Notes and Cases POLITICAL LAW AND PUBLIC INTERNATIONAL LAW Attorney EDWIN REY SANDOVAL January 16 – July 28, 2017 August 6, 2017 April 20, 2018

Unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions are self-executing. If the constitutional provisions are treated as requiring legislation instead of selfexecuting, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. This can be cataclysmic. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo])

POLITICAL LAW AMENDMENTS OR REVISION (Article XVII, 1987 Constitution)

THE CONSTITUTION The Doctrine of Constitutional Supremacy

Ways of Proposing Amendments or Revision

Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the Constitution, that law or contract, whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes, is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo])

First: Congress may directly propose amendments or revision by threefourths (3/4) vote of all its . In such a case, Congress will not be acting as a legislative body but rather, as a constituent assembly – a non-legislative function of Congress. Second: through a Constitutional Convention. A constitutional convention is a body separate and distinct from that of the Congress itself whose shall be elected by the people of their respective districts.

Self-executing and Non-self-executing Provisions of the Constitution Third: through People’s Initiative. A provision which lays down a general principle, such as those found in Article II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the Constitution itself, so that they can be determined by an examination and construction of its , and there is no language indicating that the subject is referred to the legislature for action. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo])

People’s initiative on the Constitution is done through a petition, but the petition will have to be signed by at least twelve (12) per cent of the total number of ed voters provided that in each legislative district, at least three (3) per cent of the ed voters therein shall sign the petition. The provisions of R.A. No 6735 (The Initiative and Referendum Law) dealing with initiative on the constitution implements people’s initiative on the Constitution under Section 2, Article XVII, 1987 Constitution. Ratification

Provisions of the Constitution are presumed to be Self-executing 1

Any proposed amendment or revision of the Constitution will have to be submitted to the people in a plebiscite to be ratified by majority of the voters.

The Effect of Declaration of Unconstitutionality of a Legislative or Executive Act A legislative or executive act that is declared void for being unconstitutional cannot give rise to any right or obligation. (Commissioner of Internal Revenue v. San Roque Power Corporation, G.R. No. 187485, October 8, 2013 cited in Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin])

As already mentioned, the implementation of the DAP resulted into the use of savings pooled by the Executive to finance the PAPs that were not covered in the GAA, or that did not have proper appropriation covers, as well as to augment items pertaining to other departments of the Government in clear violation of the Constitution. To declare the implementation of the DAP unconstitutional without recognizing that its prior implementation constituted an operative fact that produced consequences in the real as well as juristic worlds of the Government and the Nation is to be impractical and unfair. Unless the doctrine is held to apply, the Executive as the disburser and the offices under it and elsewhere as the recipients could be required to undo everything that they had implemented in good faith under the DAP. That scenario would be enormously burdensome for the Government. Equity alleviates such burden.

The Operative Fact Doctrine The doctrine of operative fact recognizes the existence of the law or executive act prior to the determination of its unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded. In short, it nullifies the void law or executive act but sustains its effects. It provides an exception to the general rule that a void or unconstitutional law produces no effect. But its use must be subjected to great scrutiny and circumspection, and it cannot be invoked to validate an unconstitutional law or executive act, but is resorted to only as a matter of equity and fair play. It applies only to cases where extraordinary circumstances exist, and only when the extraordinary circumstances have met the stringent conditions that will permit its application. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin])

The other side of the coin is that it has been adequately shown as to be beyond debate that the implementation of the DAP yielded undeniably positive results that enhanced the economic welfare of the country. To count the positive results may be impossible, but the visible ones, like public infrastructure, could easily include roads, bridges, homes for the homeless, hospitals, classrooms and the like. Not to apply the doctrine of operative fact to the DAP could literally cause the physical undoing of such worthy results by destruction, and would result in most undesirable wastefulness. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin]) The Doctrine of Operative Fact Extends as well to a Void or Unconstitutional Executive Act

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

The term executive act is broad enough to include any and all acts of the Executive, including those that are quasi-legislative and quasi-judicial in nature.

We find the doctrine of operative fact applicable to the adoption and implementation of the DAP. Its application to the DAP proceeds from equity and fair play. The consequences resulting from the DAP and its related issuances could not be ignored or could no longer be undone.

In Commissioner of Internal Revenue v. San Roque Power Corporation (G.R. No. 187485, October 8, 2013), the Court likewise declared that “for the operative act doctrine to apply, there must be a ‘legislative or executive measure,’ meaning a law or executive issuance.” Thus, the Court opined there that the operative fact

2

doctrine did not apply to a mere istrative practice of the Bureau of Internal Revenue, x x x.

of the sovereignty of the State, and because they act in the interest of the public as required by law. However, the presumption may be disputed.

It is clear from the foregoing that the adoption and the implementation of the DAP and its related issuances were executive acts. The DAP itself, as a policy, transcended a merely istrative practice especially after the Executive, through the DBM, implemented it by issuing various memoranda and circulars. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin])

At any rate, the Court has agreed during its deliberations to extend to the proponents and the implementers of the DAP the benefit of the doctrine of operative fact. This is because they had nothing to do at all with the adoption of the invalid acts and practices. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al., G.R. No. 209287, February 3, 2015, En Banc [Bersamin], Resolution of the Motion for Reconsideration)

The Presumption of Good Faith Stands in the DAP Case despite the Obiter Pronouncement

THE NATIONAL TERRITORY

The quoted text of paragraphs 3 and 4 shows that the Court has neither thrown out the presumption of good faith nor imputed bad faith to the authors, proponents and implementers of the DAP. The contrary is true, because the Court has still presumed their good faith by pointing out that “the doctrine of operative fact x x x cannot apply to the authors, proponents and implementers of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, istrative and other liabilities.” X x x It is equally important to stress that the ascertainment of good faith, or the lack of it, and the determination of whether or not due diligence and prudence were exercised, are questions of fact. The want of good faith is thus better determined by tribunals other than this Court, which is not a trier of facts. For sure, the Court cannot jettison the presumption of good faith in this or in any other case. The presumption is a matter of law. It has had a long history. Indeed, good faith has long been established as a legal principle even in the heydays of the Roman Empire. X x x Relevantly the authors, proponents and implementers of the DAP, being public officers, further enjoy the presumption of regularity in the performance of their functions. This presumption is necessary because they are clothed with some part 3

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. (Article I, 1987 Constitution) The Maritime Baselines Law (R.A. No. 9522) In 1961, Congress ed Republic Act No. 3046 (RA 3046) demarcating the maritime baselines of the Philippines as an archipelagic State. This law followed the framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I), codifying, among others, the sovereign right of States parties over their “territorial sea,” the breadth of which, however, was left undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for legislation ed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522. The change was prompted by the need to make RA 3046 compliant with the of the United Nations Convention on the Law of the Sea (UNCLOS III), which the Philippines ratified on 27 February 1984. Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic states like the Philippines and sets the deadline for the filing of application for the extended continental shelf. Complying with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as “regimes of islands” whose islands generate their own applicable maritime zones. (Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011, En Banc [Carpio]) RA 9522 is not unconstitutional. It is a statutory tool to demarcate the country’s maritime zones and continental shelf under UNCLOS III, not to delineate Philippine territory. UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i,e., the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits. UNCLOS III was the culmination of decades-long negotiations among United Nations to codify norms regulating the conduct of States in the world’s oceans and submarine areas, recognizing coastal and archipelagic States’ graduated authority over a limited span of waters and submarine lands along their coasts. On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to work-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and 4

continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights, namely: the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77). (Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011, En Banc [Carpio]) UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or diminution of territory. Under traditional international law typology, states acquire (or conversely, lose) territory through occupation, accretion, cession and prescription, not by executing multilateral treaties on the regulation of sea-use rights or enacting statutes to comply with the treaty’s to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS IIII, and are instead governed by the rules on general international law. (Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011, En Banc [Carpio]) RA 9522’s use of the framework of Regime of Islands to determine the maritime zones of the Kalayaan Island Group (KIG) and the Scarborough Shoal is not inconsistent with the Philippines’ claim of sovereignty over these areas. The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS III’s limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind out of petitioners’ argument branding RA 9522 as a statutory renunciation of the Philippines’ claim over the KIG, assuming that baselines are relevant for this purpose.

Petitioners’ assertion of loss of “about 15,000 square nautical miles of territorial waters” under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of basepoints, increased the Philippines’ total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by 154,216 square nautical miles x x x.

water at high tide,” such as portions of the KIG, qualifies under the category of “regime of islands,” whose islands generate their own applicable maritime zones. (Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011, En Banc [Carpio])

Further, petitioners’ argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines’ continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal x x x

THE DOCTRINE OF STATE IMMUNITY FROM SUIT The State may not be sued without its consent. (Section 3, Article XVI, 1987 Constitution) Discuss the basis of the Doctrine of State Immunity from Suit

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of UNCLOS III. X x x Although the Philippines has consistently claimed sovereignty over the KIG and the Scarborough Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago, such that any straight baseline loped around them from the nearest basepoint will inevitably “depart to an appreciable extent from the general configuration of our archipelago.” Xxx [T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its maritime zones including the extended continental shelf provided by Article 47 of [UNCLOS III]. Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal, Congress’ decision to classify the KIG and the Scarborough Shoal as “’Regime[s] of Islands’ under the Republic of the Philippines consistent with Article 121” of UNCLOS III manifests the Philippine State’s responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any “naturally formed area of land, surrounded by water, which is above 5

The basic postulate enshrined in the Constitution that “[t]he State may not be sued without its consent,” reflects nothing less than a recognition of the sovereign character of the State and an express affirmation of the unwritten rule effectively insulating it from the jurisdiction of courts. It is based on the very essence of sovereignty. As has been aptly observed by Justice Holmes, a sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. True, the doctrine, not too infrequently, is derisively called “the royal prerogative of dishonesty” because it grants the state the prerogative to defeat any legitimate claim against it by simply invoking its nonsuability. We have had occasion to explain in its defense, however, that a continued adherence to the doctrine of non-suability cannot be deplored, for the loss of governmental efficiency and the obstacle to the performance of its multifarious functions would be far greater in severity than the inconvenience that may be caused private parties, if such fundamental principle is to be abandoned and the availability of judicial remedy is not to be accordingly restricted. (Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug]) Is the rule absolute, i.e., that the State may not be sued at all? How may consent of the State to be sued given?

The rule, in any case, is not really absolute for it does not say that the state may not be sued under any circumstances. On the contrary x x x the doctrine only conveys, “the state may not be sued without its consent;” its clear import then is that the State may at times be sued. The State's consent may be given either expressly or impliedly. Express consent may be made through a general law (i.e., Commonwealth Act No. 327, as amended by Presidential Decree No. 1445 [Sections 49-50], which requires that all money claims against the government must first be filed with the Commission on Audit which must act upon it within sixty days. Rejection of the claim will authorize the claimant to elevate the matter to the Supreme Court on certiorari and, in effect, sue the State thereby) or a special law. In this jurisdiction, the general law waiving the immunity of the state from suit is found in Act No. 3083, where the Philippine government “consents and submits to be sued upon any money claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between the private parties.” Implied consent, on the other hand, is conceded when the State itself commences litigation, thus opening itself to a counterclaim or when it enters into a contract. In this situation, the government is deemed to have descended to the level of the other contracting party and to have divested itself of its sovereign immunity. (Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug]) The rule that when the State enters into a contract with a private individual or entity, it is deemed to have descended to the level of that private individual or entity and, therefore, is deemed to have tacitly given its consent to be sued, is that without any qualification? What is the Restrictive Doctrine of State Immunity from Suit? This rule is not without qualification. Not all contracts entered into by the government operate as a waiver of its non-suability; distinction must still be made between one which is executed in the exercise of its sovereign function and another which is done in its proprietary capacity. In United States of America v. Ruiz (136 SCRA 487), where the questioned transaction dealt with the improvements on the wharves in the naval installation at Subic Bay, we held: 6

“The traditional rule of immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a necessary consequence of the principle of independence and equality of States. However, the rules of International Law are not petrified; they are constantly developing and evolving. And because the activities of states have multiplied, it has been necessary to distinguish them - between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii. The restrictive application of State immunity is now the rule in the United States, the United Kingdom and other states in Western Europe. Xxx The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. It does not apply where the contracts relate to the exercise of its sovereign functions. In this case the projects are an integral part of the naval base which is devoted to the defense of both the United States and the Philippines, indisputably a function of the government of the highest order; they are not utilized for nor dedicated to commercial or business purposes.” (Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug]) When is a suit against a public official deemed to be a suit against the State? Discuss. The doctrine of state immunity from suit applies to complaints filed against public officials for acts done in the performance of their duties. The rule is that the suit must be regarded as one against the State where the satisfaction of the judgment against the public official concerned will require the State itself to perform a

positive act, such as appropriation of the amount necessary to pay the damages awarded to the plaintiff. The rule does not apply where the public official is charged in his official capacity for acts that are unlawful and injurious to the rights of others. Public officials are not exempt, in their personal capacity, from liability arising from acts committed in bad faith. Neither does it apply where the public official is clearly being sued not in his official capacity but in his personal capacity, although the acts complained of may have been committed while he occupied a public position. (Amado J. Lansang v. CA, G.R. No. 102667, Feb. 23, 2000, 2nd Div. [Quisumbing]) As early as 1954, this Court has pronounced that an officer cannot shelter himself by the plea that he is a public agent acting under the color of his office when his acts are wholly without authority. Until recently in 1991 (Chavez v. Sandiganbayan, 193 SCRA 282 [1991]), this doctrine still found application, this Court saying that immunity from suit cannot institutionalize irresponsibility and nonability nor grant a privileged status not claimed by any other official of the Republic. (Republic v. Sandoval, 220 SCRA 124, March 19, 1993, En Banc [Campos, Jr.]) Arigo v. Swift, 735 SCRA 102 (2014) A petition filed for the issuance of a Writ of Kalikasan directed against the Commander of the US Pacific Fleet for the destruction of our corrals in Tubbataha reef (a protected area system under the NIPAS [National Integrated Protected Areas System] and a UN declared World Heritage Site because of its rich marine biodiversity) in the Sulu Sea caused by the USS Guardian, an American naval vessel when it ran aground there in the course of its voyage to Indonesia from its base in Okinawa, Japan, will not prosper for lack of jurisdiction following the doctrine of sovereign equality of all States. In effect, the suit is a suit against the US government and, therefore, should be dismissed.

7

The waiver of immunity from suit of the US under the Visiting Forces Agreement (VFA) applies only to waiver from criminal jurisdiction, so that if an American soldier commits an offense in the Philippines, he shall be tried by Philippine courts under Philippine laws. The waiver did not include the special civil action for the issuance of a Writ of Kalikasan. Also, the demand for compensation for the destruction of our corrals in Tubbataha reef has been rendered moot and academic. After all, the US already signified its intention to pay damages, as expressed by the US embassy officials in the Philippines, the only request is that a of experts composed of scientists be constituted to assess the total damage caused to our corrals there, which request is not unreasonable. Government Funds may not be subject to Garnishment The funds of the UP are government funds that are public in character. They include the income accruing from the use of real property ceded to the UP that may be spent only for the attainment of its institutional objectives. Hence, the funds subject of this action could not be validly made the subject of writ of execution or garnishment. The adverse judgment rendered against the UP in a suit to which it had impliedly consented was not immediately enforceable by execution against the UP, because suability of the State did not necessarily mean its liability. (UP v. Dizon, G.R. No. 171182, 679 SCRA 54, 23 August 2012, 1st Div. [Bersamin]) The Doctrine should not be used to perpetrate an Injustice on a Citizen To our mind, it would be the apex of injustice and highly inequitable for us to defeat petitioners-contractors’ right to be duly compensated for actual work performed and services rendered, where both the government and the public have, for years, received and accepted benefits from said housing project and reaped the fruits of petitioners-contractors’ honest toil and labor. Incidentally, respondent likewise argues that the State may not be sued in the instant case, invoking the constitutional doctrine of Non-suability of the State, otherwise known as the Royal Prerogative of Dishonesty.

Respondent’s argument is misplaced inasmuch as the principle of State immunity finds no application in the case before us. Under these circumstances, respondent may not validly invoke the Royal Prerogative of Dishonesty and conveniently hide under the State’s cloak of invincibility against suit, considering that this principle yields to certain settled exceptions. True enough, the rule, in any case, is not absolute for it does not say that the state may not be sued under any circumstances. Thus, in Amigable v. Cuenca, this Court, in effect, shred the protective shroud which shields the state from suit, reiterating our decree in the landmark case of Ministerio v. CFI of Cebu that “the doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen.” It is just as important, if not more so, that there be fidelity to legal norms on the part of officialdom if the rule of law were to be maintained. Although the Amigable and Ministerio cases generously tackled the issue of the State’s immunity from suit vis a vis the payment of just compensation for expropriated property, this Court nonetheless finds the doctrine enunciated in the aforementioned cases applicable to the instant controversy, considering that the ends of justice would be subverted if we were to uphold, in this particular instance, the State’s immunity from suit. To be sure, this Court – as the staunch guardian of the citizens’ rights and welfare – cannot sanction an injustice so patent on its face, and allow itself to be an instrument in the perpetration thereof. Justice and equity sternly demand that the State’s cloak of invincibility against suit be shred in this particular instance, and that petitioners-contractors be duly compensated – on the basis of quantum meruit – for construction done on the public works housing project. (EPG Construction Co. v. Vigilar, 354 SCRA 566, Mar.16, 2001, 2nd Div. [Buena])

FUNDAMENTAL PRINCIPLES AND STATE POLICIES (Article II, 1987 Constitution)

the laws of the land. This provision is an affirmation of our adherence to the doctrine of incorporation in international law. Under the 1987 Constitution, an international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. On the other hand, generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty stipulations. Generally accepted principles of international law include international customs as evidence of a general practice accepted as law, and general principles of law recognized by civilized nations. International customary rules are accepted as binding as a result from the combination of two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. “General principles of law recognized by civilized nations” are principles “established by a process of reasoning” or judicial logic, based on principles which are “basic to legal systems generally,” such as “general principles of equity, i.e., the general principles of fairness and justice,” and the “general principles against discrimination” which is embodied in the “Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation.” These are the same core principles which underlie the Philippine Constitution itself, and embodied in the due process and equal protection clauses of the Bill of Rights. (Mary Grace Natividad S. PoeLlamanzares v. COMELEC, G R. No. 221697, March 8, 2016, En Banc [Perez]) The Right to Self-Determination of Peoples

The Philippines Adherence to the Doctrine of Incorporation Section 2, Article II of the 1987 Constitution provides that the Philippines adopts the generally accepted principles of international as part of 8

This right to self-determination of peoples has gone beyond mere treaty or convention; in fact, it has now been elevated into the status of a generally accepted principle of international law. (The Province of North Cotabato v. The

Government of the Republic of the Philippines Peace , G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc [Carpio-Morales]) The Yogyakarta Principles: Have they evolved into a generally accepted principle of international law and, therefore, binding upon the Philippines? We refer now to the petitioner’s invocation of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity), which petitioner declares to reflect binding principles of international law. At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice. X xx

In this case, the SC ruled that this provision is self-executing. It was also in this case where the Court clarified that the rule now is that all provisions of the Constitution are presumed to be self-executing, rather than non-self-executing. Elaborating, the Court explained that if a contrary presumption is adopted, the whole Constitution shall remain dormant and be captives of Congress, which could have disastrous consequences. Also, in this case the SC held that “patrimony” simply means “heritage.” Thus, when we speak of “national patrimony,” we refer not only to the natural resources of the Philippines but as well as the cultural heritage of the Filipino people. The Right to Life of the Unborn from Conception The Philippine national population program has always been grounded on two cornerstone principles: “principle of no-abortion” and the “principle of noncoercion.” These principles are not merely grounded on istrative policy, but rather, originates from the constitutional protection which expressly provided to afford protection to life and guarantee religious freedom.

Xxx When Does Life Begin? Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are – at best – de lege refenda – and do not constitute binding obligations on the Philippines. X x x (Ang LADLAD LGBT Party v. COMELEC, G.R. No. 190582, 618 SCRA 32, April 8, 2010, En Banc [Del Castillo])

Majority of of the Court are of the position that the question of when life begins is a scientific and medical issue that should not be decided, at this stage, without proper hearing and evidence. During the deliberations, however, it was agreed upon that the individual of the Court could express their own views on this matter.

The Filipino First Policy In this regard, the ponente, is of the strong view that life begins at fertilization. In the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos (Sec. 10, 2nd par., Art. XII of the Constitution) Manila Prince Hotel v. GSIS, 267 SCRA 408 (1997) (Bellosillo)

9

Xxx Textually, the Constitution affords protection to the unborn from conception. This is undisputable because before conception, there is no unborn to speak of. For said reason, it is no surprise that the Constitution is mute as to any proscription prior to conception or when life begins. The problem has arisen because, amazingly,

there are quarters who have conveniently disregarded the scientific fact that conception is reckoned from fertilization. They are waving the view that life begins at implantation. Hence, the issue of when life begins. Xxx In conformity with the above principle, the traditional meaning of the word “conception” which, as described and defined by all reliable and reputable sources, means that life begins at fertilization. Xxx From the deliberations above-quoted, it is apparent that the framers of the Constitution emphasized that the State shall provide equal protection to both the mother and the unborn child from the earliest opportunity of life, that is, upon fertilization or upon the union of the male sperm and the female ovum. X x x Equally apparent, however, is that the Framers of the Constitution did not intend to ban all contraceptives for being unconstitutional. From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed an abortive and thus prohibited. Conversely, contraceptives that actually prevent the union of the male sperm and the female ovum, and those that similarly take action prior to fertilization should be deemed non-abortive, and thus, constitutionally permissible. (James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., GR No. 204819, April 8, 2014, En Banc [Mendoza]) The Right to Health and to a Balanced and Healthful Ecology in Accord with the Rhythm and Harmony of Nature International Service for the Acquisition of Agri-Biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., G.R. No. 209271, December 8, 2015, En Banc (Villarama, Jr.) The Precautionary Principle 10

The precautionary principle originated in in the 1960s, expressing the normative idea that governments are obligated to “foresee and forestall” harm to the environment. In the following decades, the precautionary principle has served as the normative guideline for policymaking by many national governments. The Rio Declaration on Environment and Development, the outcome of the 1992 United Nations Conference on Environment and Development held in Rio de Janeiro, defines the rights of the people to be involved in the development of their economies, and the responsibilities of human beings to safeguard the common environment. It states that the long term economic progress is only ensured if it s linked with the protection of the environment. For the first time, the precautionary approach was codified under Principle 15, which reads: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Principle 15 codified for the first time at the global level the precautionary approach, which indicates that lack of scientific certainty is no reason to postpone action to avoid potentially serious or irreversible harm to the environment. It has been incorporated in various international legal instruments. The Cartagena Protocol on Biosafety to the Convention on Biological Diversity, finalized and adopted in Montreal on January 29, 2000, establishes an international regime primarily aimed at regulating trade in GMOs intended for release into the environment, in accordance with Principle 15 of the Rio Declaration on Environment and Development. X x x The precautionary principle applies when the following conditions are met: 1. There exist considerable scientific uncertainties; 2. There exist scenarios (or models) of possible harm that are scientifically reasonable (that is based on some scientifically plausible reasoning);

3. Uncertainties cannot be reduced in the short term without at the same time increasing ignorance of other relevant factors by higher levels of abstraction and idealization; 4. The potential harm is sufficiently serious or even irreversible for present or future generations or otherwise morally unacceptable; 5. There is a need to act now, since effective counteraction later will be made significantly more difficult or costly at any later time. The Rules (of Procedure for Environmental Cases) likewise incorporated the principle in Part V, Rule 20, which states:

PRECAUTIONARY PRINCIPLE Sec. 1. Applicability. – When there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it. The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt. SEC. 2. Standards for application. – In applying the precautionary principle, the following factors, among others, may be considered: (1) threats to human life or health; (2) inequity to present or future generations; or (3) prejudice to the environment without legal consideration of the environmental rights of those affected. Under this Rule, the precautionary principle finds direct application in the evaluation of evidence in cases before the courts. The precautionary principle bridges the gap in cases where scientific certainty in factual findings cannot be achieved. By applying the precautionary principle, the court may construe a set of 11

facts as warranting either judicial action or inaction, with the goal of preserving and protecting the environment. This may be further evinced from the second paragraph where bias is created in favor of the constitutional right of the people to a balanced and healthful ecology. In effect, the precautionary principle shifts the burden of evidence of harm away from those likely to suffer harm and onto those desiring to change the status quo. An application of the precautionary principle to the rules on evidence will enable courts to tackle future environmental problems before ironclad scientific consensus emerges. (Annotation to the Rules of Procedure for Environmental Cases) For purposes of evidence, the precautionary principle should be treated as a principle of last resort, where application of the regular Rules of Evidence would cause in an inequitable result for the environmental plaintiff – (a) settings in which the risks of harm are uncertain; (b) settings in which harm might be irreversible and what is lost is irreplaceable; and (c) settings in which the harm that might result would be serious. When these features – uncertainty, the possibility of irreversible harm, and the possibility of serious harm – coincide, the case for the precautionary principle is strongest. When in doubt, cases must be resolved in favor of the constitutional right to a balanced and healthful ecology. Parenthetically, judicial adjudication is one of the strongest fora in which the precautionary principle may find applicability. (International Service for the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia [Philippines], et al., GR No. 209271, December 8, 2015, En Banc [Villarama]) Application of the Precautionary Principle to the Bt talong Field Trials in the Philippines Assessing the evidence on record, as well as the current state of GMO research worldwide, the Court finds all the three conditions present in this case – uncertainty, the possibility of irreversible harm and the possibility of serious harm. Xxx Alongside the aforesaid uncertainties, the non-implementation of the NBF (National Biosafety Framework) in the crucial stages of risk assessment and public

consultation, including the determination of the applicability of the EIS (Environmental Impact Statement) requirements to GMO field testing, are compelling reasons for the application of the precautionary principle. There exists a preponderance of evidence that the release of GMOs into the environment threatens to damage our ecosystems and not just the field trial sites, and eventually the health of our people once the Bt eggplant are consumed as food. Adopting the precautionary approach, the Court rules that the principles of the NBF need to be operationalized first by the coordinated actions of the concerned departments and agencies before allowing the release into the environment of genetically modified eggplant. The more prudent course is to immediately en the Bt talong field trials and approval for its propagation or commercialization until the said government offices shall have performed their respective mandates to implement the NBF. We have found the experience of India in the Bt brinjal field trials – for which an indefinite moratorium was recommended by a Supreme Court-appointed committee till the government fixes regulatory and safety aspects – as relevant because majority of Filipino farmers are also small-scale farmers. Further, the precautionary approach entailed inputs from all stakeholders, including the marginalized farmers, not just the scientific community. This proceeds from the realization that acceptance of uncertainty is not only a scientific issue, but is related to public policy and involves an ethical dimension. For scientific research alone will not resolve all the problems, but participation of different stakeholders from scientists to industry, NGOs, farmers and the public will provide a needed variety of perspective foci, and knowledge. (International Service for the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En Banc [Villarama]) Field Trial Proposal of Bt (Bacillus thuringiensis) Talong The crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt) were incorporated into the eggplant (talong) genome to produce the protein CrylAc which is toxic to the target insect pests. CrylAc protein is said to be highly specific to lepidopteran larvae such as the fruit and shoot borer (FSB), the most destructive insect pest of eggplant. (International Service for the Acquisition of Agri-biotech 12

Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En Banc [Villarama]) Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016, En Banc (Bersamin) The Precautionary Principle The principle of precaution originated as a social planning principle in . In the 1980’s, the Federal Republic of used the Vorsogeprinzip (“foresight principle”) to justify the implementation of vigorous policies to tackle acid rain, global warming and pollution of the North Sea. It has since emerged from a need to protect humans and the environment from increasingly unpredictable, uncertain, and unquantifiable but possibly catastrophic risks such as those associated with Genetically Modified Organisms and climate change. The oft-cited Principle 15 of the 1992 Rio Declaration on Environment and Development (1992 Rio Agenda) first embodied this principle x x x. In this jurisdiction, the principle of precaution appearing in the Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC) involves matters of evidence in cases where there is lack of full scientific certainty in establishing a causal link between human activity and environmental effect. In such an event, the courts may construe a set of facts as warranting either judicial action or inaction with the goal of preserving and protecting the environment. Application of the Precautionary Principle It is notable x x x that the precautionary principle shall only be relevant if there is concurrence of three elements, namely: uncertainty, threat of environmental damage and serious or irreversible harm. In situations where the threat is relatively certain, or that the causal link between an action and environmental damage can be established, or the probability of occurrence can be calculated, only preventive, not precautionary measures, may be taken. Neither will the precautionary principle apply if there is no indication of a threat of environmental harm, or if the threatened harm is trivial or easily reversible.

In Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., (G.R. No. 189185, August 16, 2016, En Banc [Bersamin]), it was argued that the Ordinance enacted by the City of Davao prohibiting aerial spraying of pesticides is justified since it will protect the health of residents and the environment against the risks posed by aerial drift of chemicals applying the precautionary principle. The Court did not find the presence of the elements for this principle to apply, thus, it held: We cannot see the presence of all the elements. To begin with, there has been no scientific study. Although the precautionary principle allows lack of full scientific certainty in establishing a connection between the serious or irreversible harm and the human activity, its application is still premised on empirical studies. Scientific analysis is still a necessary basis for effective policy choices under the precautionary principle. Precaution is a risk management principle invoked after scientific inquiry takes place. This scientific stage is often considered synonymous with risk assessment. As such, resort to the principle shall not be based on anxiety or emotion, but from a rational decision rule, based on ethics. As much as possible, a complete and objective scientific evaluation of the risk to the environment or health should be conducted and made available to decision-makers for them to choose the most appropriate course of action. Furthermore, the positive and negative effects of an activity are also important in the application of the principle. The potential harm resulting from certain activities should always be judged in view of the potential benefits they offer, while the positive and negative effects of potential precautionary measures should be considered. The only study conducted to validate the effects of aerial spraying appears to be the Summary Report on the Assessment and Fact-Finding Activities on the Issue of Aerial Spraying in Banana Plantations. Yet, the factfinding team that generated the report was not a scientific study that could justify the resort to the precautionary principle. In fact, the Sangguniang Bayan ignored the findings and conclusions of the fact-finding team x x x. 13

We should not apply the precautionary approach in sustaining the ban against aerial spraying if little or nothing is known of the exact or potential dangers that aerial spraying may bring to the health of the residents within and near the plantations and to the integrity and balance of the environment. It is dangerous to quickly presume that the effects of aerial spraying would be adverse even in the absence of evidence. Accordingly, for lack of scientific data ing a ban on aerial spraying, Ordinance No. 0309-07 should be struck down for being unreasonable. Resident Marine Mammals of the Protected Seascape Tanon Strait, et al. v. Secretary Angelo Reyes, et al., G.R. No. 180771, April 21, 2015, En Banc (Leonardo-De Castro) Petitioners in this case were marine mammals (toothed whales, dolphins, and other cetacean species) but were ed by human beings as “stewards of nature. Are these marine mammals the proper parties to file the petition? In this case, actually the SC did not rule squarely on this issue. The Court ruled instead that the issue of whether these marine mammals have locus standi to file the petition had been eliminated because of Section 5, Rules for the Enforcement of Environmental Laws, which allows any citizen to file a petition for the enforcement of environmental laws (Citizen’s Suit) and, in their petition, these marine mammals were ed by human beings as “stewards of nature.” Service Contracts with Foreign Corporations for Exploration of Oil and Petroleum Products (Paragraph 4, Section 2, Article XII, 1987 Constitution) Resident Marine Mammals of the Protected Seascape Tanon Strait, et al. v. Secretary Angelo Reyes, et al., GR Nos. 180771 and 181527, April 21, 2015, En Banc (Leonardo-De Castro) In these consolidated petitions, this Court has determined that the various issues raised by the petitioners may be condensed into two primary issues:

Procedural Issue: Locus standi of the Resident Marine Mammals and Stewards x x x; and Main Issue: Legality of Service Contract No. 46. Procedural Issue The Resident Marine Mammals, through the Stewards, “claim” that they have the legal standing to file this action since they stand to be benefited or injured by the judgment in this suit, citing Oposa v. Factoran, Jr. They also assert their right to sue for the faithful performance of international and municipal environment laws created in their favor and for their benefit. In this regard, they propound that they have a right to demand that they be accorded the benefits granted to them in multilateral international instruments that the Philippine Government had signed, under the concept of stipulation pour autrui.

that in deliberating on paragraph 4, Section 2, Article XII, they were actually referring to service contracts as understood in the 1973 Constitution, albeit with safety measures to eliminate or minimize the abuses prevalent during the martial law regime. Agreements involving Technical or Financial Assistance are Service Contracts with Safeguards From the foregoing, we are impelled to conclude that the phrase agreements involving either technical or financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973 variety, the new ones are between foreign corporations acting as contractors on the one hand; and on the other, the government as principal or “owner” of the works. In the new service s, the foreign contractors provide capital, technology and technical know-how, and managerial expertise in the creation and operation of large-scale mining/extractive enterprises; and the government, through its agencies (DENR, MGB), actively exercises control and supervision over the entire operation.

Xxx In light of the foregoing, the need to give the Resident Marine Mammals legal standing has been eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring to suit to enforce our environmental laws. It is worth noting here that the Stewards are ed as real parties in the Petition and not just in representation of the named cetacean species. The Stewards x x x having shown in their petition that there may be possible violations of laws concerning the habitat of the Resident Marine Mammals, are therefore declared to possess the legal standing to file this petition. On the Legality of Service Contract No. 46 vis-à-vis Section 2, Article XII of the 1987 Constitution This Court has previously settled the issue of whether service contracts are still allowed under the 1987 Constitution. In La Bugal, we held that the deletion of the words “service contracts” in the 1987 Constitution did not amount to a ban on them per se. In fact, in that decision, we quoted in length, portions of the deliberations of the of the Constitutional Commission (ConCom) to show 14

In summarizing the matters discussed in the ConCom, we established that paragraph 4, with the safeguards in place, is the exception to paragraph 1, Section 2 of Article XII. The following are the safeguards this Court enumerated in La Bugal: Such service contracts may be entered into only with respect to minerals, petroleum and other mineral oils. The grant thereof is subject to several safeguards, among which are these requirements: (1) The service contract shall be crafted in accordance with a general law that will set standard or uniform , conditions and requirements, presumably to attain a certain uniformity in provisions to avoid the possible insertion of disadvantageous to the country. (2) The President shall be the signatory of the government because, supposedly before an agreement is presented to the President for signature, it will have been vetted several times over at different levels to ensure that it conforms to law and can withstand public scrutiny.

(3) Within thirty days of the executed agreement, the President shall report it to Congress to give that branch of government an opportunity to look over the agreement and interpose timely objections, if any. ` Adhering to the aforementioned guidelines, this Court finds that SC-46 is indeed null and void for noncompliance with the requirements of the 1987 Constitution. 1. The General Law on Oil Exploration The disposition, exploration, development, exploitation, and utilization of indigenous petroleum in the Philippines are governed by Presidential Decree No. 87 or the Oil Exploration and Development Act of 1972. X x x Contrary to the petitioners’ argument, Presidential Decree No. 87, although enacted in 1972, before the adoption of the 1987 Constitution, remains to be a valid law unless otherwise repealed x x x. This Court could not simply assume that while Presidential Decree No. 87 had not yet been expressly repealed, it had been impliedly repealed. X x x Consequently, we find no merit in petitioners’ contention that SC-46 is prohibited on the ground that there is no general law prescribing the standard or uniform , conditions, and requirements for service contracts involving oil exploration and extraction. But note must be made at this point that while Presidential Decree No. 87 may serve as the general law upon which a service contract for petroleum exploration and extraction may be authorized, x x x the exploitation and utilization of this energy resource in the present case may be allowed only through a law ed by Congress, since the Tanon Strait is a NIPAS (National Integrated Protected Areas System) area. 2. President was not the signatory to SC-46 and the same was not submitted to Congress 15

While the Court finds that Presidential Decree No. 87 is sufficient to satisfy the requirement of a general law, the absence of the two other conditions, that the President be a signatory to SC-46, and that Congress be notified of such contract, renders it null and void. As SC-46 was executed in 2004, its should have conformed not only to the provisions of Presidential Decree No. 87, but also those of the 1987 Constitution. Xxx Paragraph 4, Section 2, Article XII of the 1987 Constitution requires that the President himself enter into any service contract for the exploration of petroleum. SC-46 appeared to have been entered into and signed only by the DOE (Department of Energy) through its then Secretary, Vicente S. Perez, Jr., contrary to the said constitutional requirement. Moreover, public respondents have neither shown nor alleged that Congress was subsequently notified of the execution of such contract. Public respondents’ implied argument that based on the “alter ego principle,” their acts are also that of then President Macapagal-Arroyo’s, cannot apply in this case. In Joson v. Torres (352 Phil. 888, 915 [1998]), we explained the concept of the alter ego principle or the doctrine of qualified political agency and its limits x x x. Under this doctrine, which recognizes the establishment of a single executive, all executive and istrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and istrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumably the acts of the Chief Executive. While the requirements in executing service contracts in paragraph 4, Section 2 of Article XII of the 1987 Constitution seem like mere formalities, they, in reality, take on a much bigger role. As we have explained in La Bugal, they are the safeguards put in place by the framers of the Constitution to “eliminate or minimize

the abuses prevalent during the martial law regime.” Thus, they are not just mere formalities, which will render a contract unenforceable but not void, if not complied with. They are requirements placed, not just in an ordinary statute, but in the fundamental law, the non-observance of which will nullify the contract. X x x As this Court has held in La Bugal, our Constitution requires that the President himself be the signatory of service agreements with foreign-owned corporations involving the exploration, development, and utilization of our minerals, petroleum, and other mineral oils. This power cannot be taken lightly. In this case, the public respondents have failed to show that the President had any participation in SC-46. Their argument that their acts are actually the acts of then President Macapagal-Arroyo, absent proof of her disapproval, must fail as the requirement that the President herself enter into these kinds of contracts are embodied not just in any ordinary statute, but in the Constitution itself. These service contracts involving the exploitation, development, and utilization of our natural resources are of paramount interest to the present and future generations. Hence, safeguards were put in place to insure that the guidelines set by law are meticulously observed and likewise to eradicate the corruption that may easily penetrate departments and agencies by ensuring that the President has authorized or approved of these service contracts herself. Even under the provisions of Presidential Decree No. 87, it is required that the Petroleum Board, now the DOE (Department of Energy), obtain the President’s approval for the execution of any contract under said statute x x x. Even if we were inclined to relax the requirement in La Bugal to harmonize the 1987 Constitution with the aforementioned provision of Presidential Decree No. 87, it must be shown that the government agency or subordinate official has been authorized by the President to enter into such service contract for the government. Otherwise, it should be at least shown that the President subsequently approved of such contract explicitly. None of these circumstances is evident in the case at bar. On the legality of Service Contract No. 46 vis-à-vis Other Laws 16

Xxx Moreover, SC-46 was not executed for the mere purpose of gathering information on the possible energy resources in the Tanon Strait as it also provides for the parties’ rights and obligations relating to extraction and petroleum production should oil in commercial quantities be found to exist in the area. While Presidential Decree No. 87 may serve as the general law upon which a service contract for petroleum exploration and extraction may be authorized, the exploitation and utilization of this energy resource in the present case may be allowed only through a law ed by Congress, since the Tanon Strait is a NIPAS (National Integrated Protected Areas System) area. Since there is no such law specifically allowing oil exploration and/or extraction in the Tanon Strait, no energy resource exploitation and utilization may be done in said protected seascape. Academic Freedom Academic freedom shall be enjoyed in all institutions of higher learning. (Sec. 5[2], Art. XIV, 1987 Constitution)

Academic freedom of educational institutions has been defined as the right of the school or college to decide for itself, its aims and objectives, and how best to attain them - free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice of students. Said constitutional provision is not to be construed in a niggardly manner or in a grudging fashion. That would be to frustrate its purpose and nullify its intent. (University of San Agustin, Inc. v. Court of Appeals, 230 SCRA 761, 774-775, March 7, 1994 [Nocon]) What are the essential freedoms subsumed in the term “academic freedom”? In Ateneo de Manila University v. Capulong (G.R. No. 99327, 27 May 1993), this Court cited with approval the formulation made by Justice Felix Frankfurter of the essential freedoms subsumed in the term “academic freedom” encoming not only “the freedom to determine x x x on academic grounds who may teach, what may be taught (and) how it shall be taught,” but likewise “who may be itted to study.” We have thus sanctioned its invocation by a school in rejecting students who are

academically delinquent, or a laywoman seeking ission to a seminary, or students violating “School Rules on Discipline.” (Isabelo, Jr. v. Perpetual Help College of Rizal, Inc., 227 SCRA 595-597, Nov. 8, 1993, En Banc [Vitug])

R.A. No. 6735 (The Initiative and Referendum Law) The Principle of Bicameralism

THE STRUCTURE OF GOVERNMENT The main distinction between a presidential form of government and a parliamentary form of government In a presidential form of government, there is the observance of the doctrine of separation of powers; in a parliamentary government, instead of separation of powers, there is the union of the executive and legislative branches. In a presidential form of government, the President is elected by the people at large; in a parliamentary government, the Prime Minister is elected not by the people at large but by of Parliament. Tests of a Valid Delegation of Power In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the completeness test and the sufficient standard test. Under the first test, the law must be complete in all its and conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is to enforce it. The second test mandates adequate guidelines or limitations in the law to determine the boundaries of the delegate’s authority and prevent the delegation from running riot. (Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,. 203335, Feb. 11, 2014, En Banc [Abad]) The Legislative Department (Article VI, 1987 Constitution) The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. (Section 1, Article VI, 1987 Constitution) Is legislative power exclusively vested in the Congress? 17

The Bicameral Conference Committee It is a mechanism for compromising differences between the Senate and the House of Representatives. By the nature of its function, a Bicameral Conference Committee is capable of producing unexpected results – results which sometimes may even go beyond its own mandate. Philippine Judges Association v. Secretary Prado; Tolentino v. Secretary of Finance) The Bills That Are Required to Originate Exclusively in the House of Representatives (Section 24, Article VI of the 1987 Constitution) It is important to note, however, that what is really required to originate exclusively in the House of Representatives is not the law, but only the bill. The Senate has the power to propose or concur with amendments. (Tolentino v. Secretary of Finance) The Party-List System The 1987 Constitution provides the basis for the party-list system of representation. Simply put, the party-list system is intended to democratize political power by giving political parties that cannot win in legislative district elections a chance to win seats in the House of Representatives. The voter elects two representatives in the House of Representatives: one for his or her legislative district; and another for his or her party-list group or organization of choice. (Atong Paglaum, Inc., et al. v. COMELEC, G.R. No. 203766, 694 SCRA 477, April 2, 2013, En Banc [Carpio]) Parameters to Determine Who May Participate in Party-List Elections

In determining who may participate in the coming 13 May 2013 and subsequent party-list elections, the COMELEC shall adhere to the following parameters: 1. Three different groups may participate in the party-list system: (1) national parties or organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations. 2. National parties or organizations and regional parties or organizations do not need to organize along sectoral lines and do not need to represent any “marginalized and underrepresented” sector. 3. Political parties can participate in party-list elections provided they under the party-list system and do not field candidates in legislative district elections. A political party, whether major or not, that fields candidates in legislative district elections can participate in party-list elections through its sectoral wing that can separately under the party-list system. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition. 4. Sectoral parties or organizations may either be “marginalized and underrepresented” or lacking in “well-defined political constituencies.” It is enough that their principal advocacy pertains to the special interest and concerns of their sector. The sectors that are “marginalized and underrepresented” include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors that lack “well-defined political constituencies” include professionals, the elderly, women and the youth. 5. A majority of the of sectoral parties or organizations that represent the “marginalized and underrepresented” must belong to the “marginalized and underrepresented” sector they represent. Similarly, a majority of the of sectoral parties or organizations that lack “well-defined political constituencies” must belong to the sector they represent. The nominees of sectoral parties or organizations that represent the “marginalized and underrepresented,” or that represent those who lack “well-defined political constituencies,” either must belong to their respective sectors, or must have a track record of advocacy for their respective sectors. The nominees of national and regional parties or 18

organizations must be bona fide of such parties or organizations. 6. National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified. (Atong Paglaum, Inc., et al. v. COMELEC, G.R. No. 203766, 694 SCRA 477, April 2, 2013, En Banc [Carpio]) Based on the foregoing, it can be inferred that although the party-list system is a social justice tool designed to have the marginalized and underrepresented sectors of society represented in the House of Representatives, nonetheless, the dominant political parties are not totally prohibited from participating in party-list elections. Although, as a rule, they may not participate in party-list elections if they field candidates in district elections, however, by way of an exception, they may still participate through their sectoral wing, provided that the sectoral wing is ed separately as a political party in the COMELEC and is linked to the dominant political party through a coalition. (Atong Paglaum, Inc., et al. v. COMELEC, G.R. No. 203766, 694 SCRA 477, April 2, 2013, En Banc [Carpio]) Ang Bagong Bayani – OFW Labor Party v. COMELEC The religious sector is expressly prohibited from participating in party-list elections (Sec. 5, 2nd par., Art. VI, 1987 Constitution). Religious denominations and sects are even prohibited from being ed as political parties in the COMELEC (Sec. 2, par. 5, Art. IX-C, 1987 Constitution). However, the Supreme Court clarified, based on the intent of the framers of the 1987 Constitution, that what is prohibited is the registration of a religious sect as a political party; there is no prohibition against a priest running as a candidate. Ang Ladlad-LGBT Party v. Commission on Elections, G.R. No. 190582, 618 SCRA 32, April 8, 2010, En Banc (Del Castillo)

The act of the COMELEC of not allowing the registration of Ang Ladlad-LGBT Party as a political party to participate in party-list elections on the ground that its are “immoral,” citing verses from the Bible and the Koran, is tainted with grave abuse of discretion as it violated the non-establishment clause of freedom of religion and, therefore, should be nullified. Under this non-establishment clause of freedom of religion, the COMELEC, as an agency of the government, is not supposed to use religious standards in its decisions and actions. Veterans Federation Party v. COMELEC Under Sec. 5, 2nd par., Art. VI of the Constitution, the party-list representatives shall constitute twenty (20) percent of the total number of representatives, including those under the party-list. Based on this, the ratio is 4:1, i.e., for every four (4) district representatives, there should be one (1) party-list representative. In the computation of the number of seats allocated to party-list representatives, fractional representation is not allowed is it will exceed the twenty (20) allocated seats for party-list representatives and, therefore, will violate the Constitution. In such a case, what should be done is simply to disregard the fraction. The Inviolable Parameters to Determine the Winners in Party-list Elections are: 1. 2. 3. 4.

the twenty (20) percent allocation; the two (2) percent threshold; the three (3) - seat limit; and proportional representation

Barangay Association for National Advancement and Transparency (BANAT) v. COMELEC, G.R. No. 179271, 586 SCRA 210, July 2, 2009, En Banc (Carpio) What was declared unconstitutional in this case was not the two (2) percent threshold itself; but rather, the continued application of the two (2) percent threshold 19

in determining the additional seats that will be allocated to winners in party-list elections. Thus, the SC clarified: “We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the of the House of Representatives shall consist of party-list representatives. “X x x “We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of “the broadest possible representation of party, sectoral or group interests in the House of Representatives.” Party-list Representatives and District Representatives have the same Rights, Salaries, and Emoluments Once elected, both the district representatives and the party-list representatives are treated in like manner. They have the same deliberative rights, salaries, and emoluments. They can participate in the making of laws that will directly benefit their legislative districts or sectors. They are also subject to the same term limitation of three years for a maximum of three consecutive . (Daryl Grace J. Abayon v. The Honorable House of Representatives Electoral Tribunal, et al., G.R. Nos. 189466 and 189506, 612 SCRA 375, 11 February 2010, En Banc [Abad])

Oversight Powers and Functions of Congress MakalIntal v. COMELEC (Justice Reynato S. Puno’s Separate Concurring Opinion; ABAKADA Guro Party List v. Secretary Purisima) Post-enactment measures undertaken by Congress to enhance its understanding of, and influence over, the legislation it has enacted. This is intrinsic in the grant of legislative power itself to Congress, and integral to the system of checks and balances inherent in a democratic system of government. Categories of Oversight Powers and Functions 1. Legislative Scrutiny 2. Legislative Investigation 3. Legislative Supervision What is a Legislative Veto? A disapproval by Congress, or by an oversight committee of Congress, of an istrative regulation promulgated by an istrative body or agency. The Power of Appropriation No money shall be paid out of the Treasury except in pursuance of an appropriations made by law. (Section 29 [1], Article VI, 1987 Constitution) Under the Constitution, the power of appropriation is vested in the Legislature, subject to the requirement that appropriations bills originate exclusively in the House of Representatives with the option of the Senate to propose or concur with amendments. While the budgetary process commences from the proposal submitted by the President to Congress, it is the latter which concludes the exercise by crafting an appropriation act it may deem beneficial to the nation, based on its own judgment, wisdom and purposes. Like any other piece of legislation, the 20

appropriation act may then be susceptible to objection from the branch tasked to implement it, by way of a Presidential veto. Thereafter, budget execution comes under the domain of the Executive branch which deals with the operational aspects of the cycle including the allocation and release of funds earmarked for various projects. Simply put, from the regulation of fund releases, the implementation of payment schedules and up to the actual spending of the funds specified in the law, the Executive takes the wheel. The DBM (Department of Budget and Management) lays down the guidelines for the disbursement of the fund. This demonstrates the power given to the President to execute appropriation laws and therefore, to exercise the spending per se of the budget. (Lawyers against Monopoly and Poverty [LAMP] v. The Secretary of Budget and Management, G.R. No. 164987, Apr. 24, 2012, En Banc [Mendoza]) The “Pork Barrel” System Considering petitioners’ submission and in reference to its local concept and legal history, the Court defines the Pork Barrel System as the collective body of rules and practices that govern the manner by which lump-sum, discretionary funds, primarily intended for local projects, are utilized through the respective participations of the Legislative and Executive branches of government, including its . The Pork Barrel System involves two (2) kinds of lumpsum, discretionary funds: First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum, discretionary fund wherein legislators, either individually or collectively organized into committees, are able to effectively control certain aspects of the fund’s utilization through various post-enactment measures and/or practices; and Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum, discretionary fund which allows the President to determine the manner of its utilization. X x x the Court shall delimit the use of such term to refer only to the Malampaya Funds and the Presidential Social Fund. (Belgica v. Ochoa, G.R. No. 208566, 710 SCRA 1, 105-106, Nov. 19, 2013, En Banc [PerlasBernabe])

The “Pork Barrel” System Declared Unconstitutional: Reasons The Court renders this Decision to rectify an error which has persisted in the chronicles of our history. In the final analysis, the Court must strike down the Pork Barrel System as unconstitutional in view of the inherent defects in the rules within which it operates. To recount, insofar as it has allowed legislators to wield, in varying gradations, non-oversight, post-enactment authority in vital areas of budget execution, the system has violated the principle of separation of powers; insofar as it has conferred unto legislators the power of appropriation by giving them personal, discretionary funds from which they are able to fund specific projects which they themselves determine, it has similarly violated the principle of nondelegability of legislative power; insofar as it has created a system of budgeting wherein items are not textualized into the appropriations bill, it has flouted the prescribed procedure of presentment and, in the process, denied the President the power to veto items; insofar as it has diluted the effectiveness of congressional oversight by giving legislators a stake in the affairs of budget execution, an aspect of governance which they may be called to monitor and scrutinize, the system has equally impaired public ability; insofar as it has authorized legislators, who are national officers, to intervene in affairs of purely local nature, despite the existence of capable local institutions, it has likewise subverted genuine local autonomy; and again, insofar as it has conferred to the President the power to appropriate funds intended by law for energy-related purposes only to other purposes he may deem fit as well as other public funds under the broad classification of “priority infrastructure development projects,” it has once more transgressed the principle of non-delegability. (Belgica, et al. v. Exec. Sec. Paquito N. Ochoa, et al., G.R. No. 208566, 710 SCRA 1, 160-161, Nov. 19, 2013, En Banc [PerlasBernabe]) The Power of Augmentation No law shall be ed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from 21

savings in other items in their respective appropriations. (Section 25 [5], Article VI, 1987 Constitution) Requisites for the valid transfer of appropriated funds under Section 25(5), Article VI of the 1987 Constitution The transfer of appropriated funds, to be valid under Section 25(5), Article VI of the Constitution, must be made upon a concurrence of the following requisites, namely: (1) There is a law authorizing the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commissions to transfer funds within their respective offices; (2) The funds to be transferred are savings generated from the appropriations of their respective offices; and (3) The purpose of the transfer is to augment an item in the general appropriations law for their respective offices. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin]) Congressional Investigations There are two (2) kinds of congressional investigations, i.e., inquiry in aid of legislation (Section 21, Article VI, 1987 Constitution); and the question hour (Section 22, Article VI, 987 Constitution) Inquiry in Aid of Legislation (Section 21, Article VI, 1987 Constitution) In Arnault v. Nazareno, the Court held that intrinsic in the grant of legislative power itself to Congress by the Constitution is the power to conduct inquiries in aid of legislation, for Congress may not be expected to enact good laws if it will be denied the power investigate. Note that Arnault was decided in the 1950’s under the 1935 Constitution, and in that Constitution there was no provision similar to that which is expressly provided in the present Constitution. Yet, as early as that case, the Court already recognized that this power is intrinsic in the grant of legislative power itself to Congress by the Constitution.

In Bengzon, Jr. v. Senate Blue Ribbon Committee, two (2) relevant questions were raised. First, is this power of each House of Congress to conduct inquiries in aid of legislation absolute, or are there limitations? Second, is this power subject to judicial review, or is it a political question? As to the first question, the Court clarified that a mere reading of Section 21, Article VI of the Constitution will show that the power is not really absolute; in fact there are three (3) important limitations imposed therein, and these are: 1. The inquiry must be in aid of legislation; 2. It must be conducted in accordance with the duly published rules of procedure of a House of Congress conducting such inquiry; and 3. The rights of persons appearing in or affected by such inquiry shall be respected. As to the second, the Court held that since it had already been shown that the power is not really absolute, in fact, there are important limitations, it follows, therefore, that such is subject to judicial review especially in view of the expanded power of the Court to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. That’s why in that case of Bengzon, Jr., the Court granted the petition for certiorari and ordered the Senate Blue Ribbon Committee not to further conduct the inquiry since the Court found that the purpose of said inquiry was not really in aid of legislation; in fact the purpose was an encroachment on a judicial prerogative. The Question Hour (Section 22, Article VI, 1987 Constitution) As explained by the Court in Senate v. Ermita, this question hour is not really a regular feature of a presidential government, but is merely a borrowed concept from a parliamentary government.

22

(PHILCOMSAT Holdings Corporation v. Senate, G.R. No. 180308, June 19, 2012 En Banc [Perlas-Bernabe]) The Senate Committees’ power of inquiry relative to PSR No. 455 has been ed upon and upheld in the consolidated cases of In the Matter of the Petition for Habeas Corpus of Camilo L. Sabio which cited Article VI, Section 21 of the Constitution. The Court explained that such conferral of the legislative power of inquiry upon any committee of Congress must carry with it all powers necessary and proper for its effective discharge. On this score, the Senate Committee cannot be said to have acted with grave abuse of discretion amounting to lack or in excess of jurisdiction when it submitted Committee Resolution No. 312, given its constitutional mandate to conduct legislative inquiries. Nor can the Senate Committee be faulted for doing so on the very same day that the assailed resolution was submitted. The wide latitude given to Congress with respect to these legislative inquiries has long been settled, otherwise, Article VI, Section 21 would be rendered pointless. Neri v. Senate Committee on ability of Public Officers and Investigations, 564 SCRA 152, Sept. 4, 2008, En Banc (Leonardo-De Castro) There is a Recognized Presumptive Presidential Communications Privilege The Court, in the earlier case of Almonte v. Vasquez, affirmed that the presidential communications privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. Even Senate v. Ermita reiterated this concept. There, the Court enumerated the cases in which the claims of executive privilege was recognized, among them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG), and Chavez v. PEA. The Court articulated in these cases that “there are certain types of information which the government may withhold from the public,” that there is a “government privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters”; and that “the right to information does not extend to matters recognized as ‘privileged information’ under the separation of powers, by which the Court

meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. Xxx The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case. In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on a specific matter involving an executive agreement between the Philippines and China, which was the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate Committees’ investigation. Thus, the factual setting of this case markedly differs from that ed upon in Senate v. Ermita. Moreover x x x the Decision in this present case hews closely to the ruling in Senate v. Ermita, to wit: Executive Privilege The phrase “executive privilege is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States. Schwartz defines executive privilege as “the power of the Government to withhold information from the public, the courts, and the Congress.” Similarly, Rozell defines it as “the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.” X x x In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege:

23

“The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, he has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying s presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x.” Clearly, therefore, even Senate v. Ermita adverts to “a presumptive privilege for Presidential communication,” which was recognized early in Almonte v. Vasquez. To construe the age in Senate v. Ermita to x x x referring to the non-existence of a “presumptive authorization” of an executive official, to mean that the “presumption” in favor of executive privilege “inclines heavily against executive secrecy and in favor of disclosure” is to distort the ruling in the Senate v. Ermita and make the same engage in self-contradiction. Senate v. Ermita expounds on the constitutional underpinning of the relationship between the Executive Department and the Legislative Department to explain why there should be no implied authorization or presumptive authorization to invoke executive privilege by the President’s subordinate officials, as follows: “When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power – the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on he being the highest official of the executive branch, and the due respect

accorded to a co-equal branch of government which is sanctioned by a longstanding custom.” Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the President on a matter clearly within the domain of the Executive, the said presumption dictates that the same be recognized and be given preference or priority, in the absence of proof of a compelling or critical need for disclosure by the one assailing such presumption. Any construction to the contrary will render meaningless the presumption accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita reiterates jurisprudence citing “the considerations justifying a presumptive privilege for Presidential communications.” The Electoral Tribunals in Congress The House of Representatives Electoral Tribunal (HRET) has Jurisdiction over Election Contests involving Party-List Representatives It is for the HRET to interpret the meaning of this particular qualification of a nominee – the need for him or her to be a bona fide member or a representative of his party-list organization – in the context of the facts that characterize Abayon and Palparan’s relation to Aangat Tayo and Bantay, respectively, and the marginalized and underrepresented interests that they presumably embody. Section 17, Article VI of the Constitution provides that the HRET shall be the sole judge of all contests relating to, among other things, the qualifications of the of the House of Representatives. Since party-list nominees are “elected ” of the House of Representatives, the HRET has jurisdiction to hear and upon their qualifications. By analogy with the cases of district representatives, once the party or organization of the party-list nominee has been proclaimed and the nominee has taken his oath and assumed office as member of the House of Representatives, the COMELEC’s jurisdiction over election contests relating to his qualification ends and the HRET’s own jurisdiction begins. (Daryl Grace J. Abayon v. The Honorable House of Representatives Electoral Tribunal, et al., G.R. Nos. 189466 and 189506, 612 SCRA 375, 11 February 2010, En Banc [Abad]) 24

The Executive Department (Article VII, 1987 Constitution) The executive power shall be vested in the President of the Philippines. (Section 1, Article VII, 1987 Constitution) It has already been established that there is one repository of executive powers, and that is the President of the Republic. This means that when Section 1, Article VII of the Constitution speaks of executive power, it is granted to the President and no one else. Corollarily, it is only the President, as Chief Executive, who is authorized to exercise emergency powers as provided under Section 23, Article VI, of the Constitution, as well as what became known as the calling-out powers under Section 18, Article VII thereof. (Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc [Sereno, CJ]), The duty to protect the State and its people must be carried out earnestly and effectively throughout the whole territory of the Philippines in accordance with constitutional provision on national territory. Hence, the President of the Philippines, as the sole repository of executive power, is the guardian of the Philippine archipelago, including all the islands and waters embraced therein and all other territories over which the Philippines and sovereignty or jurisdiction. X x x To carry out this important duty, the President is equipped with authority over the Armed Forces of the Philippines (AFP), which is the protector of the people and the state. X x x. In addition, the Executive is constitutionally empowered to maintain peace and order, protect life, liberty, and property, and promote the general welfare. In recognition of these powers, Congress has specified that the President must oversee, ensure, and reinforce our defensive capabilities against external and internal threats and, in the same vein, ensure that the country is adequately prepared for all national and local emergencies arising from natural and man-made disasters. To be sure, this power is limited by the Constitution itself. X x x (Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ])

The Faithful Execution Clause This Court has interpreted the faithful execution clause as an obligation imposed on the President, and not a separate grant of power. Section 17, Article VII of the Constitution, expresses this duty in no uncertain and includes it in the provision regarding the President’s power of control over the executive department x x x.

It would therefore be remiss for the President and repugnant to the faithfulexecution clause of the Constitution to do nothing when the call of the moment requires increasing the military’s defensive capabilities, which could include forging alliances with states that hold a common interest with the Philippines or bringing an international suit against an offending state. Xxx

Xxx Hence, the duty to faithfully execute the laws of the land is inherent in executive power and is intimately related to the other executive functions. X x x These obligations are as broad as they sound, for a President cannot function with crippled hands, but must be capable of securing the rule of law within all territories of the Philippine Islands and be empowered to do so within constitutional limits. Congress cannot, for instance, limit or take over the President’s power to adopt implementing rules and regulations for a law it has enacted. More important, this mandate is self-executory by virtue of its being inherently executive in nature. X x x The import of this characteristic is that the manner of the President’s execution of the law, even if not expressly granted by the law, is justified by necessity and limited only by law, since the President must “take necessary and proper steps to carry into execution the law.” X x x In light of this constitutional duty, it is the President’s prerogative to do whatever is legal and necessary for Philippine defense interests. It s no coincidence that the constitutional provision on the faithful execution clause was followed by that on the President’s commander-in-chief powers, which are specifically granted during extraordinary events of lawless violence, invasion, or rebellion. And this duty of defending the country is unceasing, even in times when there is no state of lawless violence, invasion, or rebellion. At such times, the President has full powers to ensure the faithful execution of the laws. 25

This approach of giving utmost deference to presidential initiatives in respect of foreign affairs is not novel to the Court. The President’s act of treating EDCA as an executive agreement is not the principal power being analyzed x x x. Rather, the preliminary analysis is in reference to the expansive power of foreign affairs. We have long treated this power as something the Courts must not unduly restrict. X x x Xxx Understandably, this Court must view the instant case with the same perspective and understanding, knowing full well the constitutional and legal repercussions of any judicial overreach. (Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ]) The Doctrine of Qualified Political Agency Under this doctrine, which recognizes the establishment of a single executive, all executive and istrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and istrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumably the acts of the Chief Executive.

(Resident Marine Mammals of the Protected Seascape Tanon Strait, et al. v. Secretary Angelo Reyes, et al., GR Nos. 180771 and 181527, April 21, 2015, En Banc [Leonardo-De Castro]) Resident Marine Mammals of the Protected Seascape Tanon Strait, et al. v. Secretary Angelo Reyes, et al., G.R. No. 180771, April 21, 2015, En Banc (Leonardo-De Castro) The constitutionality of the Service Contract Agreement for the large-scale exploration, development and utilization of oil and petroleum gasses in Tanon Strait entered into between a Japanese petroleum corporation and the Philippine Government was challenged in this case. The one who signed this Agreement on behalf of the Philippine government was the Secretary of Energy. Was the Agreement valid? The SC said “No.” It violated Section 2, 4th par., Article XII of the Constitution (National Economy and Patrimony) which states that it is the President who should enter into that kind of contract with foreign corporations. Public respondents, in trying to justify their action, however, invoked the doctrine of qualified political agency since the Secretary of Energy is an alter-ego of the President. The SC clarified that this doctrine of qualified political agency may not be validly invoked if it is the Constitution itself that provides that the act should be performed by the President no less, especially since what are involved are natural resources. The Appointing Power of the President Not All Officers Appointed by the President under Section 16, Article VII of the 1987 Constitution Shall Require Confirmation by the Commission on Appointments

First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; Second, all other officers of the Government whose appointments are not otherwise provided for by law; Third, those whom the President may be authorized by law to appoint; Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone. It is well-settled that only presidential appointees belonging to the first group require the confirmation by the Commission on Appointments. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999, En Banc [Purisima]) The Nature of an Ad Interim Appointment An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. X x x Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. Xxx

Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III v. Mison, and in the subsequent cases of Bautista v. Salonga, QuintosDeles v. Constitutional Commission, and Calderon v. Carale, under Section 16, Article VII, of the Constitution, there are four groups of officers of the government to be appointed by the President: 26

More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in character. In Summers v. Ozaeta, decided on October 25, 1948, we held that:

“x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the Constitution, which provides that the ‘President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.’ It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course distinguishable from an ‘acting’ appointment which is merely temporary, good until another permanent appointment is issued.”

An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitutional protection that “[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law.” (Section 2[3], Article IX-B of the Constitution) Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office. X x x Once an appointee has qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of due process. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio]) Limitations on the Appointing Power of the President

The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim appointment takes effect immediately. The appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office. X x x Thus, the term “ad interim appointment”, as used in letters of appointment signed by the President, means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The Court had again occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar v. Court of Appeals, where the Court stated: “We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. In the instant case, the appointment extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation as to tenure. The permanent status of private respondent’s appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office No. 12. Petitioner’s submission that private respondent’s ad interim appointment is synonymous with a temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are permanent appointment but their are only until the Board disapproves them.” 27

Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. (Section 15, Article VII, 1987 Constitution) In Re: Honorable Mateo Valenzuela and Placido Vallarta De Castro v. Judicial and Bar Council The Calling-out Power of the President as Commander-in-Chief of the Armed Forces While the President is still a civilian, Article II, Section 3 of the Constitution mandates that civilian authority is, at all times, supreme over the military, making the civilian president the nation’s supreme military leader. The net effect of Article II, Section 3, when read with Article VII, Section 18, is that a civilian President is the ceremonial, legal and istrative head of the armed forces. The Constitution does not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed forces to military experts, but the ultimate power is his.

(Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc [Sereno, CJ]) The Calling out Power is exclusive to the President In Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc (Sereno, CJ), the Court held: Given the foregoing, Governor Tan is not endowed with the power to call upon the armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his authority when he declared a state of emergency and called upon the Armed Forces, the police, and his own civilian Emergency Force. The calling-out powers contemplated under the Constitution is exclusive to the President. An exercise by another official, even if he is the local chief executive, is ultra vires, and may not be justified by the invocation of Section 465 of the Local Government Code. Is the President’s power to call out the armed forces as their Commander-inChief in order to prevent or suppress lawless violence, invasion or rebellion subject to judicial review, or is it a political question? When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President's wisdom or substitute its own. However, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President's decision is totally bereft of factual basis. The present petition fails to discharge such heavy burden as there is no evidence to the assertion that there exists no justification for calling out the armed forces. There is, likewise, no evidence to the proposition that grave abuse was committed because the power to call was exercised in such a manner as to violate the constitutional provision on civilian supremacy over the military. In the 28

performance of this Court's duty of “purposeful hesitation” before declaring an act of another branch as unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court interfere with the President's judgment. To doubt is to sustain. (Integrated Bar of the Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan]) The Pardoning Power of the President Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of all the of the Congress. (Section 19, 1987 Constitution) Was the Pardon granted to former President Estrada an Absolute Pardon? Former President Estrada was granted an absolute pardon that fully restored all his civil and political rights, which naturally includes the right to seek public office. The wording of the pardon extended to former President Estrada is complete, unambiguous, and unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable, objective, and constitutional interpretation of the language of the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-De Castro]) The 1987 Constitution specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that the President of the Philippines possesses the power to grant pardons, along with other acts of executive clemency. It is apparent that the only instances in which the President may not extend pardon remain to be: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3) cases involving violations of election laws, rules and regulations in which there was no favorable recommendation coming from the COMELEC. Therefore, it can be argued that any act of Congress by way of statute cannot operate to delimit the pardoning power of the President.

It is unmistakably the long-standing position of this Court that the exercise of the pardoning power is discretionary in the President and may not be interfered with by Congress or the Court, except only when it exceeds the limits provided for by the Constitution. This doctrine of non-diminution or non-impairment of the President’s power of pardon by acts of Congress, specifically through legislation, was strongly adhered to by an overwhelming majority of the framers of the 1987 Constitution when they finally rejected a proposal to carve out an exception from the pardoning power of the President in the form of “offenses involving graft and corruption” that would be enumerated and defined by Congress through the enactment of a law. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-De Castro]) The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the Revised Penal Code cannot, in any way, serve to abridge or diminish the exclusive power and prerogative of the President to pardon persons convicted of violating penal laws. Xxx A rigid and inflexible reading of the above provisions of law is unwarranted, especially so if it will defeat or unduly restrict the power of the President to grant executive clemency. It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. Verba legis non est recedendum. From the words of a statute there should be no departure (Republic v. Camacho, G.R. No. 185604, June 13, 2013, 698 SCRA 380, 398). It is this Court’s firm view that the phrase in the presidential pardon at issue which declares that former President Estrada “is hereby restored to his civil and political rights” substantially complies with the requirement of express restoration. Xxx For this reason, Articles 36 and 41 of the Revised Penal Code should be 29

construed in a way that will give full effect to the executive clemency granted by the President, instead of indulging in an overly strict interpretation that may serve to impair or diminish the import of the pardon which emanated from the Office of the President and duly signed by the Chief Executive himself/herself. The said codal provisions must be construed to harmonize the power of Congress to define crimes and prescribe penalties for such crimes and the power of the President to grant executive clemency. All that said provisions impart is that the pardon of the principal penalty does not carry with it the remission of the accessory penalties unless the President expressly includes said accessory penalties in the pardon. It still recognizes the Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the principal penalty while excluding its accessory penalties or to pardon both. Thus, Articles 36 and 41 only clarify the effect of the pardon so decided upon by the President on the penalties imposed in accordance with law. A close scrutiny of the text of the pardon to former President Estrada shows that both the principal penalty of reclusion perpetua and its accessory penalties are included in the pardon. The first sentence refers to the executive clemency extended to former President Estrada who was convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The latter is the principal penalty pardoned which relieved him of imprisonment. The sentence that followed, which states that “(h)e is hereby restored to his civil and political rights,” expressly remitted the accessory penalties that attached to the principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41 of the Revised Penal Code, it is indubitable from the text of the pardon that the accessory penalties of civil interdiction and perpetual absolute disqualification were expressly remitted together with the principal penalty of reclusion perpetua. In this jurisdiction, the right to seek public elective office is recognized by law as falling under the whole gamut of civil and political rights. Xxx No less than the International Covenant on Civil and Political Rights, to which the Philippines is a signatory, acknowledges the existence of said rights. X x x Recently, in Sobejana-Condon v. Commission on Elections (G.R. No.

198742, August 10, 2012, 678 SCRA 267, 292), the Court unequivocally referred to the right to seek public elective office as a political right x x x. Thus, from both law and jurisprudence, the right to seek public elective office is unequivocally considered as a political right. Hence, the Court reiterates its earlier statement that the pardon granted to former President Estrada its no other interpretation other than to mean that, upon acceptance of the pardon granted to him, he regained his FULL civil and political rights – including the right to seek elective office. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-De Castro]) Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., “[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office,” neither makes the pardon conditional, nor militates against the conclusion that former President Estrada’s rights to suffrage and to seek public elective office have been restored. This is especially true as the pardon itself does not explicitly impose a condition or limitation, considering the unqualified use of the term “civil and political rights” as being restored. Jurisprudence educates that a preamble is not an essential part of an act as it is an introduction or preparatory clause that explains the reasons for the enactment, usually introduced by the word “whereas.” (People v. Balasa, 356 Phil. 362, 396 [1998]) Whereas clauses do not form part of a statute because, strictly speaking, they are not part of the operative language of the statute (Llamado v. Court of Appeals, 256 Phil. 328, 339 [1989]). In this case, the whereas clause at issue is not an integral part of the decree of the pardon, and therefore, does not by itself alone operate to make the pardon conditional or to make its effectivity contingent upon the fulfillment of the aforementioned commitment nor to limit the scope of the pardon. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-De Castro]) The Diplomatic and Treaty-Making Power of the President No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the of the Senate. (Section 21, Article VII, 1987 Constitution) 30

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. (Section 25, Article XVIII, 1987 Constitution) The Power and Duty to Conduct Foreign Relations The President also carries the mandate of being the sole organ in the conduct of foreign relations. Since every state has the capacity to interact with and engage in relations with other sovereign states, it is but logical that every state must vest in an agent the authority to represent its interests to those other sovereign states. Xxx The role of the President in foreign affairs is qualified by the Constitution in that the Chief Executive must give paramount importance to the sovereignty of the nation, the integrity of its territory, its interest, and the right of the sovereign Filipino people to self-determination. X x x(Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ]) The Relationship between the Two Major Presidential Functions and the Role of the Senate Clearly, the power to defend the State and to act as its representative in the international sphere inheres in the person of the President. This power, however, does not crystallize into absolute discretion to craft whatever instrument the Chief Executive so desires. As previously mentioned, the Senate has a role in ensuring that treaties or international agreements the President enters into, as contemplated

in Section 21 of Article VII of the Constitution, obtain the approval of two-thirds of its . Xxx The responsibility of the President when it comes to treaties and international agreements under the present Constitution is therefore shared with the Senate. X x x (Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ]) Who has the Power to Ratify a Treaty? In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena]) With respect to the Visiting Forces Agreement (VFA) entered into between the Philippines and the USA in 1998, Section 25, Article XVIII of the Constitution applies, it being a special provision Section 21, Article VII deals with treaties or international agreements in general, in which case, the concurrence of at least two-thirds (2/3) of all the of the Senate is required to make the subject treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays down the general rule on treaties or international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treaties or those economic in nature. All treaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective. In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the 31

Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further requires that “foreign military bases, troops, or facilities” may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting State. Xxx On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessels and aircraft, importation and exportation of equipment, materials and supplies. Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of Section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate x x x. It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one. Lex specialis derogat generali. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases, Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc [Buena]) Despite the President’s roles as defender of the State and sole authority in foreign relations, the 1987 Constitution expressly limits his ability in instances when it involves the entry of foreign military bases, troops or facilities. The initial limitation is found in Section 21 of the provisions on the Executive Department x x x. The specific limitation is given by Section 25 of the Transitory Provisions x x x.

It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the basic requirements of a treaty under Section 21 of Article VII. This means that both provisions must be read as additional limitations to the President’s overarching executive functions in matters of defense and foreign relations. (Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En Banc [Sereno, CJ]) The Power of the President to Enter into Executive Agreements The power of the President to enter into binding executive agreements without Senate concurrence is already well-established in this jurisdiction. That power has been alluded to in our present and past Constitutions, in various statutes, in Supreme Court decisions, and during the deliberations of the Constitutional Commission. X x x As the sole organ of our foreign relations, and the constitutionally assigned chief architect of our foreign policy, the President is vested with the exclusive power to conduct and manage the country’s interface with other states and governments. Being the principal representative of the Philippines, the Chief Executive speaks and listens for the nation; initiates, maintains, and develops diplomatic relations with other states and governments; negotiates and enters into international agreements; promotes trade, investments, tourism and other economic relations; and settles international disputes with other states. As previously discussed, this constitutional mandate emanates from the inherent power of the President to enter into agreements with other stats, including the prerogative to conclude binding executive agreements that do not require further Senate concurrence. The existence of this presidential power is so well-entrenched that Section 5(2)(a), Article VIII of the Constitution, even provides for a check on its exercise. X x x In Commissioner of Customs v. Eastern Sea Trading (113 Phil. 333 [1961]) executive agreements are defined as “international agreements embodying adjustments of detail carrying out well-established national polices and traditions and 32

those involving arrangements of a more or less temporary nature.” In Bayan Muna v. Romulo, this Court further clarified that executive agreements can cover a wide array of subjects that have various scopes and purposes. They are no longer limited to the traditional subjects that are usually covered by executive agreements as identified in Eastern Sea Trading. X x x One of the distinguishing features of executive agreements is that their validity and effectivity are not affected by a lack of Senate concurrence. This distinctive feature was recognized as early as in Eastern Sea Trading (1961) x x x (Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En Banc [Sereno, CJ]) Discuss the Binding Effect of Treaties and Executive Agreements in International Law. In international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena]) The Enhanced Defense Cooperation Agreement (EDCA) The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by noted personalities in Philippine history arises not so much from xenophobia but from a genuine desire for self-determination, nationalism, and above all a commitment to ensure the independence of the Philippine Republic from any foreign domination. Mere fears, however, cannot curtail the exercise by the President of the Philippines of his Constitutional prerogatives in respect of foreign affairs. They cannot cripple him when he deems that additional security measures are made necessary by the times. X x x In the future, the Philippines must navigate a world in

which armed forces fight with increasing sophistication in both strategy and technology, while employing asymmetric warfare and remote weapons.

carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. (Section 23[2], Article VI, 1987 Constitution)

Additionally, our country is fighting a most terrifying enemy: the backlash of Mother Nature. X x x The Judicial Department (Article VIII, 1987 Constitution) In order to keep the peace in its archipelago in this region of the world, and to sustain itself at the same time against the destructive forces of nature, the Philippines will need friends. Who they are, and what form the friendships will take, are for the President to decide. The only restriction is what the Constitution itself prohibits. It appears that this overarching concern for balancing constitutional requirements against the dictates of necessity was what led to EDCA. As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with existing laws and treaties that it purports to implement. (Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En Banc [Sereno, CJ]) Powers relative to Appropriation measures The President shall submit to the Congress within thirty days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. (Sec. 22, Art. VII, 1987 Constitution) The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law. (Sec. 25[1], Art. VI, 1987 Constitution) Emergency Power In times of war or other national emergency, the Congress may, by law, authorizing the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to 33

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Section 1, Article VIII, 1987 Constitution) Thus, the Constitution vests judicial power in the Court and in such lower courts as may be established by law. In creating a lower court, Congress concomitantly determines the jurisdiction of that court, and that court, upon its creation, becomes by operation of the Constitution one of the repositories of judicial power. However, only the Court is a constitutionally created court, the rest being created by Congress in its exercise of the legislative power. The Constitution states that judicial power includes the duty of the courts of justice not only “to settle actual controversies involving rights which are legally demandable and enforceable” but also “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” It has thereby expanded the concept of judicial power, which up to then was confined to its traditional ambit of settling actual controversies involving rights that were legally demandable and enforceable. The background and rationale of the expansion of judicial power under the 1987 Constitution were laid out during the deliberations of the 1986 Constitutional

Commission by Commissioner Roberto R. Concepcion (a former Chief Justice of the Philippines) in his sponsorship of the proposed provisions on the Judiciary. Our previous Constitutions equally recognized the extent of the power of judicial review and the great responsibility of the Judiciary in maintaining the allocation of powers among the three great branches of the Government. (Maria

Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, July 1, 2014, En Banc [Bersamin]) Judicial Power and the Political Question Doctrine

The Political Question Doctrine Baker v. Carr remains the starting point for analysis under the political question doctrine. In Tanada v. Cuenco, we held that political questions refer “to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure.” (Vinuya, et al. v. The Honorable Executive Secretary Alberto G. Romulo, et al., G.R. No. 162230, April 28. 2010, En Banc [Del Castillo])

an act entrusted to the judgment of another branch. Truly, the President’s discretion is not totally unfettered. X x x. At bar, President Duterte x x x acted within the bounds of the law and jurisprudence, Notwithstanding the call of human rights advocate, the Court must uphold what is legal and just. And that is not to deny Marcos of his rightful place at the LNMB. For even the Framers of our Constitution intend that full respect for human rights is available at any stage of a person’s development, from the time he or she becomes a person to the time he or she leaves this earth. There are certain things that are better left for history – not this Court – to adjudge. The Court could only do so much in accordance with clearly established rules and principles. Beyond that, it is ultimately for the people themselves, as the sovereign, to decide, a task that may require the better perspective that the age of time provides. Vinuya, et. al. v. The Honorable Executive Secretary Alberto G. Romulo, et. al., G.R. No. 162230, April 28. 2010, En Banc (Del Castillo)

Saturnino C. Ocampo, et al. v. Rear iral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc (Peralta)

The SC may not compel the President to take up the cause of the petitioners (comfort women during World War II) against Japan. That will violate the doctrine of separation of powers for that is a political question – a question in regard to which full discretionary authority has been delegated by the Constitution to the President as the chief architect of our foreign policy and as the spokesman of the nation in matters of foreign relations. The most that the SC may do is to exhort her, to urge her to take up petitioners cause – but not to compel her.

The petitioners failed to show that President Duterte committed grave abuse of discretion when he allowed the burial of former President Ferdinand E. Marcos at the “Libingan ng mga Bayani (LNMB).”

In matters of foreign policy, the Executive and the Judiciary must speak with just one voice to avoid serious embarrassments and strained relations with foreign countries. Elaborating, the Court held:

Held: In sum, there is no clear constitutional or legal basis to hold that there was a grave abuse of discretion amounting to lack or excess of jurisdiction which would justify the Court to interpose its authority to check and override 34

“To be sure, not all cases implicating foreign relations present political questions, and courts certainly possess the authority to construe or invalidate treaties and executive agreements. However, the question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is

demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question. “In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that ‘[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign relations.’ “It is quite apparent that if, in the maintenance of our international relations, embarrassment – perhaps serious embarrassment – is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be issible where domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in times of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. “X x x “The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s foreign policy interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this region. For us to overturn the Executive Department’s determination would mean an assessment of the foreign policy judgments by a coordinate political branch to which authority to make that judgment has been constitutionally committed. Requisites for a Proper Exercise by the Court of its Power of Judicial Review

35

The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the Court unless there is compliance with the legal requisites for judicial inquiry, namely: (a) there must be an actual case or controversy calling for the exercise of judicial power; (b) the person challenging the act must have the standing to question the validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the very lis mota of the case. Of these requisites, case law states that the first two are the most important. (Belgica, et al. v. Exec. Sec. Paquito N. Ochoa, et al., G.R. No. 208566, 710 SCRA 1, 89, Nov. 19, 2013, En Banc [Perlas-Bernabe]) It is well-settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the Court unless the following requisites for judicial inquiry are present: (a) there must be an actual case of controversy calling for the exercise of judicial power; (b) the person challenging the act must have the standing to question the validity of the subject or issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the very lis mota of the case. In this case, the absence of the first two, which are the most essential, renders the discussion of the last two superfluous. (Saturnino C. Ocampo, et al. v. Rear iral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc [Peralta]) The Meaning of an “Actual Case or Controversy” An “actual case or controversy” is one which involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. There must be contrariety of legal rights that can be interpreted and enforced on the basis of existing law or jurisprudence. Related to the requisite of an actual case or controversy is the requisite of “ripeness,” which means that something had been accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action. Moreover, the limitation on the power of judicial review to actual cases and controversies carries the assurance that the courts will not intrude into areas committed to the other branches of the

government. Those areas pertain to questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. As they are concerned with questions of policy and issues dependent upon the wisdom, not legality of a particular measure, political questions used to be beyond the ambit of judicial review. However, the scope of the political question doctrine has been limited by Section 1 of Article VIII of the 1987 Constitution when it vested in the judiciary the power to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Saturnino C. Ocampo, et al. v. Rear iral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc [Peralta]) An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion. (Republic Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 91-92 [2001]) The rule is that courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. The controversy must be justiciable – definite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof, on the other; that is, it must concern a real, tangible and not merely a theoretical question or issue. There ought to be an actual and substantial controversy itting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. (Information Technology Foundation of the Philippines v. Commission on Elections, 499 Phil. 281, 304-305 [2005]) Corollary to the requirement of an actual case or controversy is the requirement of ripeness (Lawyers against Monopoly and Poverty [LAMP] v. The Secretary of Budget and Management, GR No. 164987, April 24, 2012, 670 SCRA 373, 383). A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that something has then been accomplished or performed by either branch before a court may come into the picture, and the 36

petitioner must allege the existence of an immediate or threatened injury to himself as a result of the challenged action. He must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of (The Province of North Cotabato v. The Government of the Republic of the Philippines, 589 Phil. 387, 481 [2008]). (James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., GR No. 204819, April 8, 2014, The Moot and Academic Principle An action is considered “moot” when it no longer presents a justiciable controversy because the issued involved have become academic or dead, or when the matter in dispute has already been resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the parties (Santiago v. Court of Appeals, 348 Phil. 792, 800 [1998]). Time and again, courts have refrained from even expressing an opinion in a case where the issues have become moot and academic, there being no more justiciable controversy to speak of, so that a determination thereof would be of no practical use or value (Barbieto v. Court of Appeals, GR No. 184646, October 30, 2009, 604 SCRA 825, 840). (International Service for the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En Banc [Villarama]) Exceptions to the Moot and Academic Principle Even on the assumption of mootness, jurisprudence dictates that “the ‘moot and academic’ principle is not a magical formula that can automatically dissuade the Court in resolving a case.” The Court will decide cases, otherwise moot, if first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review. (Belgica, et al. v. Exec. Sec. Paquito N. Ochoa, et al., G.R. No. 208566, 710 SCRA 1, 93, Nov. 19, 2013, En Banc [Perlas-Bernabe]) Locus Standi

Defined as a right of appearance in a court of justice on a given question, locus standi requires that a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. Unless a person has sustained or is in imminent danger of sustaining an injury as a result of an act complained of, such party has no standing. (Saturnino C. Ocampo, et al. v. Rear iral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc [Peralta]) Locus standi is “a right of appearance in a court of justice on a given question (Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254, citing David v. Macapagal-Arroyo, 522 Phil. 705, 755 [2006]). Specifically, it is “a party’s personal and substantial interest in a case where he has sustained or will sustain direct injury as a result” of the act being challenged, and “calls for more than just a generalized grievance.” (Id., citing Jumamil v. Café, 507 Phil. 455, 465 [2005], citing Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 632-633 [2000]) However, the rule on standing is a procedural matter which this Court has relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators when the public interest so requires, such as when the subject matter of the controversy is of transcendental importance, of overreaching significance to society, or of paramount public interest. (Biraogo v. Philippine Truth Commission of 2010, G.R. Nos. 192935 & 193036, December 7, 2010, 637 SCRA 78, 151 citing Social Justice Society [SJS] v. Dangerous Drugs Board, et al., 591 Phil. 393404 [2008]; Tatad v. Secretary of the Department of Energy, 346 Phil. 321 [1997] and De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.) In the landmark case of Oposa v. Factoran, Jr., G.R. No. 101083, July 30, 1993, 224 SCRA 792, we recognized the “public right” of citizens to “a balanced and healthful ecology which, for the first time in our constitutional history, is solemnly incorporated in the fundamental law.” We declared that the right to a balanced and healthful ecology need not be written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational implications. Such right carries with it the correlative duty to refrain from impairing the environment. (Id. At 804-805) (Most Rev. Pedro D. Arigo, et al. v. Scott H. 37

Swift, et al., G.R. No. 206510, September 16, 2014, En Banc [Villarama, Jr.]) Taxpayers’ Suit Taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law. (Saturnino C. Ocampo, et al. v. Rear iral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc [Peralta]) Suits Filed by Concerned Citizens As concerned citizens, petitioners are also required to substantiate that the issues are of transcendental significance, or of paramount public interest. In cases involving such issues, the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence. (Saturnino C. Ocampo, et al. v. Rear iral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc [Peralta]) Suits Filed by of Congress In the absence of a clear showing of any direct injury to their person or the institution to which they belong, their standing as of the Congress cannot be upheld. (Saturnino C. Ocampo, et al. v. Rear iral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc [Peralta]) The Liberalization of the Rules on Legal Standing The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen suit in environmental cases. The provision on citizen suits in the Rules “collapses the traditional rule on personal and direct interest, on the principle that humans are stewards of nature.” (See ANNOTATION TO THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES) (Most Rev. Pedro D. Arigo, et al.

v. Scott H. Swift, et al., G.R. No. 206510, September 16, 2014, En Banc [Villarama, Jr.]) Facial Challenge James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., (GR No. 204819, April 8, 2014, En Banc [Mendoza]) In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is on that is launched to assail the validity of statutes concerning not only protected speech, but also all other rights in the First Amendment (See United States v. Salerno, 481 U.S. 739 [1987]). These include religious freedom, freedom of the press, and the right of the people to peaceably assemble, and to petition the Government for a redress of grievances. After all, the fundamental right to religious freedom, freedom of the press and peaceful assembly are but component rights of the right to one’s freedom of expression, as they are modes which one’s thoughts are externalized. In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained, albeit with some modifications. While this Court has withheld the application of facial challenges to strictly penal statutes (Romualdez v. Commission on Elections, 576 Phil. 357 [2008]; Romualdez v. Sandiganbayan, 479 Phil. 265 [2004]; Estradfa v. Sandiganbayan, 421 Phil. 290 [2001]), it has expanded its scope to cover statutes not only regulating free speech, but also those involving religious freedom, and other fundamental rights (Resolution, Romualdez v. Commission on Elections, 594 Phil. 305, 316 [2008]). The underlying reason for this modification is simple. For unlike its counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the constitutional human rights to life, speech and religion and other fundamental rights mentioned above have been violated by the assailed legislation, the Court has authority to take cognizance of these kindred petitions and to determine if the RH (Reproductive Health) Law can indeed constitutional scrutiny. To dismiss these petitions on the simple expedient that there exist no actual case or controversy, would diminish this Court as a reactive branch of government, acting only when the Fundamental Law has been transgressed, to the detriment of the Filipino people. Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,. 203335, Feb. 11, 2014, En Banc (Abad) When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on Elections, “we must view these statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to mount “facial” challenges to penal statutes not involving free speech.” In an “as applied” challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third persons not before the court. This rule is also known as the prohibition against third-party standing. The Void-for-vagueness Doctrine and the Doctrine of Overbeadth Southern Hemisphere Engagement Network, Inc., et al. v. Anti-Terrorism Council, et al. (G.R. Nos. 178552, 178581, 178890, 179157, & 179461, 5 October 2010, En Banc (Carpio-Morales) In addition, a statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess

38

at its meaning and differ as to its application. The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities. The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute “on its fact,” not merely “as applied for” so that the overbreadth law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the “chilling” deterrent effect of the overbreadth statute on third parties not courageous enough to bring suit. The Court assumes that an overbreadth law’s “very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties. The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. Xxx 39

Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not free speech. It is true that the agreements and course of conduct were in most instances brought about through speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because that conduct was, in part, initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Such an expansive interpretation of the constitutional guarantees of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society. The Rule-Making Power of the Supreme Court The Supreme Court shall have the following powers: Xxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the ission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (Section 5[5], 1987 Constitution) In In Re: Petition for Recognition of the Exemption of the Government Service Insurance System from Payment of Legal Fees, The Court ruled that the provision in the Charter of the GSIS, i.e., Section 39 of Republic Act No. 8291, which exempts it from “all taxes, assessments, fees, charges or duties of all kinds,” cannot operate to exempt it from the payment of legal fees. This was because, unlike the 1935 and 1973 Constitutions, which empowered Congress to repeal, alter or supplement the rules of the Supreme Court concerning pleading, practice and procedure, the 1987

Constitution removed this power from Congress. Hence, the Supreme Court now has the sole authority to promulgate rules concerning pleading, practice and procedure in all courts. (GSIS v. Heirs of Fernando F. Caballero, G.R. No. 158090, 632 SCRA 5, 14-15, Oct. 4, 2010, 2nd Div. [Peralta])

CONSTITUTIONAL LAW Police Power The Power of Eminent Domain The Constitution expressly provides in Article III, Section 9 that “private property shall not be taken for public use without just compensation.” The provision is the most important protection of property rights in the Constitution. This is a restriction on the general power of the government to take property. The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others. In part too, it is about loss spreading. If the government takes away a person’s property to benefit society, the society should pay. The principal purpose of the guarantee is “to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” (City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005; cited in Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016, En Banc [Bersamin]) The Two (2) Types of “Taking” under the Power of Eminent Domain There are two different types of taking that can be identified. A “possessory” taking occurs when the government confiscates or physically occupies property. A “regulatory” taking occurs when the government’s regulation leaves no reasonable economically viable use of the property. (City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005)

40

In Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al. (G.R. No. 189185, August 16, 2016), it was argued that the requirement of maintaining a buffer zone in all agricultural entities under Section 6 of an ordinance of Davao City prohibiting aerial spraying unduly deprives all agricultural landowners in that City of the beneficial use of their property amounting to taking without just compensation. The Supreme Court did not agree. Citing City of Manila v. Laguio, Jr. (G.R. No. 118127, April 12, 2005), it clarified that taking only becomes confiscatory if it substantially divests the owner of the beneficial use of its property. According to the Court: The establishment of the buffer zone is required for the purpose of minimizing the effects of aerial spraying within and near the plantations. Although Section 3(e) of the ordinance requires the planting of diversified trees within the identified buffer zone, the requirement cannot be construed and deemed as confiscatoy requiring payment of just compensation. A landowner may only be entitled to compensation if the taking amounts to a permanent denial of all economically beneficial or productive uses of the land. The respondents cannot be said to be permanently and completely deprived of their landholdings because they can still cultivate or make other productive uses of the areas to be identified as the buffer zones. The Power of Taxation

THE BILL OF RIGHTS The Right to Due Process of Law Section 1 of the Bill of Rights lays down what is known as the “due process clause” of the Constitution. In order to fall within the aegis of this provision, two conditions must concur, namely, that there is a deprivation and that such deprivation is done without proper observance of due process. When one speaks of due process of law, however, a distinction must be made between matters of procedure and matters of substance.

In essence, procedural due process “refers to the method or manner by which the law is enforced,” while substantive due process “requires that the law itself, not merely the procedures by which the law would be enforced, is fair, reasonable, and just.” (De Leon, Textbook on the Philippine Constitution, 1991, p. 81) (Corona v. United Harbor Pilots Association of the Phils., 283 SCRA 31, Dec. 12, 1997 [Romero])

Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Philippine istrative Law, 1996 ed., p. 64). (Secretary of Justice v. Lantion, 322 SCRA 160, 186-188, Jan. 18, 2000, En Banc [Melo]) Instances when Prior Notice or Hearing may be dispensed with

The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in their interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. The requirements of due process are interpreted in both, the United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause “generally ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise (Twining v. New Jersey, 211 U.S. 78). Capsulized, it refers to “the embodiment of the sporting idea of fair play” (Ermita-Malate Hotel and Motel Owner’s Association v. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden v. Hardy, 169 U.S. 366).

These twin rights may, however, be considered dispensable in certain instances, such as: 1. In proceedings where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing istrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like establishments which are immediate threats to public health and decency, and the cancellation of a port of a person sought for criminal prosecution; 2. Where there is tentativeness of istrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary appointee; and

Due process is comprised of two components – substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102106).

The Void-for-vagueness Doctrine

True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in istrative proceedings as well. Non-observance of these rights will invalidate the proceedings.

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

41

3. Where the twin rights have previously been offered but the right to exercise them had not been claimed. (Secretary of Justice v. Lantion, 322 SCRA 160, 186-188, Jan. 18, 2000, En Banc [Melo])

Such vague law is repugnant to the Constitution in two (2) respects: one, it violates due process as it fails to afford persons fair notice of the conduct to avoid and; second, it gives law enforcers unbridled discretion in carrying out provisions and, therefore, in effect, it becomes an arbitrary flexing of the government’s muscle.

Extradition and Due Process

However, for this to be validly invoked, the act or law must be utterly vague on its face that it cannot be clarified either by a saving clause or by statutory construction.

During the initial evaluation stage at the Department of Justice of an extradition proceeding, an extraditee is not yet entitled to the documents he was requesting (like copy of request for his extradition from the requesting government, and ing documents and evidences) so that he may be able to prepare for his defense. That is because an extradition is “sui generis;” it is not similar to a criminal proceeding which will call into operation all of the rights of an accused as guaranteed by the Bill of Rights.

Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016, En Banc (Bersamin) An Ordinance enacted by the City of Davao prohibiting aerial spraying in all agricultural entities in that City and requiring affected parties to shift to other modes of pesticide application within a three-month period under pain of penalty was declared unconstitutional as it violates due process for being oppressive.

Secretary of Justice v. Honorable Ralph Lantion, October 17, 2000 Resolution of the Motion for Reconsideration

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

Held: The impossibility of carrying out a shift to another mode of pesticide application within three months can readily be appreciated given the vast area of the affected plantations and the corresponding resources required therefor. X x x Xxx The required civil works for the conversion to truck-mounted boom spraying alone will consume considerable time and financial resources given the topography and geographical features of the plantations. As such, the completion could not be completed within the short timeframe of three months. Requiring the respondents and other affected individuals to comply with the consequences of the ban within the three-month period under pain of penalty like fine, imprisonment and even cancellation of business permits would definitely be oppressive as to constitute abuse of police power.” 42

The Right to the Equal Protection of the Laws The constitutional right to equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. It requires public bodies and institutions to treat similarly situated individuals in a similar manner. The guarantee of equal protection secures every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express of a statute or by its improper execution through the State’s duly constituted authorities. The concept of equal justice under the law demands that the State governs impartially and not to draw distinctions between individuals solely on differences that are irrelevant to the legitimate governmental objective. Equal protection neither requires universal application of laws to all persons or things without distinction, nor intends to prohibit legislation by limiting the object to

which it is directed or by the territory in which it is to operate. The guaranty of equal protection envisions equality among equals determined according to a valid classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from another. In other words, a valid classification must be: (1) based on substantial distinctions; (2) germane to the purposes of the law; (3) not limited to existing conditions only; and (4) equally applicable to all of the class. (Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016, En Banc [Bersamin]) The Three (3) Levels of Scrutiny to Determine the Propriety of the Classification under the Equal Protection Clause The reasonability of a distinction and sufficiency of the justification given by the Government for its conduct is gauged by using the means-end test. This test requires analysis of: (1) the interests of the public that generally requires its exercise, as distinguished from those of a particular class; and (2) the means employed that are reasonably necessary for the accomplishment of the purpose and are not unduly oppressive upon individuals. To determine the propriety of the classification, courts resort to three levels of scrutiny, viz: the rational scrutiny, intermediate scrutiny and strict scrutiny. The rational basis scrutiny (also known as the rational relation test or rational basis test) demands that the classification reasonably relate to the legislative purpose. The rational basis test often applies in cases involving economics or social welfare, or to any other case not involving a suspect class. When the classification puts a quasi-suspect class at a disadvantage, it will be treated under intermediate or heightened review. Classifications based on gender or illegitimacy receives intermediate scrutiny. To survive intermediate scrutiny, the law must not only further an important governmental interest and be substantially related to that interest, but the justification for the classification must be genuine and must not depend on broad generalizations.

43

The strict scrutiny review applies when a legislative classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar class disadvantage of a suspect class. The Government carries the burden to prove that the classification is necessary to achieve a compelling state interest, and that it is the least restrictive means to protect such interest. (Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016, En Banc [Bersamin]) In Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., (G.R. No. 189185, August 16, 2016, En Banc [Bersamin]), the Court, applying the rational basis test, ruled that the ordinance of Davao City prohibiting aerial spraying in all agricultural entities therein as the practice produces pesticide drift causing inconvenience and harm to the residents and degrades the environment, violates the equal protection clause, hence, should be declared unconstitutional. The Court Held: The occurrence of pesticide drift is not limited to aerial spraying but results from the conduct of any mode of pesticide application. Even manual spraying or truck-mounted boom spraying produces drift that may bring about the same inconvenience, discomfort and alleged health risks to the community and to the environment. A ban against aerial spraying does not weed out the harm that the ordinance seeks to achieve. In the process, the ordinance suffers from being “underinclusive” because the classification does not include all individuals tainted with the same mischief that the law seeks to eliminate. A classification that is drastically underinclusive with respect to the purpose or end appears as an irrational means to the legislative end because it poorly serves the intended purpose of the law. Xxx Aside from its being underinclusive, the assailed ordinance also tends to be “overinclusive” because its impending implementation will affect groups that have no relation to the accomplishment of the legislative purpose. Its implementation will unnecessarily impose a burden on a wider range of

individuals than those included in the intended class based on the purpose of the law. It can be noted that the imposition of the ban is too broad because the ordinance applies irrespective of the substance to be aerially applied and irrespective of the agricultural activity to be conducted. The respondents it that they aerially treat their plantations not only with pesticides but also vitamins and other substances. The imposition of the ban against aerial spraying of substances other than fungicides and regardless of the agricultural activity being performed becomes unreasonable inasmuch as it patently bears no relation to the purported inconvenience, discomfort, health risk and environmental danger which the ordinance seeks to address. The burden now will become more onerous to various entities, including the respondents and even others with no connection whatsoever to the intended purpose of the ordinance.” Xxx The overinclusiveness of Ordinance No. 0309-07 may also be traced to its Section 6 by virtue of its requirement for the maintenance of the 30meter buffer zone. This requirement applies regardless of the area of the agricultural landholding, geographical location, topography, crops grown and other distinguishing characteristics that ideally should bear a reasonable relation to the evil sought to be avoided. As earlier stated, only large banana plantations could rely on aerial technology because of the financial capital required therefor. The establishment and maintenance of the buffer zone will become more burdensome to the small landholders because: (1) they have to reserve the 30-meter belt surrounding their property; (2) that will have to be identified through GPS; (3) the metes and bounds of the buffer zone will have to be plotted in a survey plan for submission to the local government unit; and (4) will be limited as to the crops that may be cultivated therein based on the mandate that the zone shall be devoted to “diversified trees” taller than what are being grown therein. The arbitrariness of Section 6 all the more becomes 44

evident when the land is presently devoted to the cultivation of root crops and vegetables, and trees or plants slightly taller than the root crops and vegetables are then to be planted. It is seriously to be doubted whether such circumstance will prevent the occurrence of the drift to the nearby residential areas. Section 6 also subjects to the 30-meter buffer zone requirement agricultural entities engaging in organic farming, and do not contribute to the occurrence of pesticide drift. The classification indisputably becomes arbitrary and whimsical. A substantially overinclusive or underinclusive classification tends to undercut the governmental claim that the classification serves legitimate political ends. Where overinclusiveness is the problem, the vice is that the law has a greater discriminatory or burdensome effect than necessary. In this light, we strike down Section 5 and Section 6 of Ordinance 0309-07 for carrying an invidious classification, and for thereby violating the Equal Protection Clause. Xxx Evidently, the ordinance discriminates against large farmholdings that are the only ideal venues for the investment of machineries and equipment capable of aerial spraying. It effectively denies the affected individuals the technology aimed at efficient and cost-effective operations and cultivation not only of banana but of other crops as well. The prohibition against aerial spraying will seriously hamper the operations of the banana plantations that depend on aerial technology to arrest the spread of the Black Sigatoka disease and other menaces that threaten their production and harvest. X x x the effect of the ban will not be limited to Davao City in view of the significant contribution of banana export trading to the country’s economy. The discriminatory character of the ordinance makes it oppressive and unreasonable in light of the existence and availability of more permissible and practical alternatives that will not overburden the respondents and those

dependent on their operations as well as those who stand to be affected by the ordinance. X x x The Right against Unreasonable Searches and Seizures Abdula v. Guiani In a criminal proceeding, there are two (2) determinations of probable cause, i.e., one is made by the prosecutor during preliminary investigation for the purpose of filing the criminal information in court; and the other is made by the judge for the purpose of issuing a warrant of arrest, or of a search warrant. The determination of probable cause for the purpose of filing the criminal information in court is an executive function. It is a function that belongs to the prosecutor, an officer under the Department of Justice, a department under the executive branch. On the other hand, the determination of probable cause for the purpose of issuing a warrant of arrest, or even that of a search warrant, is a judicial function, because under Section 2 of the Bill of Rights of the Constitution, only a judge may issue a warrant of arrest or of a search warrant. For this reason, the judge is not bound by the determination of probable cause by the prosecutor. In fact, he should not rely solely on the finding of probable cause by the prosecutor because he is mandated by the Constitution to determine probable cause personally. He cannot abdicate the performance of that function in favor of the prosecutor if he wanted to remain faithful to the Constitution. Government of the USA v. Judge Purganan Prior notice or hearing is not required before a judge issues a warrant of arrest of an extraditee once the petition for extradition is filed in court on two (2) basis, i.e., statutory (Sec. 6, P.D. No. 1069); and constitutional (Sec. 2, Art. III of the Bill of Rights).

Section 6, P.D. No. 1069 (Extradition Law) provides that the moment the petition for extradition is filed in the RTC, the judge shall cause the immediate issuance of a warrant of arrest. Hearing entails sending of notices to opposing parties, and receiving facts and arguments from them. Arrest subsequent to a hearing can no longer be considered “immediate.” The law could not have intended the use of the word “immediate” a superfluity. On constitutional basis Even Section 2, Article III of the Bill of Rights does not require notice or hearing before a judge issues a warrant of arrest. On the contrary, what the Constitution provides is “after examination under oath or affirmation of the complainant (not of the accused) and the witnesses he may produce.” Search Incidental to a Lawful Arrest (Section 13, Rule 126, Rules of Court) This is the most common among the instances of valid warrantless searches. The object of this kind of warrantless search is to obtain object or effect of a crime, like the stolen wallet or the knife used in hold-up. The three (3) important features of this kind of warrantless search are: 1. In this kind if warrantless search, the arrest always precedes the search; the process cannot be reversed; 2. The precedent arrest must always be lawful because, if the precedent arrest is unlawful, the subsequent search, although it may have yielded positive results, may never validate the unlawful arrest that preceded it; and 3. The search must be limited or confined only to the immediate vicinity of the place of the arrest. It may not be extended beyond that. Valmonte v. De Villa

On statutory basis For searches at checkpoints to be valid, the following must be observed: 45

1. The checkpoint must be pre-announced; 2. It must be stationary; and 3. The search at checkpoint must be limited to visual search only. An intrusive search is not allowed

The Right to Privacy Is there a constitutional right to privacy?

Social Justice Society v. Dangerous Drugs Board The Mandatory Drug Testing under R.A. No. 9165 (The Comprehensive Dangerous Drugs Act) does not constitute unreasonable search prohibited by the Constitution. It falls under the category of an istrative search. In istrative searches, the strict probable cause requirement is not applied. People v. Leila Johnson When one is at the nation’s airport and wanted to travel by air, he has no reasonable expectation of privacy and can be subject to warrantless search. This is in view of increased concern over airplane hijacking and terrorism. In the later case of People v. Susan Canton, the SC held that this is now another instance of valid warrantless search – warrantless searches at airports.

The essence of privacy is the “right to be let alone.” In the 1965 case of Griswold v. Connecticut (381 U.S. 479, 14 L. ed. 2D 510 [1965]), the United States Supreme Court gave more substance to the right of privacy when it ruled that the right has a constitutional foundation. It held that there is a right of privacy which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments x x x. In the 1968 case of Morfe v. Mutuc (22 SCRA 424, 444-445), we adopted the Griswold ruling that there is a constitutional right to privacy x x x. Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution. (Morfe v. Mutuc, 22 SCRA 424, 444 [1968]; Cortes, The Constitutional Foundations of Privacy, p. 18 [1970]). It is expressly recognized in Section 3(1) of the Bill of Rights x x x. Other facets of the right to privacy are protected in various provisions of the Bill of Rights (viz: Secs. 1, 2, 6, 8, and 17. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

People v. Doria What are the zones of privacy recognized and protected in our laws? The requisites for the “plain view” doctrine to be validly invoked are: 1. The law enforcement officer must have a valid justification for an intrusion, or is in a position where he can view a particular area; 2. The discovery of the evidence in plain view must be inadvertent; and 3. It is immediately apparent to him that the thing he sees is object of a crime, contraband, or subject to seizure. It is clear that if the object is inside a closed container, “plain view” may not be invoked. However, even if it inside a closed container but if due to the configuration of the container, or due to its transparency, it can still be seen from the outside what is inside, “plain view” may still be invoked. 46

The Civil Code provides that “[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons” and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime the violation of secrets by an officer, the revelation of trade and industrial secrets, and tres to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law (R.A. 4200), the Secrecy of Bank Deposits (R.A. 1405) and the Intellectual Property Code (R.A. 8293). The Rules of Court on privileged communication likewise recognize the privacy of certain

information (Section 24, Rule 130[c], Revised Rules on Evidence). (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno]) Freedom of Expression Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,. 203335, Feb. 11, 2014, En Banc (Abad) The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right protected by the guarantee against unreasonable searches and seizures. But the Court acknowledged its existence as early as 1968 in Morfe v. Mutuc, it ruled that the right to privacy exists independently of its identification with liberty; it is in itself fully deserving of constitutional protection. Relevant to any discussion of the right to privacy is the concept known as the “Zones of Privacy.” The Court explained in “In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon” the relevance of these zones to the right to privacy: Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a “constitutional right” and “the right most valued by civilized men,” but also from our adherence to the Universal Declaration of Human Rights which mandates that, “no one shall be subjected to arbitrary interference with his privacy” and “everyone has the right to the protection of the law against such interference or attacks.” Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of communication and correspondence. In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion. 47

Content-based restrictions on free speech, and content-neutral regulations Content-based restrictions are imposed because of the content of the speech and are, therefore, subject to the clear-and-present danger test. For example, a rule such as that involved in Sanidad v. Comelec, prohibiting columnists, commentators, and announcers from campaigning either for or against an issue in a plebiscite must have compelling reason to it, or it will not muster under strict scrutiny. These restrictions are censorial and therefore they bear a heavy presumption of constitutional invalidity. In addition, they will be tested for possible overbreadth and vagueness. Content-neutral restrictions, on the other hand, like Sec. 11(b) of R.A. No. 6646, which prohibits the sale or donation of print space and air time to political candidates during the campaign period, are not concerned with the content of the speech. These regulations need only a substantial governmental interest to them. A deferential standard of review will suffice to test their validity. The clearand-present danger rule is inappropriate as a test for determining the constitutional validity of laws, like Sec. 11(b) of R.A. No. 6646, which are not concerned with the content of political ads but only with their incidents. To apply the clear-and-present danger test to such regulatory measures would be like using a sledgehammer to drive a nail when a regular hammer is all that is needed. The test for this difference in the level of justification for the restriction of speech is that content-based restrictions distort public debate, have improper motivation, and are usually imposed because of fear of how people will react to a particular speech. No such reasons underlie content-neutral regulations, like regulation of time, place and manner of holding public assemblies under B.P. Blg. 880, the Public Assembly Act of 1985. (Osmena v. COMELEC, 288 SCRA 447, March 31, 1998 [Mendoza])

What is the most influential test for distinguishing content-based from contentneutral regulations? The United States Supreme Court held in United States v. O’ Brien: [A] a governmental regulation is sufficiently justified (1) if it is within the constitutional power of the government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms (of speech, expression and press) is no greater than is essential to the furtherance of that interest (391 U.S. 367, 20 L. Ed. 2df 692, 680 [1968] [bracketed numbers added]) This is so far the most influential test for distinguishing content-based from content-neutral regulations and is said to have “become canonical in the review of such laws.” (G. Gunther & K. Sullivan, Constitutional Law 1217 [13th ed. 1997]). It is noteworthy that the O’ Brien test has been applied by this Court in at least two cases (Adiong v. Comelec, 207 SCRA 712 [1992]; Osmena v. Comelec, supra.). Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is “not unrelated to the suppression of free expression.” Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question. (Social Weather Stations, Inc. v. Comelec, G.R. No. 147571, May 5, 2001, En Banc [Mendoza]) Chavez v. Secretary Gonzales The Diocese of Bacolod, Represented by the Most Rev. Bishop Vicente M. Navarra, et al. v. COMELEC, GR No. 205728, January 21, 2015, En Banc (Leonen) This case defines the extent that our people may shape the debates during elections. It is significant and of first impression. We are asked to decide whether 48

the Commission on Elections (COMELEC) has the competence to limit expressions made by the citizens – who are not candidates – during elections. Before us is a special civil action for certiorari and prohibition under Rule 65 of the Rules of Court seeking to nullify COMELEC’s Notice to Remove Campaign Materials. SUBSTANTIVE ISSUES A. COMELEC had no legal basis to regulate expressions made by private citizens. Respondents (COMELEC officials) cite the Constitution, laws, and jurisprudence to their position that they had the power to regulate the tarpaulin. However, all of these provisions pertain to candidates and political parties. Petitioners are not candidates. Neither do they belong to any political party. COMELEC does not have the authority to regulate the enjoyment of the preferred right to freedom of expression exercised by a non-candidate in this case. First, respondents cite Article IX-C, Section 4 of the Constitution x x x. X x x We held that the “evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give any undue advantage to a candidate in of advertising space or radio or television time.” (Sanidad v. COMELEC, 260 Phil. 565 [1990]) This Court found that “[m]edia practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates[,]” thus, their right to expression during this period may not be regulated by COMELEC. Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates. Respondents likewise cite Article IX-C, Section 2(7) of the Constitution x x x.

Based on the enumeration made on acts that may be penalized, it will be inferred that this provision only affects candidates. Petitioners assail the “Notice to Remove Campaign Materials” issued by COMELEC. This was followed by the assailed letter regarding the “election propaganda materials posted on the church vicinity promoting for or against the candidates and party-list groups . . .” Section 9 of the Fair Election Act (R.A. No. 9006 [2001]) on the posting of campaign materials only mentions “parties” and “candidates” x x x. Xxx Respondents considered the tarpaulin as a campaign material in their issuances. The above provisions regulating the posting of campaign materials only apply to candidates and political parties, and petitioners are neither of the two.

In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of either appreciation or criticism on votes made in the ing of the RH law. Thus, petitioners invoke their right to freedom of expression. B. The violation of the constitutional right to freedom of speech and expression No law. . . While it is true that the present petition assails not a law but an opinion by the COMELEC Law Department, this Court has applied Article III, Section 4 of the Constitution even to governmental acts. . . . shall be ed abridging. . .

Section 3 of Republic Act No. 9006 on “Lawful Election Propaganda” also states that these are “allowed for all ed political parties, national, regional, sectoral parties or organizations participating under the party-list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties. . .” Section 6 of COMELEC Resolution No. 9615 provides for a similar wording.

All regulations will have a impact directly or indirectly on expression. The prohibition against the abridgment of speech should not mean an absolute prohibition against regulation. The primary and incidental burden on speech must be weighed against a compelling state interest clearly allowed in the Constitution. The test depends on the relevant theory of speech implicit in the kind of society framed by our Constitution.

These provisions show that election propaganda refers to matter done by or on behalf of and in coordination with candidates and political parties. Some level of coordination with the candidates and political parties for whom the election propaganda are released would ensure that these candidates and political parties maintain within the authorized expenses limitation.

Our Constitution has also explicitly included the freedom of expression, separate and in addition to the freedom of speech and of the press provided in the US Constitution. The word “expression” was added in the 1987 Constitution x x x for having a wider scope x x x.

The tarpaulin was not paid for by any candidate or political party. There was no allegation that petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. On the other hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law. Xxx 49

Speech may be said to be inextricably linked to freedom itself as “[t]he right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” (Freedom of Speech and Expression, 116 Harv. L. Rev. 272, 277 [2002], quoting Justice Kennedy in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, 1403 [2002]) Xxx

Communication is an essential outcome of protected speech. Communication exists when “(1) a speaker, seeking to signal others, uses conventional actions because he or she reasonably believes that such actions will be taken by the audience in the manner intended; and (2) the audience so takes the actions.” (Heidi M. Hurd, Sovereignty in Silence, 99 Yale L. J. 945, 954 [1990]) “[I]n communicative action[,] the hearer may respond to the claims by x x x either accepting the speech act’s claims or opposing them with criticism or requests for justification.” (Hugh Baxter, System and Lifeworld in Haberma’s Theory of Law, 23 Cardozo L. Rev. 473, 499 [2002]) Speech is not limited to vocal communication. “[C]onduct is treated as a form of speech sometimes referred to as ‘symbolic speech[,]’ (Joshua Waldman, Symbolic Speech and Social Meaning, 97 Colum. L. Rev. 1844, 1847 [1997]) such that “’when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct,’ the ‘communicative element’ of the conduct may be ‘sufficient to bring into play the [right to freedom of expression].’” (Id., citing US v. O’Brien, 391 U.S. 367, 376 [1968])

paraphernalia would be too broad a remedy that can stifle genuine speech. Instead, to address this evil, better and more effective enforcement will be the least restrictive means to the fundamental freedom. Xxx COMELEC”s general role includes a mandate to ensure equal opportunities and reduce spending among candidates and their ed political parties. It is not to regulate or limit speech of the electorate as it strives to participate in the electoral exercise. The tarpaulin in question may be viewed as producing a caricature of those who are running for public office. Their message may be construed generalizations of very complex individuals and party-list organizations. They are classified into black and white: as belonging to “Team Patay” or “Team Buhay.” But this caricature, though not agreeable to some, is still protected speech. Xxx

The right to freedom of expression, thus, applies to the entire continuum of speech from utterances made to conduct enacted, and even to inaction itself as a symbolic manner of communication. Even before freedom “of expression” was included in Article III, Section 4 of the present Constitution, this court has applied its precedent version to expressions other than verbal utterances. Freedom of expression and equality The possibility of abuse The guarantee of freedom of expression to individuals without any relationship to any political candidate should not be held hostage by the possibility of abuse by those seeking to be elected. X x x. However, labeling all expressions of private parties that tend to have an effect on the debate in the elections as election 50

Some may have thought that there should be more room to consider being more broad-minded and non-judgmental. Some may have expected that the authors would give more space to practice forgiveness and humility. But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties. It is not a detailed code that prescribes good conduct. It provides space for all to be guided by their conscience, not only in the act that they do to others but also in judgment of the acts of others. Freedom for the thought we can disagree with can be wielded not only by those in the minority. This can often be expressed by dominant institutions, even religious ones. That they made their point dramatically and in a large way does not necessarily mean that their statements are true, or that they have basis, or that they have been expressed in good taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of expression protected by our fundamental law. It is an expression designed to invite attention, cause debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners of their ecclesiastical duty, but their parishioner’s actions will have very real secular consequences.

other rights would be meaningless and unprotected. (BAYAN, et al. v. Ermita, et al., G.R. No. 169838, April 25, 2006, En Banc [Azcuna]) Batas Pambansa Blg. 880 – The Public Assembly Act of 1985 Meaning of Public Assembly

Certainly, provocative messages do matter for the elections. What is involved in this case is the most sacred of speech forms: expression by the electorate that tends to rouse the public to debate contemporary issues. This is not speech by candidates or political parties to entice votes. It is a portion of the electorate telling candidates the conditions for their election. It is the substantive content of the right to suffrage. This is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected as a fundamental and primordial right by our Constitution. The expression in the medium chosen by petitioners deserves our protection. Freedom of the Press Four (4) Aspects of Press Freedom Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; (3) freedom of access to information; and (4) freedom of circulation. (Francisco Chavez v. Raul M. Gonzales, et. al., G.R. No. 168338, 15 February 2008, En Banc [Puno, CJ]) Freedom of Assembly The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional democratic polity, without which all the 51

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

Freedom Parks Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable “freedom park” or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. (Section 5, B.P. Blg. 880) Action to be taken on the application (Section 6, B.P. Blg. 880) (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the applicant within twenty-four hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the thereof in his permit, the applicant may contest the decision in an appropriate court of law. Integrated Bar of the Philippines v. Hon. Mayor Jose “Lito” Atienza, G.R. No. 175241, 24 February 2010, 1st Div. (Carpio Morales)

The Integrated Bar of the Philippines (IBP) applied for a permit to rally at Mendiola Bridge. However, then Manila Mayor Jose “Lito” Atienza issued a permit to rally at Plaza Miranda instead. Issue: Whether or not the appellate court erred in holding that the modification of the venue in IBP’s rally permit does not constitute grave abuse of discretion. Held: Section 6(c) of the Public Assembly Act (BP 880) provides that “If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter.” In modifying the permit outright, Atienza gravely abused his discretion when he did not immediately inform the IBP who should have been heard first on the matter of his perceived imminent and grave danger of a substantive evil that may warrant the changing of the venue. Atienza failed to indicate how he had arrived at modifying the of the permit against the standard of a clear and present danger test which x x x is an indispensable condition to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a substantive evil, which “blank” denial or modification would, when granted imprimatur as the appellate court would have it, render illusory any judicial scrutiny thereof. It is true that the licensing official is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption – especially so where the assembly is scheduled for a specific public place – is that the permit must be for the assembly being held there. It smacks of whim and caprice for Atienza to impose a change of venue for an assembly that was slated for a specific public place. It is thus reversible error for the appellate court not to have found such grave abuse of discretion and, under specific statutory provision, not to have modified the permit “in satisfactory to the applicant.” Meaning of Maximum Tolerance

52

“Maximum tolerance” means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. (Section 3[c], B.P. Blg. 880)

and Political Rights x x x. (BAYAN, et al. v. Ermita, et al., G.R. No. 169838, April 25, 2006, En Banc [Azcuna]) The Calibrated Pre-emptive Response (R) Policy adopted by the Arroyo istration in dealing with public assemblies

B.P. No. 880 is merely a “content-neutral” regulation It is very clear that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. This was adverted to in Osmena v. Comelec (G.R. No. 132231, March 31, 1998, 288 SCRA 447), where the Court referred to it as a “content-neutral” regulation of the time, place, and manner of holding public assemblies (Ibid, p. 478). A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies (except picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute, which are governed by the Labor Code and other labor laws, political meeting or rallies held during election campaign period, which are governed by the Election Code and other election related laws, and public assemblies in the campus of a government-owned and operated educational institution, which shall be subject to the rules and regulations of said educational institution [Sec. 3(a) and Sec. 4 of B.P. No. 880]) that would use public places. The reference to “lawful cause” does not make it contentbased because assemblies really have to be for lawful causes, otherwise they would not be “peaceable” and entitled to protection. Neither are the words “opinion,” “protesting” and “influencing” in the definition of public assembly content-based, since they can refer to any subject. The words “petitioning the government for redress of grievances” come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefits of all rallyists and is independent of the content of the expressions in the rally. Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil 53

The Court now comes to the matter of the R. As stated earlier, the Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General. At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, R serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance. In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly. For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, “maximum tolerance” is for the benefit of rallyists, not the government., The delegation to the mayors of the power to issue rally “permits” is valid because it is subject to the constitutionally-sound “clear and present danger” standard. (BAYAN, et al. v. Ermita, et al., G.R. No. 169838, April 25, 2006, En Banc [Azcuna])

Freedom of Religion

Ang Ladlad-LGBT Party v. Commission on Elections, G.R. No. 190582, 618 SCRA 32, April 8, 2010, En Banc (Del Castillo) The decision of the COMELEC not to allow the Ang Ladlad-LGBT Party to participate in party-list elections because its are “immoral,” citing verses from the Bible and the Koran, was ruled by the SC to be tainted with grave abuse of discretion and, therefore, nullified, as it violated the non-establishment clause of freedom of religion. In effect, the COMELEC used religious standard in its decision by using verses from the Bible and the Koran. The COMELEC, as a government agency, is not supposed to be guided by religious standards in its decisions and actions. Held: “Our Constitution provides in Article III, Section 5 that”[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.” At bottom, what our non-establishment clause calls for is “government neutrality in religious matters.” Clearly, “governmental reliance on religious justification is inconsistent with this policy of neutrality.” We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. “Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily secular effects. X x x.” What is a purely ecclesiastical affair to which the State can not meddle following the Separation of Church and State Doctrine? An ecclesiastical affair is “one that concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the hip, and the 54

power of excluding from such associations those deemed not worthy of hip.” Based on this definition, an ecclesiastical affair involves the relationship between the church and its and relate to matters of faith, religious doctrines, worship and governance of the congregation. To be concrete, examples of this so-called ecclesiastical affairs to which the State cannot meddle are proceedings for excommunication, ordinations of religious ministers, istration of sacraments and other activities with attached religious significance. (Pastor Dionisio V. Austria v. NLRC, G.R. No. 124382, Aug. 16, 1999, 1st Div. [Kapunan]) Iglesia Ni Cristo v. Court of Appeals Under the non-establishment clause of freedom of religion, when it comes to religious differences, the State enjoys no banquet of options – neutrality alone is its fixed and immovable stance. It is not its task to defend one religion against an attack by another religion. After all, the remedy against bad theology is better theology. Let them duel in the market place of ideas. The marketplace of ideas demands that speech should be met by more speech, for it is the spark of opposite speech, the heat of colliding ideas, that can fan the embers of truth. James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., GR No. 204819, April 8, 2014, En Banc (Mendoza) Wherefore, THE PETITIONS ARE partially granted. Accordingly, the Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL, except with respect to the following provisions which are declared UNCONSTITUTIONAL: 1) Section 7 and the corresponding provision in RH-IRR insofar as they: a) require private health facilities And non-maternity specialty hospitals and hospitals owned and operated by a religious group to refer patients, not in an emergency or life-threatening case, as defined under Republic Act no. 8344, to another health facility which is conveniently accessible; and b) allow minor-parents or minors who have suffered a miscarriage access to modern methods of family planning without written consent from their parents or guardian/s;

2) Section 23(a)(1) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof, insofar as they punish any healthcare service provider who fails or refuses to disseminate information regarding programs and services on reproductive health regardless of his or her religious beliefs; 3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married individual, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to undergo reproductive health procedures without the consent of the spouse; 4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the requirement of parental consent only to elective surgical procedures; 5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof, insofar as they punish any healthcare service provider who fails and/or refuses to refer a patient not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to another health care service provider within the same facility or one which is conveniently accessible regardless of his or her religious beliefs; 6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof, insofar as they punish any public officer who refuses to reproductive health programs or shall do any act that hinders the full implementation of a reproductive health program, regardless of his or her religious beliefs; 7) Section 17 and the corresponding provision in the RH-IRR regarding the rendering of pro bono reproductive health service in so far as they affect the conscientious objector in securing Philhealth accreditation; and 8) Section 3.01(a) and Section 3.01(j) of the RH-IRR, which added the qualifier “primarily” in defining abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for contravening Section 4(a) of the RH Law and violating Section 12, Article II of the Constitution.

Liberty of Abode and Freedom of Movement 55

The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. (Sec. 6, Art. III, 1987 Constitution) Limitation on the Right to Travel The right to travel is guaranteed by the Constitution. However, the exercise of such right is not absolute. Section 6, Article III of the 1987 Constitution allows restrictions on one’s right to travel provided that such restriction is in the interest of national security, public safety or public health as may be provided by law. This, however, should by no means be construed as limiting the Court’s inherent power of istrative supervision over lower courts. OCA Circular No. 49-2003 does not restrict but merely regulates, by providing guidelines to be complied by judges and court personnel, before they can go on leave to travel abroad. To “restrict” is to restrain or prohibit a person from doing something; to “regulate” is to govern or direct according to rule. To ensure management of court dockets and to avoid disruption in the istration of justice, OCA Circular No. 49-2003 requires a judge who wishes to travel abroad to submit, together with his application for leave of absence duly recommended for approval by his Executive Judge, a certification from the Statistics Division, Court Management Office of the OCA. The said certification shall state the condition of his docket based on his Certificate of Service for the month immediately preceding the date of his intended travel, that he has decided and resolved all cases or incidents within three (3) months from date of submission, pursuant to Section 15(1) and (2), Article VIII of the 1987 Constitution. Thus, for traveling abroad without having been officially allowed by the Court, Judge Macarine is guilty of violation of OCA Circular No. 49-2003. (Office of istrative Services–Office of the Court v. Judge Ignacio B. Macarine, A.M. No. MTJ-10-1770, 18 July 2012, 2nd Div. [Brion])

The Right of the People to Information on Matters of Public Concern In Valmonte v. Belmonte, Jr., the Court emphasized that the information sought must be “matters of public concern,” access to which may be limited by law. Similarly, the state policy of full public disclosure extends only to “transactions involving public interest” and may also be “subject to reasonable conditions prescribed by law.” As to the meanings of the “public interest” and “public concern,” the Court, in Legaspi v. Civil Service Commission, elucidated: “In determining whether or not a particular information is of public concern, there is no rigid test which can be applied. ‘Public concern’ like ‘public interest’ is a term that eludes exact definition. Both embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.” Considered a public concern in the above-mentioned case was the “legitimate concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles.” So was the need to give the general public adequate notification of various laws that regulate and affect the actions and conduct of citizens, as held in Tanada. Likewise did the “public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers ( of the defunct Batasang Pambansa)” qualify the information sought in Valmonte as matters of public interest and concern. In AquinoSarmiento v. Morato, the Court also held that official acts of public officers done in pursuit of their official functions are public in character; hence, the records pertaining to such official acts and decisions are within the ambit of the constitutional right of access to public records. Under Republic Act No. 6713, public officials and employees are mandated to “provide information on their policies and procedures in clear and understandable language, [and] ensure openness of information, public consultations and hearing whenever appropriate x x x,” except when “otherwise provided by law or when 56

required by the public interest.” In particular, the law mandates free public access, at reasonable hours, to the annual performance reports of offices and agencies of government and government-owned or controlled corporations; and the statements of assets, liabilities and financial disclosures of all public officials and employees. In general, writings coming into the hands of public officers in connection with their official functions must be accessible to the public, consistent with the policy of transparency of governmental affairs. This principle is aimed at affording the people an opportunity to determine whether those to whom they have entrusted the affairs of the government are honestly, faithfully and competently performing their functions as public servants. Undeniably, the essence of democracy lies in the free-flow of thought; but thoughts and ideas must be well-informed so that the public would gain a better perspective of vital issues confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable and effective manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the people. (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998, [Panganiban]) Recognized Restrictions to the Right of the People to Information on Matters of Public Concern 1) National security matters and intelligence information. This jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters. Likewise, information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest; 2) Trade or industrial secrets (pursuant to the Intellectual Property Code [R.A. No. 8293, approved on June 6, 1997] and other related laws) and banking transactions (pursuant to the Secrecy of Bank Deposits Act [R.A. No. 1405, as amended]);

3) Criminal matters, such as those relating to the apprehension, the prosecution and the detention of criminals, which courts may not inquire into prior to such arrest, detention and prosecution; 4) Other confidential information. The Ethical Standards Act (R.A. No. 6713, enacted on February 20, 1989) further prohibits public officials and employees from using or divulging “confidential or classified information officially known to them by reason of their office and not made available to the public.” (Sec. 7[c], ibid.) Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court. (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998, [Panganiban]) Re: Request for Copy of 2008 Statement of Assets, Liabilities and Networth (SALN) and Personal Data Sheet or Curriculum Vitae of the Justices of the Supreme Court and Officers and Employees of the Judiciary (A.M. No. 09-8-6SC, June 13, 2012, En Banc [Mendoza]) Section 7 of Article III of the Constitution is relevant in the issue of public disclosure of SALN and other documents of public officials.

Thus, while “public concern” like “public interest” eludes exact definition and has been said to embrace a broad spectrum of subjects which the public may want to know, either because such matters naturally arouse the interest of an ordinary citizen, the Constitution itself, under Section 17, Article XI, has classified the information disclosed in the SALN as a matter of public concern and interest. In other words, a “duty to disclose” sprang from the “right to know.” Both of constitutional origin, the former is a command while the latter is a permission. Hence, there is a duty on the part of of the government to disclose their SALNs to the public in the manner provided by law. In the case at bar, the Court notes the valid concerns of the other magistrates regarding the possible illicit motives of some individuals in their requests for access to such personal information and their publication. However, custodians of public documents must not concern themselves with the motives, reasons and objects of the persons seeking to access to the records. The moral or material injury which their misuse might inflict on others is the requestor’s responsibility and lookout. While public officers in the custody or control of public records have the discretion to regulate the manner in which records may be inspected, examined or copied by interested parties, such discretion does not carry with it the authority to prohibit access, inspection, examination, or copying of the records. After all, public office is a public trust.

Emphasizing the import and meaning of the foregoing constitutional provision, the Court, in the landmark case of Valmonte v. Belmonte, Jr., elucidated that the right to information goes hand in hand with the constitutional policies of full The Custodial Investigation Rights public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in government. The importance of the said right was pragmatically explicatedR.A. No. 7438 (An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the Duties of the Arresting, Detaining and that the incorporation of this right in the Constitution is a recognition of the Investigating Officers and Providing Penalties for Violations Thereof) fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nation’s problems nor a meaningful democratic decision-making if they are denied access to information of general The Right to Bail interest. Information is needed to enable the of society to cope with the exigencies of the times. However, restrictions on access to certain records may be In bail application where the accused is charged with a capital offense, will it imposed by law. be proper for the judge to grant bail without conducting hearing if the prosecutor interposes no objection to such application? 57

Jurisprudence is replete with decisions compelling judges to conduct the required hearings in bail applications, in which the accused stands charged with a capital offense. The absence of objection from the prosecution is never a basis for the grant of bail in such cases, for the judge has no right to presume that the prosecutor knows what he is doing on of familiarity with the case. “Said reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused is strong. Judicial discretion is the domain of the judge before whom the petition for provisional liberty will be decided. The mandated duty to exercise discretion has never been reposed upon the prosecutor.” Imposed in Baylon v. Sison was this mandatory duty to conduct a hearing despite the prosecution's refusal to adduce evidence in opposition to the application to grant and fix bail. (Joselito V. Narciso v. Flor Marie Sta. Romana-Cruz, G.R. No. 134504, March 17, 2000, 3rd Div. [Panganiban]) Is a condition in an application for bail that accused be first arraigned before he could be granted bail valid? In the first place x x x in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. For if the information is quashed and the case is dismissed, there would then be no need for the arraignment of the accused. In the second place, the trial court could ensure the presence of petitioner at the arraignment precisely by granting bail and ordering his presence at any stage of the proceedings, such as arraignment. Under Rule 114, Sec. 2(b) of the Rules on Criminal Procedure, one of the conditions of bail is that “the accused shall appear before the proper court whenever so required by the court or these Rules,” while under Rule 116, Sec. 1(b) the presence of the accused at the arraignment is required. On the other hand, to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of 58

a motion to quash so that he can be arraigned at once and thereafter be released on bail. These scenarios certainly undermine the accused’s constitutional right not to be put on trial except upon valid complaint or information sufficient to charge him with a crime and his right to bail. (Lavides v. CA, 324 SCRA 321, Feb. 1, 2000, 2nd Div. [Mendoza]) Government of Hongkong Special istrative Region v. Judge Olalia The decision of the SC in Government of the USA v. Judge Purganan which says that “no bail rule applies in extradition since bail is available only to one who had arrested and detained for violation of Philippine criminal laws” was re-examined and, after re-examination, the rule now is that an extraditee may be allowed to post bail during the pendency of an extradition proceeding. However, for him to be allowed to post bail, still he must prove that (1) once granted bail he will not be a flight risk or a danger to the community; and (2) that there exists special, humanitarian and compelling circumstances that will justify the grant of bail to him, by a clear and convincing evidence. The reason why the Purganan ruling was re-examined is because of the modern trend in public international law where an individual person is no longer considered a mere object of international law but rather as a subject thereof, and the primacy given to human rights, among which is the right to liberty. Juan Ponce Enrile v. Sandiganbayan (3rd Div.), G.R. No. 213847, August 18, 2015, En Banc (Bersamin) A close reading of the ruling of the SC in this case allowing former Senator Juan Ponce Enrile to post bail although he was charged of plunder, a non-bailable offense, was because of the Olalia ruling. In this case, former Senator Enrile was shown not to be a flight risk or a danger to the community (his voluntary surrender to the authorities and his record of respect for court processes in earlier cases), and that there exist special, humanitarian and compelling circumstances (his advanced age, fragile state of health and medical predicament that will require the services of doctors of his choice)

that will justify the grant of bail to him. After all, the main purpose of bail is to assure the presence of an accused during the trial of the case as required by the court. Thus, the Court held: “Nonetheless, in now granting Enrile’s petition for certiorari, the Court is guided by the earlier mentioned principal purpose of bail, which is to guarantee the appearance of the accused at the trial, or whenever so required by the court. The Court is further mindful of the Philippine’s responsibility in the international community arising from the national commitment under the Universal Declaration of Human Rights x x x. “This national commitment to uphold the fundamental human rights as well as value the worth and dignity of every person has authorized the grant of bail not only to those charged in criminal proceedings but also to extraditees upon a clear and convincing showing: (1) that the detainee will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances. “In our view, his social and political standing and his having immediately surrendered to the authorities upon his having been charged in court indicate that the risk of his flight or escape from this jurisdiction is highly unlikely. His personal disposition from the onset of his indictment for plunder, formal or otherwise, has demonstrated his utter respect for the legal processes of this country. We also do not ignore that at an earlier time many years ago when he had been charged with rebellion with murder and multiple frustrated murder, he already evinced a similar personal disposition of respect for the legal processes, and was granted bail during the pendency of his trial because he was not seen as a flight risk. With his solid reputation in both his public and his private lives, his long years of public service, and history’s judgment of him being at stake, he should be granted bail. “The currently fragile state of Enrile’s health presents another compelling justification for his ission to bail x x x. “X x x 59

“Bail for the provisional liberty to the accused, regardless of the crime charged, should be allowed independently of the merits of the charge, provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling hid health and life would not serve the true objective of preventive incarceration during the trial. “Granting bail unprecedented. X x x

to

Enrile

on

the

foregoing

reasons

is

not

“It is relevant to observe that granting provisional liberty to Enrile will then enable him to have his medical condition be properly addressed and better attended to by competent physicians in the hospitals of his choice. This will not only aid in his adequate preparation of his defense but, more importantly, will guarantee his appearance in court for the trial. “On the other hand, to mark time in order to wait for the trial to finish before a meaningful consideration of the application for bail can be had is to defeat the objective of bail, which is to entitle the accused to provisional liberty pending the trial. There may be circumstances decisive of the issue of bail x x x that the courts can already consider in resolving the application for bail without awaiting the trial to finish. The Court thus balances the scales of justice by protecting the interest of the People through ensuring his personal appearance at the trial, and at the same time realizing for him the guarantees of due process as well as to be presumed innocent until proven guilty.”

The Right against Self-incrimination It bears emphasis, however, that under the above-quoted provisions, what is actually proscribed is the use of physical or moral compulsion to extort communication from the accused-appellant and not the inclusion of his body in evidence when it may be material. For instance, substance emitted from the body of the accused may be received as evidence in prosecution for acts of lasciviousness

(US v. Tan Teng, 23 Phil. 145 [1912]) and morphine forced out of the mouth of the accused may also be used as evidence against him (US v. Ong Siu Hong, 36 Phil. 735 [1917]). Consequently, although accused-appellant insists that hair samples were forcibly taken from him and submitted to the NBI for forensic examination, the hair samples may be itted in evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress. (People v. Rondero, 320 SCRA 383, 399-401, Dec. 9, 1999, En Banc [Per Curiam]) Does the right proceedings?

against

self-incrimination

extend

to

istrative

In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to istrative proceedings which possess a criminal or penal aspect, such as an istrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal v. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one’s license as a medical practitioner, is an even greater deprivation than forfeiture of property. (Secretary of Justice v. Lantion, 322 SCRA 160, 184, Jan. 18, 2000, En Banc [Melo]) May the Right against Self-incrimination be validly invoked during Inquiries in Aid of Legislation? [I]t has been held that “a congressional committee’s right to inquire is ‘subject to all relevant limitations placed by the Constitution on governmental action,’ including ‘the relevant limitations of the Bill of Rights’.” One of the basic rights guaranteed by the Constitution to an individual is the right against self-incrimination. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])

60

What are the two types of immunity statutes? Which has broader scope of protection? Our immunity statutes are of American origin. In the United States, there are two types of statutory immunity granted to a witness. They are the transactional immunity and the use-and-derivative-use immunity. Transactional immunity is broader in the scope of its protection. By its grant, a witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction. In contrast, by the grant of use-and-derivative-use immunity, a witness is only assured that his or her particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution. (Mapa, Jr. v. Sandiganbayan, 231 SCRA 783, 797-798, April 26, 1994, En Banc [Puno]) Is the grant of immunity to an accused willing to testify for the government a special privilege and, therefore, must be strictly construed against the accused? [W]e reject respondent court’s ruling that the grant of section 5 immunity must be strictly construed against the petitioners. It simplistically characterized the grant as a special privilege, as if it was gifted by the government, ex gratia. In taking this posture, it misread the raison d’ etre and the long pedigree of the right against selfincrimination vis-à-vis immunity statutes. The days of inquisition brought about the most despicable abuses against human rights. Not the least of these abuses is the expert use of coerced confessions to send to the guillotine even the guiltless. To guard against the recurrence of this totalitarian method, the right against self-incrimination was ensconced in the fundamental laws of all civilized countries. Over the years, however, came the need to assist government in its task of containing crime for peace and order is a necessary matrix of public welfare. To accommodate the need, the right against self-incrimination was stripped of its absoluteness. Immunity statutes in varying shapes were enacted which would allow government to compel a witness to testify despite his plea of the right against self-incrimination. To insulate these statutes from the virus of unconstitutionality, a witness is given what has come to be known as transactional or a use-derivative-use immunity x x x. Quite clearly,

these immunity statutes are not a bonanza from government. Those given the privilege of immunity paid a high price for it – the surrender of their precious right to be silent. Our hierarchy of values demands that the right against self-incrimination and the right to be silent should be accorded greater respect and protection. Laws that tend to erode the force of these preeminent rights must necessarily be given a liberal interpretation in favor of the individual. The government has a right to solve crimes but it must do it, rightly. (Mapa, Jr. v. Sandiganbayan, 231 SCRA 783, 805806, April 26, 1994, En Banc [Puno])

The Right against Double Jeopardy The Two (2) Kinds of Double Jeopardy: Our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of Clause 20, Section 1(now Sec. 21), Article III of the Constitution ordains that “no person shall be twice put in jeopardy of punishment for the same offense.” The second sentence of said clause provides that “if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.” Thus, the first sentence prohibits double jeopardy of punishment for the same offense whereas, the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act, provided that he is charged with different offenses, or the offense charged in one case is not included in, or does not include, the crime charged in the other case. The second sentence applies, even if the offense charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of statute. If the two charges are based on one and the same act, conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment or the same offense. So long as jeopardy has been attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in either case. 61

Elsewhere stated, where the offense charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identity of offenses charged. The constitutional protection against double jeopardy is available only where an identity is shown to exist between the earlier and the subsequent offenses charged. The question of identity or lack of identity of offenses is addressed by examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses involved. (People v. Quijada, 259 SCRA 191, July 24, 1996) To substantiate a claim of double jeopardy, the following must be proven: (1) A first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; (3) the second jeopardy must be for the same offense, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof. Legal jeopardy attaches only: (1) upon a valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused. (Cuison v. CA, 289 SCRA 159, April 15, 1998 [Panganiban])

The Right against Ex Post Facto Law and Bill of Attainder What is a bill of attainder? Is P.D. 1866 a bill of attainder? [T]he Court, in People v. Ferrer, defined a bill of attainder as a legislative act which inflicts punishment on individuals or of a particular group without a judicial trial. Essential to a bill of attainder are a specification of certain individuals or a group of individuals, the imposition of a punishment, penal or otherwise, and the lack of judicial trial. This last element, the total lack of court intervention in the finding of guilt and the determination of the actual penalty to be imposed, is the most essential. P.D. No. 1866 does not possess the elements of a bill of attainder. It

does not seek to inflict punishment without a judicial trial. Nowhere in the measure is there a finding of guilt and an imposition of a corresponding punishment. What the decree does is to define the offense and provide for the penalty that may be imposed, specifying the qualifying circumstances that would aggravate the offense. There is no encroachment on the power of the court to determine after due hearing whether the prosecution has proved beyond reasonable doubt that the offense of illegal possession of firearms has been committed and that the qualifying circumstances attached to it has been established also beyond reasonable doubt as the Constitution and judicial precedents require. (Misolas v. Panga, 181 SCRA 648, 659-660, Jan. 30, 1990, En Banc [Cortes])

statutes may be made applicable to actions pending and unresolved at the time of their age. At any rate, R.A. 8249 has preserved the accused’s right to appeal to the Supreme Court to review questions of law. On the removal of the intermediate review of facts, the Supreme Court still has the power of review to determine if the presumption of innocence has been convincingly overcome. (Panfilo M. Lacson v. The Executive Secretary, et. al., G.R. No. 128096, Jan. 20, 1999 [Martinez])

CITIZENSHIP What is an ex post facto law? Is R.A. No. 8249 an ex post facto law? Ex post facto law, generally, prohibits retrospectivity of penal laws. R.A. 8249 is not a penal law. It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature, and provide for their punishment. R.A. 7975, which amended P.D. 1606 as regards the Sandiganbayan’s jurisdiction, its mode of appeal and other procedural matters, has been declared by the Court as not a penal law, but clearly a procedural statute, i.e., one which prescribes rules of procedure by which courts applying laws of all kinds can properly ister justice. Not being a penal law, the retroactive application of R.A. 8249 cannot be challenged as unconstitutional. Petitioner’s and intervenors’ contention that their right to a two-tiered appeal which they acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention has already been rejected by the court several times considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is not included in the prohibition against ex post facto laws. R.A. 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out a penalty and, therefore, does not come within the prohibition. Moreover, the law did not alter the rules of evidence or the mode of trial. It has been ruled that adjective

62

Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and political rights accorded by the State to its citizens. It likewise demands the concomitant duty to maintain allegiance to one’s flag and country. (Casan Macode Maquiling v. COMELEC, et al., G.R. No. 195649, April 16, 2013, En Banc [Sereno, CJ]) The Jus Sanguinis Principle on Citizenship The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a child follows the nationality or citizenship of the parents regardless of the place of his/her birth, as opposed to the doctrine of jus soli which determines nationality or citizenship on the basis of place of birth. (Valles v. COMELEC, 337 SCRA 543, Aug. 9, 2000, En Banc [Purisima]) Ways of acquiring Citizenship There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the naturalized citizen. A person who at the time of his birth is a citizen of a particular country, is a natural-born citizen thereof.

As defined in the Constitution, natural-born citizens “are those citizens of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship.” On the other hand, naturalized citizens are those who have become Filipino citizens through naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic Act No. 530. (Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan]) Natural-born Citizens Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. (Section 2, Article IV, 1987 Constitution) In general, there are only two (2) kinds of Filipino citizens, i.e., natural-born and naturalized. There is no third category. If one did not have to undergo the cumbersome process of naturalization, it means that he is natural-born. (Antonio Bengson III v. HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan])

As a matter of fact, foundlings are as a class, natural-born citizens. While the 1935 Constitution’s enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either. Because of silence and ambiguity in the numeration with respect to foundlings, there is a need to examine the intent of the framers. X x x [T]he deliberations of the 1934 Constitutional Convention show that the framers intended foundlings to be covered by the enumeration. X x x Though the Rafols amendment was not carried out, it was not because there was any objection to the notion that persons of “unknown parentage” are not citizens but only because their number was not enough to merit specific mention. X x x In other words, the constitutional silence is fully explained in of linguistic efficiency and the avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos, under Article IV, Section 1(3) of the 1935 Constitution. This inclusive policy is carried over into the 1973 and 1987 Constitutions. X x x Domestic laws on adoption also the principle that foundlings are Filipinos. These laws do not provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the first place to be adopted. X x x

Is a Foundling a Natural-born Citizen? To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a theoretical chance that one among the thousands of these foundlings might be the child of not just one, but two, foreigners is downright discriminatory, irrational, and unjust. It just doesn’t make any sense. Given the statistical certainty 99.9% - that any child born in the Philippines would be a naturalborn citizen, a decision denying foundlings such status is effectively a denial of their birthright. There is no reason why this Honorable Court should use an improbable hypothetical to sacrifice the fundamental political rights of an entire class of human beings. Your Honor, constitutional interpretation and the use of common sense are not separate disciplines. 63

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international law can become part of the sphere of domestic law either by transformation or incorporation. X x x The common thread of the UDHR (Universal Declaration of Human Rights), UNCRC (UN Convention on the Rights of the Child) and ICR (International Covenant on Civil and Political Rights) is to obligate the Philippines to grant nationality from birth and ensure that no child is stateless. This grant of nationality must be at the time of birth, and it cannot be accomplished by the application of our present naturalization laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which require the applicant to be at least eighteen (18) years old.

The principles found in two conventions, while yet ungratified by the Philippines, are generally accepted principles of international law. The first is Article 14 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws under which a foundling is presumed to have the “nationality of the country of birth,” x x x. A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it was found. The second is the principle that a foundling is presumed born of citizens of the country where he is found, contained in Article 2 of the 1961 United Nations Convention on the Reduction of Statelessness x x x. Xxx In sum, all of the international law conventions and instruments on the matter of nationality of foundlings were designed to address the plight of a defenseless class which suffers from a misfortune not of their making. We cannot be restrictive as to their application if we are a country which calls itself civilized and a member of the community of nations. X x x (Mary Grace Natividad S. Poe-Llamanzares v. COMELEC, G R. No. 221697, March 8, 2016, En Banc [Perez]) Loss or Reacquisition of Philippine Citizenship Philippine citizenship may be lost or reacquired in the manner provided by law (Section 3, Article IV, 1987 Constitution) There are three (3) ways by which Philippine citizenship may be reacquired, namely: (1) by naturalization; (2) by repatriation; and (3) by direct act of Congress. The Effect of Marriage

64

Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it. (Section 4, Article IV, 1987 Constitution) Dual Citizenship and Dual Allegiance Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. (Section 5, Article IV, 1987 Constitution) This provision is not self-executing. The word employed by Section 5 is “shall.” The law referred to is a future law. Dual Citizenship distinguished from Dual Allegiance. Dual citizenship arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Dual allegiance, on the other hand, refers to a situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition. (Mercado v. Manzano, 307 SCRA 630, May 26, 1999, En Banc [Mendoza]) What is the main concern of Section 5, Article IV, 1987 Constitution, on citizenship? Consequently, are persons with mere dual citizenship disqualified to run for elective local positions under Section 40(d) of the Local Government Code? In including Section 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase “dual citizenship” in R.A. No. 7160, Section 40(d)

(Local Government Code) must be understood as referring to “dual allegiance.” Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificate of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment. (Mercado v. Manzano, G.R. No. 135083, 307 SCRA 630, May 26, 1999 [Mendoza]) Instances when a citizen of the Philippines may possess dual citizenship considering the citizenship clause (Article IV) of the Constitution.

natural-born citizens of the Philippines who may wish to become a citizen of a foreign country through naturalization after the effectivity of this Act. In both cases, they are given the opportunity to either reacquire (reacquisition) or retain (retention) their Philippine citizenship. Thus, in effect, they will possess dual citizenship. Casan Macode Maquiling v. COMELEC, et al., G.R. No. 195649, April 16, 2013, En Banc (Sereno, CJ) When after renouncing his American citizenship upon his filing of certificate of candidacy for mayor, it was established that he travelled several times to the US using his American port, that was an effective recantation of his renunciation of his foreign citizenship. Thus, he reverted to his prior status as a person having dual citizenship and, therefore, disqualified to run for mayor pursuant to Sec. 40 (d) of the Local Government Code (R.A. No. 7061). Held:

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

Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:

Republic Act No. 9225 (The Citizenship Retention and Reacquisition Act of 2003)

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to ister an oath. X x x

Sometimes, this law has been referred to as the dual citizenship law. The law applies to: (1) former natural-born citizens of the Philippines who have already become citizens of a foreign country through naturalization; and (2) 65

Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:

Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of Allegiance and renounced his foreign citizenship. There

is no question that after performing these twin requirements required under Section 5(2) of R.A. Act No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003, he became eligible to run for public office. Indeed, Arnado took the Oath of Allegiance not just only once but twice. By taking the Oath of Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At the time, however, he likewise possessed American citizenship. Arnado had therefore become a dual citizen. After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by executing an Affidavit of Renunciation, thus completing the requirements for eligibility to run for public office. By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of the effect of such renunciation under the laws of the foreign country. However, this legal presumption does not operate permanently and is open to attack when, after renouncing the foreign citizenship, the citizen performs positive acts showing his continued possession of a foreign citizenship. Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign citizenship, he continued to use his US port to travel in and out of the country. The pivotal question to determine is whether he was solely and exclusively a Filipino citizen at the time he filed his certificate of candidacy, thereby rendering him eligible to run for public office. The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights granted by the foreign country which granted the citizenship.

While the act of using a foreign port is not one of the acts enumerated in Commonwealth Act No. 63 constituting renunciation and loss of Philippine citizenship, it is nevertheless an act which repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen of another country to be qualified to run for a local elective position. Xxx We agree with the COMELEC En Banc that such act of using a foreign port does not divest Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented himself as an American citizen by using his US port. This act of using a foreign port after renouncing one’s foreign citizenship is fatal to Arnado’s bid for public office, as it effectively imposed on him a disqualification to run for an elective local position. Arnado’s category of dual citizenship is that by which foreign citizenship is acquired through a positive act of applying for naturalization. This is distinct from those considered dual citizens by virtue of birth, who are not required by law to take the oath of renunciation as the mere filing of the certificate of candidacy already caries with it an implied renunciation of foreign citizenship. Dual citizens by naturalization, on the other hand, are required to take not only the Oath of Allegiance to the Republic of the Philippines but also to personally renounce foreign citizenship in order to qualify as a candidate for public office. By the time he filed his certificate of candidacy Arnado was a dual citizen enjoying the rights and privileges of Filipino and American citizenships. He was qualified to vote, but by express disqualification under Section 40(d) of the Local Government Code, he was not qualified to run for a local elective position.

Xxx Xxx 66

The citizenship requirement for elective public office is a continuing one. It must be possessed not just at the time of the renunciation of the foreign citizenship but continuously. Any act which violates the oath of renunciation opens the citizenship issue to attack. We agree with the pronouncement of the COMELEC First Division that “Arnado’s act of continuously using his US port effectively negated his Affidavit of Renunciation.” This does not mean that he failed to comply with the twin requirements under R.A. No. 9225, for he in fact did. It was after complying with the requirements that he performed positive acts which effectively disqualified him from running for an elective public office pursuant to Section 40(d) of the Local Government Code of 1991. Xxx Besides, Arnado’s subsequent use of his Philippine port does not correct the fact that after he renounced his foreign citizenship and prior to filing his certificate of candidacy, he used his US port. In the same way that the use of his foreign port does not undo his Oath of Renunciation, his subsequent use of his Philippine port does not undo his earlier use of his US port. Xxx We therefore hold that Arnado, by using his US port after renouncing his American citizenship, has recanted the same Oath of Renunciation he took. Section 40(d) of the Local Government Code applies to his situation. He is disqualified not only from holding the public office but even from becoming a candidate in the May 2011 elections. Naturalization Naturalization signifies the act of formally adopting a foreigner into the political body of a nation by clothing him or her with the privileges of a citizen. (Edison So v. Republic of the Philippines, G.R. No. 170603, January 29, 2007, 3rd Div., [Callejo, Sr.]) 67

Ways by which an Alien may become a Citizen by Naturalization Under current and existing laws, there are three ways by which an alien may become a citizen by naturalization: (a) istrative naturalization pursuant to R.A. No. 9139; (b) judicial naturalization pursuant to C.A. No. 473, as amended; and (c) legislative naturalization in the form of a law enacted by Congress bestowing Philippine citizenship to an alien. (Edison So v. Republic of the Philippines, G.R. No. 170603, January 29, 2007, 3rd Div., [Callejo, Sr.]) Republic Act No. 9139 (Providing for istrative Naturalization of an Alien) R.A. No. 9139 was enacted as a remedial measure intended to make the process of acquiring Philippine citizenship less tedious, less technical and more encouraging. It likewise addresses the concerns of degree holders who, by reason of lack of citizenship requirement, cannot practice their profession, thus promoting “brain gain” for the Philippines. May All Aliens Avail of the Benefits of istrative Naturalization under R.A. No. 9139? R.A. No. 9139 may be availed of only by native-born aliens who lived here in the Philippines all their lives, who never saw any other country and all along thought that they were Filipinos; who have demonstrated love and loyalty to the Philippines and affinity to the customs and traditions of the Filipino people. To reiterate, the intention of the legislature in enacting R.A. No. 9139 was to make the process of acquiring Philippine citizenship less tedious, less technical and more encouraging which is istrative rather than judicial in nature. What the legislature had in mind was merely to prescribe another mode of acquiring Philippine citizenship which may be availed of by native born aliens. The only implication is that, a native born alien has the choice to apply for judicial or istrative naturalization, subject to the prescribed qualifications and disqualifications. (Edison So v. Republic of the Philippines, G.R. No. 170603, January 29, 2007, 3rd Div., [Callejo, Sr.]

ISTRATIVE LAW The Doctrine of Primary Jurisdiction or Prior Resort The Doctrine of Exhaustion of istrative Remedies Under the doctrine of exhaustion of istrative remedies, before a party is allowed to seek the intervention of the court, one should have availed first of all the means of istrative processes available. If resort to a remedy within the istrative machinery can still be made by giving the istrative 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. For reasons of comity and convenience, courts of justice shy away from dispute until the system of istrative redress has been completed and complied with, so as to give the istrative agency concerned every opportunity to correct its error and dispose of the case. X x x. (Saturnino C. Ocampo, et al. v. Rear iral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc [Peralta])

THE LAW OF PUBLIC OFFICERS Public Office is a Public Trust Conchita Carpio-Morales v. Court of Appeals (6th Div.), G.R. Nos. 217126-27, November 10, 2015 (Perlas-Bernabe) Nature of Appointment as Discretionary Flores v. Drilon

The Ombudsman has istrative Disciplinary Authority over all Public Officers and Employees The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over of Congress, and the Judiciary. (Sec. 21, R.A. No. 6770) In the exercise of its istrative Jurisdiction, the Ombudsman may impose Preventive Suspension The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent’s continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6) month, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. (Sec. 24, R.A. No. 6770) No Writ of Injunction shall be issued by any Court to delay an Investigation being conducted by the Ombudsman

The Powers of the Ombudsman Conchita Carpio-Morales v. Court of Appeals (6 November 10, 2015 (Perlas-Bernabe) 68

th

Div.), G.R. Nos. 217126-27,

No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless

there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman. No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law. (Sec. 14, R.A. No. 6770) Caveat: The second paragraph of Section 14 of Republic Act No. 6770 is declared UNCONSTITUTIONAL, while the policy against the issuance of provisional injunctive writs by courts other than the Supreme Court to en an investigation conducted by the Office of the Ombudsman under the first paragraph of the said provision is declared INEFFECTIVE until the Court adopts the same as part of the rules of procedure through an istrative circular duly issued therefor. (Conchita Carpio Morales v. Court of Appeals [Sixth Division], GR Nos. 217126-27, November 10, 2015, En Banc [Perlas-Bernabe]). Effectivity and Finality of Decisions of Ombudsman All provisionary orders of the Office of the Ombudsman are immediately effective and executory. Xxx In all istrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court. (This provision was declared unconstitutional by the Supreme Court in Fabian v. Desierto, 356 Phil. 787 [1998], as it contravened Section 30, Article VI of the Constitution. In effect the provision increased the appellate jurisdiction of the Supreme Court without its consent under that provision. Henceforth, decisions of the Ombudsman in 69

istrative cases should be filed with the Court of Appeals under that ruling.) The Law on Nepotism Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: a) b) c) d)

appointing authority; recommending authority; chief of the bureau or office; and person exercising immediate supervision over the appointee.

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

Jurisprudential law (Reyes v. Delim, 368 SCRA 323, 333 [2001]; Yabut v.

Office of the Ombudsman, 233 SCRA 310, 316-317 [1994]; Beja, Sr. v. Court of Appeals, 207 SCRA 689, 694 [1992]) establishes a clear-cut distinction between suspension as preventive measure and suspension as penalty. The distinction, by considering the purpose aspect of the suspensions, is readily cognizable as they have different ends to be achieved.

En ant, neither may the concept of crediting, criminal law, preventive imprisonment in the service of a convict’s term of imprisonment (Article 29 of the Revised Penal Code) be applied to preventive suspension during investigation in istrative law in the service of a respondent’s final penalty of suspension. For not only are they distinct in the objective or purpose, or in their nature as preventive imprisonment involves restriction of personal liberties which is not the case with preventive suspension; the respective laws covering them are explicit. (Quimbo v.

Gervacio, 466 SCRA 277, Aug. 9, 2005, 3rd Div. [Carpio-Morales]) Preventive suspension is merely a preventive measure, a preliminary step in an istrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the penalty. That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the Omnibus Rules Implementing Book V of the istrative Code of 1987 (Executive Order No. 292) and other Pertinent Civil Service Laws. Xxx

The Doctrine of Condonation A public official cannot be removed for istrative 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 foregoing rule, however, finds no application to criminal cases pending against petitioner. (Aguinaldo v. Santos, 212 SCRA 768, 773 [1992]) Reason for the Doctrine The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds. (Mayor Alvin B. Garcia v. Hon. Arturo C. Mojica, et al., G.R. No. 139043, Sept. 10, 1999 [Quisumbing]) Caveat:

Clearly, service of the preventive suspension cannot be credited as service of penalty. To rule otherwise is to disregard above-quoted Sections 24 and 25 of the istrative Code of 1987 and render nugatory the substantial distinction between, and purposes of imposing preventive suspension and suspension as penalty. Xxx

70

This Doctrine of Condonation was abandoned by the Supreme Court in the more recent case of Conchita Carpio Morales v. Court of Appeals (Sixth Division), GR Nos. 217126-27, November 10, 2015, En Banc (Perlas-Bernabe). However, the abandonment of the doctrine was given prospective application only. The Origin of the Condonation Doctrine Generally speaking, condonation has been defined as “[a] victim’s express or implied forgiveness of an offense, [especially] by treating the offender as if there had been no offense.”

The condonation doctrine – which connotes this same sense of complete extinguishment of liability x x x - is not based on statutory law. It is a jurisprudential creation that originated from the 1959 case of Pascual v. Hon. Provincial Board of Nueva Ecija (106 Phil. 466 [1959]), which was therefore decided under the 1935 Constitution.

At any rate, these US cases are only of persuasive value in the process of this Court’s decision-making. “[They] are not relied upon as precedents, but as guides of interpretation.” Therefore, the ultimate analysis is on whether or not the condonation doctrine, as espoused in Pascual, and carried over in numerous cases after, can be held up against prevailing legal norms. Note that the doctrine of stare decisis does not preclude this Court from revisiting existing doctrine. X x x

Xxx As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to American authorities and “found that cases on the matter are conflicting due in part, probably, to differences in statutes and constitutional provisions, and also, in part, to a divergence of views with respect to the question of whether the subsequent election or appointment condones the prior misconduct.” Without going into the variables of these conflicting views and cases, it proceeded to state that: The weight of authorities x x x seems to incline toward the rule denying the right to remove from office because of misconduct during a prior term, to which we fully subscribe. The conclusion is at once problematic since the Court has now uncovered that there is really no established weight of authority in the United States (US) favoring the doctrine of condonation, which, in the words of Pascual, theorizes that an official’s re-election denies the right to remove him from office due to a misconduct during a prior term. In fact, x x x at least seventeen (17) states in the US have abandoned the condonation doctrine. X x x Xxx Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there is a “weight of authority” in the US on the condonation doctrine. In fact, without any cogent exegesis to show that Pascual had ed for the numerous factors relevant to the debate on condonation, an outright adoption of the doctrine in this jurisdiction would not have been proper. 71

In this case, the Court agrees x x x that since the time Pascual was decided, the legal landscape has radically shifted. Again, Pascual was a 1959 case decided under the 1935 Constitution, which dated provisions do not reflect the experience of the Filipino people under the 1973 and 1987 Constitutions. Therefore, the plain difference in setting, including, of course, the sheer impact of the condonation doctrine on public ability, calls for Pascual’s judicious re-examination. Testing the Condonation Doctrine Pascual’s ratio decidendi may be dissected into three (3) parts: First, the penalty of removal may not be extended beyond the term in which the public officer was elected for each term is separate and distinct x x x. Second, an elective official’s re-election serves as a condonation of previous misconduct, thereby cutting the right to remove him therefor; and Third, courts may not deprive the electorate, who are ssumed to have known the life and character of candidates, of their right to elect officers x x x. Xxx The Court, citing Civil Service Commission v. Sojor (577 Phil. 52, 72 [2008]), also clarified that the condonation doctrine would not apply to appointive officials since, as to them, there is no sovereign will to disenfranchise x x x. Xxx

A thorough review of the cases post-1987 x x x would show that the basis for condonation under the prevailing constitutional and statutory framework was never ed for. What remains apparent from the text of these cases is that the basis for condonation, as jurisprudential doctrine, was – and still remains – the above-cited postulates of Pascual, which was lifted from rulings of US courts where condonation was amply ed by their own state laws. With respect to its applicability to istrative cases, the core premise of condonation - that is, an elective official’s re-election cuts off the right to remove him for an istrative offense committed during a prior term – was adopted hook, line, and sinker in our jurisprudence largely because the legality of that doctrine was never tested against existing legal norms. As in the US, the propriety of condonation is – as it should be – dependent on the legal foundation of the adjudicating jurisdiction. Hence, the Court undertakes an examination of our current laws in order to determine if there is legal basis for the continued application of the doctrine of condonation. Xxx As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided within the context of the 1935 Constitution which was silent with respect to public ability, or of the nature of public office being a public trust. The provision in the 1935 Constitution that comes closest in dealing with public office is Section 2, Article II which states that “[t]he defense of the State is a prime duty of government, and in the fulfillment of this duty all citizens may be required by law to render personal military or civil service.” Perhaps owing to the 1935 Constitution’s silence on public ability, and considering the dearth of jurisprudential rulings on the matter, as well as the variance in the policy considerations, there was no glaring objection confronting the Pascual Court in adopting the condonation doctrine that originated from select US cases existing at that time. With the advent of the 1973 Constitution, the approach in dealing with public officers underwent a significant change. The new charter introduced an entire article on ability of public officers, found in Article XIII. Section 1 thereof positively recognized, acknowledged, and declared that “[p]ublic office is a public trust.” Accordingly, “[p]ublic officers and employees shall serve with the highest 72

degree of responsibility, integrity, loyalty and efficiency, and shall remain able to the people.” After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the 1987 Constitution, which sets forth in the Declaration of Principles and State Policies in Article II that “[t]he State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.” Learning how unbridled power could corrupt public servants under the regime of a dictator, the Framers put primacy on the integrity of the public service by declaring it as a constitutional principle and a State policy. More significantly, the 1987 Constitution strengthened and solidified what have been first proclaimed in the 1973 Constitution by commanding public officers to be able to the people at all times. Xxx The same mandate is found in the Revised istrative Code under the section of the Civil Service Commission, and also, in the Code of Conduct and Ethical Standards for Public Officials and Employees. For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an elective local official from office are stated in Section 60 of Republic Act No. 7160, otherwise known as the “Local Government Code of 1991” (LGC), which was approved on October 10, 1991, and took effect on January 1, 1992. Xxx Related to this provision is Section 40 (b) of the LGC which states that those removed from office as a result of an istrative case shall be disqualified from running for any elective local position. In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal from service carries the accessory penalty of perpetual disqualification from holding public office.

In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed the unexpired term of the elective local official nor constitute a bar to his candidacy for as long as he meets the qualifications required for the office. Note, however, that the provision only pertains to the duration of the penalty and its effect on the official’s candidacy. Nothing therein states that the istrative liability therefor is extinguished by the fact of re-election x x x. Reading the 1987 Constitution together with the above-cited legal provisions now leads this Court to the conclusion that the doctrine of condonation is actually bereft of legal bases. To begin with, the concept of public office is a public trust and the corollary requirement of ability to the people at all times, as mandated under the 1987 Constitution, is plainly inconsistent with the idea that an elective local official’s istrative liability for a misconduct committed during a prior term can be wiped off by the fact that he was elected to a second term of office, or even another elective post. Election is not a mode of condoning an istrative offense, and there is simply no constitutional or statutory basis in our jurisdiction to the notion that an official elected for a different term is fully absolved of any istrative liability arising from an offense done during a prior term. In this jurisdiction, liability arising from istrative offenses may be condoned by the President in light of Section 19, Article VII of the 1987 Constitution which was interpreted in Llamas v. Orbos (279 Phil. 920, 937 [1991]) to apply to istrative offenses x x x. Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated therein cannot anymore be invoked against an elective local official to hold him istratively liable once he is re-elected to office. In fact, Section 40 (b) of the LGC precludes condonation since in the first place, an elective local official who is meted with the penalty of removal could not be re-elected to an elective local position due to a direct disqualification from running for such post. In similar regard, Section 52 (a) of the RRACCS imposes penalty of perpetual disqualification from holding public office as an accessory to the penalty of dismissal from service. 73

To compare, some of the cases adopted in Pascual were decided by US State jurisdictions wherein the doctrine of condonation of istrative liability was ed by either a constitutional or statutory provision stating, in effect, that an officer cannot be removed by a misconduct committed during a previous term, or that the disqualification to hold the office does not extend beyond the term in which the official’s delinquency occurred. X x x. Hence, owing to either their variance or inapplicability, none of these cases can be used as basis for the continued adoption of the condonation doctrine under our existing laws. At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of suspension beyond the unexpired portion of the elective local official’s term, and likewise allows said official to still run for re-election. X x x. However, as previously stated, nothing in Section 66 (b) states that the elective local official’s istrative liability is extinguished by the fact of re-election. Thus, at all events, no legal provision actually s the theory that the liability is condoned. Relatedly, it should be clarified that there is no truth in Pascual’s postulation that the courts would be depriving the electorate of their right to elect their officers if condonation were not to be sanctioned. In political law, election pertains to the process by which a particular constituency chooses an individual to hold a public office. In this jurisdiction, there is, again, no legal basis to conclude that election automatically implies condonation. Neither is there any legal basis to say that every democratic and republican state has an inherent regime of condonation. If condonation of an elective official’s istrative liability would perhaps be allowed in this jurisdiction, then the same should have been provided by law under our governing legal mechanisms. May it be at the time of Pascual or at present, by no means has it been shown that such a law, whether in a constitutional or statutory provision, exists. Therefore, inferring from this manifest absence, it cannot be said that the electorate’s will has been abdicated. Equally infirm is Pascual’s proposition that the electorate, when re-electing a local official, are assumed to have done so with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. Suffice it to state that no such presumption exists in any statute or

procedural rule. Besides, it is contrary to human experience that the electorate would have full knowledge of a public official’s misdeeds. The Ombudsman correctly points out the reality that most corrupt acts by public officers are shrouded in secrecy, and concealed from the public. Misconduct committed by an elective public official is easily covered up, and is almost always unknown to the electorate when they cast their votes. At a conceptual level, condonation presupposes that the condoner has actual knowledge of what is to be condoned. Thus, there could be no condonation of an act that is unknown. X x x. That being said, this Court simply finds no legal authority to sustain the condonation doctrine in this jurisdiction. As can be seen from this discourse, it was a doctrine from one class of US rulings way back in 1959 and thus out of touch from – and now rendered obsolete by – the current legal regime. In consequence, it is high time for this Court to abandon the condonation doctrine that originated from Pascual, and affirmed in the cases following the same, such as Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. which were all relied upon by the CA. It should, however, be clarified that this Court’s abandonment of the condonation doctrine should be prospective in application for the reason that judicial decisions applying or interpreting the laws or the Constitution, until reversed, shall form part of the Philippine legal system. Unto this Court devolves the sole authority to interpret what the Constitution means, and all persons are bound to follow its interpretation. X x x Hence, while the future may ultimately uncover a doctrine’s error, it should be, as a general rule, recognized as “good law” prior to its abandonment. Consequently, the people’s reliance thereupon should be respected. X x x Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and rectify its ensuing course. Thus, while it is truly perplexing to think that a doctrine which is barren of legal anchorage was able to endure in our jurisprudence for a considerable length of time, this Court, under a new hip, takes up the cudgels and now abandons the condonation doctrine. (Conchita Carpio Morales v. Court of Appeals [Sixth Division], GR Nos. 217126-27, November 10, 2015, En Banc [Perlas-Bernabe]) 74

ELECTION LAWS Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. (Section 1, Article V, 1987 Constitution) The Right of Suffrage Kabataan Party-list, et al., v. Commission on Elections, G.R. No. 221318, December 16, 2015, En Banc (Perlas-Bernabe) Held: “With these considerations in mind, petitioners’ claim that biometrics validation imposed under RA 10367, and implemented under COMELEC Resolution Nos. 9721, 9863, 10013, must perforce fail. To reiterate, this requirement is not a “qualification” to the exercise of the right of suffrage, but a mere aspect of the registration procedure, of which the State has the right to reasonably regulate. It was institutionalized conformant to the limitations of the 1987 Constitution and is a mere complement to the Existing Voter’s Registration Act of 1996. X x x “Thus, unless it is shown that a registration requirement rises to the level of a literacy, property or other substantive requirement as contemplated by the Framers of the Constitution – that is, one which propagates a socio-economic standard which is bereft of any rational basis to a person’s ability to intelligently cast his vote and to further the public good – the same cannot be struck down as unconstitutional, as in this case.” Applying the Strict Scrutiny Test to RA 10367

“Petitioners assert that biometrics validation gravely violates the Constitution, considering that, applying the strict scrutiny test, it is not poised with compelling reason for state regulation and hence, an unreasonable deprivation of the right to suffrage. X x x “Contrary to petitioners’ assertion, the regulation es the strict scrutiny test. “In of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms. Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection. X x x the United States Supreme Court has expanded the scope of scrutiny to protect fundamental rights such as suffrage, judicial access, and interstate travel. “Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest, and the burden befalls upon the State to prove the same. “In this case, respondents have shown that the biometrics validation requirement under RA 10367 advances a compelling state interest. It was precisely designed to facilitate the conduct of orderly, honest, and credible elections by containing – if not eliminating, the perennial problem of having flying voters, as well as dead and multiple registrants. X x x the objective of the law was to cleanse the national voter registry so as to eliminate electoral fraud and ensure that the results of the elections were truly reflective of the genuine will of the people. The foregoing consideration is unquestionably a compelling state interest. “Also, it was shown that the regulation is the least restrictive means for achieving the above-said interest. Section 6 of Resolution 9721 sets the procedure for biometrics validation x x x. It is, in effect, a manner of updating one’s registration 75

for those already ed under RA 8189, or a first-time registration for new registrants. The re-registration process is amply justified by the fact that the government is adopting a novel technology like biometrics in order to address the bane of electoral fraud that has enduringly plagued the electoral exercises in this country. While registrants may be inconvenienced by waiting in long lines or by not being accommodated on certain days due to heavy volume of work, these are typical burdens of voting that are remedied by bureaucratic improvements to be implemented by the COMELEC as an istrative institution. By and large, the COMELEC has not turned a blind eye to these realities. It has tried to for the exigencies x x x. “That being said, the assailed regulation on the right to suffrage was sufficiently justified as it was indeed narrowly tailored to achieve the compelling state interest of establishing a clean, complete, permanent and updated list of voters, and was demonstrably the least restrictive means in promoting that interest. Makalintal v. COMELEC There is now an exception to the residence qualification of a voter under Section 1, Article V on Suffrage of the Constitution, and that is, with respect to overseas Filipinos, permanent residents of a foreign country under R.A. No. 9189 (The Absentee Voters Act of 2003). Under said Act, overseas Filipinos, permanent residents in a foreign country, are now allowed to and vote before our embassies and consulates abroad for President, Vice-President, Senators, and Party-list Representative. There is a clear intent on the part of the framers of our Constitution to enfranchise as many of our overseas countrymen in recognition of their tremendous contributions to the national economy in of dollar remittances. It is but fair that their voices should be heard on who should be our national leaders. Effect of Filing Certificate of Candidacy What is the purpose of the law in requiring the filing of certificate of candidacy and in fixing the time limit therefor?

The evident purpose of the law in requiring the filing of certificate of candidacy and in fixing the time limit therefor are: (a) to enable the voters to know, at least sixty days before the regular election, the candidates among whom they are to make the choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast. For if the law did not confine the choice or election by the voters to the duly ed candidates, there might be as many persons voted for as there are voters, and votes might be cast even for unknown or fictitious persons as a mark to identify the votes in favor of a candidate for another office in the same election. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999)

second placer who loses to an ineligible candidate cannot be proclaimed as the winner in the elections.

May a disqualified candidate and whose certificate of candidacy was denied due course and/or canceled by the COMELEC be validly substituted?

This case is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing “the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections x x x [with] that produced by declaring a person ineligible to hold such an office.”

Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was. The Court has no other choice but to rule that in all instances enumerated in Section 77 of the Omnibus Election Code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non. All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the Code. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999, en Banc [Melo])

Xxx The often-quoted phrase in Topacio v. Paredes is that “the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots.”

Xxx On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to stand on. It was a mere pronouncement of the Court comparing one process with another and explaining the effects thereof. As an independent statement, it is even illogical. Xxx What prevents the transfer of the wreath of victory from the ineligible candidate to another candidate?

Effect of Disqualification Case Abandoning the Doctrine of the Rejection of the Second-Placer Resolving the third issue necessitates revisiting Topacio v. Paredes which is the jurisprudential spring of the principle that a second-placer cannot be proclaimed as the winner in an election contest. This doctrine must be re-examined and its soundness once again put to the test to address the ever-recurring issue that a 76

When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of the legally cast ballots and ineligibility is thereafter established, what stops the Court from adjudging another eligible candidate who received the next highest number of votes as the winner and bestowing upon him that “wreath?” An ineligible candidate who receives the highest number of votes is a wrongful winner. By express legal mandate, he could not even have been a

candidate in the first place, but by virtue of the lack of material time or any other intervening circumstances, his ineligibility might not have been ed upon prior to election date. Consequently, he may have had the opportunity to hold himself out to the electorate as a legitimate and duly qualified candidate. However, notwithstanding the outcome of the elections, his ineligibility as a candidate remains unchanged. Ineligibility does not only pertain to his qualifications as a candidate but necessarily affects his right to hold public office. The number of ballots cast in his favor cannot cure the defect of failure to qualify with the substantive legal requirements of eligibility to run for public office. (Casan Macode Maquiling v. COMELEC, et al., G.R. No. 195649, April 16, 2013, En Banc [Sereno, CJ]) With Arnado’s disqualification, Maquiling then becomes the winner in the election as he obtained the highest number of votes from among the qualified candidates. We have ruled in the recent cases of Aratea v. COMELEC and Jalosjos v. COMELEC that a void COC cannot produce any legal effect. Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an election. Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the sole and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate candidates form part of that voice and must also be respected. As in any contest, elections are governed by rules that determine the qualifications and disqualifications of those who are allowed to participate as players. When there are participants who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates. Xxx The electorate’s awareness of the candidate’s disqualifications is not a prerequisite for the disqualification to attach to the candidate. The very existence of 77

a disqualifying circumstance makes the candidate ineligible. Knowledge by the electorate of a candidate’s disqualification is not necessary before a qualified candidate who placed second to a disqualified one can be proclaimed as the winner. The second-placer in the vote count is actually the first-placer among the qualified candidates. That the disqualified candidate has already been proclaimed and has assumed office is of no moment. The subsequent disqualifications based on a substantive ground that existed prior to the filing of the certificate of candidacy voids not only the COC but the proclamation. Xxx The disqualifying circumstance surrounding Arnado’s candidacy involves his citizenship. It does not involve the commission of election offenses as provided for in the first sentence of Section 68 of the Omnibus Election Code, the effect of which is to disqualify the individual from continuing as a candidate, or if has already been elected, from holding the office. The disqualifying circumstance affecting Arnado is his citizenship. X x x Arnado was both a Filipino and an American citizen when he filed his certificate of candidacy. He was a dual citizen disqualified to run for public office based on Section 40(d) of the Local Government Code. With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus rendered void from the beginning. It could not have produced any other legal effect x x x. To hold that such proclamation is valid is to negate the prohibitory character of the disqualification which Arnado possessed even prior to the filing of the certificate of candidacy. The affirmation of Arnado’s disqualification, although made long after the elections, reaches back to the filing of the certificate of candidacy. Arnado is declared to be not a candidate at all in the May 2010 elections.

Arnado being not a candidate, the votes cast in his favor should not have been counted. This leaves Maquiling as the qualified candidate who obtained the highest number of votes therefore, the rule on succession under the Local Government Code will not apply. (Casan Macode Maquiling v. COMELEC, et al., G.R. No. 195649, April 16, 2013, En Banc [Sereno, CJ])

THE LAW OF PUBLIC CORPORATIONS Local Governments are the Territorial and Political Subdivisions of the Republic of the Philippines 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. (Section 1, Article X, 1987 Constitution) Autonomous Regions 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. (Section 15, Article X, 1987 Constitution) 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 multisectoral 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 acts shall likewise provide for 78

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 majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographical areas voting favorably in such plebiscite shall be included in the autonomous region. (Sec. 18, Art. X, 1987 Constitution) The Province of North Cotabato v. The Government of the Republic of the Philippines Peace , G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc (Carpio-Morales) Creation of Local Governments 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. (Section 10, Article X, 1987 Constitution) Rodolfo G. Navarro, et al. v. Executive Secretary Eduardo Ermita, et al., G.R. No. 180050, 12 May 2010, En Banc (Peralta) Section 7, Chapter 2 paragraph (c) of the Local Government Code (LGC), provides that the land area must be contiguous, unless it comprises two (2) or more islands, or is separated by a local 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 requirements of its populace. Therefore, there are two requirements for land area: (1) the land area must be contiguous; and (2) the land area must be sufficient to provide for such basic services and facilities to meet the requirements of its populace. A sufficient land area in the creation of a province is at least 2,000 square kilometers, as provided by Section 461 of LGC.

Hence x x x the requirement of a contiguous territory and the requirement of a land area of at least 2,000 square kilometers are distinct and separate requirements for land area under paragraph (a) (i) of Section 461 and Section 7 (c) of LGC.

procedure prescribed by law); and the substantive (i.e., involving inherent merit, like the conformity of the ordinance with the limitations under the Constitution and the statutes, as well as with the requirements of fairness and reason, and its consistency with public policy).

However, paragraph (b) of Section 461 provides two instances of exemption from the requirement of territorial contiguity, to wit, “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.”

The formalities in enacting an ordinance are laid down in Section 53 and Section 54 of The Local Government Code. These provisions require the ordinance to be ed by the majority of the of the sanggunian concerned, and presented to the mayor for approval. X x x.

The exemption above pertains only to the requirement of territorial contiguity. It clearly states that the requirement of territorial contiguity may be dispensed with in the case of a province comprising two or more islands, or is separated by a chartered city or cities which do not contribute to the income of the province. Nowhere in paragraph (b) is it expressly stated or may it be implied that when a province is composed of two or more islands, or when the territory of a province is separated by a chartered city or cities, such province need not comply with the land area requirement of at least 2,000 square kilometers or the requirement in paragraph (a) (i) of Section 461 of LGC. Where the law is free from ambiguity, the court may not introduce exceptions or conditions where none is provided from considerations of convenience, public welfare, or for any laudable purpose; neither may it engraft into the law qualifications not contemplated, nor construe its provisions by taking into questions of expediency, good faith, practical utility and other similar reasons so as to relax noncompliance therewith. Where the law speaks in clear and categorical language, there is no room for interpretation, but only for application. Powers of Local Governments

The corporate powers of the local government unit confer the basic authority to enact legislation that may interfere with personal liberty, property, lawful businesses and occupations in order to promote the general welfare. Such legislative powers spring from the delegation thereof by Congress through either the Local Government Code or a special law. The General Welfare Clause in Section 16 of the Local Government Code embodies the legislative grant that enables the local government unit to effectively accomplish and carry out the declared objects of its creation, and to promote and maintain local autonomy. X x x. Section 16 comprehends two branches of delegated powers, namely: the general legislative power and the police power proper. General legislative power refers to the power delegated by Congress to the local legislative body, or the Sangguniang Panlungsod in the case of Davao City, to enable the local legislative body to enact ordnances and make regulations. This power is limited in that the enacted ordinances must not be repugnant to law, and the power must be exercised to effectuate and discharge the powers and duties legally conferred to the local legislative body. The police power, on the other hand, authorizes the local government unit to enact ordinances necessary and proper for the health and safety, prosperity, morals, peace, good order, comfort, and convenience of the local government unit and its constituents, and for the protection of their property.

Corporate Powers of Local Governments To be considered as a valid police power, an ordinance must a twopronged test: the formal (i.e., whether the ordinance is enacted within the corporate powers of the local government unit, and whether it is ed in accordance with the 79

Section 458 of the Local Government Code explicitly vests the local government unit with the authority to enact ordinances aimed at promoting the general welfare x x x.

In of the right of the citizens to health and to a balanced and healthful ecology, the local government unit takes its cue from Section 15 and Section 16, Article II of the 1987 Constitution. Following the provisions of the Local Government Code and the Constitution, the acts of the local government unit designed to ensure the health and lives of its constituents and to promote a balanced and healthful ecology are well within the corporate powers vested in the local government unit. X x x. (Wilfredo Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, et al., G.R. No. 189185, August 16, 2016, En Banc [Bersamin])

powers and functions with respect to pesticides and other agricultural chemicals x x x. Evidently, the FPA was responsible for ensuring the compatibility between the usage and the application of pesticides in agricultural activities and the demands for human health and environmental safety. This responsibility includes not only the identification of safe and unsafe pesticides, but also the prescription of the safe modes of application in keeping with the standard of good agricultural practices.

Requisites of a Valid Ordinance A valid ordinance must not only be enacted within the corporate powers of the local government and ed according to the procedure prescribed by law. In order to declare it as a valid piece of local legislation, it must also comply with the following substantive requirements, namely: (1) it must not contravene the Constitution or any statute; (2) it must be fair, not oppressive; (3) it must not be partial or discriminatory; (4) it must not prohibit but may regulate trade; (5) it must be general and consistent with public policy; and (6) it must not be unreasonable. (Wilfredo Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, et al., G.R. No. 189185, August 16, 2016, En Banc [Bersamin]) Ordinance No. 0309-07 of Davao City Prohibiting Aerial Spraying in That City Declared Ultra Vires Wilfredo Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, et al., G.R. No. 189185, August 16, 2016, En Banc (Bersamin) Held: The function of pesticides control, regulation and development is within the jurisdiction of the FPA (Fertilizer and Pesticide Authority) under Presidential Decree No. 1144. The FPA was established in recognition of the need for a technically oriented government entity that will protect the public from the risks inherent in the use of pesticides. To perform its mandate, it was given under Section 6 of Presidential Decree No. 1144 the following 80

On the other hand, the enumerated devolved functions to the local government units do not include the regulation and control of pesticides and other agricultural chemicals. X x x In enacting Ordinance No. 0309-07 without the inherent and explicit authority to do so, the City of Davao performed an ultra vires act. As a local government unit, the City of Davao could act only as an agent of Congress, and its every act should always conform to and reflect the will of its principal x x x. For sure, every local government unit only derives its legislative authority from Congress. In no instance can the local government unit rise above its source of authority. As such, its ordinance cannot run against or contravene existing laws, precisely because its authority is only by virtue of the valid delegation from Congress. X x x Moreover, Ordinance No. 0309-07 proposes to prohibit an activity already covered by the jurisdiction of the FPA, which has issued its own regulations under its Memorandum Circular x x x. Xxx Devoid of the specific delegation to its legislative body, the City of Davao exceeded its delegated authority to enact Ordinance No. 0309-07.

Hence, Ordinance No. 0309-07 must be struck down also for being an ultra vires act on the part of the Sangguning Bayan of Davao City. We must emphasize that our ruling herein does not seek to deprive the LGUs their right to regulate activities within their jurisdiction. They are empowered under Section 16 of the Local Government Code to promote the general welfare of the people through regulatory, not prohibitive, ordinances that conform with the policy directions of the National Government. Ordinance No. 0309-07 failed to this test as it contravenes the specific regulatory policy on aerial spraying in banana plantations on a nationwide scale of the National Government, through the FPA. Requisites for a Proper Exercise by Local Governments of Police Power In the State’s exercise of police power, the property rights of individuals may be subjected to restraints and burdens in order to fulfill the objectives of the Government. A local government unit is considered to have properly exercised its police power only if it satisfies the following requisites, to wit: (1) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State; and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive. The first requirement refers to the Equal Protection Clause of the Constitution, the second, to the Due Process Clause of the Constitution. Substantive due process requires that a valid ordinance must have a sufficient justification for the Government’s action. This means that in exercising police power the local government unit must not arbitrarily, whimsically or despotically enact the ordinance regardless of its salutary purpose. So long as the ordinance realistically serves a legitimate public purpose, and it employs means that are reasonably necessary to achieve that purpose without unduly oppressing the individuals regulated, the ordnances must survive a due process challenge. (Wilfredo Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, et al., G.R. No. 189185, August 16, 2016, En Banc [Bersamin]) Vacancies and Succession in the Local Governments 81

Farinas v. Barba Limitation on Term of Office of Local Elective Officials 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 . Voluntary renunciation of 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. (Section 8, Article X, 1987 Constitution) The term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza]) The two conditions for the application of the disqualification provision are: (1) that the local official concerned has been elected three consecutive times for the same position; and (2) that he has fully served three consecutive . Absent one or both of these two conditions, the disqualification may not yet apply. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza]) What are the policies embodied in the constitutional provision barring elective local officials, with the exception of barangay officials, from serving more than three consecutive ? To prevent the establishment of political dynasties is not the only policy embodied in the constitutional provision in question (barring elective local officials, with the exception of barangay officials, from serving more than three consecutive ). The other policy is that of enhancing the freedom of choice of the people. To consider, therefore, only stay in office regardless of how the official concerned came to that office – whether by election or by succession by operation of law –

would be to disregard one of the purposes of the constitutional provision in question. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza])

the term “failure to serve” cannot be used once the right to office is lost; without the right to hold office or serve, then no service can be rendered so that none is really lost.

Socrates v. COMELEC (November 12, 2002)

To put it differently, Sec. 8, Art. X fixes an elective official’s term of office and limits his stay in office to three consecutive as an inflexible rule that is stressed no less, by citing involuntary renunciation as an example of a circumvention. The provision should be read in the context of interruption of term, not in the context of interrupting the full continuity of the exercise of the powers of the elective position. The “voluntary renunciation” it speaks of refers only to the elective official’s voluntary relinquishment of office and loss of title to his office. It does not speak of the temporary “cessation of the exercise of power or authority” that may occur for various reasons, with preventive suspension being only one of them.

What is prohibited by the Constitution is after serving three (3) consecutive to the same position a local elective official shall run for immediate reelection. Any subsequent reelection, like a recall election, is no longer covered by the provision, for as long as it is not an immediate reelection after serving the three (3) consecutive . Mendoza v. COMELEC (December 17, 2002) Service of the recall term, since it is less than three (3) years, is not to be considered as one full term for purposes of applying the disqualification under Section 8, Article X of the Constitution. Is the preventive suspension of an elected local government official an interruption of his term of office for purposes of the three-term limit rule? The “interruption” of a term exempting an elective official from the three-term limit rule is one that involves no less than the involuntary loss of title to office. The elective official must have involuntarily left his office for a length of time, however short, for an effective interruption to occur. Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective interruption of service within a term. On the other hand, temporary inability or disqualification to exercise the functions of an elective post, even if involuntary, should not be considered an effective interruption of a term because it does not involve the loss of title to office or at least an effective break from holding office; the office holder, while retaining title, is simply barred from exercising the functions of his office for a reason provided by law. An interruption occurs when the term is broken because the office holder lost the right to hold on to his office, and cannot be equated with the failure to render service. The latter occurs during an office holder’s term when he retains title to the office but cannot exercise his functions for reasons established by law. Of course, 82

In all cases of preventive suspension, the suspended official is barred from performing the functions of his office and does not receive salary in the meanwhile, but does not vacate and lose title to his office; loss of office is a consequence that only results upon an eventual finding of guilt or liability. (Aldovino, Jr. v. COMELEC, G.R. No. 184836, Dec. 23, 2009, En Banc [Brion]) Recall Recall is a mode of removing a local elective official from his post even before the end of his term on the ground of loss of confidence. There is only one ground for Recall: Loss of Confidence Loss of confidence as a ground for recall is a political question and therefore, not subject to judicial review. (Evardone v. COMELEC) After all, as explained by the Court in that case, the initiation of the recall process is not the recall itself. There will still be conducted a special recall election and, in that special recall election, it will be known whether the people still have confidence in the local elective official sought to be recalled or whether they no longer have confidence in him. Way of Initiating Recall

Under current and existing laws, there is only one way of initiating recall and that is, through a petition to be signed by the ed voters of the local government unit concerned because of the enactment by Congress of R.A. No. 9244 (Abolishing the Preparatory Recall Assembly as a Mode of Initiating Recall) on February 18, 2004.

cogens norms existed in 1951, petitioners have not deigned to show that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or has attained the status of jus cogens.

A petition signed by just one person is in violation of the minimum statutory requirement of initiating recall. (Angubung v. COMELEC)

The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing obligations owed by States towards the community of states as a whole. The concept was recognized by the ICJ in Barcelona Traction x x x.

PUBLIC INTERNATIONAL LAW Jus Cogens Norms and Erga Omnes Obligations Just cogens literally means “compelling law.” As defined, it means a peremptory (mandatory) norm of general international law which is recognized and accepted by the international community of States as a norm that does not permit of any derogation and which can be replaced or modified only by a subsequent norm of the same character. Under the Vienna Convention on the Law of Treaties, a treaty that violates a jus cogens norm will have to be invalidated. Erga omnes literally means “in relation to the whole.” An erga omnes refers to an obligation of a State towards the international community of States as a whole. Between an erga omnes obligation and an obligation of a State towards another State pursuant to a treaty, an erga omnes is superior. However, in Vinuya, et. al. v. The Honorable Executive Secretary Alberto G. Romulo, et. al., (G.R. No. 162230, April 28. 2010, En Banc [Del Castillo]), the SC clarified that there is yet no consensus on the proper criteria for identifying peremptory norms. It held: Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Even if we sidestep the question of whether jus 83

Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law … others are conferred by international instruments of a universal or quasi-universal character. The Latin phrase, ‘erga omnes,’ has since become one of the rallying cries of those sharing a belief in the emergence of a value-based international public order. However, as is so often the case, the reality is neither so clear nor so bright. Whatever the relevance of obligations erga omnes as a legal concept, its full potential remains to be realized in practice. The term is closely connected with the international law concept of jus cogens. In international law, the term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not it derogation, and can be modified only by general international norms of equivalent authority. Early strains of the jus cogens doctrine have existed since the 1700s, but peremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross’s influential 1937 article, Forbidden

Treaties in International Law. The recognition of jus cogens gained even more force in the 1050s and 1960s with the ILC’s preparation of the Vienna Convention on the Law of Treaties (VCLT). Though there was a consensus that certain international norms had attained the status of jus cogens, the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms. `

After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that “there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.” In a commentary accompanying the draft convention, the ILC indicated that “the prudent course seems to be to x x x leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.” Thus, while the existence of jus cogens in international law is undisputed, no consensus exists on its substance, beyond a tiny core of principles and rules.

The Doctrine of Incorporation The Province of North Cotabato v. The Government of the Republic of the Philippines Peace , G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc (Carpio-Morales) The right to self-determination of peoples has gone beyond mere treaty or convention; in fact, it has now been elevated into the status of a generally accepted of international law. However, this right to self-determination of peoples may be understood in two senses, i.e., the right to internal self-determination (a people’s pursuit of its own political, economic, social and cultural development within the framework of an existing State), and the right to external self-determination (which consists of the assertion of a right to unilateral secession). But, as normally understood in international law, this right to self-determination merely refers to the right to internal self-determination. The right to external self-determination, may be invoked only in extreme cases, i.e., in case of people under colonial rule, or in case of people under foreign domination or exploitation outside of a colonial context. 84

The State The Concept of an Association or Associated State An association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. Examples of states which maintain an associated state relationship with the United States are the newly-formed states of Micronesia and the Marshall Islands in the Pacific. In US constitutional and international practice, free association is understood as an international association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation’s national constitution, and each party may terminate the association consistent with the right of independence. It has been said that, with the ission of the US-associated states to the UN in 1990, the UN recognized that the American model of free association is actually based on an underlying status of independence. In international practice, the “associated state” arrangement has usually been used as a transitional device of former colonies on their way to full independence. Examples of states that have ed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states. (The Province of North Cotabato v. The Government of the Republic of the Philippines Peace , G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc [CarpioMorales]) The Concept of “Association” is not recognized under the 1987 Philippine Constitution The 1987 Constitution provides that no province, city, or municipality, not even the Autonomous Region for Muslim Mindanao (ARMM) is recognized under our laws as having an “associative” relationship with the national government. Indeed,

the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. (The Province of North Cotabato v. The Government of the Republic of the Philippines Peace , G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc [Carpio-Morales])

If not, what are its

While sovereignty has traditionally been deemed absolute and allencoming on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda – international agreements must be performed in good faith. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations. By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing 85

Territory of States Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011, En Banc (Carpio)

Sovereignty as an Element of a State Is sovereignty really absolute and all-encoming? restrictions and limitations?

conduct in peace and the establishment of international organizations. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of hip in the family of nations and (2) limitations imposed by treaty stipulations. (Tanada v. Angara, 272 SCRA 18, May 2, 1997 [Panganiban])

Diplomatic and Consular Immunities and Privileges Liang v. People, 323 SCRA 692 (2000); 355 SCRA 125 (2001) (Focus on Justice Puno’s Concurring Opinion) Extradition and Asylum Nationality and Statelessness Refugees A refugee is a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, hip of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, or owing to such fear, is unwilling to return to it. (Convention Relating to the Status of Refugees, Art. 1 A[2]) (Magallona, Fundamentals of Public International Law, 2005 Ed., p. 287) The Non-Refoulement Principle The right of a refugee not to be expelled or returned “in any manner whatsoever to the frontiers of territories where his life or freedom would be

threatened on of his race, religion, nationality, hip of a particular social group or political opinion.” The prohibition of such expulsion or return becomes an obligation of States parties to the Convention Relating to the Status of Refugees. (Magallona, Fundamentals of Public International Law, 2005 Ed., p.

289) The Law on Treaties Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En Banc (Sereno, CJ) The Doctrine of State Responsibility to Aliens An important premise for this doctrine to be validly invoked is that a State is under no legal obligation in international law to it an alien in its territory. However, the moment it its an alien, it is duty-bound to provide protection to that alien so that once the State is remiss in the performance of this duty and the alien dies, or suffers injury or loss, this could lead to liability on the part of the State.

International humanitarian law is the branch of public international law which governs armed conflicts to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military operations and by protecting persons who do not or no longer participate in the hostilities. (Magallona, Fundamentals of Public International Law, 2005 ed., p. 291) International Humanitarian Law (IHL) encomes both humanitarian principles and international treaties that seek to save lives and alleviate suffering of combatants and noncombatants during armed conflict. Its principal legal documents are the Geneva Conventions of 1949, four treaties signed by almost every nation in the world. The Conventions define fundamental rights for combatants removed from the fighting due to injury, illness, or capture, and for civilians. The 1977 Additional Protocols, which supplement the Geneva Conventions, further expand those rights. These are: (1)

Requisites for this doctrine to apply: 1. An act or omission in violation of international law; 2. Attributable to the State; 3. Causing damage or injury to a third State directly, or indirectly, to a national of the third State.

(2)

(3) (4)

Conditions for the enforcement of claims under this doctrine: 1. 2. 3. 4. 5.

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

86

(5)

(6)

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949 (First Geneva Convention); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked of Armed Forces at Sea of August 12, 1949 (Second Geneva Convention); Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Third Geneva convention); Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (Fourth Geneva Convention); Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977; and Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977.

IHL is not concerned with the lawfulness or unlawfulness of armed conflict. In violation of the prohibition against the threat or use of force under

international law, a state may engage in armed attack against another state, resulting in armed conflict between them. The application of IHL in their conflict pertains solely to the fact of armed conflict as the use of force remains unlawful. Armed conflict, in which IHL properly applies, may arise from a legitimate use of force as when a multinational force of UN engages in armed attack against a State by authority of the UN Security Council as an enforcement measure under Article 42 of the UN Charter. In either case, there will be victims of the conflict who must come under the protection of IHL, and there may be methods of warfare which may come under the prohibition of IHL. Hence, the issue of lawfulness or unlawfulness of the armed conflict is of no legal importance from the standpoint of IHL. (Magallona, Fundamentals of Public International Law, 2005 ed., p. 293) The Principle of Distinction An important principle to be observed under IHL is the Principle of Distinction. Under this principle, persons directly engaged in armed conflict must, at all times, distinguish between civilians and combatants; between civilian objects and military objectives, so that only combatants and military objectives may be subject of attack. Categories of Armed Conflicts 1. International Armed Conflicts 2. Internal or Non-international Armed Conflicts 3. War of National Liberation War of National Liberation An armed conflict may be of such nature in which “peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.” This conflict involving the right of peoples to self-determination is an international armed conflict. It is so classified under Article I, paragraphs 3 and 4 of Protocol I. Under these provisions, this conflict which may be referred to as “war of national liberation,” is included in the classification set out in Article 2 common to the 87

four Geneva Conventions of 1949 x x x. (Magallona, Fundamentals of Public International Law, 2005 ed., p. 307) The International Criminal Court (ICC) The Rome Statute The Rome Statute established the International Criminal Court which “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions.” (Article I, Rome Statute) Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute (Article 5, Rome Statute). The Statute was opened for signature by all States in Rome on July 17, 1988 and had remained open for signature until December 31, 2000 at the United Nations Headquarters in New York. The Philippines signed the Statute on December 28, 2000 x x x. Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states (Article 25, Rome Statute). (Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA 622, July 6, 2005, En Banc [Puno]) What offenses fall under the jurisdiction of the International Criminal Court (ICC)? The International Criminal Court (ICC) shall have the power to exercise jurisdiction over persons for the most serious crimes of international concern. Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute (Article 5, Rome Statute). (Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA 622, July 6, 2005, En Banc [Puno]) What is the Principle of Complementarity in the Statute of the International Criminal Court (ICC)? The tenth preambular paragraph of the ICC Statute emphasizes that “the International Criminal Court x x x shall be complementary to national criminal

jurisdiction.” This principle becomes operative in Article 1 of the Statute. This, however, has to be correlated with the sixth preambular paragraph of the Statute which declares that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” The principle of complementarity produces a correlation of the ICC jurisdiction with that of every state over international crimes under the ICC Statute.

Insofar as the internal waters and territorial sea is concerned, the Coastal States exercises sovereignty, subject to the UNCLOS and other rules of international law. Such sovereignty extends to the air apace over the territorial sea as well as to its bed and subsoil (Art. 2, UNCLOS). (Most Rev. Pedro D. Arigo, et al. v. Scott H. Swift, et al., G.R. No. 206510, September 16, 2014, En Banc [Villarama, Jr.]) International Environmental Law

The principle of complementarity gives primacy to national jurisdiction x x x. Background Information The principle of ne bis in idem in Article 20, paragraph 3, of ICC Statute strengthens complementarity, thus: Unless the proceedings in the national court is for the purpose of shielding the person concerned from liability, or not conducted independently or impartially, “no person who has been tried by another court for conduct … [constituting crimes within its jurisdiction] shall be tried by the Court with respect to the same conduct x x x.” (Magallona, Fundamentals of Public International Law [2005 ed.]) The Law of the Sea The international law of the sea is generally defined as “a body of treaty rules and customary norms governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. It is a branch of public international law, regulating the relations of states with respect to the uses of the oceans.” (Merlin M. Magallona, A Primer on the Law of the Sea, 1997, p. 1) The UNCLOS is a multilateral treaty which was opened for signature on December 10, 1982 at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into force on November 16, 1994 upon the submission of the 60th ratification. The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare clausum) and the principle of freedom of the high seas (mare liberum). The freedom to use the world’s marine waters is one of the oldest customary principle of international law (Anne Bardin, “Coastal State’s Jurisdiction Over Foreign Vessels” 14 Pace Int’l. Rev. 27, 28 [2002]). The UNCLOS gives to the coastal State sovereign rights in varying degrees over the different zones of the sea which are: 1) internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also gives coastal States more or less jurisdiction over foreign vessels depending on where the vessel is located (Id. At 29). 88

The Convention on Biological Diversity (CBD) On December 29, 1993, the Convention on Biological Diversity (CBD) came into force. This multilateral treaty recognized that “modern biotechnology has great potential for human well-being if developed and used with adequate safety measures for the environment and human health.” Its main objectives, as spelled out in Article I, are the “conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.” (International Service for the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En Banc [Villarama]) The Cartagena Protocol In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety (Cartagena Protocol), a supplemental to the CBD. The Cartagena Protocol aims “to contribute to ensuring an adequate level of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking into risks to human health, and specifically focusing on transboundary movements.” On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force on September 11, 2003. On August 14, 2006, the Philippine Senate adopted Senate Resolution No. 92 or the “Resolution Concurring in the Ratification of the Cartagena Protocol on Biosafety (B) to the UN Convention on Biological

Diversity.” (International Service for the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En Banc [Villarama]) Biotechnology Biotechnology is a multi-disciplinary field which may be defined as “any technique that uses living organisms or substances from those organisms to make or modify a product, to improve plants or animals, or to develop microorganisms for specific uses.” Its many applications include agricultural production, livestock, industrial chemicals and pharmaceuticals. (International Service for the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En Banc [Villarama])

action to avoid potentially serious or irreversible harm to the environment. It has been incorporated in various international legal instruments. The Cartagena Protocol on Biosafety to the Convention on Biological Diversity, finalized and adopted in Montreal on January 29, 2000, establishes an international regime primarily aimed at regulating trade in GMOs intended for release into the environment, in accordance with Principle 15 of the Rio Declaration on Environment and Development. The Rules (of Procedure for Environmental Cases) incorporated the principle in Part V, Rule 20.

The Precautionary Principle The precautionary principle originated in in the 1960s, expressing the normative idea that governments are obligated to “foresee and forestall” harm to the environment. In the following decades, the precautionary principle has served as the normative guideline for policymaking by many national governments. The Rio Declaration on Environment and Development, the outcome of the 1992 United Nations Conference on Environment and Development held in Rio de Janeiro, defines the rights of the people to be involved in the development of their economies, and the responsibilities of human beings to safeguard the common environment. It states that the long term economic progress is only ensured if it s linked with the protection of the environment. For the first time, the precautionary approach was codified under Principle 15, which reads: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Principle 15 codified for the first time at the global level the precautionary approach, which indicates that lack of scientific certainty is no reason to postpone 89

-ooOoo-