. 354-358) ##1105 BAR QUESTION, 1992 (Regarding validity of executive agreement) Q - The Japanese Government confirmed that during the Second World War. Filipinas were among those conscripted as "comfort women" (or prostitutes) for Japanese troops in various parts of Asia. The Japanese Government has accordingly launched a goodwill campaign and has offered the Philippine Government substantial assistance for a program that will promote - through government and non-governmental organizations - women's rights, child welfare, nutrition, and family health care. An executive agreement is about to be signed for that pure * e. The agreement includes a clause whereby the Philippine Government acknowledges that any liability to the "comfort women" or their descendents are deemed covered by the reparations agreements signed and implemented immediately after the Second World War. 403

Juliana Iglesias, a descendant of a now deceased comfort woman, seeks your advice on the validity of the agreement. Advise her. A - The agreement by itself may be a valid one if the parties voluntarily give their consent to the same. The question, however, does not state if the said acknowledgement clause is with the knowledge and consent of the comfort women or their descendants. If they have agreed to the same, then the agreement is valid, but if there will be a claim by the said comfort women or descendants arising from the terms of the agreement, such claim may only be pursued upon the consent and initiative of the Philippine government. The said comfort women or their descendants have no legal standing to file and prosecute their claims directly against Japan. ##1106 16. THE LAW OF WAR Q - Define war. A1. WAR AS A CONTEST OF ARMS - Using this as basis, Oppenheim defines war as a "contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing conditions of peace as the other pleases." 2. WAR AS A STATE OR CONDITION OF THINGS - War is not the mere employment of force but the existence of the legal condition of things in which rights are or may be prosecuted by force. (John B. Moore, A Digest of International Law, Vol. 7, pp. 153) 3. CONCEPT OF WAR IN THE INTERNATIONAL SENSE - War is a sustained struggle by armed forces of a certain intensity between groups of certain size, consisting of individuals who are armed, who wear destructive insignia and who are subjected to military discipline under responsible command. (Salonga, citing Ingrid Detter de Lupes, The Law of War) 4. From the point of view of municipal law - A State of war may exist even when there is no war in the international sense. Q - Does a State have the right to wage war? A - The right to wage war is a prerogative of national sovereignty but it can resort to war only in case of individual or collective self-defense, or pursuant to the decision or recommendation of the Security Council to take forcible action against an aggressor; provided, however, that the use of force in self-defense is permitted only while the Security Council has not taken the necessary measures to maintain or restore international peace and security. (Article 51, UN Charter) Q - Does the UN Charter prohibits war? A - Article 2, paragraph 4, of the UN Charter provides as follows: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations." Q - What is the "war power" of Congress? 404

A - "The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a State of war." (Section 23[1], Article VI) Q - Is the said power of Congress absolute and unrestricted? A - 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. The restriction means that by the time "the existence of a state of war" is declared by Congress, a was has already been commenced by an enemy state, or we have already been provoked, and that being already the subject or victim of an attack, we are merely being compelled to defend our State and our people. (Principles, Comments and Cases in Constitutional Law I, Suarez, p. 202) ##1107 1987 CONSTITUTIONAL PROVISIONS REGARDING WAR 1. Renunciation of war as an instrument of national policy. (Article II, Section 2) "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 peace, equality, justice, freedom, cooperation, and amity with all nations." 2. Declaration of the existence of a State of War. (Article VI, Section 23[1]) "The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war." 3. Defense of the State. (Article II, Section 4) "The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military, or civil service." 4. Emergency powers. (Article VI, Section 23[1]) "The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war." 5. Martial law powers. (Article VII, Section 18, par. 1) "The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place in the Philippines or any part thereof under martial law. Within fortyeight hours from the proclamation of martial law or the suspension 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 405

President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it." ##1108 6. Proclamation of martial law is subject to review by the Supreme Court. (Article VII, Section 18, par. 3) "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." 7. A State of martial law is subject to review by the Supreme Court. (Article VII, Section 18, par. 4) "A state of martial does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ." COMMENCEMENT OF WAR Q - When is a war commenced? A - It is commenced by: (1) an act of belligerent force without a previous declaration of war; or by (2) a declaration of war, which must be communicated. (Stone, Legal Controls of International Conflict, pp. 310) EFFECTS OF THE OUTBREAK OF WAR Q - What are the effects of war? A 1. Disruption of diplomatic, consular and other non-hostile relations between the two countries. 2. Commercial intercourse between citizens of the belligerents is prohibited, with some exceptions. 3. Enemy corporations are not allowed to continue their operations. 4. Enemy persons are usually allowed to leave. If they decide to remain, they may be interned and be provided with food, clothing, shelter, medical attendance, religious facilities, and be allowed to communicate with foreign States. This may, however, be restricted. (1949 Geneva Convention) 5. Enemy property on land may be confiscated if owned by the government. 6. Requisitioned if owned by private persons. 7. Enemy private property on the sea may be confiscated 8. The same is true with respect to enemy merchant ships. (Hague Convention of 1907) ##1109 PARTICIPANTS IN THE WAR Q - Who are the two (2) participants in a war? 406

A1. The non-combatants 2. The combatants a. Non-privileged combatants (i.e., Spies. When caught, they do not get the privilege of being considered as "prisoners of war") (Article 29, Hague Convention, 1907) b. Privileged combatants (if captured, they are not supposed to become prisoners of war") Example: Regular armed forces (army, navy, marine, air); doctors or chaplains; war correspondents; levees en masse (spontaneous uprising of the populace); guerillas provided that: (a) they are under a responsible commander (b) they wear a fixed, distinctive emblem, recognizable at a distance (c) they carry their arms openly (d) they conduct their operations according to customs of war and on land. (Article 1, Hague Convention of 1907 and Articles 4 and 8, Geneva Convention of 1949) PRISONERS OF WAR Q - What are the rights and privileges of prisoners of war? A1. They must be treated humanely, shall not be subjected to physical or mental torture, shall be allowed to communicate with their families, and may receive food, clothing, educational and religious articles. 2. They may not be forced to reveal military data except the name, rank, serial number, army and regimental number, and date of birth; they may not be compelled to work for military services. 3. All their personal, belongings except arms, horses, and military papers, remain their property. They are entitled in certain cases to be compensated for work done. 4. They maybe interned in a town, fortress, camp, or any other locality (so long as the place is healthful and hygienic); they are bound not to go beyond certain limits. 5. After the conclusion of peace, their speedy repatriation must be accomplished as soon as practicable. (1949 Geneva Convention on the Treatment of Relatives of War) ##1110 RULES OF WARFARE Q - What is the brief historical background that led to the adoption of the rules of war? A1. Down to the middle ages - War was waged with savage and unsparing cruelty. 2. Latter part of the middle ages - Christianity mitigated the ruthlessness of war. 3. During the 17th century - The devastation and general suffering caused by the thirty years war led writers like Grotius to advocate moderation in the conduct of hostilities for reasons of humanity and religion. 4. Declaration of Paris of 1856 - The movement for the codification of rules of warfare gained impetus. 5. Geneva Convention of 1864 - There was a convention on the treatment of the wounded. 407

6. First Hague Conference of 1899 - Efforts to formulate the laws of war took place. 7. Second Hague Conference in 1907 - Revised the declarations in 1899 and adopted new ones. II. Between the First and Second World Wars 1. Protocol of 1925 - Concerning the use of asphyxiating, poisonous and other gases. 2. Geneva Convention of 1929 - Concerning the treatment of the sick and the wounded in the field and prisoners of war. 3. London Protocol of 1936 - Concerning the use of submarines against merchant vessels. III. After World War II 1. Red Cross Convention 2. The Convention for the amelioration of the condition of the wounded and the sick in the Armed Forces in the Field which revised the Geneva Convention of 1929. 3. The Convention for the amelioration of the condition of the wounded, sick and shipwrecked members of the Armed Forces at sea which revised the Hague Convention No. X of 1907. 4. The Convention relative to the treatment of prisoners of war which revised the Geneva Condition of 1929 on this subject. 5. The Convention relative to the protection of civilian persons in times of war. ##1111 After 1950 1. Hague Convention in 1954 - Concerning the protection of cultural property, such as works of art, in case of armed conflict. 2. 1972 Convention - Prohibiting military use of environmental modification techniques (ENMOD Convention). 3. 1977 (Red Cross Conventions) - Expanding humanitarian protection to combatants and noncombatants. 4. 1981 (Conventional Weapons Convention) - Updating the law in weaponry. Q - If the UN Charter prohibits war, why should it still be necessary to devise rules of warfare? A1. The protagonists should not be left free to do as they please, unfettered by any rules regulating their conduct. 2. Rules of war have been made to temper the suffering and destruction that are the inevitable concomitants of war, regardless of its legality or illegality. (Oppenheim, Vol. 2, p. 218) 3. The laws of war are not applicable to war alone in its technical sense, but to all armed conflicts. 4. The UN has stressed the need to apply basic humanitarian principles in all armed conflicts, and has called upon all parties to armed conflicts to observe international humanitarian rules. (UN General Assembly Resolution 2444 [XXIII], December 12, 1968) SOME IMPORTANT RULES OF WARFARE Q - State some important rules of warfare. 408

A - It is prohibited: 1. To kill with treachery 2. To pillage a town or place even when taken by assault 3. To employ poison or poisoned arms 4. To loot 5. To bomb undefended places (i.e., hospital, religious ship, places or worship) 6. To plant anchored mines 7. To bomb undefended or "open cities" 8. To deliberately bomb civilians 9. To kill hostages (1949 Geneva Convention) ##1112 SANCTIONS Q - What are the sanctions recognized by international law for not observing the rules of warfare? A - CODE: RPPC R-reprisals P-unishment of war crimes P-rotest lodged with neutral powers C-ompensation TERMINATION OF WAR Q - What are the causes for termination of war? A - CODE: CTU C-essation of hostilities without conclusion of a formal treaty of peace T-reaty of Peace (The decisive victory of one of the belligerents leads it to impose its will upon the other.) U-nilateral declaration (defeat or unconditional surrender) Q - What is the meaning of Status Quo And Vellum? A - Each of the belligerents is entitled to the territory and property which it had possession of at the commencement of the war. Q - What is the doctrine of postliminium? A - The territory, individuals and property that have come to the possession or authority of the enemy reverts to the possession and authority of the original or legitimate sovereign. This also means that when a territory which has been occupied by the enemy comes again into the power of the State during the progress of the war through conquest or otherwise, the legal State of the things existing prior to the hostile occupation is re-established. (Principles, Cases and Comments in Constitutional Law I, by Suarez, citing Aruego, International Law, p. 60) 409

SPECIFIC EFFECTS OF WAR Q - What are the specific effects of war on (1) Diplomatic relatives; (2) Enemy persons; (3) Enemy Property; (4) Trading and intercourse; (5) Contracts; (6) Treaties A 1. On diplomatic relations a. The respective diplomatic envoys are allowed to leave for their home countries. b. The official residence of the envoy, as well as the archives of the mission, if left behind, is usually placed under the protection of another foreign envoy. ##1113 2. On enemy persons a. Enemy persons who are within the territory of a belligerent at the time of the outbreak of hostilities may be detained or allowed a reasonable time within which to leave the country. b. Those who choose to stay or are prevented from leaving, conditions or restrictions may be imposed on their continued residence in the country. Usually, they are placed under special restrictions or interned. 3. On enemy property a. Goods belonging to enemy persons are considered as enemy property. b. Goods found on board an enemy vessel are presumed to be enemy property unless the contrary is established by the natural owners. c. Vessels sailing under enemy flag bears enemy character, regardless of the nationality or domicile of its owner. d. Vessels sailing under neutral flag, while ordinarily regarded as neutral in character, may under certain circumstances be considered to bear enemy character. 4. On trading and intercourse a. The practice of belligerents in modern wars is to forbid by legislation all intercourse with alien enemies, except those permitted under license. The main object is to prohibit transactions which would benefit the enemy or enemy persons. 5. On contracts a. The rules of municipal law, rather than international law governs. b. In general, the States treat as void contracts which may give aid to the enemy or add to his resources. 6. On treaties a. Treaties concerning political matters (i.e., treaties of alliance and commercial transactions) are deemed abrogated by the outbreak of war between the parties thereto. b. Executed treaties (i.e., fixing of boundaries) are not affected by war. c. A treaty which regulates the conduct of the parties in times of war is clearly intended to become operative when war breaks out between them. ##1114 410

Q - What are the limitations on targets of attack? A - Only military targets are subject to attack. Civilian objectives are immune from attack. (Note: This distinction is clear in theory but not so easy to observe considering the nature of modern weapons.) Q - What are the places and objectives which are not subject to attack? A1. Neutralized areas/zones (i.e., Suez Canal, Panama Canal) 2. Open towns/cities 3. Cultural property and places of worship 4. Civilian defense personnel, buildings and assets, indicated by distinctive signs, are immune from attack under Protocol I of 1997 5. Civilians a. Those who never took part in hostilities b. Hors de combat (former combatants but wounded or have permanently joined the population) 7. Parachutists (those who bail out from aircrafts in distress. If they land in enemy territory, they must be given a chance to surrender and be treated as prisoners of war) 8. Hospitals, hospital ships and medical counts 9. Food supplies and crops FORBIDDEN METHODS OF WARFARE Q - What are the forbidden methods of warfare? A1. "No quarter" method (An order to the effect that no survivors are to be left open after an attack. This is inhuman and not allowed as a method of warfare.) 2. Starvation method - (Starvation of the civilian population is inhuman.) 3. Reprisals - (Acts of vengeance by a belligerent directed against groups of civilians or prisoners of war.) 4. Perfidy or Treachery - (It is treachery for soldiers who have surrendered to take up arms and attack the enemy.) 5. Indiscriminate attacks - (Prohibited in any form.) Unlawful act or omission causing the death or serious danger to the health of the prisoners. ##1115 BAR QUESTION, 1988 Q - What is Genocide? A - Genocide includes any of the following acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group, such as: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group;

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c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group. (1948 Convention on the Prevention and Punishment of the Crime of Genocide [Genocide Convention], which entered into force on January 12, 1951) NOTE: 1. Genocide is a crime under International law whether it is committed in time of peace or in time of war. (Article 1, ibid.) 2. Heads of State and government are not immune from prosecution for Genocide. (Article 4, ibid.) 3. Persons charged with genocide shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to parties to the Genocide Convention which shall have accepted its jurisdiction. (Article 5, ibid.) 4. Acts punishable under the genocide convention are the following: a) Genocide; b) Conspiracy to commit genocide; c) Direct and public incitement to commit genocide; d) Attempt to commit genocide; and e) Complicity in genocide. CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, 1984 CONVENTION Q - What is "torture"? A - Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (Torture Convention, 1984) ##1116 NOTE: 1. Exceptional circumstances whatsoever, whether a state of war, or retreat of war, internal political instability or any public emergency, may not be invoked as a justification of torture. (Article 2 [2], Torture Convention) 2. An order from a superior officer or a public authority may not also be invoked as justification of torture. 412

BAR QUESTION, 1991 Q - What is reprisal? A - The seizing of property or persons by way of retaliation. Reprisal when they are taken by a State may denote any kind of coercive action not amounting to war whereby a State attempts to secure satisfaction from another for some wrong which the latter has committed against it. (Briely, 321) Distinctions, Embargo, Blockade and Boycott Embargo Commerce and trade with the offending State is prohibited. Blockade Maritime commerce between an enemy State and the rest of the world is cut off in order to prevent the goods from reaching the enemy or to prevent the enemy from exporting to the outside world thereby sustaining its war economy. Boycott There is a concerted action made by the citizens of one State to suspend trade and business relations with the citizens of the offending state. LEGALITY OF BLOCKADE, BOYCOTT, EMBARGO Blockade is lawful if it is made upon the order or authority of the UN Security Council (Article 42, UN Charter). Without the said authority, it will fall under the General prohibition against the use of force as provided in the UN Charter. (Article 2 [4]) ##1117 If the boycott is a voluntary act of the citizens, either acting individually or in concert, it is outside the scope of international law. It will be a ground of protest by a foreign government if there is an element of pressure from a government. If an embargo upon all the vessels of the offending State takes place at a time when they are in the ports of the State seeking redress, the same does not contemplate a confiscation which is considered as an act of war, except in case the redress for injuries suffered should be finally refused. AGGRESSION Meaning: It is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. (Resolution 3314 [XXIX], UN General Assembly, December 14, 1974) Under the said resolution, any of the following acts, regardless of a declaration of war, shall qualify as an act of aggression:

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a) The invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another state or part thereof; b) Bombardment by the armed forces of a state against the territory of another state or the use of any weapons by a state against the territory of another state; c) The blockade of the ports or coasts of a state by the armed forces of another state; d) An attack by the armed forces of a state on the land, sea or air forces, or marine and air fleets of another state; e) The use of armed forces of one state which are within the territory of another state with the agreement of the receiving state, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; f) The action of the state in allowing its territory, which it has placed at the disposal of another state, to be used by that other state for perpetrating an act of aggression against a third state; g) The sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to the acts listed above, or its substantial involvement therein. ##1118 Q - In the last several weeks, the Armed Forces of Israel, has been causing bombardment and blockade in Gaza resulting in death, starvation and injury to hundreds and thousands of Palestinians including innocent civilians. The Israel government alleges that it is merely acting in retaliation to Palestinian attack and rockets to a portion of its territory. Is Israel guilty of aggression. Is the allegation of Israel justified under international law? A - The UN charter prohibits not only recourse to war but also resort to the use of war, and even in the use of war, the measure to be taken must be consistent with "necessity and proportionality," as already applied in previous cases that have reached the International Courts of Justice. Under the circumstances, it is submitted that Israel committed not only an aggression but also an unjustified war of aggression because the repeated bombardments have caused death, injury, extensive damage even to innocent civilians, children, hospitals, patients therein, public and private buildings, which are not supposed to be targets of attack. Aggression can never be justified. A war of aggression is a crime against international peace and it gives rise to international responsibility. (General Assembly Resolution 3314[XXIX], Article 3 in relation to Article 5) BAR QUESTION, 1998 Q - At the Nuremberg trial of the Nazi war criminals at the end of World War II, the defense argued on behalf of the German defendants that although a nation could not wage aggressive war without transgressing International Law, it could use war as an instrument of selfdefense, and that the nation itself must be the sole judge of whether its actions were in selfdefense. How would you meet the argument if you were a member of the Tribunal trying the case? A - In accordance with the agreement and previous conventions to which Germany was a signatory (Kellog-Briand Pact, Pact of Paris August 27, 1928, and the 1899 Convention for 414

the Pacific Settlement of International Disputes), Germany bound itself under an obligation not to resort to war as an instrument of national policy or to wage war without previous and explicit warning. The invasion of Austria, Denmark, Belgium, Netherlands, Norway, Luxemburg and the aggression against Yugoslavia, Greece, Poland and U.S.S.R. were premeditated acts of aggression as part of the plan of global denomination. ##1119 17. PEACEFUL AND FORCIBLE SANCTIONS Q - What are the peaceful sanctions in public international law? A - Traditionalists list down the following as the peaceful sanctions in public international law: (1) Diplomatic negotiations (2) Tender and exercise of good offices (3) Mediation (4) Enquiry and conciliation (5) Arbitration (6) Reference to the Security Council of the UN (7) Reference to the International Court of Justice. (Wilson and Tucker, International Law, pp. 228-242; Fenwick International Law, pp. 405-440) Q - Explanation of each. A(1) Diplomatic negotiations - It constitutes the process by which States settle their differences through an exchange of views between diplomatic agencies. Discussions may be oral or written, brief or prolonged. (Mavromamatis Palestine Concessions Case, P.C.L.J. Pub. Ser. A/2, p. 11) (2) Tender and exercise of good offices - It exists when third party, either alone or in collaboration with others, offers to help in the settlement of a dispute. When the offer is accepted, there shall be an "exercise of good offices." (3) Mediation - A third party offers to help with a solution, usually based on compromise (as contradistinguished from "good offices," mediation offers a solution; "good offices" merely brings that parties together). (4) Enquiry - It simply means an ascertainment of the pertinent facts and issues in a dispute. (5) Conciliation and Arbitration - It is the reference of the dispute to a commission or international body, whose decision, however, is NOT BINDING on the parties; when the decision is final and conclusive on the parties, the process is referred to as arbitration. (6) Reference to the Security Council of the UN - When no danger to international peace is foreseen, the Security Council may step in, but only if ALL THE PARTIES to the dispute request its intervention (Article 52, UN Charter). When there is DANGER to international peace, the Security Council intervenes: (a) On its own motion (Article 34, UN Charter) (b) On motion of the General Assembly (Article]], UN Charter) (c) On motion of the UN Secretary-General (Article 99, UN Charter) 415

(d) On motion by a UN Member (Article 35, No. 1, UN Charter) (e) On motion by a Non-Member of the UN (Article 35, No. 2, UN Charter) ##1120 In case the Security Council discovers a threat to international peace, it shall make the proper recommendations on the dispute. (Article 39, UN Charter) If the recommendations are not heeded, the Council may take "enforcement action" under Article 41 of the Charter. (7) Reference to regional organizations - Under Article 52 of the UN Charter, regional arrangements or agencies may be established to maintain international peace through regional action and to peacefully settle local disputes before referring them to the Security Council. Its function should be reported to the Council (Article 54, UN Charter). However, it should be noted that the existence of these agencies will not prevent the Security Council from itself investigating and settling these disputes. (Article 52, No. 4, UN Charter) Settlement by the International Court of Justice - The court shall remain permanently in session except during the judicial vacations, the dates and duration of which shall be fixed by the Court. (Article 23, ibid.) Jurisdiction of the case - The jurisdiction of the court comprises all cases which the parties refer to it and all matters specifically provided for in the Charter of the UN or in treaties and conventions in force. (Article 36, ibid) Basis of Court's jurisdiction - It is based on the consent of the parties. Article 36 of the Statute of the International Court of Justice provides: "The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto, and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court, disputes concerning: (f) The interpretation of a treaty; (g) Any question of international law; (h) The existence of any fact which, if established, could constitute a breach of an international obligation. (i) The nature or extent of the reparation to be made for the breach of an international obligation." Can it give advisory opinion? - The Court may give an advisory opinion on any legal question at the request of whatever body that may be authorized by or in accordance with the UN Charter to make such a request (Article 65, ibid.) (i.e., General Assembly or the Security Council) or other organs of the UN when authorized by the General Assembly. ##1121 18. BELLIGERENT OCCUPATION AS DISTINGUISHED FROM MILITARY OCCUPATION BELLIGERENT OCCUPATION 416

1. It is a temporary military occupation of the territory of the enemy during the war. International law recognizes the occupant's authority over the occupied territory and its inhabitants. Example: Japanese occupation of the Philippines during the last Pacific War. MILITARY OCCUPATION 1. There is military occupation when the victory takes over enemy territory after the conclusion of the war. The rights and obligations of the "military occupant" are generally premised on the provisions of an agreement or treaty on the matter. Example: Occupation of Germany and Japan by the Allied Powers at the end of World War II. 19. EFFECT OF BELLIGERENT OCCUPATION ON THE SOVEREIGNTY OF THE LEGITIMATE GOVERNMENT The sovereignty of the legitimate government is suspended during the belligerent occupation (U.S. vs. Rice, 4 U.S. 246, reiterating the doctrine in U.S. vs. Hayward [26 Ted Cas. 240]). However, the Philippine Supreme Court ruled in Laurel vs. Misa, 42 O.G. 1176, that upon military occupation, the sovereignty of the legitimate government is NOT SUSPENDED. What is suspended was merely the exercise of the acts of sovereignty. More specifically, the belligerent occupation did not obtain sovereignty over the Philippines during the Japanese military occupation. This remained with the United States although the Americans could not exercise any control over the occupied territory. What the belligerent occupant took over was merely the exercise of the acts of sovereignty. (Principles, Comments and Cases in Constitutional Law I, Suarez, p. 58) Q - When is a territory deemed under military occupation? A - When the government of the invaded territory is rendered incapable of publicly exercising its authority and the invader is in the position to substitute and has substituted its own authority for that of the legitimate government of the occupied territory. ##1122 Q - Suppose there are still guerilla forces in the barrios, mountains and even in towns of the invaded place, will all these make the military occupation ineffective? Will all these cause the end of the military occupation? A - They are not enough. The belligerent occupant is not required to have its feet continuously planted on every square foot of the territory occupied, provided he maintains effective control and military superiority therein being able to send, in case of attack, sufficient force to assert its authority within a reasonable time. Q - What are the rights and duties of the belligerent occupant? A1. To continue the processes of orderly government.

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2. To enact necessary legislation, and even penal laws, provided they are not ex post facto in character. The imposition of death penalty is however restricted to certain offenses. (i.e., espionage and deliberate homicide). (Articles 67-70, Geneva Convention, 1949) 3. To protect the inhabitants, to protect them from torture and brutal treatment. (Articles 27-34; 52-59, Geneva Convention, 1949) 4. To demand taxes and contributions over and above the taxes, to finance the needs of military and local administration. (Articles 48, 49, 51, Hague Regulations) 5. To issue legal currency, both for the preservation of peace and order, and for military needs. (Article 43, Hague Regulations) 6. To use enemy property, public or private. (Villanueva vs. Manila Motor Co., 2-10394, December 31, 1958) In short, the rights of a belligerent occupant over the occupied territory are merely that of administration. Q - During the period of occupation, can the belligerent occupant annex the occupied territory or set it up as our independent State? A - No. (Co Kim Chan vs. Valdez Tan Keh, 75 Phil. 371) REASON: Because the rights of the belligerent territory are merely that of administration. SUMMARY OF IMPORTANT PHILIPPINE SUPREME COURT DECISIONS REGARDING THE RIGHTS OF BELLIGERENT OCUPANT 1. ANASTACIO LAUREL VS. ERIBERTO, MISA, 44 O.G. 1176: The sovereignty of the legitimate government of the Philippines was not suspended. What was suspended was merely the exercise of that sovereignty. 2. HAW PIA VS. CHINA BANKING CORPORATION, L-554, APRIL 9, 1948: ##1123 (a) The Japanese Military Administration, as a belligerent occupant, had the right to liquidate, sequester or freeze the assets of enemy banks. (b) Payment by Haw Pia to the Bank of Taiwan extinguished the mortgage indebtedness because under the law then prevailing, the Bank of Taiwan was clearly authorized to receive payment. (c) The Japanese military notes were legal tender because under international law, the invading power has the right to issue currency for circulation in the occupied territory. 3. VILLARUEL VS. MANILA MOTOR CO., L-10394, DECEMBER 31, 1958: This is about a property leased by a Filipino to another Filipino. On account of military need, the Japanese Army occupied the said property. The issue is whether the lessee should pay rent to the lessor during the time the said property was occupied by the Japanese Army. HELD: No. REASON: In International Law, the belligerent occupant has the right to billet or quarter its troops in private lands and buildings during the duration of its military occupation. 418

SUSPENSION OF HOSTILITIES Q - When are the hostilities between the belligerents suspended? A1. When there is a suspension of arms (i.e., to bury the dead or to remove the wounded) 2. When there is armistice (suspension of military operations in all regimes) 3. When there is a cease-fire (stoppage of military firing and advances) 4. When there is a truce (conditional cease-fire for political purposes) 5. When there is a capitulation (an agreement whereby a body of troops or fitness or a town is surrendered) 6. When there is an unconditional surrender (no conditions attached) THE END OF WAR Q - In how many ways can war be ended? A1. Cessation of hostilities without any formal treaty 2. By a formal treaty of peace 3. By the complete submission and subjugation of one of the belligerents 4. By unilateral declaration or proclamation ##1124 20. STATELESS PERSONS BAR QUESTIONS, 1995 Q - Who are stateless person? A - They are persons who are not considered as nationals by any State under the operation of its law. (1954 Convention, Article 1, relating to the status of stateless persons which entered into force on June 6, 1960) Q - What are the consequences of statelessness? A - A stateless person is adversely affected as it affects his right to exercise rights and privileges usually enjoyed by citizens of a State such as but not limited to employment, right to work, right to own and acquire property, right to education, freedom of mobility, right of access to health care and other privileges enjoyed by citizens. Q - Is a stateless person entirely without right, protection or recourse under the law of nations? A - No, he shall be issued identity papers when he does not possess a valid travel document; he shall be accorded the same treatment which shall be favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances with respect to rights to movable and immovable property, right of association, wage-earning employment, liberal professions, housing, freedom of movement; he shall be accorded the same treatment granted to the national of the country of his habitual residence with respect to rights to artistic rights and industrial property, free access to courts, rationing, elementary education, and public relief and assistance. 419

Q - What measures, if any, has International Law taken to prevent statelessness? A(a) A contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless; (Convention on the Reduction of Statelessness, Article 1) (b) A contracting State shall grant its nationality to a person, not born in the territory of a Contracting State, who would otherwise be stateless, if the nationality of one of his parents at the time of the person's birth was that of that State. (Convention on the Reduction of Statelessness, December 13, 1975, Article 4) ##1125 BAR QUESTIONS, 1978 Q - Victor Korchnoi, a stateless resident of Switzerland, was the challenger to the world chess title held by Anatoly Karpov. After 32 grueling games were played in Baguio City, Karpov finally retained his title. Korchnoi protested non-payment of his prize money and alleged unfair treatment he received from the tournament organizers in the Philippines, particularly in the 32nd crucial game which he attributes as the main cause of his defeat. May he press for his right to the prize money against the Philippine government through the Swiss government? A - It is submitted that Korchnoi may not press for his right to the price money. REASONS: (1) He is a stateless person; (2) The right of the Swiss government, if it decides to represent Korchnoi in the international level, is based on nationality and not on mere residence 21. LAW OF THE SEA LAW GOVERNING CONTROVERSIES ON THE LAW OF THE SEA THE TREATIES PROMULGATED, 1. Convention on the Territorial Sea and Contiguous Zone 2. Convention on the High Seas 3. Convention on Fishing and Conservation of the Living Resources of the High Seas 4. Convention on the Continental Shelf 5. UNCLOS TOPICS IN CONNECTION WITH THE LAW OF THE SEA 1. Brief background on the adoption of UNCLOS 2. Nationality of vessels 3. Baseline Determination 4. Internal waters and ports 5. Territorial Seas and Contiguous Zone 6. Continental Shelf 7. Exploitation of the Mineral Resources of the Deep Seabed 8. The High Seas ##1126 EXPLANATION OF EACH ONE 420

1. BACKGROUND OF THE ADOPTION OF UNCLOS Adoption: The Convention, referred to as UNCLOS, was adopted by the UN Conference on the Law of the Sea on April 30, 1992 Open for signature: On December 10, 1982 at Montego Bay, Jamaica Entered into force: On November 16, 1994, pursuant to its Article 308 (1) When it received its 60th ratification on that date. The Philippines is a party to the Convention, having signed it on December 10, 1982, and ratified on May 8, 1984. 73 States have become parties to the Convention as of February 23, 1995. China and Japan signed it. On July 28, 1994: The US General Assembly adopted the Agreement relating to the implementation of Part XI of the Convention in its Resolution 48/263, with 120 States, including the Philippines, voting in favor. No negative vote, with 7 abstentions. 116 States, including the Philippines, have agreed to apply provisionally the agreement starting Nov. 14, 1994, the date of the Convention's entry into force. THE PHILIPPINE DECLARATION ON THE SIGNING OF THECONVENTION ON THE LAW OF THE SEA Montego Bay, Jamaica Declaration of the Republic of the Philippines 10 December 1982 The government of the Republic of the Philippines hereby manifests that in signing the 1982 United Nations Convention on the Law of the Sea, it does so with the understandings embodied in this declaration, made under the provisions of Article 310 of the Convention, to wit: ##1127 1. The signing of the Convention by the Government of the Republic of the Philippines shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines; 2. Signing shall not in any manner affect the sovereign rights of the Republic of the Philippines as successor of the United States of America, under and arising out of the Treaty of Paris between Spain and the United States of America of December 10, 1898, and the Treaty of Washington between the United States of America and Great Britain of January 2, 1930; 3. Such signing shall not diminish or in any manner affect the rights and obligations of the contracting parties under the Mutual Defense Treaty between the Philippines and the United States of America of August 30, 1951, and its related interpretative instrument; nor those under any other pertinent bilateral or multilateral treaty of agreement to which the Philippines is a party;

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4. Such signing shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines over any territory over which sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto; 5. The Convention shall not be construed as amending in any manner or pertinent laws and Presidential Decrees or Proclamations of the Republic of the Philippines; the Government of the Republic of the Philippines maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippines Constitution; 6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic state over the sea lands and do not deprive it of authority to enact legislation to protect its sovereignty, independence, and security; 7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation; 8. The Agreement of the Republic of the Philippines to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under Article 298 shall not be considered as a derogation of Philippine sovereignty. For and on behalf of THE REPUBLIC OF THE PHILIPPINES (Sgd.) ARTURO M. TOLENTINO Minister of State for Foreign Affairs Chairman of Delegation ##1128 COMMENTS: Be it noted that based on the aforementioned Philippine Declaration, the Government of the Republic of the Philippines, through Former Senator and Vice-President Arturo Tolentino, signed and ratified the UNCLOS based on the understanding that: "xxx 1. shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines"; 2. "xxx shall not in any manner affect the sovereign rights of the Republic of the Philippines as successor of the United States of America"; 3. "xxx shall not diminish or in any manner affect the rights and obligations of the contracting parties under the Mutual Defense Treaty between the Philippines and the United States of America"; 4. "xxx shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines over any territory over which sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto"; 422

5. "xxx shall not be construed as amending in any manner or pertinent laws and Presidential Decrees or Proclamations of the Republic of the Philippines"; 6. "The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic state over the sea lands and do not deprive it of authority to enact legislation to protect its sovereignty, independence, and security"; ##1129 7. "The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation"; 8. "The Agreement of the Republic of the Philippines to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under Article 298 shall be considered as a derogation of Philippine sovereignty." (Underlining Supplied) What are the implications of the foregoing reservations? 1. This means that sovereignty and jurisdiction shall be exercised over the territorial sea, as provided in Article 1 of the 1987 Constitution, thus: "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. 1. The final stand of the Philippine Government when it signed the UNCLOS was based on and controlled by the national territory clause, as clearly provided in the 1987 Constitution and even in our previous Constitutions. 2. Despite the signing of the UNCLOS, Republic Act No. 3046 is sustained. Hence, the Philippines still adheres to the concept of the archipelagic State. After the UNCLOS was ratified in 1984, the Philippines still adheres to the national territory clause and this is found in the 1987 Constitution. 3. Any effort in the diplomatic level to attain harmony, or to avoid conflict with the UNCLOS, will not be fully realized unless and until a corresponding amendment in our present Constitution is made. The wording of the present Constitution (Article 1, 1987 Constitution, first sentence) is the same as Article 1 of the 1973 Constitution, second sentence, thus: "The waters around, between and connecting the islands of the archipelago, regardless of their breath and dimensions, form part of the internal waters of the Philippines." On this basis, it means that sovereignty and jurisdiction should be exercised over the territorial sea, the same principle and application of sovereignty that was observed when the 1973 and 1987 Constitution was drafted and ratified. 423

##1130 Under the UNCLOS, the following have become evident: 1. The internal waters of the Philippines are strictly limited to waters in lakes, bays, gulfs, mouth of rivers, and in permanent harbor works, which results to a drastic contraction of our territorial sovereignty. 2. The application of the UNCLOS rules on the maritime zones such as those governing the territorial sea, deprives the boundary line of the Treaty of Paris (international treaty limits) of any legal function. Assuming these lines or limits to be the boundaries of the Philippines, effect of the UNCLOS is to reorganize the entire territorial regime of the Philippines, resulting in the debasement of its territorial sovereignty. 3. The rights and duties of the Philippines in regard to the international community are those which pertain to the maritime zones, leaving the Treaty of Paris boundary lines without any legal purpose in terms of rights and duties. 4. The territorial sea of the Philippines extends no farther than 12 nautical miles, according to UNCLOS. Hence, it is only up to that limit that the Philippines enjoys sovereignty. Likewise, under the UNCLOS the internal waters of the Philippines are strictly limited to water in lakes, bays, gulfs, mouth of rivers and in permanent harbor works. This means a drastic contraction of its territorial sovereignty. Remember what I have discussed earlier in relation to the position of our government in relation to the archipelagic theory proposed by the Philippines in the U.N. Conference on the Law of the Sea, particularly our position with respect to the more than 7,000 islands comprising our terrestrial domain, thus: Q - (A) What is the "archipelagic theory" as proposed by the Philippines in the U.N. Conference on "The Law of the Sea," and give its justification, legal or practical, from the standpoint of the Philippine position? A - (a) Under the archipelago theory, "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 and this is provided in Article 1, Section 1 of the 1973 Constitution, now Article 1 of the 1987 Constitution. In this connection, our position is that the more than 7,000 islands comprising our terrestrial domain should be considered as one integrated unit instead of being fragmented or separate components to be provided with its own territorial sea, as this would make the intervening waters open seas and will be available to uses of other States to the prejudice of our country. ##1131 In effect, the conversion of our internal waters under the Constitution into archipelagic waters under the UNCLOS gravely derogates the sovereignty of the Philippine State. 2. NATIONALITY OF VESSELS Legal significance of the nationality of a vessel:

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The nationality, registration or documentation of vessels determines a relationship between the vessel and the State that authorizes it to fly its flag. A ship has the nationality of the State whose flag it is entitled to fly. (Article 92, UNCLOS) A SHIP SHALL SAIL UNDER THE FLAG OF ONE STATE ONLY Exception to this rule: Except in cases provided for international treaties or in the LOS Convention. CONSEQUENCE IF A SHIP SAILS UNDER THE FLAGS OF TWO OR MORE STATES USING THEM ACCORDING TO CONVENIENCE Said ship may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality. (1958 Convention on the High Seas, Article 6; UNCLOS, Article 92) LIMITATIONS ON THE RIGHT OF A STATE TO CONFER NATIONALITY UPON A SHIP 1. One Flag Limitation - A State may not confer its nationality upon a ship that is already flying the flag of another Sate. Article 92 of the LOS Convention states that "a ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry." 2. Genuine Link requirement - Article 91 of the LOS Convention requires that there must exist a genuine link between the ship and the state before the latter may confer its nationality upon the ship. BAR QUESTIONS, 2004 Q - Discuss flag state and flag of convenience. A - The flag State is the State that grants nationality upon a ship and authorizes it to fly its flag. If there is no genuine link between the ship and the flag State, the latter becomes a "flag of convenience." The genuine link between a ship and the state granting nationality upon it may be any or more than one of the following: ##1132 a) The ship owned by its nationals; b) The officers of the ship are its nationals; c) The crew are its nationals; or d) The ship was built in that state. 3. BASELINE DETERMINATION DEFINITION OF BASELINE It is the law-water mark along the coast from which the belt of territorial sea is measured. (UK vs. Norway, ICJ, December 18, 1951) 425

RULES REGARDING DELINEATION OF THE BASELINE 1. In localities where the coastline is deeply indented, the method of straight baselines joining appropriate points may be employed. (Id., Article 7) 2. If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-water of its banks. (Id., Article 9) 3. Bays - If the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a straight baseline may be drawn between them, and the waters enclosed thereby shall be considered as internal waters; otherwise straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length. (Id., Article 10) 4. Historic Bays - A straight baseline is drawn between appropriate marks of its natural entrance, regardless of distance. 5. Ports - The outermost permanent harbor works which form an integral part of the harbor system are regarded as forming part of the coast; however, of shore installations and artificial islands shall not be considered as permanent harbor works. (Id., Article 12) 6. Low-tide elevation - The low-water line on that elevation may be caused as the baseline for measuring the breadth of the territorial sea. (Id., Article 13) 7. Archipelagic states - May draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago. (Id., Article 47) BAR QUESTIONS, 2004 Q - Distinguish territorial sea and the internal waters of the Philippines. A - Internal waters of the Philippines: this refers to the second sentence in Art. 1 of the 1987 Constitution, thus: "the waters around, between, and connecting the islands of the archipelago regardless of their breadth and dimensions." Territorial sea (Already discussed) ##1133 4. INTERNAL WATERS AND PORTS DISTINCTION, INTERNAL WATERS AND ARCHIPELAGIC WATERS Internal waters: (They are completely within the territory) (a) rivers, (b) Bays and gulfs (c) Straits (d) Canals Archipelagic waters: (2nd sentence of Section 1, Article I, 1987 Constitution) - 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. BAR QUESTIONS, 1951 Q - What are the principal theories on the jurisdiction of authorities of a coastal state over crimes committed on board foreign merchant ships which enter or dock in its ports? Which of the two theories is followed in this jurisdiction? A - The principle theories! are: (a) The French Rule (Under this rule, crimes committed abroad a foreign merchant vessel should not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed, unless their commission affects the peace and security of the territory;) (b) The English Rule (Under this rule, crimes perpetrated under 426

such circumstances are in general triable in the courts of the country within whose territory they were committed.) We follow the English Rule. (People vs. Wong Cheng. G.R. No. L18924, October 19, 1922) BAR QUESTIONS, 1979 Q - A crime was committed in a private vessel registered in Japan by a Filipino against an Englishman while the vessel is anchored in a port of a State "A." Where can he be tried? If both are members of the crew, where will the trial be? A - (Already Answered) (If the crime committed affects the "peace and dignity of State "A" or the "tranquility of its port," the trial will be in State "A." If the crime involves matters that are internal to the vessel or its crew, the trial will be in Japan.) 5. TERRITORIAL SEA AND CONTIGUOUS ZONE Q - What is the breath of territorial sea? (Already discussed) ##1134 BAR QUESTION, 2004 Q - What is the contiguous zone? A - It is the zone extending up to 12 nautical miles from the territorial sea. Although it is not technically a part of the territory of the State, the coastal State may exercise limited jurisdiction over the contiguous zone as a preventive measure to ensure that customs laws, immigration and sanitary laws are properly and effectively enforced. BAR QUESTION, 1991 Q - What is Innocent Passage? A - It is the right of foreign vessels to pass through territorial waters, especially those connecting two open seas, Provided: 1. That the passage is "innocent" which means that there is no ulterior motive for the passage, and all the regulations of the State concerned must have been complied with; 2. That there is only a passage which means that there is merely a passing through, with no loading or unloading of any person or goods. BAR QUESTION, 2004 Q - En route to the tuna fishing grounds in the Pacific Ocean, a vessel registered in Country TW entered the Balintang Channel north of Babuyan Island and with special hooks and nets dragged up red corals found near Batanes. By international convention certain corals are protected species. Just before the vessel reached the high seas, the Coast Guards patrol intercepted the vessel and seized its cargo including tuna. The master of the vessel and the owner of the cargo protested, claiming the rights of transit passage and innocent passage, and sought recovery of the cargo and the release of the ship. Is the claim meritorious or not? A - No. REASONS: The two (2) conditions above-mentioned were violated. The passage was not "innocent" as there was an ulterior motive for the passage and the regulations of our country have not been complied with. There was no merely a "passing through"; and there 427

was no loading or unloading any person or goods. In fact, the vessel, with special hooks and nets, dragged up red corals found near Batanes. ##1135 PRIOR NOTICE OR AUTHORIZATION IS NOT REQUIRED FOR INNOCENT PASSAGE OF A FOREIGN WARSHIP IN THE TERRITORIAL SEA OF A COASTAL STATE Requirement: The LOS Convention requires ships, including warship, to comply with the laws and regulation of the coastal State relating to innocent passage. If this is violated, the ship may be required to immediately leave the territorial sea. Submarines must navigate on the surface and show their flag. (Articles 30, 14, 20, UNCLOS) DISTINCTION, TRANSIT PASSAGE AND INNOCENT PASSAGE Transit passage 1. Applies through straits 2. Covers navigation and over flight by aircrafts. 3. It may not be unilaterally suspended. (Article 45[2] UNCLOS) Innocent passage 1. Applies through territorial seas. 2. Covers navigation only. 3. It may be unilaterally suspended, BAR QUESTION, 1999 Q - State Epsilon, during peace time, has allowed foreign ships innocent passage through Mantranas Strait, a strait within Epsilon's territorial sea which has been used by foreign ships for international navigation. Such passage enabled the said ships to traverse the strait between one part of the high seas to another. On June 7, 1997, a warship of State Beta passed through the above-named strait. Instead of passing continuously and expeditiously, the ship delayed its passage to render assistance to a ship of State Gamma which was distressed with no one nearby to assist. When confronted by Epsilon about the delay, Beta explained that the delay was due to force majeure in conformity with the provision of Article 18(2) of the UN Convention on the Law of the Sea (UNCLOS). Seven months later, Epsilon suspended the right of innocent passage of warships through Mantranas Strait without giving any reason therefor. Subsequently, another warship of Beta passed through the said strait, and was fired upon by Epsilon's coastal battery. Beta protested the aforesaid act of Epsilon drawing attention to the existing Customary International Law that the regime of innocent passage (even of transit passage) is non-suspendable. Epsilon countered that the Mantranas Strait is not a necessary route, there being mentioned suitable alternative route. Resolve the above-mentioned controversy. ##1136 A - Warships enjoy the right of innocent passage and this applies in straits used for international navigation. Besides, the right of innocent passage to pass through the straits may not be suspended. (Article 45, UNCLOS) 428

The delayed passage of a warship of State Beta was justified on account of force majeure and to be able to render assistance to a ship of State Gamma, a ship under distress, with no one nearby to assist. (Article 18[2], LOS Convention) During peace time, State Epsilon has allowed innocent passage to foreign ships passing through Mantranas Strait, which is within the territorial sea of Epsilon. In other words, it has been used by foreign ships for international navigation. For these reason, the State of Epsilon has no right to suspend the right of innocent passage through Mantranas Strait. 6. CONTINENTAL SHELF DEFINITION OF CONTINENTAL SHELF: It is the seabed and subsoil of the submarine areas extending beyond the territorial sea of the coastal state throughout the natural prolongation of its land territory up to (1) the outer edge of the continental margin, or to (2) a distance of 200 nautical miles from the baselines of the territorial sea, which ever is the farthest. (UNCLOS, Article 76) NOTE: 1. The continental shelf may extend farther than the continental margin when the continental margin does not extend beyond the 200 nautical miles from baselines. In such case, the continental shelf goes farther than the continental margin and extends up to the 200 nautical miles limit. (Ibid.. Article 76[1]) 2. The outer edge of the continental margin may extend beyond the 200 nautical mile limit. In such case, the coastal state shall establish the outer edge of the continental margin. How will the outer limit of the continental shelf be determined or established? The outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines of the territorial sea, or 100 nautical miles from the 2500 meter isobath (or the point where the waters are 2500 meters deep), as required in Article 76(5) of the UNCLOS. RIGHTS OF THE COASTAL STATE OVER THE CONTINENTAL SHELF: It has the sovereign rights for the purpose of exploring it and exploiting its natural resources. These rights are now recognized as customary international law. ##1137 The said natural resources consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to the sedentary species, that is to say, organisms which, at the harvestable state, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil. (Article 77[4], UNCLOS) Q - What is the legal nature of these rights? A - The said rights are exclusive in the sense that if the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal state. Moreover, rights of the coastal state over the continental shelf do not depend on occupation, effective or notional, or on any express 429

proclamation. It is in the nature of the rights to explore and exploit natural resources, and for no other purposes. The International Court of Justice describes the nature of the said rights in two cases, thus: 1. North Sea Continental Shelf "The rights of the coastal state in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of it sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short there is here an inherent right. (ICJ Reports, 1969, pp. 3, 23) 2. Aegean Sea Continental Shelf Case "...it is solely by virtue of the coastal State's sovereignty over the land that rights of exploration and exploitation in the continental shelf can attach to it, ipso jure, under international law In short, continental shelf rights are legally both an emanation from and an automatic adjunct of the territorial sovereignty of the coastal State. (ICJ Reports, 1978, para. 86) Q - Do the rights of the coastal state over the continental shelf change or in any way affect the legal status of the superjacent waters? A - No, they do not affect the legal status of the superjacent waters or of the air space above those waters, under Article 78(1), UNCLOS. Hence, the coastal state in the exercise of its rights is under duly to respect the rights and freedoms of other states, such as the freedom of navigation and of over flight and the right to lay submarine cables and pipelines. (78.2, 79.1 and 79.2, UNCLOS) ##1138 7. EXPLOITATION OF THE MINERAL RESOURCES OF THE DEEP SEABED STATUS OF THE LEGAL REGIME GOVERNING THE EXPLOITATION OF MINERAL RESOURCES OF THE DEEP SEABED There are three views on this matter: (1) Common heritage of mankind view; (2) Res Nulluis View; (3) Freedom of the high seas view. The first one, common heritage of mankind view, was adopted by the UN General Assembly in Resolution No. 2749 (XXV), December 17, 1970 in connection with Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof Beyond the Limits of National Jurisdiction. The convention made this declaration: 1. No state shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized. 2. All rights in the resources of the Area are vested in mankind as a whole on whose behalf the Authority shall act. These resources are not subject to alienation. 430

3. No state or natural or judicial person shall claim, acquire or exercise right with respect to the minerals recovered from the Area except in accordance with the Convention. Otherwise, no such claim, acquisition or exercise of such rights shall be recognized. (Article 137) 8. HIGH SEAS DEFINITION OF HIGH SEAS: There are the waters which are not included in the territorial sea or in the internal waters of any State, in the archipelagic waters and exclusive economic zone of the State. Hence, they are beyond the jurisdiction and sovereign rights of the States. Remember my previous regarding the Freedom of the Seas, thus: Q - What is the principle of "The Freedom of the Seas"? A - It means that no part of the sea as such can be subjected to the sovereignty of any State. It cannot therefore be incorporated into the territory of any State through occupation. Q - What then is the meaning of the statement that the open seas is not property of any State? A - This means that "it is the common highway of all, appropriated to the use of all; and no one can arrogate to himself a superior or exclusive prerogative there. Every ship sails there with an unquestionable right or pursuing her own lawful business without interruption. And whatever may be that business, she is bound to pursue it in such a manner as not to violate others under the Latin Maxim, SIC UTERE TUO, NONALIENUM LAEDAS. (Paras, quoting Justice Story) ##1139 In other words, they are open and available to the use of all States for a variety of purposes (i.e., navigation, flight over them, laying submarine cables and papers, fishing, research, mining, or in pursuing any lawful business). Under Article 88 of the UN Conference on the Law of the Sea, the high seas shall be reserved for peaceful purposes. Q - Is this rule absolute? A - No. This may be regulated by a treaty. Q - What is the freedom of navigation? A - It refers to the right to sail ships on the high seas, subject only to international law and the laws of the flag state. MAIN CONSTITUENTS OF THE FREEDOM OF THE HIGH SEAS 1. Freedom of navigation 2. Freedom of overflight 3. Freedom of fishing 4. Freedom to lay submarine cables and pipelines 5. Freedom to construct artificial islands and other installations 6. Freedom of scientific research (Article 87) 431

DUTIES OF THE STATES RELATIVE TO THE HIGHSEAS 1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress; if informed of their need in assistance, in so far as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call. (Article 98, UNCLOS) 2. Every State shall take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free. (Article 99, UNCLOS) ##1140 Exceptions to the flag state's jurisdiction in the high seas: 1. In penal or disciplinary proceedings against the master or any other person in the service of the ship, arising from collision or any other incident of navigation concerning a ship on the high seas, the state of which that person is a national has jurisdiction, concurrently with the flag state. 2. Every state may seize a pirate ship (or aircraft), or a ship taken by the pirates, arrest the persons on board and seize the property on board. 3. The state of registry of the broadcasting installation, the state of which the offender is a national any state where the broadcast transmission can be received, or any state where authorized radio communication is suffering interference has jurisdiction to arrest a person or ship engaged in unauthorized broadcasting from the high seas, seize the broadcasting apparatus, and prosecute the offender. 4. On the exercise of the right of hot pursuit, a warship or military aircraft of a state may stop and arrest a foreign ship on the high seas. 5. In case of pollution incident from a marine casualty, a coastal state whose coastline is threatened with major harmful consequences may take and enforce measures beyond the territorial sea, including on the high seas. Q - Is the freedom of fishing in the high seas limited to the coastal states? A - No. The right to fish on the high seas pertains to all states, coastal or land-locked. Q - Is there a duty on the part of the States to conserve the living resources of the high seas? A - Yes. Individually, every state has the duty to take measures for the conservation of living resources of the high seas. States shall cooperate with each other in the conservation and management of such resources, including the determination of the allowable catch. ##1141

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PENAL AND ADMINISTRATIVE JURISDICTION INVOLVING THE PENAL OR DISCIPLINARY RESPONSIBILITY OF THE MASTER OR OF ANY OTHER PERSON IN THE SERVICE OF THE SHIP Rules: 1. The penal and administrative jurisdiction is now limited to: (a) the flag state of the vessel alleged to be responsible; and (b) the State of nationality of the accused. 2. The arrest or detention of the ship shall not be ordered by any authorities other than those of the flag States. (Article 97, UNCLOS) BAR QUESTION, 1986 Q - In the Pacific Ocean, while on its way to Northern Samar to load copra, a Norwegian freighter collides with a Philippine luxury liner resulting in the death of ten Filipino passengers. Upon the Norwegian vessel's arrival in Catarman, Northern Samar, the Norwegian captain and the helmsman assisting him are arrested and charged with multiple homicide through reckless imprudence. Apart from filing a protest with the Department of Foreign Affairs, the Norwegian Embassy through a local counsel, helps the accused in filing a motion to quash. It is pointed out that the incident happened on the high seas; the accused were on board a Norwegian vessel; and only a Norwegian court can try the case even if the deaths occurred on a Philippine ship. Resolve the motion. A - The above-mentioned rules, Article 97, UNCLOS, are clear, thus: "the penal or disciplinary responsibility of the master or of any other person in the service of the ship," is now limited to (a) the flag state of the vessel alleged to be responsible; (b) the state of nationality of the accused. Besides, it is likewise provided that arrest or detention of the ship shall not be ordered by any authorities other than those of the flag State. There is therefore a valid basis and justification for filling the said motion to quash. 22. AIR AND SPACE LAW TOPICS: 1. The Airspace 2. The Outerspace 3. The Moon and other Celestial Bodies 4. Liability for damaged caused by space objects EXPLANATION: 1. AIRSPACE SPECIALIZED AGENCY OF THE UN COORDINATING AND REGULATING INTERNATIONAL AIR TRAVEL ICAO (International Civil Aviation Organization), established by the convention on the International Civil Aviation Organization (Chicago Convention) ##1142 RULES ESTABLISHED BY THE CONVENTION AND EMBODIED IN A DOCUMENT SIGNED IN CHICAGO, ILLINOIS AND WENT INTO FORCE ON APRIL 4, 1947 433

1. Rules of Airspace 2. Airplane registration and safety 3. Rights of signatories in relation to air travels FIVE AIR FREEDOMS: Each contracting State grants to the other contracting States the following freedoms of the air regarding scheduled international air services: 1.) The privilege to fly across its territory without landing (Overflight) 2.) The privilege to land for non-traffic purposes (Non-traffic landing) 3.) The privilege to put down passengers, mail and cargo taken on in the territory of the State whose nationality the aircraft possesses (Putting down passengers, mail and cargo) 4.) The privilege to take on passengers, mail and cargo destined for the territory of the State whose nationality the aircraft possesses (Taking on passengers, mail and cargo) 5.) The privilege to take on passengers, mail and cargo destined for the territory of any other contracting State and the privilege to put down passengers coming from any such territory (Taking on and putting down passengers, mail and cargo) NATIONALITY OF AIRCRAFTS: They have the nationality of the State in which they are registered and they shall bear its appropriate nationality and registration marks when they engage in international air navigation. (Article 17, 20, Chicago Convention) An aircraft cannot be validly registered in more than one State. However, its legislation may be changed from one State to another. (Article 18, Chicago Convention) ##1143 DEFINITIONS: 1. Hijacking - It is governed by the 1970 Hague Convention. (Convention for the Suppression of Unlawful Seizure of Aircraft which was signed at The Hague on December 16, 1970). It is committed by any person who on board an aircraft in flight shall unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act. (1970 Hague Convention, Article 1) 2. Sabotage - It is governed by the Montreal Convention (Convention for the Suppression of the Unlawful Acts against the Safety of Civil Aviation) which entered into force on January 26, 1973. It covers other acts that place the safety of an aircraft in jeopardy. It is committed by any person who unlawfully and intentionally commit any of the following acts which render an aircraft incapable of flight or are likely to endanger the safety of an aircraft in flight: 1.) Performing an act of violence against a person on board an aircraft in flight; 2.) Destroying an aircraft in service or causing damage to such an aircraft; 3.) Placing or causing to be placed on an aircraft, in service a device or substance which is likely to destroy that aircraft; 4.) Destroying or damaging air navigation facilities or interfering with their operation; 434

5.) Communicating information which he knows to be false thereby endangering the safety of an aircraft in flight. (Montreal Convention, Article 1) JURISDICTION OVER OFFENSES COMMITTED ABOARD AN AIRCRAFT: General Rule: It is the flag state or the state where the aircraft is registered that has jurisdiction over the offenses committed on board an aircraft. However, if offenses are committed aboard while the aircraft was flying over the airspace of another state, then the latter state may assert jurisdiction based on the principle or territoriality, or sometimes based on the nationality principles and universality. DUTY OF THE STATE THAT IS A PARTY TO THE 1970 HAGUE CONVENTION OR THE MONTREAL CONVENTION REGARDING HIJACKING AND SABOTAGE: They have a duty to prosecute or extradite hijacking and sabotage in the following cases: 1. When the offense is committed on board an aircraft registered in that State; 2. When the aircraft on board which the offence is committed lands in its territory with the alleged offender still on board; 3. When the alleged offender is present in its territory. In case the State does not wish to prosecute the alleged offender, what will be its duty? It has the duty to extradite him to other state parties to the Conventions. (1970 Hague Convention, Article 4; Montreal Convention, Article 5) ##1144 CRIMES OF HIJACKING AND SABOTAGE ARE UNIVERSAL CRIMES. LIKEWISE, TAKING OF HOSTAGES IS ALSO A UNIVERSAL CRIME Basis: 1. Article 7, 1970 Hague Convention and the Montreal Convention which provides as follows: "The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State." BAR QUESTION, 1981 Q - A Filipino-owned construction company with principal offices in Manila leased an aircraft registered in England to ferry construction workers to the Middle East. While on flight to Saudi Arabia with a Filipino crew provided by the lessee, the aircraft was hijacked by drug traffickers. The hijackers were captured in Damascus and sent to the Philippines for trial. Do Courts in Manila have jurisdiction over the case? A - As above-mentioned, hijacking is a universal crime, and as such, it may be prosecuted and, tried and punished in the competent court of any country were the offender may be found or to any country were he may be brought. Jurisdiction over hijacking has no territorial limits. 435

(US vs. Furlong [1820], S Wheat., 184, cited in People vs. Lol-lo, 43 Phil. Reports 19, February 27, 1922) 2. OUTER SPACE BAR QUESTIONS, 2003 Q - What is outer space? A - The area that lies beyond the airspace of the Earth. But as to where it begins, there is no university accepted reference point. The Outer Space Treaty did not define outer space because of its non-identifiable dimension. Over the years, several definitions have also been supported: 1.) It is the limit of the atmosphere; 2.) It is the limit of air flight; 3.) It is the point at which the atmosphere will no longer sustain human life; 4.) It is the lowest point at which a satellite can orbit; 5.) It is the point at which centrifugal forces replace aerodynamic forces; 6.) It is the limit of a state's effective control over its airspace; and 7.) It is the current orbital minimum (approximately 100 to 110 kms.). ##1145 Q - Who or which can exercise jurisdiction over astronauts while in outer space? A - A state on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. It further state that ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. (Outer Space Treaty, Article 8) NOTE: 1. No State can claim sovereignty over the outer space, including the moon and other celestial bodies. However, States may explore the use of outer space, including the moon and other celestial bodies, provided it is carried out for the benefit and interest of all countries, irrespective of their degree of scientific development, and shall be the province of all mankind. Likewise, the same shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with International Law, and there shall be free access to all areas of celestial bodies. 3. MOON AND OTHER CELESTIAL BODIES BAR QUESTION, 1979 Q - May the USA lay exclusive claim over the moon, having explored it and having planted her flag thereon to the exclusion of other States? A - The moon being the common heritage of mankind is not subject to appropriation by any State by means of use or occupation. Likewise, the planting of the flag thereon does not create a right to own the surface or any area of the moon. (Article 11, Moon Treaty) 436

NOTE: The moon and other celestial bodies shall be used exclusively for peaceful purposes. The following military applications are prohibited: 1. Placing in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction; 2. Installing nuclear weapons or any other kinds of weapons of mass destruction on celestial bodies; 3. To station nuclear weapons or any other kinds of weapons of mass destruction in outer space in any other manner; 4. Establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies. (Article 4, Outer Space Treaty) ##1146 4. RULES ON LIABILITY FOR DAMAGED CAUSED BY SPACE OBJECTS LAUNCHED INTO OUTER SPACE 1. A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight. (Article 2, Liability Convention of 1972) 2. In the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible. (Article 3) 3. Whenever two or more States jointly launch a space object, they shall be jointly and severally liable for any damaged caused... A State from whose territory or facility a space object is launched shall be regarded as a participant in a joint launching. (Article 4) II. AT A GLANCE OF: (TERMS/PHRASES/MAXIMS/PRINCIPLES/DOCTRINES IN PUBLIC INTERNATIONAL LAW) I. In connection with treaties 1. PACTA SUNT SERVANDA (Treaties must be observed in good faith). If a treaty is contrary to a signatory's national constitution, the international legal order demands a faithful compliance with the treaty to avoid international embarrassment. If necessary, the State concerned must even modify its national legislation and constitution to make it conform to the treaty. 3. REBUS SIC STANTIBUS A State may unilaterally withdraw from a treaty when there is a vital change of circumstances. The reason for this is because if the change in circumstances affects a signatory State, and to comply with the treaty provisions would seriously jeopardize its own existence, a withdrawal is allowed because its fundamental right to exist is stronger than its duty to comply with a treaty. 437

##1147 3. LEX POSTERIOR DEROGAT PRIORI - That which comes last in point of time will usually be upheld by the municipal tribunal. (Remember the rule in case of conflict between public international and municipal law, thus: If the conflict is with respect to international law and a statute, the rules of international law are given equal standing with, but are not superior to, national legislative enactments. A treaty may repeal a statute, and a statute may repeal a treaty; thus, the principle of lex posterior derogat priori, that which comes last in time, will usually be upheld by the municipal tribunal.) 4. PACT - this is a special treaty usually entered into for sentimental reasons. 5. CONVENTION - this is an informal treaty which deals with specific subjects. 6. AGREEMENT, ARRANGEMENTS, ACCORD - this is an agreement on administrative or technical matters. 7. CONCORDATS - agreements entered into by the Pope with various Heads of States. 8. DECLARATIONS - these are formal reciprocal agreements which may deal with: (1) the rights and privileges of the nationals of a state; or (2) principles in accordance with which States propose to act; or (3) grounds for mutual action on the part of States (Wilson and Tucker, op. cit. p. 209). There are two special kinds of declarations, to wit: 1. reversales - declarations that an error in etiquette or in the draftmanship of a treaty should not be considered as a precedent; 2. lettres reversales - declarations that an alteration in ceremonial practices is being made only as an exception to the general rule. 3. Protocol - this may refer either to a supplemental treaty or to an amendment to a treaty. (Paras, Public International Law, p. 192) 9. MOST FAVORED NATION CLAUSE - A clause which provides that a State pledges to give to the other signatory whatever privileges or concessions the first State may give the third State. Example: If there is such a clause in our treaty with Japan, we should also give to Japan whatever rights we may give to other countries. If the clause is reciprocal, we will also be given the same treatment by Japan. If in all treaties of the Philippines with the other States, there is such a clause, the result will be that all States will be equally favored. In such a case, none will be the "most favored." 10. TREATY - It is an international agreement embodied ina single, formal instrument entered into by and between signatory States or international organizations of States, intended to create rights and obligations, or to establish relationships, governed by international law. ##1148 II. In connection with the fundamental rights of States (particularly the right of property and jurisdiction) 1. Continental shelf of a country - It is that part of the seabed and subsoil of the submarine areas contiguous to the coast but outside the area of the maritime zone. Why is the "continental shelf' important? It is important because of the rich natural resources found therein. This is, in fact, incorporated in the Petroleum Act. 438

2. Easement of Innocent Passage - It is the right of foreign vessels to pass through territorial waters, specially those connecting two open seas, provided: (1) That the passage is "innocent" which means that there is no ulterior motive for the passage, and all the regulations of the State concerned must have been complied with; and (2) That there is only a passage which means that there is merely a passing through, with no loading or unloading of any person or goods. 3. Territorial Sea - This is also known as the maritime belt. It is that portion of the sea adjacent to the coast of a State which is under its jurisdictional control. 4. Freedom of the Seas - It means that no part of the sea as such can be subjected to the sovereignty of any State. It cannot therefore be incorporated into the territory of any State through occupation. 5. Freedom of Navigation - It refers to the right to sail ships on the high seas, subject only to international law and the laws of the flag state. 6. Contiguous Zone - It is the zone extending up to 12 nautical miles from the territorial sea. Although it is not technically a part of the territory of the State, the coastal State may exercise limited jurisdiction over the contiguous zone as a preventive measure to insure that customs laws, immigration and sanitary laws are properly and effectively enforced. 7. Exclusive Economic Zone - It is the zone which extends up to 200 miles from the low water mark or the baselines as the case may be. 8. Archipelago Doctrine ##1149 III. In connection with the right of legation or diplomatic intercourse 1. Right of Legation - This is the right of a State to send envoys or establish diplomatic missions, or the right to receive such envoys or missions. The first is known as the active right of legation. The second is known as the passive right of legation. 2. Ambassadors - They are the political, cultural, economic, and social representatives of their countries to a foreign State. Their offices are called as embassies. 3. Ministers plenipotentiary or envoys extraordinary - They are ministers assigned to attend to a special function (i.e. signing a treaty). 4. Ministers resident - They are the political, cultural, economic, and social representatives of their countries to a foreign principal city. Their offices are known as legations. 5. The Charges d'affaires (in charge of affairs) - They are those officially below the rank of the ministers resident. They take over when the latter is absent. In other words, they are temporarily in charge no matter what their official rank or designation may be. 6. Diplomatic Corps - All diplomatic envoys accredited to the same State form a body known as a "Diplomatic Corps." The head of this body is usually the Papal Nuncio, if there is one, or the oldest ambassador. If there are no ambassadors, it is the oldest minister plenipotentiary who is the head of the "diplomatic corps." 7. Agreation - It is an informal inquiry (enquiry) to find out the acceptability of a proposed envoy and an informal conformity (agremen) of the receiving State to the appointment of the said envoy. 439

8. Letre de creance - This states the name of the representative, his rank, the character and general object of this mission. It also contains a request for favorable reception and full credence. It is sealed but the ambassador has copies of the same. 9. Diplomatic passport - This authorizes his travel and describes both his person and his office. 10. Diplomatic mission - To promote friendly relations between the sending State and the receiving State, and the development of their economic, cultural and scientific relations; to observe and report to his country the developments in the receiving State; to protect the interests of the nationals of his country within the limits allowed by international law; to represent his country in the receiving State; to negotiate with the government of the receiving State. ##1150 IV. In connection with diplomatic immunities and privileges 1. Asylum - is the authority of a State to allow an alien who has sought refuge from prosecution or persecution to remain within the territory and under its protection. 2. Territorial Asylum - refuge within the territory of the sheltering state, the protection which a refugee obtain by escaping to, or remaining upon, the territory of a State other than that the State that "wants" him, until the protection is terminated by his extradition. (McNair, Law on Treaties, Vol. II, p. 67) 3. Exterritorial Asylum - Asylum in what are considered the "extensions" of a State's territory. This type includes: asylum in foreign public ships; diplomatic asylum - the protection afforded by a State to a refugee by granting him an asylum in or upon its diplomatic buildings within the territory of the State that wants him. (Ibid.) V. In connection with consular officials 1. Consul - A consul is a commercial agent appointed by his Government to reside in a foreign city, and permitted by the foreign State to do so in order that he may watch over the commercial rights and privileges of his own country therein, and thus protect the rights of his country's nationals. (Paras citing Wilson and Tucker, International Law) 2. Consules Missi (consuls de carriere) - Literally this means "consuls of career." They are professional consuls, hence, they are not allowed to engage in any other profession or business. 3. Consules electi - They are also known as honorary or commercial consuls. They are selected by the appointing Government either from its own citizens engaged in business in the country in which they will be allowed to exercise consular functions, or from among the nationals of the foreign state involved. 4. Letre de provision - This is the letter of appointment or commission which is transmitted by the sending State to the Secretary of Foreign Affairs of the country in which the consul is to serve. 5. Exequator - This is the authorization given by the sovereign of the receiving State to the consul, allowing him to exercise his functions within the territory (See Lawrence, Principles of International Law, p. 297). The exequatur may be granted conditionally; the grant may even be refused for any or no reason; once granted. The exequatur may be unilaterally withdrawn. 440

##1151 VI. In connection with exemprions from jurisdiction 1. Doctrine of sovereign immunity - Under this doctrine, a State enjoys immunity from the exercise of jurisdiction by another State. The courts of one State may not assume jurisdiction over another State. 2. Acta jure imperil - government act 3. Acta jure gestiones - commercial act VII. In connection with war 1. Non-privileged combatants - i.e., Spies. When caught, they do not get the privilege of being considered as "prisoners of war." (Article 29, Hague Convention, 1907) 2. Privileged combatants - if captured, they are not supposed to become prisoners of war. 3. Jus ad bellum (justice of war) - refers to the conditions under which one may resort to war or to force in general; with a subdivision known as jus contra bellum or the law on the prevention of war; 4. Jus in Bello (justice in war) - governs the conduct of belligerents during a war, and in a broader sense comprises the rights and obligations VIII. Conditions for jus ad bellum 1. There must be a just cause on an injury received; 2. Wars must be proportional to the costs entailed in prosecuting them; 3. There must be a reasonable chance of success; 4. Nations must publicly declare their wars; 5. Only a legitimate authority may declare war; 6. War must always be a last resort; 7. War may be only undertaken with the right intention. (Grotuis, The Law of War and Peace) IX. In connection with termination of war 1. Status quo anti vellum - Each of the belligerents is entitled to the territory and property which it had possession of at the commencement of the war. 2. Doctrine of postliminium - The territory, individuals and property that have come to the possession or authority of the enemy reverts to the possession and authority of the original or legitimate sovereign. This also means that when a territory which has been occupied by the enemy comes again into the power of the State during the progress of the war through conquest or otherwise, the legal State of the things existing prior to the hostile occupation is re-established. (Principles, Cases and Comments in Constitutional Law I, by Suarez, citing Aruego, International Law, p. 60) ##1152 X. In connection with forbidden methods of warfare 1. No quarter method - An order to the effect that no survivors are to be left open after an attack. This is inhuman and not allowed as a method of warfare. 2. Starvation method - Starvation of the civilian population is inhuman. 441

3. Reprisals - Acts of vengeance by a belligerent directed against groups of civilians or prisoners of war. 4. Perfidy or Treachery - It is the treachery for soldiers who have surrendered to take up arms and attack the enemy. XI. In connection with peaceful and forcible sanctions 1. Diplomatic negotiations - It constitutes the process by which States settle their differences through an exchange of views between diplomatic agencies. Discussions may be oral or written, brief or prolonged. (Mavromamatis Palestine Concessions Case, P.C.I.J. Pub. Ser. A/2 p. 11) 2. Tender and exercise of good offices - It exists when third party, either alone or in collaboration with others, offers to help in the settlement of a dispute. When the offer is accepted, there shall be an "exercise of good offices." 3. Mediation - A third party offers to help with a solution, usually based on compromise (as contradistinguished from "good offices," mediation offers a solution; "good offices" merely brings that parties together). 4. Enquiry and conciliation - It simply means an ascertainment of the pertinent facts and issues in a dispute. 5. Arbitration - It is the reference of the dispute to a commission or international body, whose decision, however, is NOT BINDING on the parties; when the decision is final and conclusive on the parties, the process is referred to as arbitration. 6. Reference to the Security Council of the UN - When no danger to international peace is foreseen, the Security Council may step in, but only if ALL THE PARTIES to the dispute request its intervention (Article 52, UN Charter). When there is DANGER to international peace, the Security Council intervenes: (a) On its own motion (Article 34, UN Charter) (b) On motion of the General Assembly (Article 11, UN Charter) (c) On motion of the UN Secretary-General (Article 99, UN Charter) (d) On motion by a UN Member (Article 35, No. 1, UN Charter) (e) On motion by a Non-Member of the UN (Article 35, No. 2, UN Charter) ##1153 In case the Security Council discovers a threat to international peace, it shall make the proper recommendations on the dispute (Article 39, UN Charter). If the recommendations are not heeded, the Council may take "enforcement action" under Article 41 of the Charter. 7. Reference to the International Court of Justice - already discussed XII. In connection with international custom 1. Cabotage - Monopoly of a State in coastwide trade shipping and navigation. 2. Angary - Right of a belligerent to seize or destroy neutral property, if necessary. In maritime law, it means seizure of a vessel for public service. 442

XIII. In connection with modes of acquiring territories 1. Discovery - this is an old mode of acquiring ownership when territories which were not yet discovered and occupied can be acquired by the discovering State under the principle of "Terra Nulius" (which means that since it is a territory which is not yet owned by or belonging to any State [stateless territory], it can be acquired under the principle of discovery and occupation.) 2. Prescription - Elements of prescription as a mode of acquiring territory: 1. Possession which must be continuous, public and adverse. 2. Lapse of a reasonable period of time (which is a question of fact and dependent on the circumstances of each case.) 3. Cession - It is a mode of acquiring territory made either voluntarily (sale or donation) or involuntarily (on account of or as a result of war). Example: 1. Cession of Alaska by Russia to the US in 1867. 2. Cession of the Philippines by Spain to the US (Treaty of Paris, December 10, 1896) 4. Conquest - It is the acquisition of sovereignty of a country by force of arms, exercised by an independent power, which reduces the vanquished to the submission of its empire. 5. Accretion - It is a mode of acquiring property produced by or which is attached or united to a thing already owned by a person. In Roman Law, this is known as accessio which may either be: ##1154 (a) Accessio Continua - Accession occurring as a consequence of forces external of the thing itself. (b) Accessio Discreta - Accession occurring as a consequence of forces inherent in the thing itself. XIV. In connection with subjects of international law 1. State - is a community of persons, more or less numerous, permanently occupying a fixed territory, possessing an organized government, independent of external control, to which a great body of inhabitants render habitual obedience. (Malcolm and Laurel, Philippine Constitutional Law, 3rd ed., 3, citing Garner, Introduction to Political Science, 38-41) 2. Colony - is a dependent political community. It is composed of citizens of the same country who have migrated therefrom to live in another country but remain subject to the Mother State. 3. Dependencies - is a territory different from the country in which supreme sovereign power resides, but belongs rightfully to it, hence, it is still subject to the loss which the sovereign may impose. 4. Belligerent - When the insurgency has reached a serious proportion, the rebels, instead of being merely considered insurgents, may be properly called "belligerents." 443

5. Mandates - The purpose of creating mandates is to give them an opportunity to develop economically and socially. (Article 22 of the Covenant of the League of Nations) 6. Trust territories - On the other hand, the purpose behind the creation of a trusteeship system are: a) To further international peace and security; b) To promote the political, economic, social and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence; c) To encourage respect of human rights for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the people of the world; and d) To ensure equal treatment in social, economic, and commercial matters. (Article 76, UN charter) ##1155 XV. Other terms/phrases/principles/doctrines: 1. Par in parem non habet imperium - No State can claim jurisdiction over another in accordance with the doctrine of equality of States. 2. Ex aequo et bono - That the case be submitted on the principle of what is good and just. 3. Res inter alias actu - Acts and declarations of persons strangers to a suit. 4. Terra nullius - Territory not yet owned by or belonging to any State. 5. Doctrine of Auto limitation - Any State may, by its consent, express or implied, submit to a restriction of its sovereign rights. It may, if it chooses to, refrain from the exercise of what otherwise is illimitable competence. (Reagan vs. Commission of Int. Revenue, G.R. No. L26379, December 27, 1969) 6. Doctrine of contingent sovereignty - Sovereignty is contingent upon the fulfillment of certain fundamental state obligations, particularly to its own people. When the state commits, allows, or fails to prevent oppression or acts of violence against its people, it loses its claim to sovereignty and non-intervention, and protection would devolve to the international community. 7. Drago Doctrine - Luis Drago (1859-1921) was a former Minister of Foreign Affairs of Argentina. His doctrine concerns the question of the right of a state to resort to force to collect the claims of its citizens against foreign governments and is advanced by him as supplement to the Monroe Doctrine (America for the Americans). In 1902, at the time of the blockade of Venezuela by the combined fleets of Great Britain, Germany, and Italy with the object of enforcing contractual and other claims of their respective citizens against Venezuela, Drago wrote to the Argentine Minister in the Washington containing what is now known as the Drago Doctrine that "a public debt cannot give rise to the right of intervention, and much less to the occupation of the soil of any American nation by any European power." (Fenwick, 295) 8. Hinterland Doctrine - Under the hinterland doctrine, the state that discovers and occupies the coast shall also have an exclusive right to occupy the hinterland, i.e., the inland region lying behind a port. 444

9. Thalweg Doctrine - The Thalweg Doctrine aims to resolve water boundary disputes. According to this doctrine, the boundary between two states divided by a flowing body of water should be drawn along the thalweg, which is the deepest portion of the channel. 10. Extradition - The surrender by force of a wanted person by the requested State to the requesting State. It may only be made pursuant to a treaty between the requesting State and the requested State. It is for the benefit of the requesting State. ##1156 11. Deportation - The expulsion of an unwanted or undesirable alien. It is an exercise of sovereignty and a decision made by a State. It is an order of a State acting on its own and according to its laws, interest and processes. 12. Double veto - A veto is first used to establish that a given question is non-procedural, and then on the vote on the question itself. (Example: "double veto" occurred during the 49th meeting of the Council, on 26 June 1946, when a permanent member objected to the President's interpretation of a vote as procedural, which resulted in a second vote on the procedural nature of the question. This is no longer in practice. 13. Genocide - It includes any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group: a) Killing members of the group; b) Causing serious bodily or mentally harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group. (Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide [Genocide Convention], which entered into force on January 12, 1951) "Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language and national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups." (Lambkin, 79) ##1157 14. Torture - Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other 445

person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (Torture Convention, 1984) 15. Slavery - is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. (1926, Slavery Convention, Article 1) 16. Reprisal - The seizing of property or persons by way of retaliation. Reprisal when they are taken by a State may denote any kind of coercive action not amounting to war whereby a State attempts to secure satisfaction from another for some wrong which the latter has committed against it. (Briely, 321) 17. Embargo - Commerce and trade with the offending State is prohibited. 18. Blockade - Maritime commerce between an enemy State and the rest of the world is cut off in order to prevent the goods from reaching the enemy or to prevent the enemy from exporting to the outside world thereby sustaining its war economy. 19. Boycott - There is a concerted action made by the citizens of one State to suspend trade and business relations with the citizens of the offending State. 20. Agression - It is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. (Resolution 3314 [XXIX], UN General Assembly, December 14, 1974) 21. Persona non grata - An individual who is unaccepted to or unwelcome by the receiving State. 22. Aide Memoaire - It is a written summary of the key points made by a diplomat in an official conversation. Literally, a document left with the other party to the conversation, either at the time of the conversation or subsequently, as an aid to memory. III. OTHER RELEVANT INFORMATION 1. UN (United Nations)/LEAGUE OF NATIONS ##1158 a) Historical background of UN The League of Nations was organized in 1919, five years after World War I broke out in 1914. Its purpose is to achieve international peace and encourage international cooperation. The United States was not a member of the League of Nations. The League of Nations was officially dissolved on April 19, 1946. What caused the creation of the United Nations after the collapse of the League of Nations? We have already suffered two world wars since the beginning of the 19th century. All nations, whether or not they were involved, shared equally in the ills of war. When battles are fought, the lives of men and women, including innocent children, disabled and even those who are too old to fight, are either endangered, severely damaged or lost. Costs of living are inflated, and after the war, depression and starvation occur, economic ills and immense losses to business are extensive. Wars, after all, are not instruments of achievements. They cannot decide international disputes to the satisfaction of waning nations. Wars cannot make peace. They destroy. 446

b) Results of the First World War: 8,000,000 dead, 15,000,000 mutilated, 3,000,000 wounded... more than the entire population of Brazil... and 400 billion dollars went up in smoke of battle. c) Global cost of World War II: a waste per capita of the world population of $10,000 or 200 Brazilian contos... This cost can never be paid by us who made the war possible, but will have to be paid by many innocent generations, and its liquidation would require more than a century of work on the part of the victors and vanquished alike. History does not record a peace completed by the generation which raged the war... War sacrifices the present, but much more it compromises the future. (Report of Dr. Oswaldo Araha, Ex-President of the General Assembly of the United Nations) d) Lessons learned: "Indeed, after every war and after all the bitterness that results from war, mankind is taught that it is peace, after all, that is needed by all the countries of the world to enable them and their people to live in happiness. Peace is what we need to build the world, and peace comes from the heart, and not from the minds of men. This desire for peace overwhelmed the hearts of the great men and women who survived the war. They have agreed to establish and pursue the idea of organizing the United Nations." (Political Law Reviewer 2002 Edition, by Suarez, Page 1021) ##1159 2. SEATO (Southeast Asia Treaty Organization) - This is also known as the Manila Pact or the South East Asia Collective Defense Treaty of September, 1954. Their agreement: An aggression against any of the signatories will be considered as endangering their peace and safety, in which case, they obligate themselves to meet the common danger in accordance with their constitutional possesses. 3. ASEAN (Association of South East Asian Nation) - It was established on August 8, 1967 in Bangkok by the five original Member Countries, namely: Indonesia, Malaysia, Philippines, Singapore, and Thailand. Brunei Darussalam joined in 1984, Vietnam in 1995, Lao PDR and Myanmar in 1997, and Cambodia in 1999. Aims and purposes of ASEAN: (1) To accelerate economic growth, social progress and cultural development in the region; and (2) To promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries in the region and adherence to the principles of the U.N. Charter. 4. NATO (North Atlantic Treaty Organization) - This is a treaty signed in Washington on April 4, 1949, composed of Nations in the North Atlantic area. Their agreement: The parties agreed, among others, that an armed attack against one or more of them in Europe or in North America is considered as an attack against all of them. 5. AFTA (Asean Free Trade Area) - Launched in 1992, the AFTA aims to promote the region's competitive advantage as a single production unit. The elimination of tariff and non-tarrif barriers among member countries is expected to promote greater economic efficiency, productivity, and competitiveness. 447

6. European Court of Human Rights - The Court, also known as the "Strasbourg Court" was established in November 1998 pursuant to the entry into force of Protocol No. 11 to the European Convention for the Protection of Human Rights (1950) establishing a single court sitting fulltime and replacing the European Commission of Human Rights (1954) and the European Court of Human Rights (1959). It has its seat in Strasbourg, France. 7. International Bill of Human Rights: It consists of the following: a) The Universal Declaration of Human Rights; b) The International Covenant on Economic, Social and Cultural Rights; c) The International Covenant on Civil and Political Rights; and d) The two Optional Protocols. ##1160 Three generation of human rights Three generations of human rights as classified by Czech jurist Karel Vasak, the first Secretary General of the International Institute of Human Rights in Strasbourg, follow the three watchwords of the French Revolution; Liberty, Equality and Fraternity: First Generation Human Rights They deal essentially with liberty and participation in political life. They are found in Articles 3 to 21 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights; Second Generation Human Rights They are related to equality. They are fundamentally social, economic, and cultural in nature. They are found in Articles 22 to 27 of the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights; Third Generation Human Rights Those rights that go beyond the mere civil and social, as expressed in many progressive documents of International Law, including the 1972 Stockholm Declaration of the UN Conference on Human Environment. 8. Universal Declaration of Human Rights - The Universal Declaration of Human Rights was adopted by the U.N. General Assembly as Resolution 217A (III) on December 10, 1948 and proclaimed "as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedom and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among, the peoples of Member States themselves and among the peoples of territories under their jurisdiction." 9. International Law of the Sea - It is a body of treaty rules and customary norms governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over 448

maritime regimes. It is a branch of public international law, regulating the relations of states with respect to the uses of the oceans. (Article 1, par. 1) ##1161 10. Baselines - It is the line from which the breadth of the territorial sea and other maritime zones is measured. These other zones are the contiguous zone and the exclusive economic zone. The object and purpose in making the delimitation is to determine the maritime boundary of the coastal State. The baseline is either normal or straight. (Article 2, par. 1) The declaration consists of a preamble and thirty articles, setting forth the human rights and fundamental freedoms to which all mean and women, everywhere in the world, are entitled, without any discrimination. MULTIPLE CHOICE QUESTIONS 1. Ratification of a treaty A. The power to ratify a treaty is vested in the Senate. B. The power to ratify a treaty is vested in the President, subject to concurrence of the Senate. C. The role of the Senate is limited only to giving or withholding its consent, or concurrence to the ratification, but it cannot, by itself ratify a treaty. D. The power to ratify a treaty is vested in the President subs to concurrence of the Senate, but it is within the authority of the President to refuse to submit a treaty to the Senate or having secured its consent for its ratification, refuse to rates it. 2. In the last several weeks, the Armed Forces of Israel, has been causing bombardment and blockade in Gaza resulting in death, starvation and injury to hundreds and thousands of Palestinians including innocent civilians. The Israel government alleges that it is merely acting in retaliation to Palestinians attack and rockets to a portion of its territory. Is Israel guilty of aggression. Is the allegation of Israel justified under international law? A. Yes, because it is merely acting in retaliation to Palestinians attack. B. Yes, any country similarly situated has a rights to defend itself against an enemy. C. No, aggression can never be justified. D. No, the UN Charter prohibits not only recourse to war but also resort to the use of war, and even in the use of war the measure to be taken must be consistent with "necessity and proportionality," as already applied in previous cases that have reached the international courts of Justice. Under the circumstances, it is submitted that Israel committed not only an aggression but also an unjustified war of aggression because the repeated bombardments have caused death, injury, extensive damage even to innocent civilians, children, hospitals, patients therein, public and private buildings, which are not supposed to be targets of attack. Aggression can never be justified. A war of aggression is a crime against international peace and it gives rise to international responsibility. ##1162 3. After the signing of the UNCLOS, IS IT CORRECT TO SAY THAT the internal waters of the Philippines are strictly limited to waters in lakes, bays, gulfs, mouth of rivers and in permanent harbor works? 449

A. Yes. 116 States, including the Philippines, have agreed to apply provisionally the agreement starting November 14, 1994, the date of the Convention's entry into force. B. Yes. The Philippines is a party to the convention (United Nations Convention on the Law of the Sea), having signed it on December 10, 1982, and ratified on May 8, 1984. C. Yes. There was no negative vote with 7 abstentions, hence, the UNCLOS was effective, from November 14, 1994. D. No. Despite the signing of the UNCLOS, Republic Act. No. 3046 is sustained. Hence, the Philippines still adheres to the concept of the archipelagic State. After the UNCLOS was ratified in 1984, the Philippines still adheres to the national territory clause and this is found in the 1987 Constitution. Any effort in the diplomatic level to attain harmony, or to avoid conflict with the UNCLOS, will not be fully realized unless and until a corresponding amendment in our present Constitution is made. 4. What, if any, is the exact definition of outer space? A. It is the area that lies beyond the airspace of the earth. B. The Outer Space Treaty did not define outer space because of its non-identifiable dimension. C. It is the space which is beyond the control of human beings on earth. D. There is no exact definition of Outer Space. Over the years, several definitions have also been supported, thus: ##1163 1. It is the limit of the atmosphere: 2. It is the limit of air flight: 3. It is the point at which the atmosphere will no longer sustain human life; 4. It is the lowest point at which a satellite can orbit; 5. It is the point at which centrifugal forces replace aerodynamic forces; 6. It is the limit of a state's effective control over its airspace; and 7. It is the current orbital minimum (approximately 100 to 110 kms.) 5. Effect of belligerent occupation over the Philippines during the Japanese Military occupation A. The Japanese Imperial Government who was in control of our government obtained sovereignty over the Philippines. B. The sovereignty of the legitimate government is suspended during the belligerent occupation. C. The sovereignty of the legitimate government was taken over by the Japanese Imperial Government after the Fall of Bataan. D. The belligerent occupation did not obtain sovereignty over the Philippines during the Japanese Military Occupation. This remained with the United States of America although the Americans could not exercise control over the occupied territory. 6. A Filipino-owned construction company with principal offices in Manila leased an aircraft registered in England to ferry construction workers to the Middle East. While on flight to Saudi Arabia with a Filipino crew provided by the lessee, the aircraft was hijacked by drug traffickers. The hijackers were captured in Damascus and sent to the Philippines for trial. Do Courts in Manila have jurisdiction over the case? 450

A. Damascus has jurisdiction over the case because the hijackers were captured there. B. England has jurisdiction over the case because hijacking was committed aboard an aircraft registered in England. C. Courts in Manila have jurisdiction over the case because hijacking is a universal crime. D. The crime of hijacking may be prosecuted. tried and punished in the competent court of any country where the hijackers may be brought. END OF THE BOOK

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