FOUR HUNDRED AND SEVENTY-NINE (479) QUESTIONS AND ANSWERS IN POLITICAL LAW

AND PUBLIC INTERNATIONAL LAW

(Culled !"# S$%&$'()&* L)+, )&d De($,$"&, " *-e Su.!e#e C"u!*)
A**"!&e/ EDWIN REY SANDOVAL
(As of August 25, 2004)
PART II
C0 AD1INISTRATIVE LAW
280. Describe the Administrative Code of 1987.
Held2 The Code is a general law and incorporates in a unifed document the maor
structural, functional and procedural principles of go!ernance (Third Whereas Clause, Administrative
Code of 1987) and em"odies changes in administrati!e structures and procedures designed to ser!e
the people#$ (Fourth Whereas Clause, Administrative Code of 1987) The Code is di!ided into se!en
(%) "oo&s# These "oo&s contain pro!isions on the organi'ation, powers and general administration of
departments, "ureaus and o(ces under the e)ecuti!e "ranch, the organi'ation and functions of the
Constitutional Commissions and other constitutional "odies, the rules on the national go!ernment
"udget, as well as guidelines for the e)ercise "* administrati!e agencies of +uasi,legislati!e and
+uasi,udicial powers# The Code co!ers "oth the internal administration, i.e., internal organi'ation,
personnel and recruitment, super!ision and discipline, and the e-ects of the functions performed "*
administrati!e o(cials on pri!ate indi!iduals or parties outside go!ernment# (Ople v. Torres !.".
#o. 127$8% &'l( 2) 1998 *+'no,-
281. .hat is Administrative +o/er0
Held2 Administrative power is concerned with the wor& of appl*ing policies and enforcing
orders as determined "* proper go!ernmental organs# .t ena"les the /resident to f) a uniform
standard of administrati!e e(cienc* and chec& the o(cial conduct of his agents# To this end, he can
issue administrati!e orders, rules and regulations# (Ople v. Torres !.". #o. 127$8% &'l( 2)
1998 *+'no,-
282. .hat is an Administrative Order0
Held2 An administrative order is an ordinance issued "* the /resident which relates to
specifc aspects in the administrati!e operation of go!ernment# .t must "e in harmon* with the law
and should "e for the sole purpose of implementing the law and carr*ing out the legislati!e polic*#
(Ople v. Torres !.". #o. 127$8% &'l( 2) 1998 *+'no,-
28). .hat is the !overnment of the "ep'blic of the +hilippines0
A&,02 The overnment of the !epu"li# of the $hilippines refers to the corporate go!ernmental
entit* through which the functions of the go!ernment are e)ercised throughout the /hilippines,
including, sa!e as the contrar* appears from the conte)t, the !arious arms through which political
authorit* is made e-ecti!e in the /hilippines, whether pertaining to the autonomous regions, the
pro!incial, cit*, municipal or "aranga* su"di!isions or other forms of local go!ernment# (1ec. 2*1,
2ntrod'ctor( +rovisions 34ec'tive Order #o. 292-
285. .hat is an A6enc( of the !overnment0
A&,02 A%en#& of the overnment refers to an* of the !arious units of the 0o!ernment,
including a department, "ureau, o(ce, instrumentalit*, or go!ernment,owned or controlled
corporation, or a local go!ernment or a distinct unit therein# (1ec. 2*5, 2ntrod'ctor( +rovisions
34ec'tive Order #o. 292-
28%. .hat is a Department0
A&,02 'epartment refers to an e)ecuti!e department created "* law# 1or purposes of 2oo&
.3, this shall in#lude an* instrumentalit*, as herein defned, ha!ing or assigned the ran& of a
department, regardless of its name or designation# (1ec. 2*7, 2ntrod'ctor( +rovisions
34ec'tive Order #o. 292-
28$. .hat is a 7'rea'0
A&,02 (ureau refers to an* principal su"di!ision or unit of an* department# 1or purposes of
2oo& .3, this shall in#lude an* principal su"di!ision or unit of an* instrumentalit* gi!en or assigned
the ran& of a "ureau, regardless of actual name or designation, as in the case of department,wide
regional o(ces# (1ec. 2*8, 2ntrod'ctor( +rovisions 34ec'tive Order #o. 292-
287. .hat is an O8ce0
1
Political Law Reviewer
A&,02 )*#e refers, within the framewor& of go!ernmental organi'ation, to an* maor
functional unit of a department or "ureau in#ludin% regional o(ces# .t ma& also refer to an* position
held or occupied "* indi!idual persons, whose functions are defned "* law or regulation# (1ec. 2*9,
2ntrod'ctor( +rovisions 34ec'tive Order #o. 292-
288. .hat is a !overnment 2nstr'mentalit(0 .hat are incl'ded in the term
!overnment 2nstr'mentalit(0
A&,02 A %overnment instrumentalit& refers to an* agenc* of the national go!ernment, not
integrated within the department framewor&, !ested with special functions or urisdiction "* law,
endowed with some if not all corporate powers, administering special funds, eno*ing operational
autonom*, usuall* through a charter# The term includes regulator* agencies, chartered institutions
and go!ernment,owned or controlled corporations# (1ec. 2*10, 2ntrod'ctor( +rovisions
34ec'tive Order #o. 292-
289. .hat is a "e6'lator( A6enc(0
A&,02 A re%ulator& a%en#& refers to an* agenc* e)pressl* !ested with urisdiction to regulate,
administer or adudicate matters a-ecting su"stantial rights and interest of pri!ate persons, the
principal powers of which are e)ercised "* a collecti!e "od*, such as a commission, "oard or council#
(1ec. 2*11, 2ntrod'ctor( +rovisions 34ec'tive Order #o. 292-
290. .hat is a Chartered 2nstit'tion0
A&,02 A #hartered institution refers to an* agenc* organi'ed or operating under a special
charter, and !ested "* law with functions relating to specifc constitutional policies or o"ecti!es# This
term includes state uni!ersities and colleges and the monetar* authorit* of the 4tate# (1ection
2*12, 2ntrod'ctor( +rovisions 34ec'tive Order #o. 292-
291. .hat is a !overnment9O/ned or Controlled Corporation0
A&,02 overnment+owned or #ontrolled #orporation refers to an* agenc* organi'ed as a stoc&
or non,stoc& corporation, !ested with functions relating to pu"lic needs whether go!ernmental or
proprietar* in nature, and owned "* the 0o!ernment directl* or through its instrumentalities either
wholl*, or, where applica"le as in the case of stoc& corporations, to the e)tent of at least fft*,one (55)
per cent of its capital stoc&6 ) ) ) (1ec. 2*1), 2ntrod'ctor( +rovisions 34ec'tive Order #o.
292-
292. .hen is a !overnment9O/ned or Controlled Corporation deemed to be
performin6 proprietar( f'nction0 .hen is it deemed to be performin6
6overnmental f'nction0
Held2 0o!ernment,owned or controlled corporations ma* perform go!ernmental or
proprietar* functions or "oth, depending on the purpose for which the* ha!e "een created# .f the
purpose is to o"tain special corporate "enefts or earn pecuniar* proft, the function is proprietar*# .f
it is in the interest of health, safet* and for the ad!ancement of pu"lic good and welfare, a-ecting the
pu"lic in general, the function is go!ernmental# /owers classifed as proprietar*$ are those intended
for pri!ate ad!antage and "eneft# (7la:'era v. Alcala 29% 1C"A )$$ 52% 1ept. 11 1998 3n
7anc *+'risima,-
29). The +hilippine #ational "ed Cross (+#"C- is a 6overnment9o/ned and controlled
corporation /ith an ori6inal charter 'nder ".A. #o. 9% as amended. 2ts charter
ho/ever /as amended to vest in it the a'thorit( to sec're loans be e4empted
from pa(ment of all d'ties ta4es fees and other char6es etc. .ith the amendnt
of its charter has it been ;impliedl( converted to a private corporation<0
Held2 The test to determine whether a corporation is go!ernment owned or controlled, or
pri!ate in nature is simple# .s it created "* its own charter for the e)ercise of a pu"lic function, or "*
incorporation under the general corporation law7 Those with special charters are go!ernment
corporations su"ect to its pro!isions, and its emplo*ees are under the urisdiction of the Ci!il 4er!ice
Commission# The /89C was not impliedl* con!erted to a pri!ate corporation$ simpl* "ecause its
charter was amended to !est in it the authorit* to secure loans, "e e)empted from pa*ment of all
duties, ta)es, fees and other charges, etc# (Camporedondo v. #="C !.". #o. 129059 A'6. $
1999 1
st
Div. *+ardo,-
295. .hen ma( the !overnment not validl( invo>e the r'le that prescription does not
r'n a6ainst the 1tate0 2ll'strative Case.
Held2 :hile it is true that prescription does not run against the 4tate, the same ma* not "e
in!o&ed "* the go!ernment in this case since it is no longer interested in the su"ect matter# :hile
Camp :allace ma* ha!e "elonged to the go!ernment at the time 9afael 0al!e';s title was ordered
cancelled in <and 9egistration Case 8o# 8,=>5, the same no longer holds true toda*#
9epu"lic Act 8o# %22%, otherwise &nown as the 2ase Con!ersion and ?e!elopment Act of
5@@2, created the 2ases Con!ersion and ?e!elopment Authorit*# A ) )
A ) )
2
:ith the transfer of Camp :allace to the 2C?A, the go!ernment no longer has a right or
interest to protect# Conse+uentl*, the 9epu"lic is not a real part* in interest and it ma* not institute
the instant action# 8or ma* it raise the defense of imprescripti"ilit*, the same "eing applica"le onl*
in cases where the go!ernment is a part* in interest# ) ) )# 2eing the owner of the areas co!ered "*
Camp :allace, it is the 2ases Con!ersion and ?e!elopment Authorit*, not the 0o!ernment, which
stands to "e "enefted if the land co!ered "* TCT 8o# T,5%50 issued in the name of petitioner is
cancelled#
8onetheless, it has "een posited that the transfer of militar* reser!ations and their e)tensions
to the 2C?A is "asicall* for the purpose of accelerating the sound and "alanced con!ersion of these
militar* reser!ations into alternati!e producti!e uses and to enhance the "enefts to "e deri!ed from
such propert* as a measure of promoting the economic and social de!elopment, particularl* of
Central <u'on and, in general, the countr*;s goal for enhancement (4ection 2, 9epu"lic Act 8o# %22%)#
.t is contended that the transfer of these militar* reser!ations to the Con!ersion Authorit* does not
amount to an a"dication on the part of the 9epu"lic of its interests, "ut simpl* a recognition of the
need to create a "od* corporate which will act as its agent for the reali'ation of its program# .t is
conse+uentl* asserted that the 9epu"lic remains to "e the real part* in interest and the Con!ersion
Authorit* merel* its agent#
:e, howe!er, must not lose sight of the fact that the 2C?A is an entit* in!ested with a
personalit* separate and distinct from the go!ernment# A ) )
.t ma* not "e amiss to state at this point that the functions of go!ernment ha!e "een
classifed into go!ernmental or constituent and proprietar* or ministrant# :hile pu"lic "eneft and
pu"lic welfare, particularl*, the promotion of the economic and social de!elopment of Central <u'on,
ma* "e attri"uta"le to the operation of the 2C?A, *et it is certain that the functions performed "* the
2C?A are "asicall* proprietar* in nature# The promotion of economic and social de!elopment of
Central <u'on, in particular, and the countr*;s goal for enhancement, in general, do not ma&e the
2C?A e+ui!alent to the 0o!ernment# Bther corporations ha!e "een created "* go!ernment to act as
its agents for the reali'ation of its programs, the 444, 04.4, 8A:A4A and the 8.A, to count a few, and
*et, the Court has ruled that these entities, although performing functions aimed at promoting pu"lic
interest and pu"lic welfare, are not go!ernment,function corporations in!ested with go!ernmental
attri"utes# .t ma* thus "e said that the 2C?A is not a mere agenc* of the 0o!ernment "ut a
corporate "od* performing proprietar* functions#
A ) )
Ca!ing the capacit* to sue or "e sued, it should thus "e the 2C?A which ma* fle an action to
cancel petitioner;s title, not the 9epu"lic, the former "eing the real part* in interest# Bne ha!ing no
right or interest to protect cannot in!o&e the urisdiction of the court as a part* plainti- in an action#
A suit ma* "e dismissed if the plainti- or the defendant is not a real part* in interest# ) ) )
Cowe!er, ,.(. -ar#ha Transport Co., .n#. v. .AC is cited as authorit* that the 9epu"lic is the
proper part* to sue for the reco!er* of possession of propert* which at the time of the installation of
the suit was no longer held "* the national go!ernment "od* "ut "* the /hilippine /orts Authroti*# .n
,.(. -ar#ha, the Court ruledD
.t can "e said that in suing for the reco!er* of the rentals, the 9epu"lic of the
/hilippines, acted as principal of the /hilippine /orts Authorit*, directl* e)ercising the
commission it had earlier conferred on the latter as its agent# :e ma* presume that, "* doing
so, the 9epu"lic of the /hilippines did not intend to retain the said rentals for its own use,
considering that "* its !oluntar* act it had transferred the land in +uestion to the /hilippine
/orts Authorit* e-ecti!e Eul* 55, 5@%4# The 9epu"lic of the /hilippines had simpl* sought to
assist, not supplant, the /hilippine /orts Authorit*, whose title to the disputed propert* it
continues to recogni'e# :e ma* e)pect the that the said rentals, once collected "* the
9epu"lic of the /hilippines, shall "e turned o!er "* it to the /hilippine /orts Authorit*
conforma"l* to the purposes of /#?# 8o# F5%#
,.(. -ar#ha is, howe!er, not on all fours with the case at "ar# .n the former, the Court
considered the 9epu"lic a proper part* to sue since the claims of the 9epu"lic and the /hilippine /orts
Authorit* against the petitioner therein were the same# To dismiss the complaint in ,.(. -ar#ha would
ha!e "rought needless dela* in the settlement of the matter since the //A would ha!e to refle the
case on the same claim alread* litigated upon# 4uch is not the case here since to allow the
go!ernment to sue herein ena"les it to raise the issue of imprescripti"ilit*, a claim which is not
a!aila"le to the 2C?A# The rule that prescription does not run against the 4tate does not appl* to
corporations or artifcial "odies created "* the 4tate for special purposes, it "eing said that when the
title of the 9epu"lic has "een di!ested, its grantees, although artifcial "odies of its own creation, are
in the same categor* as ordinar* persons. 2* raising the claim of imprescripti"ilit*, a claim which
cannot "e raised "* the 2C?A, the 0o!ernment not onl* assists the 2C?A, as it did in ,.(. -ar#ha, it
e!en supplants the latter, a course of action proscri"ed "* said case#
Goreo!er, to recogni'e the 0o!ernment as a proper part* to sue in this case would set a "ad
precedent as it would allow the 9epu"lic to prosecute, on "ehalf of go!ernment,owned or controlled
corporations, causes of action which ha!e alread* prescri"ed, on the prete)t that the 0o!ernment is
the real part* in interest against whom prescription does not run, said corporations ha!ing "een
created merel* as agents for the reali'ation of go!ernment programs#
3
.t should also "e noted that petitioner is un+uestiona"l* a "u*er in good faith and for !alue,
ha!ing ac+uired the propert* in 5@>=, or 5 *ears after the issuance of the original certifcate of title,
as a third transferee# .f onl* not to do !iolence and to gi!e some measure of respect to the Torrens
4*stem, petitioner must "e a-orded some measure of protection# (1hipside 2ncorporated v. Co'rt
of Appeals )%2 1C"A ))5 ?eb. 20 2001 )
rd
Div. *@elo,-
29%. Disc'ss the nat're and f'nctions of the #ational Telecomm'nications Commission
(#TC- and anal(Ae its po/ers and a'thorit( as /ell as the la/s r'les and
re6'lations that 6overn its e4istence and operations.
Held2 The 8TC was created pursuant to H)ecuti!e Brder 8o# 54> ) ) )# .t assumed the
functions formerl* assigned to the 2oard of Communications and the Communications Control 2ureau,
which were "oth a"olished under the said H)ecuti!e Brder# /re!iousl*, the 8TC;s function were
merel* those of the defunct /u"lic 4er!ice Commission (/4C), created under Commonwealth Act 8o#
54>, as amended, otherwise &nown as the /u"lic 4er!ice Act, considering that the 2oard of
Communications was the successor,in,interest of the /4C# Inder H)ecuti!e Brder 8o# 525,A, issued in
April 5@F%, the 8TC "ecame an attached agenc* of the ?epartment of Transportation and
Communications#
.n the regulator* communications industr*, the 8TC has the sole authorit* to issue Certifcates
of /u"lic Con!enience and 8ecessit* (C/C8) for the installation, operation, and maintenance of
communications facilities and ser!ices, radio communications s*stems, telephone and telegraph
s*stems# 4uch power includes the authorit* to determine the areas of operations of applicants for
telecommunications ser!ices# 4pecifcall*, 4ection 5> of the /u"lic 4er!ice Act authori'es the then
/4C, upon notice and hearing, to issue Certifcates of /u"lic Con!enience for the operation of pu"lic
ser!ices within the /hilippines whene!er the Commission fnds that the operation of the pu"lic
ser!ice proposed and the authori'ation to do "usiness will promote the pu"lic interests in a proper
and suita"le manner#$ (Commonwealth A#t /o. 101, 2e#tion 113a4) The procedure go!erning the
issuance of such authori'ations is set forth in 4ection 2@ of the said Act ) ) )# ("ep'blic v. 34press
Telecomm'nication Co. 2nc. )7) 1C"A )1$ &an. 1% 2002 1
st
Div. *Bnares91antia6o,-
29$. 2s the Clin6 of the administrative r'les and re6'lations /ith the D+ =a/ Center
the operative act that 6ives the r'les force and eEect0
Held2 .n granting 2a*antel the pro!isional authorit* to operate a CGT4, the 8TC applied 9ule
55, 4ection = of its 5@%F 9ules of /ractice and /rocedure, which pro!idesD
4ec# =# $rovisional !elief# J Ipon the fling of an application, complaint or petition or at
an* stage thereafter, the 2oard ma* grant on motion of the pleader or on its own initiative,
the relief pra*ed for, "ased on the pleading, together with the a(da!its and supporting
documents attached thereto, without preudice to a fnal decision after completion of the
hearing which shall "e called within thirt* (=0) da*s from grant of authorit* as&ed for#
9espondent H)telcom, howe!er, contends that the 8TC should ha!e applied the 9e!ised 9ules
which were fled with the B(ce of the 8ational Administrati!e 9egister on 1e"ruar* =, 5@@=# These
9e!ised 9ules deleted the phrase on its own initiati!e$6 accordingl*, a pro!isional authorit* ma* "e
issued onl* upon fling of the proper motion "efore the Commission#
.n answer to this argument, the 8TC, through the 4ecretar* of the Commission, issued a
certifcation to the e-ect that inasmuch as the 5@@= 9e!ised 9ules ha!e not "een pu"lished in a
newspaper of general circulation, the 8TC has "een appl*ing the 5@%F 9ules#
The a"sence of pu"lication, coupled with the certifcation "* the Commissioner of the 8TC
stating that the 8TC was still go!erned "* the 5@F% 9ules, clearl* indicate that the 5@@= 9e!ised
9ules ha!e not ta&en e-ect at the time of the grant of the pro!isional authorit* to 2a*antel# The fact
that the 5@@= 9e!ised 9ules were fled with the I/ <aw Center on 1e"ruar* =, 5@@= is of no moment#
There is nothing in the Administrati!e Code of 5@F% which implies that the fling of the rules with the
I/ <aw Center is the operati!e act that gi!es the rules force and e-ect# 2oo& 3.., Chapter 2, 4ection =
thereof merel* statesD
Filin%. J (5) H!er* agenc* shall fle with the Ini!ersit* of the /hilippines <aw Center
three (=) certifed copies of e!er* rule adopted "* it# 9ules in force on the date of e-ecti!it* of
this Code which are not fled within three (=) months from the date shall not thereafter "e the
"asis of an* sanction against an* part* or persons#
(2) The records o(cer of the agenc*, or his e+ui!alent functionar*, shall carr* out the
re+uirements of this section under pain of disciplinar* action#
(=) A permanent register of all rules shall "e &ept "* the issuing agenc* and shall "e
open to pu"lic inspection#
The 8ational Administrati!e 9egister is merel* a "ulletin of codifed rules and it is furnished
onl* to the B(ce of the /resident, Congress, all appellate courts, the 8ational <i"rar*, other pu"lic
o(ces or agencies as the Congress ma* select, and to other persons at a price su(cient to co!er
pu"lication and mailing or distri"ution costs (Administrative Code of 1987, (oo5 6.., Chapter 7,
2e#tion 7)# .n a similar case, we heldD
4
This does not impl*, howe!er, that the su"ect Administrati!e Brder is a !alid e)ercise
of such +uasi,legislati!e power# The original Administrati!e Brder issued on August =0, 5@F@,
under which the respondents fled their applications for importations, was not pu"lished in the
B(cial 0a'ette or in a newspaper of general circulation# The +uestioned Administrati!e Brder,
legall*, until it is pu"lished, is in!alid within the conte)t of Article 2 of Ci!il Code, which readsD
Article 2# <aws shall ta&e e-ect after ffteen da*s following the completion of
their pu"lication in the B(cial 0a'ette (or in a newspaper of general circulation in the
/hilippines), unless it is otherwise pro!ided# A ) )$
The fact that the amendments to Administrati!e Brder 8o# 4BC/HC F@,0F,05 were fled
with, and pu"lished "* the I/ <aw Center in the 8ational Administrati!e 9egister, does not
cure the defect related to the e-ecti!it* of the Administrati!e Brder#
This Court, in Tanada v. Tuvera stated, thusD
:e hold therefore that all statutes, including those of local application and
pri!ate laws, shall "e pu"lished as a condition for their e-ecti!it*, which shall "egin ffteen da*s after
pu"lication unless a di-erent e-ecti!it* is f)ed "* the legislature#
Co!ered "* this rule are presidential decrees and e)ecuti!e orders promulgated
"* the /resident in the e)ercise of legislati!e power or, at present, directl* conferred "* the
Constitution# Administrati!e 9ules and 9egulations must also "e pu"lished if their purpose is to
enforce or implement e)isting law pursuant also to a !alid delegation#
.nterpretati!e regulations and those merel* internal in nature, that is,
regulating onl* the personnel of the administrati!e agenc* and not the pu"lic, need not "e
pu"lished# 8either is pu"lication re+uired of the so,called letters of instructions issued "*
administrati!e superiors concerning the rules or guidelines to "e followed "* their su"ordinates in
the performance of their duties#
A ) )
:e agree that the pu"lication must "e in full or it is no pu"lication at all since
its purpose is to inform the pu"lic of the contents of the laws#$
The Administrati!e Brder under consideration is one of those issuances which should
"e pu"lished for its e-ecti!it*, since its purpose is to enforce and implement an e)isting law
pursuant to a !alid delegation, i.e#, /#?# 50%5, in relation to <B. 444 and HB 5==.
Thus, pu"lication in the B(cial 0a'ette or a newspaper of general circulation is a condition
sine 8ua non "efore statutes, rules or regulations can ta&e e-ect# This is e)plicit from H)ecuti!e Brder
8o# 200, which repealed Article 2 of the Ci!il Code, and which states thatD
<aws shall ta&e e-ect after ffteen da*s following the completion of their pu"lication
either in the B(cial 0a'ette or in a newspaper of general circulation in the /hilippines, unless it is
otherwise pro!ided (,.). 799, 2e#tion 1).
The 9ules of /ractice and /rocedure of the 8TC, which implements 4ection 2@ of the /u"lic
4er!ice Act, fall s+uarel* within the scope of these laws, as e)plicitl* mentioned in the case of Tanada
v. Tuvera.
Bur pronouncement in Tanada v. Tuvera is clear and categorical# Administrati!e rules
and regulations must "e pu"lished if their purpose is to enforce or implement e)isting law pursuant
to a !alid delegation# The onl* e)ception are interpretati!e regulations, those merel* internal in
nature, or those so,called letters of instructions issued "* administrati!e superiors concerning the
rules and guidelines to "e followed "* their su"ordinates in the performance of their duties ($:.;2A
.nternational $la#ement < 2ervi#es Corp. v. 2e#retar& of ;a"or, .!. /o. 19=100, April 0, 7991, =>1
2C!A 170).
Cence, the 5@@= 9e!ised 9ules should "e pu"lished in the B(cial 0a'ette or in a newspaper of
general circulation "efore it can ta&e e-ect# H!en the 5@@= 9e!ised 9ules itself mandates that said
9ules shall ta&e e-ect onl* after their pu"lication in a newspaper of general circulation (2e#tion 79
thereof)# .n the a"sence of such pu"lication, therefore, it is the 5@%F 9ules that go!ern# ("ep'blic v.
34press Telecomm'nication Co. 2nc. )7) 1C"A )1$ &an. 1% 2002 1
st
Div. *Bnares9
1antia6o,-
297. @a( a person be held liable for violation of an administrative re6'lation /hich
/as not p'blished0
Held2 /etitioner insists, howe!er, that it cannot "e held lia"le for illegal e)action as /BHA
Gemorandum Circular 8o# .., 4eries of 5@F=, which enumerated the allowa"le fees which ma* "e
collected from applicants, is !oid for lac& of pu"lication#
There is merit in the argument#
5
.n Tanada v. Tuvera, the Court held, as followsD
:e hold therefore that all statutes, including those of local application and pri!ate
laws, shall "e pu"lished as a condition for their e-ecti!it*, which shall "egin ffteen da*s after
pu"lication unless a di-erent e-ecti!it* date is f)ed "* the legislature#
Co!ered "* this rule are presidential decrees and e)ecuti!e orders promulgated "* the
/resident in the e)ercise of legislati!e powers whene!er the same are !alidl* delegated "* the
legislature or, at present, directl* conferred "* the Constitution# Administrati!e rules and regulations
must also "e pu"lished if their purpose is to enforce or implement e)isting law pursuant to a !alid
delegation#
.nterpretati!e regulations and those merel* internal in nature, that is, regulating onl*
the personnel of the administrati!e agenc* and the pu"lic, need not "e pu"lished# 8either is
pu"lication re+uired of the so,called letter of instructions issued "* the administrati!e superiors
concerning the rules or guidelines to "e followed "* their su"ordinates in the performance of their
duties#$
Appl*ing this doctrine, we ha!e pre!iousl* declared as ha!ing no force and e-ect the following
administrati!e issuancesD a) 9ules and 9egulations issued "* the Eoint Ginistr* of Cealth,Ginistr* of
<a"or and Hmplo*ment Accreditation Committee regarding the accreditation of hospitals, medical
clinics and la"oratories6 ") <etter of .nstruction 8o# 45> ordering the suspension of pa*ments due and
pa*a"le "* distressed copper mining companies to the national go!ernment6 c) Gemorandum
Circulars issued "* the /BHA regulating the recruitment of domestic helpers to Cong Kong6 d)
Administrati!e Brder 8o# 4BC/HC F@,0F,05 issued "* the /hilippine .nternational Trading Corporation
regulating applications for importation from the /eople;s 9epu"lic of China6 and e) Corporate
Compensation Circular 8o# 50 issued "* the ?epartment of 2udget and Ganagement discontinuing
the pa*ment of other allowances and fringe "enefts to go!ernment o(cials and emplo*ees# .n all
these cited cases, the administrati!e issuances +uestioned therein were uniforml* struc& down as
the* were not pu"lished or fled with the 8ational Administrati!e 9egister as re+uired "* the
Administrati!e Code of 5@F%.
/BHA Gemorandum Circular 8o# 2, 4eries of 5@F= must li&ewise "e declared ine-ecti!e as the
same was ne!er pu"lished or fled with the 8ational Administrati!e 9egister#
/BHA Gemorandum Circular 8o# 2, 4eries of 5@F= pro!ides for the applica"le schedule of
placement and documentation fees for pri!ate emplo*ment agencies or authorit* holders# Inder the
said Brder, the ma)imum amount which ma* "e collected from prospecti!e 1ilipino o!erseas wor&ers
is /2,500#00# The said circular was apparentl* issued in compliance with the pro!isions of Article =2
of the <a"or Code ) ) )#
.t is thus clear that the administrati!e circular under consideration is one of those issuances
which should "e pu"lished for its e-ecti!it*, since its purpose is to enforce and implement an e)isting
law pursuant to a !alid delegation. Considering that /BHA Administrati!e Circular 8o# 2, 4eries of
5@F= has not as *et "een pu"lished or fled with the 8ational Administrati!e 9egister, the same is
ine-ecti!e and ma* not "e enforced# (+hilsa 2nternational +lacement and 1ervices
Corporation v. 1ecretar( of =abor and 3mplo(ment )%$ 1C"A 175 April 5 2001 )
rd
Div.
*!onAa6a9"e(es,-
298. Does the p'blication re:'irement appl( as /ell to administrative re6'lations
addressed onl( to a speciCc 6ro'p and not to the 6eneral p'blic0
Held2 The B(ce of the 4olicitor 0eneral li&ewise argues that the +uestioned administrati!e
circular is not among those re+uiring pu"lication contemplated "* Tanada v. Tuvera as it is addressed
onl* to a specifc group of persons and not to the general pu"lic#
Again, there is no merit in this argument#
The fact that the said circular is addressed onl* to a specifed group, namel* pri!ate
emplo*ment agencies or authorit* holders, does not ta&e it awa* from the am"it of our ruling in
Tanada v. Tuvera# .n the case of $hil. Asso#iation of 2ervi#e ,?porters v. Torres, the administrati!e
circulars +uestioned therein were addressed to an e!en smaller group, namel* /hilippine and Cong
Kong agencies engaged in the recruitment of wor&ers for Cong Kong, and still the Court ruled therein
that, for lac& of proper pu"lication, the said circulars ma* not "e enforced or implemented#
Bur pronouncement in Tanada v. Tuvera is clear and categorical# Administrati!e rules and
regulations must "e pu"lished if their purpose is to enforce or implement e)isting law pursuant to a
!alid delegation# The onl* e)ceptions are interpretati!e regulations, those merel* internal in nature,
or those so,called letters of instructions issued "* administrati!e superiors concerning the rules and
guidelines to "e followed "* their su"ordinates in the performance of their duties# Administrati!e
Circular 8o# 2, 4eries of 5@F= has not "een shown to fall under an* of these e)ceptions#
.n this regard, the 4olicitor 0eneral;s reliance on the case of @ao5asin v. Commissioner of
Customs is misplaced# .n the said case, the !alidit* of certain Customs Gemorandum Brders were
upheld despite their lac& of pu"lication as the* were addressed to a particular class of persons, the
customs collectors, who were also the su"ordinates of the Commissioner of the 2ureau of Customs#
As such, the said Gemorandum Brders clearl* fall under one of the e)ceptions to the pu"lication
6
re+uirement, namel* those dealing with instructions from an administrati!e superior to a su"ordinate
regarding the performance of their duties, a circumstance which does not o"tain in the case at "ench#
A ) )
To summari'e, petitioner should "e a"sol!ed from the three (=) counts of e)action as /BHA
Administrati!e Circular 8o# 2, 4eries of 5@F= could not "e the "asis of administrati!e sanctions against
petitioner for lac& of pu"lication# (+hilsa 2nternational +lacement and 1ervices Corporation v.
1ecretar( of =abor and 3mplo(ment )%$ 1C"A 175 April 5 2001 )
rd
Div. *!onAa6a9
"e(es,-
299. @a( a s'ccessf'l bidder compel a 6overnment a6enc( to formaliAe a contract
/ith it not/ithstandin6 that its bid e4ceeds the amo'nt appropriated b(
Con6ress for the proFect0
Held2 Hnshrined in the 5@F% /hilippine Constitution is the mandate that no mone* shall "e
paid out of the Treasur* e)cept in pursuance of an appropriation made "* law#$ (4ec# 2@L5M, Article 3.
of the 5@F% Constitution) Thus, in the e)ecution of go!ernment contracts, the precise import of this
constitutional restriction is to re+uire the !arious agencies to limit their e)penditures within the
appropriations made "* law for each fscal *ear#
A ) )
.t is +uite e!ident from the tenor of the language of the law that the e)istence of
appropriations and the a!aila"ilit* of funds are indispensa"le pre,re+uisites to or conditions sine 8ua
non for the e)ecution of go!ernment contracts# The o"!ious intent is to impose such conditions as a
priori re+uisites to the !alidit* of the proposed contract. Ising this as our premise, we cannot accede
to /CBTBK.8A;s contention that there is alread* a perfected contract# :hile we held in -etropolitan
-anila 'evelopment Authorit& v. Aan#om ,nvironmental Corporation that the e-ect of an un+ualifed
acceptance of the o-er or proposal of the "idder is to perfect a contract, upon notice of the award to
the "idder,$ howe!er, such statement would "e inconse+uential in a go!ernment where the
acceptance referred to is *et to meet certain conditions# To hold otherwise is to allow a pu"lic o(cer
to e)ecute a "inding contract that would o"ligate the go!ernment in an amount in e)cess of the
appropriations for the purpose for which the contract was attempted to "e made. This is a dangerous
precedent#
.n the case at "ar, there seems to "e an o!ersight of the legal re+uirements as earl* as the
"idding stage# The frst step of a 2ids and Awards Committee (2AC) is to determine whether the "ids
compl* with the re+uirements# The 2AC shall rate a "id passed$ onl* if it complies with all the
re+uirements and the su"mitted price does not e)ceed the appro!ed "udget for the contract#$
(.mplementin% !ules and !e%ulations 3.!!4 for ,?e#utive )rder /o. 717, supra.)
H)tant on the record is the fact that the 39.4 /roect was awarded to /CBTBK.8A on account
of its "id in the amount of />#5FF 2illion /esos# Cowe!er, under 9epu"lic Act 8o# F%>0 (eneral
Appropriations A#t, F@ 7999, p. 1918, supra.), the onl* fund appropriated for the proect was /5 2illion
/esos and under the Certifcation of A!aila"le 1unds (CA1) onl* /5#2 2illion /esos was a!aila"le#
Clearl*, the amount appropriated is insu(cient to co!er the cost of the entire 39.4 /roect# There is
no wa* that the CBGH<HC could enter into a contract with /CBTBK.8A whose accepted "id was wa*
"e*ond the amount appropriated "* law for the proect# This "eing the case, the 2AC should ha!e
reected the "id for "eing e)cessi!e or should ha!e withdrawn the 8otice of Award on the ground that
in the e*es of the law, the same is null and !oid#
A ) )
H!en the draft contract su"mitted "* Commissioner 4adain that pro!ides for a contract price
in the amount of /5#2 2illion /esos is unaccepta"le# ) ) ) :hile the contract price under the draft
contract is onl* /5#2 2illion and, thus, within the certifed a!aila"le funds, the same co!ers onl* /hase
. of the 39.4 /roect, i.e., the issuance of identifcation cards for onl* 5,000,000 !oters in specifed
areas. .n e-ect, the implementation of the 39.4 /roect will "e segmented$ or chopped$ into
se!eral phases# 8ot onl* is such arrangement disallowed "* our "udgetar* laws and practices, it is
also disad!antageous to the CBGH<HC "ecause of the uncertaint* that will loom o!er its
moderni'ation proect for an indefnite period of time# 4hould Congress fail to appropriate the amount
necessar* for the completion of the entire proect, what good will the accomplished /hase . ser!e7 As
e)pected, the proect failed to sell$ with the ?epartment of 2udget and Ganagement# Thus,
4ecretar* 2enamin ?io&no, per his letter of ?ecem"er 5, 2000, declined the CBGH<HC;s re+uest for
the issuance of the 8otice of Cash A!aila"ilit* (8CA) and a multi,*ear o"ligator* authorit* to assume
pa*ment of the total 39.4 /roect for lac& of legal "asis# Corollaril*, under 4ection == of 9#A# 8o# F%>0,
no agenc* shall enter into a multi,*ear contract without a multi,*ear o"ligational authorit*, thusD
4HCT.B8 ==# Contra#tin% -ulti+@ear $roBe#ts. + .n the implementation of multi,*ear
proects, no agenc* shall enter into a multi,*ear contract without a multi,*ear B"ligational Authorit*
issued "* the ?epartment of 2udget and Ganagement for the purpose# 8otwithstanding the issuance
of the multi,*ear B"ligational Authorit*, the o"ligation to "e incurred in an* gi!en calendar *ear, shall
in no case e)ceed the amount programmed for implementation during said calendar *ear#$
/etitioners are ustifed in refusing to formali'e the contract with /CBTBK.8A# /rudence
dictated them not to enter into a contract not "ac&ed up "* su(cient appropriation and a!aila"le
7
funds# ?efnitel*, to act otherwise would "e a futile e)ercise for the contract would ine!ita"l* su-er
the !ice of nullit*# ) ) )
A ) )
3eril*, the contract, as e)pressl* declared "* law, is ine)istent and !oid a" initio (Arti#le 1099
of the Civil Code of the $hilippines). This is to sa* that the proposed contract is without force and
e-ect from the !er* "eginning or from its incipienc*, as if it had ne!er "een entered into, and hence,
cannot "e !alidated either "* lapse of time or ratifcation#
A ) )
.n fne, we rule that /CBTBK.8A, though the winning "idder, cannot compel the CBGH<HC to
formali'e the contract# 4ince /CBTBK.8A;s "id is "e*ond the amount appropriated "* Congress for
the 39.4 /roect, the proposed contract is not "inding upon the CBGH<HC and is considered !oid ) ) )#
(Commission on 3lections v. &'d6e @a. ='isa G'iFano9+adilla !.". #o. 1%1992 1ept. 18
2002 3n 7anc *1andoval9!'tierreA,-
)00. .hat is the remed( available to a part( /ho contracts /ith the 6overnment
contrar( to the re:'irements of the la/ and therefore void ab initio0
Held2 Bf course, we are not sa*ing that the part* who contracts with the go!ernment has no
other recourse in law# The law itself a-ords him the remed*# 4ection 4F of H#B# 8o# 2@2 e)plicitl*
pro!ides that an* contract entered into contrar* to the a"o!e,mentioned re+uirements shall "e !oid,
and Cthe o*#ers enterin% into the #ontra#t shall "e lia"le to the overnment or other #ontra#tin%
part& for an& #onse8uent dama%e to the same as if the transa#tion had "een wholl& "etween private
parties.D 4o when the contracting o(cer transcends his lawful and legitimate powers "* acting in
e)cess of or "e*ond the limits of his contracting authorit*, the 0o!ernment is not "ound under the
contract# .t would "e as if the contract in such case were a pri!ate one, whereupon, he "inds himself,
and thus, assumes personal lia"ilit* thereunder# Btherwise stated, the proposed contract is
unenforcea"le as to the 0o!ernment#
:hile this is not the proceeding to determine where the culpa"ilit* lies, howe!er, the
constitutional mandate cited a"o!e constrains us to remind all pu"lic o(cers that pu"lic o(ce is a
pu"lic trust and all pu"lic o(cers must at all times "e accounta"le to the people# The authorit* of
pu"lic o(cers to enter into go!ernment contracts is circumscri"ed with a hea!* "urden of
responsi"ilit*# .n the e)ercise of their contracting prerogati!e, the* should "e the frst udges of the
legalit*, propriet* and wisdom of the contract the* entered into# The* must e)ercise a high degree of
caution so that the 0o!ernment ma* not "e the !ictim of ill,ad!ised or impro!ident action.
(Commission on 3lections v. &'d6e @a. ='isa G'iFano9+adilla !.". #o. 1%1992 1ept. 18
2002 3n 7anc *1andoval9!'tierreA,-
)01. Does the Commission on H'man "i6hts have the po/er to adF'dicate0
Held2 .n its Brder ) ) ) den*ing petitioners; motion to dismiss, the CC9 theori'es that the
intention of the mem"ers of the Constitutional Commission is to ma&e CC9 a +uasi,udicial "od*# This
!iew, howe!er, has not heretofore "een shared "* this Court# .n Carino v. Commission on :uman
!i%hts, the Court ) ) ) has o"ser!ed that it is onl* the frst of the enumerated powers and functions
that "ears an* resem"lance to adudication of adudgment,$ "ut that resem"lance can in no wa* "e
s*non*mous to the adudicator* power itself# The Court e)plainedD
) ) ) LTMhe Commission on Cuman 9ights ) ) ) was not meant "* the fundamental
law to "e another court or +uasi,udicial agenc* in this countr*, or duplicate much less ta&e
o!er the functions of the latter#
The most that ma* "e conceded to the Commission in the wa* of adudicati!e power
is that it ma* in!estigate, i#e#, recei!e e!idence and ma&e fndings of fact as regards claimed human
rights !iolations in!ol!ing ci!il and political rights# 2ut fact fnding is not adudication, and cannot "e
li&ened to the udicial function of a court of ustice, or e!en a +uasi,udicial agenc* or o(cial# The
function of recei!ing e!idence and ascertaining therefrom the facts of a contro!ers* is not a udicial
function, properl* spea&ing# To "e considered such, the facult* of recei!ing e!idence and ma&ing
factual conclusions in a contro!ers* must "e accompanied "* the authorit* of appl*ing the law to
those factual conclusions to the end that the contro!ers* ma* "e decided or determined
authoritati!el*, fnall* and defniti!el*, su"ect to such appeals or modes of re!iew as ma* "e
pro!ided "* law# This function, to repeat, the Commission does not ha!e#
(1imon &r. v. Commission on H'man "i6hts 229 1C"A 117 12% &an. % 1995 3n 7anc
*Iit'6 &.,-
)02. Does the Commission on H'man "i6hts have F'risdiction to iss'e T"O or /rit of
preliminar( inF'nction0
Held2 .n ,?port $ro#essin% Eone Authorit& v. Commission on :uman !i%hts, the Court ) ) )
e)plainedD
The constitutional pro!ision directing the CC9 to Npro!ide for pre!enti!e measures
and legal aid ser!ices to the underpri!ileged whose human rights ha!e "een !iolated or need
protection; ma* not "e construed to confer urisdiction on the Commission to issue a
8
restraining order or writ of inunction for, if that were the intention, the Constitution would
ha!e e)pressl* said so# NEurisdiction is conferred onl* "* the Constitution or "* law#; .t is ne!er
deri!ed "* implication#$
H!identl*, the Npre!enti!e measures and legal aid ser!ices; mentioned in the
Constitution refer to e)traudicial and udicial remedies (including a writ of preliminar*
inunction) which the CC9 ma* see& from the proper courts on "ehalf of the !ictims of human
rights !iolations# 8ot "eing a court of ustice, the CC9 itself has no urisdiction to issue the
writ, for a writ of preliminar* inunction ma* onl* "e issued N"* the udge of an* court in which
the action is pending Lwithin his districtM, or "* a Eustice of the Court of Appeals, or of the
4upreme Court# ) ) )# A writ of preliminar* inunction is an ancillar* remed*# .t is a!aila"le
onl* in a pending principal action, for the preser!ation or protection of the rights and interest
of a part* thereto, and for no other purpose#$
The Commission does ha!e legal standing to indorse, for appropriate action, its fndings and
recommendations to an* appropriate agenc* of go!ernment. (1imon &r. v. Commission on
H'man "i6hts 229 1C"A 117 1)591)% &an. % 1995 3n 7anc *Iit'6 &.,-
)0). Does the petition for ann'lment of proclamation of a candidate merel( involve
the e4ercise b( the CO@3=3C of its administrative po/er to revie/ revise and
reverse the actions of the board of canvassers and therefore F'stiCes non9
observance of proced'ral d'e process or does it involve the e4ercise of the
CO@3=3CJs :'asi9F'dicial f'nction0
Held2 Ta&ing cogni'ance of pri!ate respondentOs petitions for annulment of petitionerOs
proclamation, CBGH<HC was not merel* performing an administrati!e function# The administrati!e
powers of the CBGH<HC include the power to determine the num"er and location of polling places,
appoint election o(cials and inspectors, conduct registration of !oters, deputi'e law enforcement
agencies and go!ernmental instrumentalities to ensure free, orderl*, honest, peaceful and credi"le
elections, register political parties, organi'ations or coalition, accredit citi'enOs arms of the
Commission, prosecute election o-enses, and recommend to the /resident the remo!al of or
imposition of an* other disciplinar* action upon an* o(cer or emplo*ee it has deputi'ed for !iolation
or disregard of its directi!e, order or decision# .n addition, the Commission also has direct control and
super!ision o!er all personnel in!ol!ed in the conduct of election# Cowe!er, the resolution of the
ad!erse claims of pri!ate respondent and petitioner as regards the e)istence of a manifest error in the
+uestioned certifcate of can!ass re+uires the CBGH<HC to act as an ar"iter# .t "ehoo!es the
Commission to hear "oth parties to determine the !eracit* of their allegations and to decide whether
the alleged error is a manifest error# Cence, the resolution of this issue calls for the e)ercise "* the
CBGH<HC of its +uasi,udicial power# .t has "een said that where a power rests in udgment or
discretion, so that it is of udicial nature or character, "ut does not in!ol!e the e)ercise of functions of
a udge, or is conferred upon an o(cer other than a udicial o(cer, it is deemed +uasi,udicial . The
CBGH<HC therefore, acting as +uasi,udicial tri"unal, cannot ignore the re+uirements of procedural
due process in resol!ing the petitions fled "* pri!ate respondent# (?ederico 1. 1andoval v.
CO@3=3C !.". #o. 1))852 &an. 2$ 2000 *+'no,-
)05. Disc'ss the contempt po/er of the Commission on H'man "i6hts (CH"-. .hen
ma( it be validl( e4ercised0
Held2 Bn its contempt powers, the CC9 is constitutionall* authori'ed to adopt its operational
guidelines and rules of procedure, and cite for contempt for !iolations thereof in accordance with the
9ules of Court#$ Accordingl*, the CC9 acted within its authorit* in pro!iding in its re!ised rules, its
power to cite or hold an* person in direct or indirect contempt, and to impose the appropriate
penalties in accordance with the procedure and sanctions pro!ided for in the 9ules of Court#$ That
power to cite for contempt, howe!er, should "e understood to appl* onl* to !iolations of its adopted
operational guidelines and rules of procedure essential to carr* out its in!estigatorial powers# To
e)emplif*, the power to cite for contempt could "e e)ercised against persons who refuse to cooperate
with the said "od*, or who undul* withhold rele!ant information, or who decline to honor summons,
and the li&e, in pursuing its in!estigati!e wor&# The order to desist$ (a semantic interpla* for a
restraining order) in the instance "efore us, howe!er, is not in!estigatorial in character "ut prescinds
from an adudicati!e power that it does not possess# ) ) ) (1imon &r. v. Commission on H'man
"i6hts 229 1C"A 117 1)5 &an. % 1995 3n 7anc *Iit'6 &.,-
)0%. Disc'ss the Doctrine of +rimar( &'risdiction (or +rior "esort-.
Held2 Courts cannot and will not resol!e a contro!ers* in!ol!ing a +uestion which is within
the urisdiction of an administrati!e tri"unal, especiall* where the +uestion demands the e)ercise of
sound administrati!e discretion re+uiring the special &nowledge, e)perience and ser!ices of the
administrati!e tri"unal to determine technical and intricate matters of fact#
.n recent *ears, it has "een the urisprudential trend to appl* this doctrine to cases in!ol!ing
matters that demand the special competence of administrati!e agencies e!en if the +uestion in!ol!ed
is also udicial in character# .t applies where a claim is originall* cogni'a"le in the courts, and comes
into pla* whene!er enforcement of the claim re+uires the resolution of issues which, under a
regulator* scheme, ha!e "een placed within the special competence of an administrati!e "od*6 in
such case, the udicial process is suspended pending referral of such issues to the administrati!e "od*
for its !iew#$
9
.n cases where the doctrine of primar* urisdiction is clearl* applica"le, the court cannot
arrogate unto itself the authorit* to resol!e a contro!ers*, the urisdiction o!er which is lodged with
an administrati!e "od* of special competence# (IillaKor v. CA 280 1C"A 297 Oct. 9 1992 )
rd
Div. *+an6aniban,-
)0$. Disc'ss the Doctrine of 34ha'stion of Administrative "emedies. .hat are the
e4ceptions thereto.
Held2 5# 2efore a part* is allowed to see& the inter!ention of the court, it is a pre,condition
that he should ha!e a!ailed of all the means of administrati!e processes a-orded him# Cence, if a
remed* within the administrati!e machiner* can still "e resorted to "* gi!ing the administrati!e
o(cer concerned e!er* opportunit* to decide on a matter that comes within his urisdiction then such
remed* should "e e)hausted frst "efore the court;s udicial power can "e sought# The premature
in!ocation of court;s urisdiction is fatal to one;s cause of action# Accordingl*, a"sent an* fnding of
wai!er or estoppel the case is suscepti"le of dismissal for lac& of cause of action# This doctrine of
e)haustion of administrati!e remedies was not without its practical and legal reasons, for one thing,
a!ailment of administrati!e remed* entails lesser e)penses and pro!ides for a speedier disposition of
contro!ersies# .t is no less true to state that the courts of ustice for reasons of comit* and
con!enience will sh* awa* from a dispute until the s*stem of administrati!e redress has "een
completed and complied with so as to gi!e the administrati!e agenc* concerned e!er* opportunit* to
correct its error and to dispose of the case#
This doctrine is disregardedD
when there is a !iolation of due process6
when the issue in!ol!ed is purel* a legal +uestion6
when the administrati!e action is patentl* illegal amounting to lac& or e)cess of urisdiction6
when there is estoppel on the part of the administrati!e agenc* concerned6
when there is irrepara"le inur*6
when the respondent is a department secretar* whose acts as an alter e%o of the /resident
"ears the implied and assumed appro!al of the latter6
when to re+uire e)haustion of administrati!e remedies would "e unreasona"le6
when it would amount to a nullifcation of a claim6
when the su"ect matter is a pri!ate land in land case proceeding6
when the rule does not pro!ide a plain, speed* and ade+uate remed*, and
when there are circumstances indicating the urgenc* of udicial inter!ention#
(+aat v. CA 2$$ 1C"A 1$7 *1997,-
2# 8on,e)haustion of administrati!e remedies is not urisdictional# .t onl* renders the action
premature, i.e., claimed cause of action is not ripe for udicial determination and for that reason a
part* has no cause of action to !entilate in court# (Carale v. Abarintos 2$9 1C"A 1)2 @arch )
1997 )
rd
Div. *Davide,-
D0 THE LAW OF PUBLIC OFFICERS
)07. DeCne Appointment. Disc'ss its nat're.
Held2 An appointment$ to a pu"lic o(ce is the une+ui!ocal act of designating or selecting
"* one ha!ing the authorit* therefor of an indi!idual to discharge and perform the duties and
functions of an o(ce or trust# The appointment is deemed complete once the last act re+uired of the
appointing authorit* has "een complied with and its acceptance thereafter "* the appointee in order
to render it e-ecti!e# Appointment necessaril* calls for an e)ercise of discretion on the part of the
appointing authorit*# .n $amantasan n% ;un%sod n% -a&nila v. .ntermediate Appellate Court,
reiterated in Flores v. 'rilon, this Court has heldD
The power to appoint is, in essence, discretionar*# The appointing power has the right
of choice which he ma* e)ercise freel* according to his udgment, deciding for himself who is
"est +ualifed among those who ha!e the necessar* +ualifcations and eligi"ilities# .t is a
prerogati!e of the appointing power ) ) )#$

.ndeed, it ma* rightl* "e said that the right of choice is the heart of the power to appoint# .n the
e)ercise of the power of appointment, discretion is an integral thereof# (7erm'deA v. Torres )11
1C"A 7)) A'6. 5 1999 )
rd
Div. *Iit'6,-
)08. @a( the Civil 1ervice Commission or the 1'preme Co'rt validl( n'llif( an
appointment on the 6ro'nd that somebod( else is better :'aliCed0
Held2 The head of an agenc* who is the appointing power is the one most &nowledgea"le to
decide who can "est perform the functions of the o(ce# Appointment is an essentiall* discretionar*
power and must "e performed "* the o(cer !ested with such power according to his "est lights, the
onl* condition "eing that the appointee should possess the +ualifcations re+uired "* law# .f he does,
then the appointment cannot "e faulted on the ground that there are others "etter +ualifed who
should ha!e "een preferred# .ndeed, this is a prerogati!e of the appointing authorit* which he alone
can decide# The choice of an appointee from among those who possess the re+uired +ualifcations is
a political and administrati!e decision calling for considerations of wisdom, con!enience, utilit* and
the interests of the ser!ice which can "est "e made "* the head of the o(ce concerned, the person
10
most familiar with the organi'ational structure and en!ironmental circumstances within which the
appointee must function#
As long as the appointee is +ualifed the Ci!il 4er!ice Commission has no choice "ut to attest
to and respect the appointment e!en if it "e pro!ed that there are others with superior credentials#
The law limits the Commission;s authorit* onl* to whether or not the appointees possess the legal
+ualifcations and the appropriate ci!il ser!ice eligi"ilit*, nothing else# .f the* do then the
appointments are appro!ed "ecause the Commission cannot e)ceed its power "* su"stituting its will
for that of the appointing authorit*. 8either can we# ("imonte v. C1C 255 1C"A %059%0% @a(
29 199% 3n 7anc *7ellosillo &.,-
)09. Does the ;ne4t9in9ran>< r'le import an( mandator( or peremptor( re:'irement
that the person ne4t9in9ran> m'st be appointed to the vacanc(0
Held2 The ne)t,in,ran& rule is not a"solute6 it onl* applies in cases of promotion, a process
which denotes a scalar ascent of an o(cer to another position higher either in ran& or salar*# And
e!en in promotions, it can "e disregarded for sound reasons made &nown to the ne)t,in,ran&, as the
concept does not import an* mandator* or peremptor* re+uirement that the person ne)t,in,ran& must
"e appointed to the !acanc*# The appointing authorit*, under the Ci!il 4er!ice <aw, is allowed to fll
!acancies "* promotion, transfer of present emplo*ees, reinstatement, reemplo*ment, and
appointment of outsiders who ha!e appropriate ci!il ser!ice eligi"ilit*, not necessaril* in that order#
There is no legal fat that a !acanc* must "e flled onl* "* promotion6 the appointing authorit* is
gi!en wide discretion to fll a !acanc* from among the se!eral alternati!es pro!ided "* law#
:hat the Ci!il 4er!ice <aw pro!ides is that if a !acanc* is flled "* promotion, the person
holding the position ne)t in ran& thereto shall "e considered for promotion#$
.n Taduran v. Civil 2ervi#e Commission, the Court construed that phrase to mean that the
person ne)t,in,ran& would "e among the frst to "e considered for the !acanc*, if +ualifed#$ .n
2antia%o, Ar. v. Civil 2ervi#e Commission, the Court ela"orated the import of the rule in the following
mannerD
Bne who is ne)t,in,ran& is entitled to preferential consideration for promotion to the
higher !acanc* "ut it does not necessaril* follow that he and no one else can "e appointed#
The rule neither grants a !ested right to the holder nor imposes a ministerial dut* on the
appointing authorit* to promote such person to the ne)t higher position ) ) )$
(Abila v. C1C 198 1C"A 102 &'ne ) 1991 3n 7anc *?eliciano,-
)10. Can a person /ho lac>s the necessar( :'aliCcations for a p'blic position be
appointed to it in a permanent capacit(0 2ll'strative case.
Held2 At the outset, it must "e stressed that the position of Ginistr* <egal Counsel,CH4B .3 is
em"raced in the Career H)ecuti!e 4er!ice# A ) )
.n the case at "ar, there is no +uestion that pri!ate respondent does not ha!e the re+uired
CH4 eligi"ilit*# As admitted "* pri!ate respondent in his Comment, he is not a CH4B or a mem"er of
the Career H)ecuti!e 4er!ice#$
.n the case of A#ha#oso v. -a#arai%, et al., the Court heldD
.t is settled that a permanent appointment can "e issued onl* to a person who meets
all the re+uirements for the position to which he s "eing appointed, including the appropriate
eligi"ilit* prescri"ed#$ Achacoso did not# At "est, therefore, his appointment could "e regarded onl*
as temporar*# And "eing so, it could "e withdrawn at will "* the appointing authorit* and at a
moment;s notice,$ conforma"l* to esta"lished urisprudence#
The Court, ha!ing considered these su"missions and the additional arguments of the
parties in the petitioner;s 9epl* and of the 4olicitor,0eneral;s 9eoinder, must fnd for the
respondents#
The mere fact that a position "elongs to the Career 4er!ice does not automaticall*
confer securit* of tenure in its occupant e!en if he does not possess the re+uired +ualifcations#
4uch right will ha!e to depend on the nature of his appointment, which in turn depends on his
eligi"ilit* or lac& of it# A person who does not ha!e the re+uisite +ualifcations for the position cannot
"e appointed to it in the frst place or, onl* as an e)ception to the rule, ma* "e appointed to it
merel* in an acting capacit* in the a"sence of appropriate eligi"les# The appointment e)tended to
him cannot "e regarded as permanent e!en if it ma* "e so designated#
H!identl*, pri!ate respondent;s appointment did not attain permanenc*# 8ot ha!ing ta&en the
necessar* Career H)ecuti!e 4er!ice e)amination to o"tain the re+uisite eligi"ilit*, he did not at the
time of his appointment and up to the present, possess the needed eligi"ilit* for a position in the
Career H)ecuti!e 4er!ice# Conse+uentl*, his appointment as Ginistr* <egal Counsel,CH4B
.3P?epartment <egal Counsel andPor ?irector ..., was merel* temporar*# 4uch "eing the case, he
could "e transferred or reassigned without !iolating the constitutionall* guaranteed right to securit*
of tenure#
11
/ri!ate respondent capitali'es on his lac& of CH4 eligi"ilit* "* adamantl* contending that the
mo"ilit* and Qe)i"ilit* concepts in the assignment of personnels under the Career H)ecuti!e 4er!ice
do not appl* to him "ecause he s not a Career H)ecuti!e 4er!ice B(cer# B"!iousl*, the contention is
without merit# As correctl* pointed out "* the 4olicitor 0eneral, non,eligi"les holding permanent
appointments to CH4 positions were ne!er meant to remain immo"ile in their status# Btherwise, their
lac& of eligi"ilit* would "e a premium !esting them with permanenc* in the CH4 positions, a pri!ilege
e!en their eligi"le counterparts do not eno*#
Then too, the cases on unconsented transfer in!o&ed "* pri!ate respondent fnd no application
in the present case# To reiterate, pri!ate respondent;s appointment is merel* temporar*6 hence, he
could "e transferred or reassigned to other positions without !iolating his right to securit* of tenure#
(De =eon v. Co'rt of Appeals )%0 1C"A 1 &an. 22 2001 3n 7anc *Bnares91antia6o,-
)11. 2n the career e4ec'tive service is a career e4ec'tive service (C31- eli6ibilit( all
that an emplo(ee needs to ac:'ire sec'rit( of ten're0 2s appointment to a C31
ran> necessar( for the ac:'isition of s'ch sec'rit( of ten're0

Held2 .n the career e)ecuti!e ser!ice, the ac+uisition of securit* of tenure which presupposes
a permanent appointment is go!erned "* the rules and regulations promulgated "* the CH4 2oard ) )
)#
As clearl* set forth in the foregoing pro!isions, two re+uisites must concur in order that an
emplo*ee in the career e)ecuti!e ser!ice ma* attain securit* of tenure, to witD
CH4 eligi"ilit*6 and
Appointment to the appropriate CH4 ran&#
.n addition, it must "e stressed that the securit* of tenure of emplo*ees in the career
e)ecuti!e ser!ice (e)cept frst and second le!el emplo*ees in the ci!il ser!ice), pertains onl* to ran&
and not to the o(ce or to the position to which the* ma* "e appointed# Thus, a career e)ecuti!e
ser!ice o(cer ma* "e transferred or reassigned from one position to another without losing his ran&
which follows him where!er he is transferred or reassigned# .n fact, a CH4B su-ers no diminution of
salar* e!en if assigned to a CH4 position with lower salar* grade, as he is compensated according to
his CH4 ran& and not on the "asis of the position or o(ce he occupies#
.n the case at "ar, there is no +uestion that respondent 9amon 4# 9oco, though a CH4 eligi"le,
does not possess the appropriate CH4 ran&, which is J CH4 ran& le!el 3, for the position of 9egional
?irector of the <TB (9egion 3)# 1alling short of one of the +ualifcations that would complete his
mem"ership in the CH4, respondent cannot successfull* interpose !iolation of securit* of tenure#
Accordingl*, he could "e !alidl* reassigned to other positions in the career e)ecuti!e ser!ice# ) ) )
Goreo!er, under the mo"ilit* and Qe)i"ilit* principles of the .ntegrated 9eorgani'ation /lan,
CH4 personnel ma* "e reassigned or transferred from one position to another ) ) )#
Bne last point# 9espondent capitali'es on the fact that petitioner <uis Gario G# 0eneral is not
a CH4 eligi"le# The a"sence, howe!er, of such CH4 eligi"ilit* is of no moment# As stated in /art ...,
Chapter ., Article .3, paragraph 5(c), of the .ntegrated 9eorgani'ation /lan J
) ) ) the /resident ma*, in e)ceptional cases, appoint an* person who is not a Career
H)ecuti!e 4er!ice eligi"le6 pro!ided that such appointee shall su"se+uentl* ta&e the re+uired
Career H)ecuti!e 4er!ice e)amination and that he shall not "e promoted to a higher class until
he +ualifed in such e)amination#$
H!identl*, the law allows appointment of those who are not CH4 eligi"le, su"ect to the
o"tention of said eligi"ilit*, in the same manner that the appointment of respondent who does not
possess the re+uired CH4 ran& (CH4 ran& le!el 3) for the position of 9egional ?irector of the <TB, is
permitted in a temporar* capacit*# (!eneral v. "oco )%0 1C"A %28 &an. 29 2001 1
st
Div.
*Bnares91antia6o,-
)12. Ho/ are positions in the Civil 1ervice classiCed0 Disc'ss the characteristics of
each.
A&,02 /ositions in the Ci!il 4er!ice ma* "e classifed intoD 5) Career /ositions, and 2) 8on,
Career /ositions#
Career /ositions are characteri'ed "* (5) entrance "ased on merit and ftness to "e
determined as far as practica"le "* competiti!e e)amination, or "ased on highl* technical
+ualifcations6 (2) opportunit* for ad!ancement to higher career positions6 and (=) securit* of tenure
(1ec. 7 Chap. 2 1'btitle A Title 2 7>. I 3.O. #o. 292-.
The 8on,Career 4er!ice shall "e characteri'ed "* (5) entrance on "ases other than of the
usual tests of merit or ftness utili'ed for the career ser!ice6 and (2) tenure which is limited to a period
specifed "* law, or which is coterminous with that of the appointing authorit* or su"ect to his
pleasure, or which is limited to the duration of a particular proect for which purpose emplo*ment was
made (1ec. 9 Chap. 2 1'btitle A Title 2 7>. I 3.O. #o. 292-.
12
)1). .hat is a primaril( conCdential position0 .hat is the test to determine /hether
a position is primaril( conCdential or not0
Held2 A primaril& #onFdential position is one which denotes not onl* confdence in the
aptitude of the appointee for the duties of the o(ce "ut primaril* close intimac* which ensures
freedom from intercourse without em"arrassment or freedom from misgi!ings or "etra*als of personal
trust or confdential matters of state# (De los 1antos v. @allare 87 +hil. 289 *19%0,-
Inder the pro?imit& rule, the occupant of a particular position could "e considered a
confdential emplo*ee if the predominant reason wh* he was chosen "* the appointing authorit* was
the latter;s "elief that he can share a close intimate relationship with the occupant which ensures
freedom of discussion without fear or em"arrassment or misgi!ings of possi"le "etra*al of personal
trust or confdential matters of state# :ithal, where the position occupied is more remote from that of
the appointing authorit*, the element of trust "etween them is no longer predominant# (C1C v.
1alas 275 1C"A 515 &'ne 19 1997-
)15. Does the Civil 1ervice =a/ contemplate a revie/ of decisions e4oneratin6 o8cers
or emplo(ees from administrative char6es0
Held2 2* this ruling, we now e)pressl* a"andon and o!errule e)tant urisprudence that the
phrase Npart* ad!ersel* a-ected "* the decision; refers to the go!ernment emplo*ee against whom
the administrati!e case is fled for the purpose of disciplinar* action which ma* ta&e the form of
suspension, demotion in ran& or salar*, transfer, remo!al or dismissal from o(ce$ and not included
are cases where the penalt* imposed is suspension for not more than thirt* (=0) da*s or fne in an
amount not e)ceeding thirt* da*s salar*$ ($aredes v. Civil 2ervi#e Commission, 197 2C!A 80, 8>) or
when respondent is e)onerated of the charges, there is no occasion for appeal#$ (-endeG v. Civil
2ervi#e Commission, 790 2C!A 91>, 918) .n other words, we o!errule prior decisions holding that the
Ci!il 4er!ice <aw does not contemplate a re!iew of decisions e)onerating o(cers or emplo*ees from
administrati!e charges$ enunciated in $aredes v. Civil 2ervi#e Commission (197 2C!A 80)H -endeG v.
Civil 2ervi#e Commission (790 2C!A 91>)H -a%pale v. Civil 2ervi#e Commission (71> 2C!A =98)H
/avarro v. Civil 2ervi#e Commission and ,?port $ro#essin% Eone Authorit& (771 2C!A 797) and more
recentl* 'el Castillo v. Civil 2ervi#e Commission (7=7 2C!A 180). (C1C v. +edro O. Daco(co( !.".
#o. 1)%80% April 29 1999 3n 7anc *+ardo,-
)1%. .hat is preventive s'spension0 Disc'ss its nat're.
Held2 .mposed during the pendenc* of an administrati!e in!estigation, pre!enti!e
suspension is not a penalt* in itself# .t is merel* a measure of precaution so that the emplo*ee who is
charged ma* "e separated, for o"!ious reasons, from the scene of his alleged misfeasance while the
same is "eing in!estigated# Thus pre!enti!e suspension is distinct from the administrati!e penalt* of
remo!al from o(ce such as the one mentioned in 4ec# F(d) of /#?# 8o# F0%# :hile the former ma* "e
imposed on a respondent during the in!estigation of the charges against him, the latter is the penalt*
which ma* onl* "e meted upon him at the termination of the in!estigation or the fnal disposition of
the case# (7eFa 1r. v. CA 207 1C"A $89 @arch )1 1992 *"omero,-
)1$. Disc'ss the >inds of preventive s'spension 'nder the Civil 1ervice =a/. .hen
ma( a civil service emplo(ee placed 'nder preventive s'spension be entitled to
compensation0
Held2 There are two &inds of pre!enti!e suspension of ci!il ser!ice emplo*ees who are
charged with o-enses punisha"le "* remo!al or suspensionD (5) pre!enti!e suspension pendin%
investi%ation (2e#. >1, Civil 2ervi#e ;aw, ,) /o. 797) and (2) pre!enti!e suspension pendin% appeal if
the penalt* imposed "* the disciplining authorit* is suspension or dismissal and, after re!iew, the
respondent is e)onerated (2e#tion 07, par. 0, Civil 2ervi#e ;aw, ,) /o. 797).
/re!enti!e suspension pendin% investi%ation is not a penalt*# .t is a measure intended to
ena"le the disciplining authorit* to in!estigate charges against respondent "* pre!enting the latter
from intimidating or in an* wa* inQuencing witnesses against him# .f the in!estigation is not fnished
and a decision is not rendered within that period, the suspension will "e lifted and the respondent will
automaticall* "e reinstated# .f after in!estigation respondent is found innocent of the charges and is
e)onerated, he should "e reinstated# Cowe!er, no compensation was due for the period of pre!enti!e
suspension pending in!estigation# The Ci!il 4er!ice Act of 5@5@ (!.A. /o. 7719) pro!iding for
compensation in such a case once the respondent was e)onerated was re!ised in 5@%5 and the
pro!ision on the pa*ment of salaries during suspension was deleted#
2ut although it is held that emplo*ees who are pre!enti!el* suspended pendin% investi%ation
are not entitled to the pa*ment of their salaries e!en if the* are e)onerated, the* are entitled to
compensation for the period of their suspension pendin% appeal if e!entuall* the* are found innocent#
/re!enti!e suspension pendin% investi%ation ) ) ) is not a penalt* "ut onl* a means of
ena"ling the disciplining authorit* to conduct an unhampered in!estigation# Bn the other hand,
pre!enti!e suspension pendin% appeal is actuall* puniti!e although it is in e-ect su"se+uentl*
considered illegal if respondent is e)onerated and the administrati!e decision fnding him guilt* is
re!ersed# Cence, he should "e reinstated with full pa* for the period of the suspension# (!loria v.
CA !.". #o. 1)1012 April 21 1999 3n 7anc *@endoAa,-
13
)17. Disc'ss the po/er of Omb'dsman to cond'ct administrative investi6ations and
to impose preventive s'spension.
Held2 :orth stressing, to resol!e the present contro!ers*, we must recall that the authorit*
of the Bm"udsman to conduct administrati!e in!estigations is mandated "* no less than the
Constitution# ) ) )
9#A# >%%0, the Bm"udsman <aw, further grants the B(ce of the Bm"udsman the statutor*
power to conduct administrati!e in!estigations# ) ) )
4ection 25 of 9#A# >%%0 names the o(cials su"ect to the Bm"udsman;s disciplinar* authorit*
) ) )#
/etitioner is an electi!e local o(cial accused of gra!e misconduct and dishonest*# That the
B(ce of the Bm"udsman ma* conduct an administrati!e in!estigation into the acts complained of,
appears clear from the foregoing pro!isions of 9#A# >%%0#
Cowe!er, the +uestion of whether or not the Bm"udsman ma* conduct an in!estigation o!er a
particular act or omission is di-erent from the +uestion of whether or not petitioner, after
in!estigation, ma* "e held administrati!el* lia"le# This distinction ought here to "e &ept in mind e!en
as we must also ta&e note that the power to in!estigate is distinct from the power to suspend
pre!enti!el* an erring pu"lic o(cer#
<i&ewise worth* of note, the power of the B(ce of the Bm"udsman to pre!enti!el* suspend
an o(cial su"ect to its administrati!e in!estigation is pro!ided "* specifc pro!ision of law# ) ) )
:e ha!e pre!iousl* interpreted the phrase under his authorit*$ to mean that the
Bm"udsman can pre!enti!el* suspend all o(cials under in!estigation "* his o(ce, regardless of the
"ranch of go!ernment in which the* are emplo*ed, e)cepting of course those remo!a"le "*
impeachment, mem"ers of Congress and the Eudiciar*#
The power to pre!enti!el* suspend is a!aila"le not onl* to the Bm"udsman "ut also to the
?eput* Bm"udsman# This is the clear import of 4ection 24 of 9#A# >%%0 a"o!ecited#
There can "e no +uestion in this case as to the power and authorit* of respondent ?eput*
Bm"udsman to issue an order of pre!enti!e suspension against an o(cial li&e the petitioner, to
pre!ent that o(cial from using his o(ce to intimidate or inQuence witnesses (loria v. CA, et al., .!.
/o. 1=1917, April 71, 1999, p. 7, =91 2C!A 787) or to tamper with records that might "e !ital to the
prosecution of the case against him (@asa&, Ar. v. 'esierto, et al., .!. /o. 1=009>, 'e#em"er 78,
1998, p. 9, =99 2C!A 090). .n our !iew, the present contro!ers* simpl* "oils down to this pi!otal
+uestionD 0i!en the purpose of pre!enti!e suspension and the circumstances of this case, did
respondent ?eput* Bm"udsman commit a gra!e a"use of discretion when he set the period of
pre!enti!e suspension at si) months7
/re!enti!e suspension under 4ec# 24, 9#A# >%%0 ) ) ) ma* "e imposed when, among other
factors, the e!idence of guilt is strong# The period for which an o(cial ma* "e pre!enti!el*
suspended must not e)ceed si) months# .n this case, petitioner was pre!enti!el* suspended and
ordered to cease and desist from holding o(ce for the entire period of si) months, which is the
ma)imum pro!ided "* law#
The determination of whether or not the e!idence of guilt is strong as to warrant pre!enti!e
suspension rests with the Bm"udsman. The discretion as regards the period of such suspension also
necessaril* "elongs to the Bm"udsman, e)cept that he cannot e)tend the period of suspension
"e*ond that pro!ided "* law. 2ut, in our !iew, "oth the strength of the e!idence to warrant said
suspension and the propriet* of the length or period of suspension imposed on petitioner are properl*
raised in this petition for certiorari and prohi"ition# A ) )
A ) )
0i!en these fndings, we cannot sa* now that there is no e!idence su(cientl* strong to ustif*
the imposition of pre!enti!e suspension against petitioner# 2ut considering its purpose and the
circumstances in the case "rought "efore us, it does appear to us that the imposition of the ma)imum
period of si) months is unwarranted#
A ) ) L0Mranting that now the e!idence against petitioner is alread* strong, e!en without
conceding that initiall* it was wea&, it is clear to us that the ma)imum si),month period is e)cessi!e
and defnitel* longer than necessar* for the Bm"udsman to ma&e its legitimate case against
petitioner# :e must conclude that the period during which petitioner was alread* pre!enti!el*
suspended, has "een su(cient for the lawful purpose of pre!enting petitioner from hiding and
destro*ing needed documents, or harassing and pre!enting witnesses who wish to appear against
him# (!arcia v. @oFica )15 1C"A 207 1ept. 10 1999 2
nd
Div. *G'is'mbin6,-
)18. Distin6'ish preventive s'spension 'nder the =ocal !overnment Code from
preventive s'spension 'nder the Omb'dsman Act.
Held2 :e reach the foregoing conclusion, howe!er, without necessaril* su"scri"ing to
petitioner;s claim that the <ocal 0o!ernment Code, which he a!erred should appl* to this case of an
electi!e local o(cial, has "een !iolated# True, under said Code, pre!enti!e suspension ma* onl* "e
14
imposed after the issues are oined, and onl* for a ma)imum period of si)t* da*s# Cere, petitioner
was suspended without ha!ing had the chance to refute frst the charges against him, and for the
ma)imum period of si) months pro!ided "* the Bm"udsman <aw# 2ut as respondents argue,
administrati!e complaints commenced under the Bm"udsman <aw are distinct from those initiated
under the <ocal 0o!ernment Code# 9espondents point out that the shorter period of suspension
under the <ocal 0o!ernment Code is intended to limit the period of suspension that ma* "e imposed
"* a ma*or, a go!ernor, or the /resident, who ma* "e moti!ated "* partisan political considerations#
.n contrast the Bm"udsman, who can impose a longer period of pre!enti!e suspension, is not li&el* to
"e similarl* moti!ated "ecause it is a constitutional "od*# The distinction is !alid "ut not decisi!e, in
our !iew, of whether there has "een gra!e a"use of discretion in a specifc case of pre!enti!e
suspension#
A ) )
9espondents ma* "e correct in pointing out the reason for the shorter period of pre!enti!e
suspension imposa"le under the <ocal 0o!ernment Code# /olitical color could taint the e)ercise of the
power to suspend local o(cials "* the ma*or, go!ernor, or /resident;s o(ce# .n contrast the
Bm"udsman, considering the constitutional origin of his B(ce, alwa*s ought to "e insulated from the
!agaries of politics, as respondents would ha!e us "elie!e#
.n :a%ad v. oGo+'adole, on the matter of whether or not the Bm"udsman has "een stripped
of his power to in!estigate local electi!e o(cials "* !irtue of the <ocal 0o!ernment Code, we saidD
.ndeed, there is nothing in the <ocal 0o!ernment Code to indicate that it has repealed,
whether e)pressl* or impliedl*, the pertinent pro!isions of the Bm"udsman Act# The two statutes
on the specifc matter in +uestion are not so inconsistent, let alone irreconcila"le, as to compel us
to onl* uphold one and stri&e down the other#$
.t was also argued in :a%ad, that the si),month pre!enti!e suspension under the Bm"udsman
<aw is much too repugnant$ to the >0,da* period that ma* "e imposed under the <ocal 0o!ernment
Code# 2ut per E# 3itug, the two pro!isions go!ern di-erentl*#$
Cowe!er, petitioner now contends that :a%ad did not settle the +uestion of whether a local
electi!e o(cial ma* "e pre!enti!el* suspended e!en "efore the issues could "e oined# .ndeed it did
not, "ut we ha!e held in other cases that there could "e pre!enti!e suspension e!en "efore the
charges against the o(cial are heard, or "efore the o(cial is gi!en an opportunit* to pro!e his
innocence. /re!enti!e suspension is merel* a preliminar* step in an administrati!e in!estigation and
is not in an* wa* the fnal determination of the guilt of the o(cial concerned#
/etitioner also a!ers that the suspension order against him was issued in !iolation of 4ection
2>L2M of the Bm"udsman <aw ) ) )#
/etitioner argues that "efore an in+uir* ma* "e con!erted into a full,"lown administrati!e
in!estigation, the o(cial concerned must "e gi!en %2 hours to answer the charges against him# .n his
case, petitioner sa*s the in+uir* was con!erted into an administrati!e in!estigation without him "eing
gi!en the re+uired num"er of hours to answer#
.ndeed, it does not appear that petitioner was gi!en the re+uisite %2 hours to su"mit a written
answer to the complaint against him# This, howe!er, does not ma&e in!alid the pre!enti!e suspension
order issued against him# As we ha!e earlier stated, a pre!enti!e suspension order ma* "e issued
e!en "efore the charges against the o(cial concerned is heard#
Goreo!er, respondents state that petitioner was gi!en 50 da*s to su"mit his counter,a(da!it
to the complaint fled "* respondent Tagaan# :e fnd this 50,da* period is in &eeping with 4ection
5LaM of the 9ules of /rocedure of the B(ce of the Bm"udsman ) ) )# (!arcia v. @oFica )15 1C"A
207 1ept. 10 1999 2
nd
Div. *G'is'mbin6,-
)19. Does 1ection 1) "ep'blic Act #o. )019 e4cl'de from its covera6e the members of
Con6ress and therefore the 1andi6anba(an erred in decreein6 the preventive
s'spension order a6ainst 1enator @iriam Defensor91antia6o0 .ill the order of
s'spension prescribed b( "ep'blic Act #o. )019 not encroach on the po/er of
Con6ress to discipline its o/n ran>s 'nder the Constit'tion0
Held2 The petition assails the authorit* of the 4andigan"a*an to decree a ninet*,da*
pre!enti!e suspension of Gme# Giriam ?efensor,4antiago, a 4enator of the 9epu"lic of the /hilippines,
from an* go!ernment position, and furnishing a cop* thereof to the 4enate of the /hilippines for the
implementation of the suspension order#
The authorit* of the 4andigan"a*an to order the pre!enti!e suspension of an incum"ent
pu"lic o(cial charged with !iolation of the pro!isions of 9epu"lic Act 8o# =05@ has "oth legal and
urisprudential support# A ) )
.n the relati!el* recent case of 2e%ovia v. 2andi%an"a&an, the Court reiteratedD
The !alidit* of 4ection 5=, 9#A# =05@, as amended J treating of the suspension
pendente lite of an accused pu"lic o(cer J ma* no longer "e put at issue, ha!ing "een
repeatedl* upheld "* this Court#
15
A ) )
The pro!ision of suspension pendente lite applies to all persons indicted upon a !alid
information under the Act, whether the* "e appointi!e or electi!e o(cials6 or permanent or
temporar* emplo*ees, or pertaining to the career or non,career ser!ice#$ (At pp# ==>,==%)
.t would appear, indeed, to "e a ministerial dut* of the court to issue an order of suspension
upon determination of the !alidit* of the information fled "efore it# Bnce the information is found to
"e su(cient in form and su"stance, the court is "ound to issue an order of suspension as a matter of
course, and there seems to "e no ifs and "uts a"out it#$ H)plaining the nature of the pre!enti!e
suspension, the Court in the case of (a&ot v. 2andi%an"a&anD
) ) ) .t is not a penalt* "ecause it is not imposed as a result of udicial proceedings#
.n fact, if ac+uitted, the o(cial concerned shall "e entitled to reinstatement and to the salaries
and "enefts which he failed to recei!e during suspension#$
.n issuing the pre!enti!e suspension of petitioner, the 4andigan"a*an merel* adhered to the
clear and une+ui!ocal mandate of the law, as well as the urisprudence in which the Court has, more
than once, upheld 4andigan"a*an;s authorit* to decree the suspension of pu"lic o(cials and
emplo*ees indicted "efore it#
4ection 5= of 9epu"lic Act 8o# =05@ does not state that the pu"lic o(cer concerned must "e
suspended onl* in the o(ce where he is alleged to ha!e committed the acts with which he has "een
charged# Thus, it has "een held that the use of the word Co*#eD would indi#ate that it applies to an&
o*#e whi#h the o*#er #har%ed ma& "e holdin%, and not onl& the parti#ular o*#e under whi#h he
stands a##used. ((a&ot v. 2andi%an"a&an, supraH 2e%ovia v. 2andi%an"a&an, supra.)
,n passant, while the imposition of suspension is not automatic or self,operati!e as the
!alidit* of the information must "e determined in a pre,suspension hearing, there is no hard and fast
rule as to the conduct thereof# .t has "een said that J
N) ) ) 8o specifc rules need "e laid down for such pre,suspension hearing# 4u(ce it
to state that the accused should "e gi!en a fair and ade+uate opportunit* to challenge the 3A<.?.TR
B1 TCH C9.G.8A< /9BCHH?.804 against him, e.%., that he has not "een a-orded the right of due
preliminar* in!estigation6 that the acts for which he stands charged do not constitute a !iolation of
the pro!isions of 9epu"lic Act =05@ or the "ri"er* pro!isions of the 9e!ised /enal Code which would
warrant his mandator* suspension from o(ce under 4ection 5= of the Act6 or he ma* present a
motion to +uash the information on an* of the grounds pro!ided for in 9ule 55% of the 9ules of Court )
) )#;
) ) )
<i&ewise, he is accorded the right to challenge the propriet* of his prosecution on the
ground that the acts for which he is charged do not constitute a !iolation of 9ep# Act =05@, or of the
pro!isions on "ri"er* of the 9e!ised /enal Code, and the right to present a motion to +uash the
information on an* other grounds pro!ided in 9ule 55% of the 9ules of Court#
Cowe!er, a challenge to the !alidit* of the criminal proceedings on the ground that
the acts for which the accused is charged do not constitute a !iolation of the pro!isions of 9ep#
Act 8o# =05@, or of the pro!isions on "ri"er* of the 9e!ised /enal Code, should "e treated onl*
in the same manner as a challenge to the criminal proceeding "* wa* of a motion to +uash on
the ground pro!ided in /aragraph (a), 4ection 2 of 9ule 55% of the 9ules of Court, i.e., that the
facts charged do not constitute an o-ense# .n other words, a resolution of the challenge to the
!alidit* of the criminal proceeding, on such ground, should "e limited to an in+uir* whether
the facts alleged in the information, if h*potheticall* admitted, constitute the elements of an
o-ense punisha"le under 9ep# Act =05@ or the pro!isions on "ri"er* of the 9e!ised /enal
Code#$ (;u#iano v. -ariano, 09 2C!A 187 319714H $eople v. Al"ano, 11= 2C!A >11, >17+>19
319884)
The law does not re+uire that the guilt of the accused must "e esta"lished in a pre,suspension
proceeding "efore trial on the merits proceeds# 8either does it contemplate a proceeding to
determine (5) the strength of the e!idence of culpa"ilit* against him, (2) the gra!it* of the o-ense
charged, or (=) whether or not his continuance in o(ce could inQuence the witnesses or pose a threat
to the safet* and integrit* of the records and other e!idence "efore the court could ha!e a !alid "asis
in decreeing pre!enti!e suspension pending the trial of the case# All it secures to the accused is
ade+uate opportunit* to challenge the !alidit* or regularit* of the proceedings against him, such as,
that he has not "een a-orded the right to due preliminar* in!estigation, that the acts imputed to him
do not constitute a specifc crime warranting his mandator* suspension from o(ce under 4ection 5=
of 9epu"lic Act 8o# =05@, or that the information is su"ect to +uashal on an* of the grounds set out in
4ection =, 9ule 55%, of the 9e!ised 9ules on Criminal /rocedure#
A ) )
The pronouncement, upholding the !alidit* of the information fled against petitioner,
"ehoo!ed 4andigan"a*an to discharge its mandated dut* to forthwith issue the order of pre!enti!e
suspension#
16
The order of suspension prescri"ed "* 9epu"lic Act 8o# =05@ is distinct from the power of
Congress to discipline its own ran&s under the Constitution which pro!ides that each J
) ) ) house ma* determine the rules of its proceedings, punish its Gem"ers for
disorderl* "eha!ior, and, with the concurrence of two,thirds of all its Gem"ers, suspend or e)pel a
Gem"er# A penalt* of suspension, when imposed, shall not e)ceed si)t* da*s#$ (4ection 5>L=M, Article
3., 5@F% Constitution)
The suspension contemplated in the a"o!e constitutional pro!ision is a puniti!e measure that
is imposed upon determination "* the 4enate or the Couse of 9epresentati!es, as the case ma* "e,
upon an erring mem"er# Thus, in its resolution in the case of Ceferino $aredes, Ar. v. 2andi%an"a&an,
et al., the Court a(rmed the order of suspension of Congressman /aredes "* the 4andigan"a*an,
despite his protestations on the encroachment "* the court on the prerogati!es of Congress# The
Court ruledD
) ) ) /etitioner;s in!ocation of 4ection 5> (=), Article 3. of the Constitution J which
deals with the power of each Couse of Congress inter alia to Npunish its Gem"ers for disorderl*
"eha!ior,; and Nsuspend or e)pel a Gem"er; "* a !ote of two,thirds of all its Gem"ers su"ect to the
+ualifcation that the penalt* of suspension, when imposed, should not e)ceed si)t* da*s J in
una!ailing, as it appears to "e +uite distinct from the suspension spo&en of in 4ection 5= of 9A =05@,
which is not a penalt* "ut a preliminar*, pre!enti!e measure, prescinding from the fact that the latter
is not "eing imposed on petitioner for mis"eha!ior as a Gem"er of the Couse of 9epresentati!es#$
The doctrine of separation of powers "* itself ma* not "e deemed to ha!e e-ecti!el* e)cluded
Gem"ers of Congress from 9epu"lic Act 8o# =05@ nor from its sanctions# The ma)im simpl*
recogni'es each of the three co,e+ual and independent, al"eit coordinate, "ranches of the
go!ernment J the <egislati!e, the H)ecuti!e and the Eudiciar* J has e)clusi!e prerogati!es and
cogni'ance within its own sphere of inQuence and e-ecti!el* pre!ents one "ranch from undul*
intruding into the internal a-airs of either "ranch#
/arentheticall*, it might "e well to ela"orate a "it# 4ection 5, Article 3..., of the 5@F%
Constitution, empowers the Court to act not onl* in the settlement of actual contro!ersies in!ol!ing
rights which are legall* demanda"le and enforcea"le,$ "ut also in the determination of whether or
not there has "een a gra!e a"use of discretion amounting to lac& or e)cess of urisdiction on the part
of an& "ran#h or instrumentalit& of the %overnment.D The pro!ision allowing the Court to loo& into
an* possi"le gra!e a"use of discretion committed "* an* go!ernment instrumentalit* has e!identl*
"een couched in general terms in order to ma&e it mallea"le to udicial interpretation in the light of
an* emerging milieu# .n its normal concept, the term has "een said to impl* an ar"itrar*, despotic,
capricious or whimsical e)ercise of udgment amounting to lac& or e)cess of urisdiction# :hen the
+uestion, howe!er, pertains to an a-air internal to either of Congress or the H)ecuti!e, the Court
su"scri"es to the !iew that unless an infrin%ement of an& spe#iF# Constitutional pros#ription there"&
inheres the Court should not dei%n su"stitute its own Bud%ment over that of an& of the other two
"ran#hes of %overnment. .t is an impairment or a #lear disre%ard of a spe#iF# #onstitutional pre#ept
or provision that #an un"olt the steel door for Budi#ial intervention. .f an* part of the Constitution is
not, or ceases to "e, responsi!e to contemporar* needs, it is the people, not the Court, who must
promptl* react in the manner prescri"ed "* the Charter itself#
!epu"li# A#t /o. =919 does not e?#lude from its #overa%e the mem"ers of Con%ress and that,
therefore, the 2andi%an"a&an did not err in thus de#reein% the assailed preventive suspension order.
Attention might "e called to the fact that Criminal Case 8o# 5>>@F has "een decided "* the
1irst ?i!ision of the 4andigan"a*an on 0> ?ecem"er 5@@@, ac+uitting herein petitioner# The Court,
ne!ertheless, deems it appropriate to render this decision for future guidance on the signifcant issue
raised "* petitioner# (1antia6o v. 1andi6anba(an )%$ 1C"A $)$ April 18 2001 3n 7anc
*Iit'6,-
)20. @a( an elective p'blic o8cial be validl( appointed or desi6nated to an( p'blic
o8ce or position d'rin6 his ten're0
A&,02 8o electi!e o(cial shall "e eligi"le for appointment or designation in an* capacit* to
an* pu"lic o(ce or position during his tenure# (1ec. 7 1
st
par. Art. 2L97 1987 Constit'tion-
)21. @a( an appointive p'blic o8cial hold an( other o8ce or emplo(ment0
A&,02 Inless otherwise allowed "* law or "* the primar* functions of his position, no
appointi!e o(cial shall hold an* other o(ce or emplo*ment in the 0o!ernment or an* su"di!ision,
agenc* or instrumentalit* thereof, including go!ernment,owned or controlled corporation# (1ec. 7
2
nd
par. Art. 2L97 1987 Constit'tion-
)22. @a( the +resident Iice9+resident @embers of the Cabinet their dep'ties or
assistants hold an( other o8ce or emplo(ment0
A&,02 The /resident, 3ice,/resident, the Gem"ers of the Ca"inet, and their deputies or
assistants shall not, unless otherwise pro!ided in this Constitution, hold an* other o(ce or
emplo*ment during their tenure# (1ec. 1) Art. I22 1987 Constit'tion-
17
)2). Does the prohibition in 1ection 1) Article I22 of the 1987 Constit'tion insofar as
Cabinet members their dep'ties or assistants are concerned admit of the broad
e4ceptions made for appointive o8cials in 6eneral 'nder 1ection 7 par. (2-
Article 2L970
Held2 The threshold +uestion therefore isD does the prohi"ition in 4ection 5=, Article 3.. of the
5@F% Constitution insofar as Ca"inet mem"ers, their deputies or assistants are concerned admit of
the "road e)ceptions made for appointi!e o(cials in general under 4ection %, par# (2), Article .A,2
which, for eas* reference is +uoted anew, thusD Inless otherwise allowed "* law or "* the primar*
functions of his position, no appointi!e o(cial shall hold an* other o(ce or emplo*ment in the
go!ernment or an* su"di!ision, agenc* or instrumentalit* thereof, including go!ernment,owned or
controlled corporation or their su"sidiaries#$
:e rule in the negati!e#
A ) )
The practice of designating mem"ers of the Ca"inet, their deputies and assistants as
mem"ers of the go!erning "odies or "oards of !arious go!ernment agencies and instrumentalities,
including go!ernment,owned and controlled corporations, "ecame pre!alent during the time
legislati!e powers in this countr* were e)ercised "* former /resident 1erdinand H# Garcos pursuant to
his martial law authorit*# There was a proliferation of newl*,created agencies, instrumentalities and
go!ernment,owned and controlled corporations created "* presidential decrees and other modes of
presidential issuances where Ca"inet mem"ers, their deputies or assistants were designated to head
or sit as mem"ers of the "oard with the corresponding salaries, emoluments, per diems, allowances
and other per+uisites of o(ce# A ) )
This practice of holding multiple o(ces or positions in the go!ernment soon led to a"uses "*
unscrupulous pu"lic o(cials who too& ad!antage of this scheme for purposes of self,enrichment# A )
)
/articularl* odious and re!olting to the people;s sense of propriet* and moralit* in go!ernment
ser!ice were the data contained therein that 9o"erto !# Bngpin was a mem"er of the go!erning
"oards of twent*,nine (2@) go!ernmental agencies, instrumentalities and corporations6 .melda 9#
Garcos of twent*,three (2=)6 Cesar H#A# 3irata of twent*,two (22)6 Arturo 9# Tanco, Er# of ffteen (55)6
Eesus 4# Cipolito and 0eronimo S# 3elasco, of fourteen each (54)6 Cesar C# Salamea of thirteen (5=)6
9u"en 2# Ancheta and Eose A# 9ono of twel!e (52) each6 Ganuel /# Al"a, 0il"erto B# Teodoro, and
Hdgardo Tordesillas of ele!en (55) each6 and <ilia 2autista and Teodoro T# /ena of ten (50) each#
The "latant "etra*al of pu"lic trust e!ol!ed into one of the serious causes of discontent with
the Garcos regime# .t was therefore +uite ine!ita"le and in consonance with the o!erwhelming
sentiment of the people that the 5@F> Constitutional Commission, con!ened as it was after the people
successfull* unseated former /resident Garcos, should draft into its proposed Constitution the
pro!isions under consideration which are en!isioned to remed*, if not correct, the e!ils that Qow from
the holding of multiple go!ernmental o(ces and emplo*ment# A ) )
2ut what is indeed signifcant is the fact that although 4ection %, Article .A,2 alread* contains
a "lan&et prohi"ition against the holding of multiple o(ces or emplo*ment in the go!ernment
su"suming "oth electi!e and appointi!e pu"lic o(cials, the Constitutional Commission should see it
ft to formulate another pro!ision, 4ec# 5=, Article 3.., specifcall* prohi"iting the /resident, 3ice,
/resident, mem"ers of the Ca"inet, their deputies and assistants from holding an* other o(ce or
emplo*ment during their tenure, unless otherwise pro!ided in the Constitution itself#
H!identl*, from this mo!e as well as in the di-erent phraseologies of the constitutional
pro!isions in +uestion, the intent of the framers of the Constitution was to impose a stricter
prohi"ition on the /resident and his o(cial famil* in so far as holding other o(ces or emplo*ment in
the go!ernment or elsewhere is concerned#
Goreo!er, such intent is underscored "* a comparison of 4ection 5=, Article 3.. with other
pro!isions of the Constitution on the dis+ualifcations of certain pu"lic o(cials or emplo*ees from
holding other o(ces or emplo*ment# Inder 4ection 5=, Article 3., L8Mo 4enator or Gem"er of the
Couse of 9epresentati!es ma* hold an* other o(ce or emplo*ment in the overnment ? ? ?.D Inder
section 5(4), Article A3., L8Mo mem"er of the armed forces in the acti!e ser!ice shall, at an* time, "e
appointed in an* capacit* to a ci!ilian position in the overnment, including go!ernment,owned or
controlled corporations or an* of their su"sidiaries#$ H!en 4ection %(2), Article .A,2, relied upon "*
respondents pro!ides LIMnless otherwise allowed "* law or "* the primar* functions of his position,
no appointi!e o(cial shall hold an* other o(ce or emplo*ment in the overnment.D
.t is +uite nota"le that in all these pro!isions on dis+ualifcations to hold other o(ce or
emplo*ment, the prohi"ition pertains to an o(ce or emplo*ment in the %overnment and go!ernment,
owned or controlled corporations or their su"sidiaries# .n stri&ing contrast is the wording of 4ection
5=, Article 3.. which states that LTMhe /resident, 3ice,/resident, the Gem"ers of the Ca"inet, and
their deputies or assistants shall not, unless otherwise pro!ided in this Constitution, hold an* other
o(ce or emplo*ment during their tenure#$ .n the latter pro!ision, the dis+ualifcation is a"solute, not
"eing +ualifed "* the phrase in the 0o!ernment#$ The prohi"ition imposed on the /resident and his
o(cial famil* is therefore all,em"racing and co!ers "oth pu"lic and pri!ate o(ce or emplo*ment#
18
0oing further into 4ection 5=, Article 3.., the second sentence pro!idesD The* shall not, during
said tenure, directl* or indirectl*, practice an* other profession, participate in an* "usiness, or "e
fnanciall* interested in an* contract with, or in an* franchise, or special pri!ilege granted "* the
0o!ernment or an* su"di!ision, agenc* or instrumentalit* thereof, including go!ernment,owned or
controlled corporations or their su"sidiaries#$ These sweeping, all,em"racing prohi"itions imposed on
the /resident and his o(cial famil*, which prohi"itions are not similarl* imposed on other pu"lic
o(cials or emplo*ees such as the Gem"ers of Congress, mem"ers of the ci!il ser!ice in general and
mem"ers of the armed forces, are proof of the intent of the 5@F% Constitution to treat the /resident
and his o(cial famil* as a class "* itself and to impose upon said class stricter prohi"itions#
A ) )
Thus, while all other appointi!e o(cials in the ci!il ser!ice are allowed to hold other o(ce or
emplo*ment in the go!ernment during their tenure when such is allowed "* law or "* the primar*
functions of their positions, mem"ers of the Ca"inet, their deputies and assistants ma* do so onl*
when e)pressl* authori'ed "* the Constitution itself# .n other words, 4ection %, Article .A,2 is meant
to la* down the general rule applica"le to all electi!e and appointi!e pu"lic o(cials and emplo*ees,
while 4ection 5=, Article 3.. is meant to "e the e)ception applica"le onl* to the /resident, the 3ice,
/resident, Gem"ers of the Ca"inet, their deputies and assistants#
This "eing the case, the +ualif*ing phrase unless otherwise pro!ided in this Constitution$ in
4ection 5=, Article 3.. cannot possi"l* refer to the "road e)ceptions pro!ided under 4ection %, Article
.A,2 of the 5@F% Constitution# To construe said +ualif*ing phrase as respondents would ha!e us to do,
would render nugator* and meaningless the manifest intent and purpose of the framers of the
Constitution to impose a stricter prohi"ition on the /resident, 3ice,/resident, Gem"ers of the Ca"inet,
their deputies and assistants with respect to holding other o(ces or emplo*ment in the go!ernment
during their tenure# 9espondents; interpretation that 4ection 5= of Article 3.. admits of the e)ceptions
found in 4ection %, par# (2) of Article .A,2 would o"literate the distinction so carefull* set "* the
framers of the Constitution as to when the high,ran&ing o(cials of the H)ecuti!e 2ranch from the
/resident to assistant 4ecretar*, on the one hand, and the generalit* of ci!il ser!ants from the ran&
immediatel* "elow Assistant 4ecretar* downwards, on the other, ma* hold an* other o(ce or position
in the go!ernment during their tenure#
Goreo!er, respondents; reading of the pro!isions in +uestion would render certain parts of the
Constitution inoperati!e# This o"ser!ation applies particularl* to the 3ice,/resident who, under
4ection 5= of Article 3.. is allowed to hold other o(ce or emplo*ment when so authori'ed "* the
Constitution, "ut who as an electi!e pu"lic o(cial under 4ec# %, par# (5) of Article .A,2 is a"solutel*
ineligi"le for appointment or designation in an* capacit* to an* pu"lic o(ce or position during his
tenure#$ 4urel*, to sa* that the phrase unless otherwise pro!ided in this Constitution$ found in
4ection 5=, Article 3.. has reference to 4ection %, par# (5) of Article .A,2 would render meaningless the
specifc pro!isions of the Constitution authori'ing the 3ice,/resident to "ecome a mem"er of the
Ca"inet (2e#. =, ."id.), and to act as /resident without relin+uishing the 3ice,/residenc* where the
/resident shall not ha!e "een chosen or fails to +ualif* (2e#. 7, Arti#le 6..)# 4uch a"surd conse+uence
can "e a!oided onl* "* interpreting the two pro!isions under consideration as one, i.e., 4ection %, par#
(5) of Article .A,2 pro!iding the general rule and the other, i.e., 4ection 5=, Article 3.. as constituting
the e)ception thereto# .n the same manner must 4ection %, par# (2) of Article .A,2 "e construed !is,U,
!is 4ection 5=, Article 3..#
A ) )
4ince the e!ident purpose of the framers of the 5@F% Constitution is to impose a stricter
prohi"ition on the /resident, 3ice,/resident, mem"ers of the Ca"inet, their deputies and assistants
with respect to holding multiple o(ces or emplo*ment in the go!ernment during their tenure, the
e)ception to this prohi"ition must "e read with e+ual se!erit*# Bn its face, the language of 4ection
5=, Article 3.. is prohi"itor* so that it must "e understood as intended to "e a positi!e and
une+ui!ocal negation of the pri!ilege of holding multiple go!ernment o(ces and emplo*ment# 3eril*,
where!er the language used in the constitution is prohi"itor*, it is to "e understood as intended to "e
a positi!e and une+ui!ocal negation (3arne* !# Eustice, F> K* 5@>6 > 4#:# 45%6 Cunt !# 4tate, 22 Te)#
App# =@>, = 4#:# 2==)# The phrase unless otherwise pro!ided in this Constitution$ must "e gi!en a
literal interpretation to refer onl* to those particular instances cited in the Constitution itself, to witD
the 3ice,/resident "eing appointed as a mem"er of the Ca"inet under 4ection =, par# (2), Article 3..6 or
acting as /resident in those instances pro!ided under 4ection %, pars# (2) and (=), Article 3..6 and, the
4ecretar* of Eustice "eing e?+o*#io mem"er of the Eudicial and 2ar Council "* !irtue of 4ection F (5),
Article 3...#
A ) )
.t "eing clear ) ) ) that the 5@F% Constitution see&s to prohi"it the /resident, 3ice,/resident,
mem"ers of the Ca"inet, their deputies or assistants from holding during their tenure multiple o(ces
or emplo*ment in the go!ernment, e)cept in those cases specifed in the Constitution itself and as
a"o!e clarifed with respect to posts held without additional compensation in an e?+o*#io capacit* as
pro!ided "* law and as re+uired "* the primar* functions of their o(ce, the citation of Ca"inet
mem"ers (then called Ginisters) as e)amples during the de"ate and deli"eration on the general rule
laid down for all appointi!e o(cials should "e considered as mere personal opinions which cannot
o!erride the constitution;s manifest intent and the people;s understanding thereof#
.n the light of the construction gi!en to 4ection 5=, Article 3.. in relation to 4ection %, par# (2),
Article .A,2 of the 5@F% Constitution, H)ecuti!e Brder 8o# 2F4 dated Eul* 2=, 5@F% is unconstitutional#
19
Bstensi"l* restricting the num"er of positions that Ca"inet mem"ers, undersecretaries or assistant
secretaries ma* hold in addition to their primar* position to not more than two (2) positions in the
go!ernment and go!ernment corporations, H)ecuti!e Brder 8o# 2F4 actuall* allows them to hold
multiple o(ces or emplo*ment in direct contra!ention of the e)press mandate of 4ection 5=, Article
3.. of the 5@F% Constitution prohi"iting them from doing so, unless otherwise pro!ided in the 5@F%
Constitution itself#
The Court is alerted "* respondents to the impractical conse+uences that will result from a
strict application of the prohi"ition mandated under 4ection 5=, Article 3.. on the operations of the
0o!ernment, considering that Ca"inet mem"ers would "e stripped of their o(ces held in an e?+o*#io
capacit*, "* reason of their primar* positions or "* !irtue of legislation# As earlier clarifed in this
decision, e?+o*#io posts held "* the e)ecuti!e o(cial concerned without additional compensation as
pro!ided "* law and as re+uired "* the primar* functions of his o(ce do not fall under the defnition
of an* other o(ce$ within the contemplation of the constitutional prohi"ition# :ith respect to other
o(ces or emplo*ment held "* !irtue of legislation, including chairmanships or directorships in
go!ernment,owned or controlled corporations and their su"sidiaries, su(ce it to sa* that the feared
impractical conse+uences are more apparent than real# 2eing head of an e)ecuti!e department is no
mean o"# .t is more than a full,time o", re+uiring full attention, speciali'ed &nowledge, s&ills and
e)pertise# .f ma)imum "enefts are to "e deri!ed from a department head;s a"ilit* and e)pertise, he
should "e allowed to attend to his duties and responsi"ilities without the distraction of other
go!ernmental o(ces or emplo*ment# Ce should "e precluded from dissipating his e-orts, attention
and energ* among too man* positions and responsi"ilit*, which ma* result in hapha'ardness and
ine(cienc*# 4urel* the ad!antages to "e deri!ed from this concentration of attention, &nowledge and
e)pertise, particularl* at this stage of our national and economic de!elopment, far outweigh the
"enefts, if an*, that ma* "e gained from a department head spreading himself too thin and ta&ing in
more than what he can handle#
1inding H)ecuti!e Brder 8o# 2F4 to "e constitutionall* infrm, the Court here"* orders
respondents ) ) ) to immediatel* relin+uish their other o(ces or emplo*ment, as herein
defned, in the go!ernment, including go!ernment,owned or controlled corporations and
their su"sidiaries# (Civil =iberties Dnion v. 34ec'tive 1ecretar( 195 1C"A )17 ?eb.
22 1991 3n 7anc *?ernan C&,)
)25. Does the prohibition a6ainst holdin6 d'al or m'ltiple o8ces or emplo(ment
'nder 1ection 1) Article I22 of the Constit'tion appl( to posts occ'pied b( the
34ec'tive o8cials speciCed therein /itho't additional compensation in an e49
o8cio capacit( as provided b( la/ and as re:'ired b( the primar( f'nctions of
said o8cialsM o8ce0
Held2 The prohi"ition against holding dual or multiple o(ces or emplo*ment under 4ection
5=, Article 3.. of the Constitution must not, howe!er, "e construed as appl*ing to posts occupied "*
the H)ecuti!e o(cials specifed therein without additional compensation in an e?+o*#io capacit* as
pro!ided "* law and as re8uired (As opposed to the term CallowedD used in 2e#tion 7, par. (7), Arti#le
.I+( of the Constitution, whi#h is permissive. C!e8uiredD su%%ests an imposition, and therefore,
o"li%ator& in nature) "* the primar* functions of said o(cials; o(ce# The reason is that these posts
do not comprise an* other o(ce$ within the contemplation of the constitutional prohi"ition "ut are
properl* an imposition of additional duties and functions on said o(cials. To characteri'e these posts
otherwise would lead to a"surd conse+uences, among which areD The /resident of the /hilippines
cannot chair the 8ational 4ecurit* Council reorgani'ed under H)ecuti!e Brder 8o# 555# 8either can
the 3ice,/resident, the H)ecuti!e 4ecretar*, and the 4ecretaries of 8ational ?efense, Eustice, <a"or
and Hmplo*ment and <ocal 0o!ernment sit in this Council, which would then ha!e no reason to e)ist
for lac& of a chairperson and mem"ers# The respecti!e undersecretaries and assistant secretaries,
would also "e prohi"ited#
A ) )
.ndeed, the framers of our Constitution could not ha!e intended such a"surd conse+uences# A
Constitution, !iewed as a continuousl* operati!e charter of go!ernment, is not to "e interpreted as
demanding the impossi"le or the impractica"le6 and unreasona"le or a"surd conse+uences, if
possi"le, should "e a!oided.
To reiterate, the prohi"ition under 4ection 5=, Article 3.. is not to "e interpreted as co!ering
positions held without additional compensation in e?+o*#io capacities as pro!ided "* law and as
re+uired "* the primar* functions of the concerned o(cial;s o(ce# The term e?+o*#io means from
o(ce6 "* !irtue of o(ce#$ .t refers to an authorit* deri!ed from o(cial character merel*, not
e)pressl* conferred upon the indi!idual character, "ut rather anne)ed to the o(cial position#$ ,?
o*#io li&ewise denotes an act done in an o(cial character, or as a conse+uence of o(ce, and
without an* other appointment or authorit* than that conferred "* the o(ce#$ An e?+o*#io mem"er
of a "oard is one who is a mem"er "* !irtue of his title to a certain o(ce, and without further warrant
or appointment# To illustrate, "* e)press pro!ision of law, the 4ecretar* of Transportation and
Communications is the e?+o*#io Chairman of the 2oard of the /hilippine /orts Authorit* (2e#. 7, ,.).
778), and the <ight 9ail Transit Authorit* (2e#. 1, ,.). 719)#
The Court had occasion to e)plain the meaning of an e?+o*#io position in !afael v.
,m"roider& and Apparel Control and .nspe#tion (oard, thusD An e)amination of 4ection 2 of the
+uestioned statute (9#A# =5=%) re!eals that for the chairman and mem"ers of the 2oard to +ualif*
the* need onl* "e designated "* the respecti!e department heads# :ith the e)ception of the
representati!e from the pri!ate sector, the* sit e?+o*#io# . order to "e designated the* must alread*
20
"e holding positions in the o(ces mentioned in the law# Thus, for instance, one who does not hold a
pre!ious appointment in the 2ureau of Customs, cannot, under the act, "e designated a
representati!e from that o(ce# The same is true with respect to the representati!es from the other
o(ces# 8o new appointments are necessar*# This is as it should "e, "ecause the representati!es so
designated merel& perform duties in the (oard in addition to those alread& performed under their
ori%inal appointments.D
The term primar*$ used to descri"e functions$ refers to the order of importance and thus
means chief or principal function# The term is not restricted to the singular "ut ma* refer to the plural
(==A Words and $hrases, p. 719)# The additional duties must not onl* "e closel* related to, "ut must
"e re+uired "* the o(cial;s primar* functions# H)amples of designations to positions "* !irtue of
one;s primar* functions are the 4ecretaries of 1inance and 2udget sitting as mem"ers of the Gonetar*
2oard, and the 4ecretar* of Transportation and Communications acting as Chairman of the Garitime
.ndustr* Authorit* and the Ci!il Aeronautics 2oard#
.f the functions to "e performed are merel* incidental, remotel* related, inconsistent,
incompati"le, or otherwise alien to the primar* function of a ca"inet o(cial, such additional functions
would fall under the pur!iew of an* other o(ce$ prohi"ited "* the Constitution# An e)ample would
"e the /ress Indersecretar* sitting as a mem"er of the 2oard of the /hilippine Amusement and
0aming Corporation# The same rule applies to such positions which confer on the ca"inet o(cial
management functions andPor monetar* compensation, such as "ut not limited to chairmanships or
directorships in go!ernment,owned or controlled corporations and their su"sidiaries#
Gandating additional duties and functions to the /resident, 3ice,/resident, Ca"inet Gem"ers,
their deputies or assistants which are not inconsistent with those alread* prescri"ed "* their o(ces or
appointments "* !irtue of their special &nowledge, e)pertise and s&ill in their respecti!e e)ecuti!e
o(ces is a practice long,recogni'ed in man* urisdictions# .t is a practice ustifed "* the demands of
e(cienc*, polic* direction, continuit* and coordination among the di-erent o(ces in the H)ecuti!e
2ranch in the discharge of its multifarious tas&s of e)ecuting and implementing laws a-ecting national
interest and general welfare and deli!ering "asic ser!ices to the people# .t is consistent with the
power !ested on the /resident and his alter egos, the Ca"inet mem"ers, to ha!e control of all the
e)ecuti!e departments, "ureaus and o(ces and to ensure that the laws are faithfull* e)ecuted#
:ithout these additional duties and functions "eing assigned to the /resident and his o(cial famil* to
sit in the go!erning "odies or "oards of go!ernmental agencies or instrumentalities in an e?+o*#io
capacit* as pro!ided "* law and as re+uired "* their primar* functions, the* would "e depri!ed of the
means for control and super!ision, there"* resulting in an unwield* and confused "ureaucrac*#
.t "ears repeating though that in order that such additional duties or functions ma* not
transgress the prohi"ition em"odied in 4ection 5=, Article 3.. of the 5@F% Constitution, such additional
duties or functions must "e re8uired "& the primar& fun#tions of the o*#ial #on#erned, who is to
perform the same in an e?+o*#io #apa#it& as provided "& law, without re#eivin% an& additional
#ompensation therefor.
The e?+o*#io position "eing actuall* and in legal contemplation part of the principal o(ce, it
follows that the o(cial concerned has no right to recei!e additional compensation for his ser!ices in
the said position# The reason is that these ser!ices are alread* paid for and co!ered "* the
compensation attached to his principal o(ce# .t should "e o"!ious that if, sa*, the 4ecretar* of
1inance attends a meeting of the Gonetar* 2oard as an e?+o*#io mem"er thereof, he is actuall* and
in legal contemplation performing the primar* function of his principal o(ce in defning polic* in
monetar* and "an&ing matters, which come under the urisdiction of his department# 1or such
attendance, therefore, he is not entitled to collect an* e)tra compensation, whether it "e in the form
of a per diem or an honorarium or an allowance, or some other such euphemism# 2* whate!er name
it is designated, such additional compensation is prohi"ited "* the Constitution# (Civil =iberties
Dnion v. 34ec'tive 1ecretar( 195 1C"A )17 ?eb. 22 1991 3n 7anc *?ernan C&,-
)2%. 1ho'ld members of the Cabinet appointed to other positions in the 6overnment
p'rs'ant to 34ec'tive Order #o. 285 /hich later /as declared 'nconstit'tional b(
the 1C for bein6 violative of 1ection 1) Article I22 of the Constit'tion be made to
reimb'rse the 6overnment for /hatever pa( and emol'ments the( received from
holdin6 s'ch other positions0
Held2 ?uring their tenure in the +uestioned positions, respondents ma* "e considered de
fa#to o(cers and as such entitled to emoluments for actual ser!ices rendered. .t has "een held that
in cases where there is no de Bure o(cer, a de fa#to o(cer, who, in good faith has had possession of
the o(ce and has discharged the duties pertaining thereto, is legall* entitled to the emoluments of
the o(ce, and ma* in an appropriate action reco!er the salar*, fees and other compensations
attached to the o(ce# This doctrine is, undou"tedl*, supported on e+uita"le grounds since it seems
unust that the pu"lic should "eneft "* the ser!ices of an o(cer de fa#to and then "e freed from all
lia"ilit* to pa* an* one for such ser!ices. An* per diem, allowances or other emoluments recei!ed "*
the respondents "* !irtue of actual ser!ices rendered in the +uestioned positions ma* therefore "e
retained "* them# (Civil =iberties Dnion v. 34ec'tive 1ecretar( 195 1C"A )17 ?eb. 22
1991 3n 7anc *?ernan C&,-
)2$. @a( a 1enator or Con6ressman hold an( other o8ce or emplo(ment0
A&,02 8o 4enator or Gem"er of the Couse of 9epresentati!es ma* hold an* other o(ce or
emplo*ment in the go!ernment, or an* su"di!ision, agenc*, or instrumentalit* thereof, including
21
go!ernment,owned or controlled corporations or their su"sidiaries, during his term without forfeiting
his seat# 8either shall he "e appointed to an* o(ce which ma* ha!e "een created or the emoluments
thereof increased during the term for which he was elected# (1ec. 1) Art. I2 1987 Constit'tion-.
)27. .hat are the sit'ations covered b( the la/ on nepotism0
Held2 Inder the defnition of nepotism, one is guilt* of nepotism if an appointment is issued
in fa!or of a relati!e within the third ci!il degree of consanguinit* or a(nit* of an* of the followingD
a) appointing authorit*6
") recommending authorit*6
c) chief of the "ureau or o(ce6 and
d) person e)ercising immediate super!ision o!er the appointee#
Clearl*, there are four situations co!ered# .n the last two mentioned situations, it is immaterial
who the appointing or recommending authorit* is# To constitute a !iolation of the law, it su(ces that
an appointment is e)tended or issued in fa!or of a relati!e within the third ci!il degree of
consanguinit* or a(nit* of the chief of the "ureau or o(ce, or the person e)ercising immediate
super!ision o!er the appointee# (C1C v. +edro O. Daco(co( !.". #o. 1)%80% April 29 1999
3n 7anc *+ardo,-
)28. .hat are the e4emptions from the operation of the r'les on nepotism0
A&,02 The following are e)empted from the operation of the rules on nepotismD (a) persons
emplo*ed in a confdential capacit*, (") teachers, (c) ph*sicians, and (d) mem"ers of the Armed
1orces of the /hilippines#
The rules on nepotism shall li&ewise not "e applica"le to the case of a mem"er of an* famil*
who, after his or her appointment to an* position in an o(ce or "ureau, contracts marriage with
someone in the same o(ce or "ureau, in which e!ent the emplo*ment or retention therein of "oth
hus"and and wife ma* "e allowed# (1ec. %9 Chap. 7 1'btitle A Title 2 7>. I 3.O. #o. 292-
)29. .hat is the doctrine of for6iveness or condonation0 Does it appl( to pendin6
criminal cases0
Held2 5# A pu"lic o(cial cannot "e remo!ed for administrati!e misconduct committed during
a prior term, since his re,election to o(ce operates as a condonation of the o(cer;s pre!ious
misconduct to the e)tent of cutting o- the right to remo!e him therefor# The foregoing rule, howe!er,
fnds no application to criminal cases pending against petitioner# (A6'inaldo v. 1antos 212 1C"A
7$8 77) *1992,-
2# A reelected local o(cial ma* not "e held administrati!el* accounta"le for misconduct
committed during his prior term of o(ce# The rationale for this holding is that when the electorate
put him "ac& into o(ce, it is presumed that it did so with full &nowledge of his life and character,
including his past misconduct# .f, armed with such &nowledge, it still reelects him, then such
reelection is considered a condonation of his past misdeeds# (@a(or Alvin 7. !arcia v. Hon.
Art'ro C. @oFica et al. !.". #o. 1)905) 1ept. 10 1999 *G'is'mbin6,-
))0. .hat is the Doctrine of Condonation0 2ll'strative case.
Held2 /etitioner contends that, per our ruling in A%uinaldo v. 2antos, his reelection has
rendered the administrati!e case fled against him moot and academic# This is "ecause his reelection
operates as a condonation "* the electorate of the misconduct committed "* an electi!e o(cial
during his pre!ious term# /etitioner further cites the ruling of this Court in $as#ual v. :on. $rovin#ial
(oard of /ueva ,#iBa, #itin% Conant v. (ro%an, that
) ) ) :hen the people ha!e elected a man to o(ce, it must "e assumed that the*
did this with &nowledge of his life and character, and that the* disregarded or forga!e his
faults or misconduct, if he had "een guilt* of an*# .t is not for the court, "* reason of such
faults or misconduct to practicall* o!errule the will of the people#$
9espondents, on the other hand, contend that while the contract in +uestion was signed
during the pre!ious term of petitioner, it was to commence or "e e-ecti!e onl* on 4eptem"er 5@@F or
during his current term# .t is the respondents; su"mission that petitioner went "e*ond the protecti!e
confnes$ of urisprudence when he agreed to e)tend his act to his current term of o(ce#$ A%uinaldo
cannot appl*, according to respondents, "ecause what is in!ol!ed in this case is a misconduct
committed during a pre!ious term "ut to "e e-ecti!e during the current term#
9espondents maintain that,
) ) ) petitioner performed two acts with respect to the contractD he pro!ided for a suspensi!e
period ma&ing the suppl* contract commence or "e e-ecti!e during his succeeding or current
term and during his current term of o(ce he acceded to the suspensi!e period ma&ing the
contract e-ecti!e during his current term "* causing the implementation of the contract#$
Cence, petitioner cannot ta&e refuge in the fact of his reelection, according to respondents#
22
1urther, respondents point out that the contract in +uestion was signed ust four da*s "efore
the date of the 5@@F election and so it could not "e presumed that when the people of Ce"u Cit*
!oted petitioner to o(ce, the* did so with full &nowledge of petitioner;s character#
Bn this point, petitioner responds that &nowledge of an o(cial;s pre!ious acts is presumed
and the court need not in+uire whether, in reelecting him, the electorate was actuall* aware of his
prior misdeeds#
/etitioner cites our ruling in 2alalima v. uin%ona, wherein we a"sol!ed Al"a* go!ernor 9amon
9# 4alalima of his administrati!e lia"ilit* as regards a retainer agreement he signed in fa!or of a law
frm during his pre!ious term, although dis"ursements of pu"lic funds to co!er pa*ments under the
agreement were still "eing done during his su"se+uent term# /etitioner argues that, following
2alalima, the doctrine of A%uinaldo applies e!en where the e-ects of the acts complained of are still
e!ident during the su"se+uent term of the reelected o(cial# The implementation of the contract is a
mere incident of its e)ecution# 2esides, according to petitioner, the sole act$ for which he has "een
administrati!el* charged is the signing of the contract with 1#H# Suellig# The charge, in his !iew,
e)cludes the contract;s e)ecution or implementation, or an* act su"se+uent to the perfection of the
contract#
.n 2alalima, we recall that the 4olicitor 0eneral maintained that A%uinaldo did not appl* to
that case "ecause the administrati!e case against 0o!ernor 9odolfo Aguinaldo of Caga*an was
alread* pending when he fled his certifcate of candidac* for his reelection "id# 8e!ertheless, in
2alalima, the Court applied the A%uinaldo doctrine, e!en if the administrati!e case against 0o!ernor
4alalima was fled after his reelection#
A ) )
:e now come to the concluding in+uir*# 0ranting that the B(ce of the Bm"udsman ma*
in!estigate, for purposes pro!ided for "* law, the acts of petitioner committed prior to his present
term of o(ce6 and that it ma* pre!enti!el* suspend him for a reasona"le period, can that o(ce hold
him administrativel& lia"le for said acts7
.n a num"er of cases, we ha!e repeatedl* held that a reelected local o(cial ma* not "e held
administrati!el* accounta"le for misconduct committed during his prior term of o(ce. The rationale
for this holding is that when the electorate put him "ac& into o(ce, it is resumed that it did so with
full &nowledge of his life and character, including his past misconduct# .f, armed with such
&nowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds#
Cowe!er, in the present case, respondents point out that the contract entered into "*
petitioner with 1#H# Suellig was signed ust four da*s "efore the date of the elections# .t was not made
an issue during the election, and so the electorate could not "e said to ha!e !oted for petitioner with
&nowledge of this particular aspect of his life and character#
1or his part, petitioner contends that the onl* conclusi!e determining factor$ as regards the
people;s thin&ing on the matter is an election# Bn this point we agree with petitioner# That the people
!oted for an o(cial with &nowledge of his character is presumed, precisel* to eliminate the need to
determine, in factual terms, the e)tent of this &nowledge# 4uch an underta&ing will o"!iousl* "e
impossi"le# Bur rulings on the matter do not distinguish the precise timing or period when the
misconduct was committed, rec&oned from the date of the o(cial;s reelection, e)cept that it must "e
prior to said date#
As held in 2alalima,
The rule adopted in $as#ual, +ualifed in A%uinaldo insofar as criminal cases are
concerned, is still a good law# 4uch a rule is not onl* founded on the theor* that an o(cial;s reelection
e)presses the so!ereign will of the electorate to forgi!e or condone an* act or omission constituting a
ground for administrati!e discipline which was committed during his pre!ious term# :e ma* add that
sound poli#& di#tates it. To rule otherwise would open the Jood%ates to e?a#er"atin% endless partisan
#ontests "etween the reele#ted o*#ial and his politi#al enemies, who ma& not stop to hound the
former durin% his new term with administrative #ases for a#ts alle%ed to have "een #ommitted durin%
his previous term. Cis second term ma* thus "e de!oted to defending himself in the said cases to the
detriment of pu"lic ser!ice ) ) )#$
The a"o!e ruling in 2alalima applies to this case# /etitioner cannot an*more "e held
administrativel& lia"le for an act done during his pre!ious term, that is, his signing of the contract
with 1#H# Suellig#
The assailed retainer agreement in 2alalima was e)ecuted sometime in 5@@0# 0o!ernor
2alalima was reelected in 5@@2 and pa*ments for the retainer continued to "e made during his
succeeding term# This situation is no di-erent from the one in the present case, wherein deli!eries of
the asphalt under the contract with 1#H# Suellig and the pa*ments therefor were supposed to ha!e
commenced on 4eptem"er 5@@F, during petitioner;s second term#
Cowe!er, respondents argue that the contract, although signed on Ga* %, 5@@F, during
petitioner;s prior term, is to "e made e-ecti!e onl* during his present term#
23
:e fail to see an* di-erence to ustif* a !alid distinction in the result# The agreement "etween
petitioner (representing Ce"u Cit*) and 1#H# Suellig was perfected on the date the contract was
signed, during petitioner;s prior term# At that moment, petitioner alread* acceded to the terms of the
contract, including stipulations now alleged to "e preudicial to the cit* go!ernment# Thus, an*
culpa"ilit* petitioner ma* ha!e in signing the contract alread* "ecame e)tant on the da* the contract
was signed# .t hardl* matters that the deli!eries under the contract are supposed to ha!e "een made
months later#
:hile petitioner can no longer "e held administrati!el* lia"le for signing the contract with 1#H#
Suellig, howe!er, this should not preudice the fling of an* case other than administrati!e against
petitioner# Bur ruling in this case, ma* not "e ta&en to mean the total e)oneration of petitioner for
whate!er wrongdoing, if an*, might ha!e "een committed in signing the su"ect contract# The ruling
now is limited to the +uestion of whether or not he ma* "e held administrativel& lia"le therefor, and it
is our considered !iew that he ma* not# (!arcia v. @oFica )15 1C"A 207 1ept. 10 1999 2
nd
Div. *G'is'mbin6,-
))1. +etitioner claims that 7enipa(o has no a'thorit( to remove her as Director 2I of
the 32D and reassi6n her to the =a/ Department. +etitioner f'rther ar6'es that
onl( the CO@3=3C actin6 as a colle6ial bod( can a'thoriAe s'ch reappointment.
@oreover petitioner maintains that a reassi6nment /itho't her consent amo'nts
to removal from o8ce /itho't d'e process and therefore ille6al.
Held2 /etitioner;s posturing will hold water if 2enipa*o does not possess an* color of title to
the o(ce of Chairman of the CBGH<HC# :e ha!e ruled, howe!er, that 2enipa*o is the de Bure
CBGH<HC Chairman, and conse+uentl* he has full authorit* to e)ercise all the powers of that o(ce for
so long as his ad interim appointment remains e-ecti!e# A ) )# The Chairman, as the Chief H)ecuti!e
of the CBGH<HC, is e)pressl* empowered on his own authorit* to transfer or reassign CBGH<HC
personnel in accordance with the Ci!il 4er!ice <aw# .n the e)ercise of this power, the Chairman is not
re+uired "* law to secure the appro!al of the CBGH<HC en "an##
/etitioner;s appointment papers ) ) ) indisputa"l* show that she held her ?irector .3 position
in the H.? onl* in an a#tin% or temporar& capacit*# /etitioner is not a Career H)ecuti!e 4er!ice (CH4),
and neither does she hold Career H)ecuti!e 4er!ice Hligi"ilit*, which are necessar* +ualifcations for
holding the position of ?irector .3 as prescri"ed in the Tualifcations 4tandards (9e!ised 5@F%) issued
"* the Ci!il 4er!ice Commission# B"!iousl*, petitioner does not eno* securit* of tenure as ?irector
.3# A ) )
A ) )
Ca!ing "een appointed merel* in a temporar* or acting capacit*, and not possessed of the
necessar* +ualifcations to hold the position of ?irector .3, petitioner has no legal "asis in claiming
that her reassignment was contrar* to the Ci!il 4er!ice <aw# A ) )
4till, petitioner assails her reassignment, carried out during the election period, as a prohi"ited
act under 4ection 2>5 (h) of the Bmni"us Hlection Code ) ) )#
A ) )
/etitioner claims that 2enipa*o failed to secure the appro!al of the CBGH<HC en "an# to e-ect
transfers or reassignments of CBGH<HC personnel during the election period# Goreo!er, petitioner
insists that the CBGH<HC en "an# must concur to e!er* transfer or reassignment of CBGH<HC
personnel during the election period#
Contrar* to petitioner;s allegation, the CBGH<HC did in fact issue CBGH<HC 9esolution 8o#
==00 dated 8o!em"er >, 2000, e)empting the CBGH<HC from 4ection 2>5 (h) of the Bmni"us Hlection
Code# A ) )
A ) )
The pro!iso in CBGH<HC 9esolution 8o# ==00, re+uiring due notice and hearing "efore an* transfer or
reassignment can "e made within thirt* da*s prior to election da*, refers onl* to CBGH<HC Feld
personnel and not to head o(ce personnel li&e the petitioner# Inder the 9e!ised Administrati!e
Code, the CBGH<HC Chairman is the sole o*#er specifcall* !ested with the power to transfer or
reassign CBGH<HC personnel# The CBGH<HC Chairman will logicall* e)ercise the authorit* to transfer
or reassign CBGH<HC personnel pursuant to CBGH<HC 9esolution 8o# ==00# The CBGH<HC en "an#
cannot arrogate unto itself this power "ecause that will mean amending the 9e!ised Administrati!e
Code, an act the CBGH<HC en "an# cannot legall* do#
CBGH<HC 9esolution 8o# ==00 does not re+uire that e!er* transfer or reassignment of
CBGH<HC personnel should carr* the concurrence of the CBGH<HC as a collegial "od*# .nterpreting
9esolution 8o# ==00 to re+uire such concurrence will render the resolution meaningless since the
CBGH<HC en "an# will ha!e to appro!e e!er* personnel transfer or reassignment, ma&ing the
resolution utterl* useless# 9esolution 8o# ==00 should "e interpreted for what it is, an appro!al to
e-ect transfers and reassignments of personnel, without need of securing a second appro!al from the
CBGH<HC en "an# to actuall* implement such transfer or reassignment#
24
The CBGH<HC Chairman is the o(cial e)pressl* authori'ed "* law to transfer or reassign
CBGH<HC personnel# The person holding that o(ce, in a de Bure capacit*, is 2enipa*o# The CBGH<HC
en "an#, in CBGH<HC 9esolution 8o# ==00, appro!ed the transfer or reassignment of CBGH<HC
personnel during the election period# Thus, 2enipa*o;s order reassigning petitioner from the H.? to
the <aw ?epartment does not !iolate 4ection 2>5 (h) of the Bmni"us Hlection Code# 1or the same
reason, 2enipa*o;s order designating Cinco B(cer,in,Charge of the H.? is legall* unassaila"le#
(@atiba6 v. 7enipa(o )80 1C"A 59 April 2 2002 3n 7anc *Carpio,-
))2. @a( the appointment of a person ass'min6 a position in the civil service 'nder a
completed appointment be validl( recalled or revo>ed0
Held2 .t has "een held that upon the issuance of an appointment and the appointee;s
assumption of the position in the ci!il ser!ice, he ac+uires a legal right which cannot "e ta&en awa*
either "* re!ocation of the appointment or "* remo!al e)cept for cause and with pre!ious notice and
hearing#$ Goreo!er, it is well,settled that the person assuming a position in the ci!il ser!ice under a
completed appointment ac+uires a legal, not ust an e+uita"le, right to the position# This right is
protected not onl* "* statute, "ut "* the Constitution as well, which right cannot "e ta&en awa* "*
either re!ocation of the appointment, or "* remo!al, unless there is !alid cause to do so, pro!ided
that there is pre!ious notice and hearing#
/etitioner admits that his !er* frst o(cial act upon assuming the position of town ma*or was
to issue B(ce Brder 8o# @5,05 which recalled the appointments of the pri!ate respondents# There
was no pre!ious notice, much less a hearing accorded to the latter# Clearl*, it was petitioner who
acted in undue haste to remo!e the pri!ate respondents without regard for the simple re+uirements
of due process of law# :hile he argues that the appointing power has the sole authorit* to re!o&e
said appointments, there is no de"ate that he does not ha!e "lan&et authorit* to do so# 8either can
he +uestion the C4C;s urisdiction to a(rm or re!o&e the recall#
9ule 3, 4ection @ of the Bmni"us .mplementing 9egulations of the 9e!ised Administrati!e
Code specifcall* pro!ides that an appointment accepted "* the appointee cannot "e withdrawn or
re!o&ed "* the appointing authorit* and shall remain in force and in e-ect until disappro!ed "* the
Commission#$ Thus, it is the C4C that is authori'ed to recall an appointment initiall* appro!ed, "ut
onl* when such appointment and appro!al are pro!en to "e in disregard of applica"le pro!isions of
the ci!il ser!ice law and regulations.
Goreo!er, 4ection 50 of the same rule pro!idesD
4ec# 50# An appointment issued in accordance with pertinent laws and rules shall ta&e
e-ect immediatel* upon its issuance "* the appointing authorit*, and if the appointee has
assumed the duties of the position, he shall "e entitled to recei!e his salar* at once without
awaiting the appro!al of his appointment "* the Commission# The appointment shall remain
e-ecti!e until disappro!ed "* the Commission# .n no case shall an appointment ta&e e-ect earlier
than the date of its issuance#
4ection 20 of 9ule 3. also pro!idesD
4ec# 20# 8otwithstanding the initial appro!al of an appointment, the same ma* "e recalled
on an* of the following groundsD
8on,compliance with the proceduresPcriteria pro!ided in the agenc*;s Gerit /romotion
/lan6
1ailure to pass through the agenc*;s 4electionP/romotion 2oard6
3iolation of the e)isting collecti!e agreement "etween management and emplo*ees
relati!e to promotion6 or
3iolation of other e)isting ci!il ser!ice law, rules and regulations#
Accordingl*, the appointments of the pri!ate respondents ma* onl* "e recalled on the a"o!e,
cited grounds# And *et, the onl* reason ad!anced "* the petitioner to ustif* the recall was that these
were midnight appointments#$ The C4C correctl* ruled, howe!er, that the constitutional prohi"ition
on so,called midnight appointments,$ specifcall* those made within two (2) months immediatel*
prior to the ne)t presidential elections, applies onl* to the /resident or Acting /resident# (De "ama v.
Co'rt of Appeals )%) 1C"A 95 ?eb. 28 2001 3n 7anc *Bnares91antia6o,-
))). 2s a 6overnment emplo(ee /ho has been ordered arrested and detained for a
non9bailable oEense and for /hich he /as s'spended for his inabilit( to report
for /or> 'ntil the termination of his case still re:'ired to Cle a formal
application for leave of absence to ens're his reinstatement 'pon his ac:'ittal
and th's protect his sec'rit( of ten're0 Concomitantl( /ill his prolon6ed
absence from o8ce for more than one (1- (ear a'tomaticall( F'stif( his bein6
dropped from the rolls /itho't prior notice despite his bein6 alle6edl( placed
'nder s'spension b( his emplo(er 'ntil the termination of his case /hich Cnall(
res'lted in his ac:'ittal for lac> of evidence0
Held2 HI4H2.A 9# 0A<SBTH was emplo*ed as a lowl* cler& in the ser!ice of the Cit*
0o!ernment of Ga&ati Cit*# :ith her meager income she was the lone pro!ider for her children# 2ut
her simple life was disrupted a"ruptl* when she was arrested without warrant and detained for more
than three (=) *ears for a crime she did not commit# Throughout her ordeal she trusted the cit*
25
go!ernment that the suspension imposed on her was onl* until the Fnal disposition of her #ase. As
she drew near her !indication she ne!er did e)pect the worst to come to her# Bn the third *ear of her
detention the cit* go!ernment lifted her suspension, dropped her from the rolls without prior notice
and without her &nowledge, much less ga!e her an opportunit* to forthwith correct the omission of an
application for lea!e of a"sence "elatedl* laid on her#
Ipon her ac+uittal for lac& of e!idence and her release from detention she was denied
reinstatement to her position# 4he was forced to see& recourse in the Ci!il 4er!ice Commission which
ordered her immediate reinstatement with "ac& wages from 5@ Bcto"er 5@@4, the date when she
presented herself for reassumption of duties "ut was turned "ac& "* the cit* go!ernment, up to the
time of her actual reinstatement#
A ) )
/lainl*, the case of petitioner Cit* 0o!ernment of Ga&ati Cit* re!ol!es around a rotunda of
dou"t, a dilemma concerning the legal status and implications of its suspension of pri!ate respondent
Huse"ia 9# 0al'ote and the automati# lea!e of a"sence espoused "* the Ci!il 4er!ice Commission#
Against this concern is the punctilious adherence to technicalit*, the re+uirement that pri!ate
respondent should ha!e fled an application for lea!e of a"sence in proper form. The instant case is
therefore a dispute "etween, at its worst, pri!ate respondent;s su"stantial compliance with the
standing rules, and the Cit* 0o!ernment;s insistence that the lowl* cler& should ha!e still gone
through the formalities of appl*ing for lea!e despite her detention, of whi#h petitioner had a#tual
noti#e, and the suspension order #ou#hed in simple lan%ua%e that she was "ein% suspended until the
Fnal disposition of her #riminal #ase.
The meaning of suspension until the Fnal disposition of her #ase is that should her case "e
dismissed she should "e reinstated to her position with pa*ment of "ac& wages# 4he did not ha!e to
appl* for lea!e of a"sence since she was alread* suspended "* her emplo*er until her case would "e
terminated# :e ha!e done ustice to the wor&ingman in the past6 toda* we will do no less "*
resol!ing all dou"ts in fa!or of the hum"le emplo*ee in faithful o"eisance to the constitutional
mandate to a-ord full protection to la"or (Const#, Art# A..., 4ec# =, par# 56 Art# .., 4ec# 5F)
A ) )
As ma* "e gleaned from the pleadings of the parties, the issues areD (5) whether pri!ate
respondent Huse"ia 9# 0al'ote ma* "e considered a"sent without lea!e6 (") whether due process had
"een o"ser!ed "efore she was dropped from the rolls6 and, (=) whether she ma* "e deemed to ha!e
a"andoned her position, hence, not entitled to reinstatement with "ac& salaries for not ha!ing fled a
formal application for lea!e# Hncapsulated, the issues ma* "e reduced to whether pri!ate respondent
ma* "e considered a"sent without lea!e or whether she a"andoned her o" as to ustif* "eing
dropped from the ser!ice for not fling a formal application for lea!e#
/etitioner would ha!e pri!ate respondent declared on A:B< and faults her for failing to fle an
application for lea!e of a"sence under 4ecs# 20 (8ow 4ec# 52 of 9ule A3., <ea!e of A"sence, of 9es#
8o# @5,5>=5 dated 2% ?ecem"er 5@@5, as amended "* C4C GC 8o# 45, s# 5@@F) and =5 (8ow 4ec# >=
of 9ule A3., <ea!e of A"sence, of 9es# 8o# @5,5>=5 dated 2% ?ecem"er 5@@5, as amended "* C4C GC
8os# 45, s# 5@@F and 54, s# 5@@@) of the C4C 9ules and reects the C4C;s ruling of an automatic lea!e
of a"sence for the period of her detention$ since the current Civil 2ervi#e ;aw and !ules do not
contain an* specifc pro!ision on automati# lea!e of a"sence#$
The Court "elie!es that pri!ate respondent cannot "e faulted for failing to fle prior to her
detention an application for lea!e and o"tain appro!al thereof# The records clearl* show that she had
"een ad!ised three (=) da*s after her arrest, or on @ 4eptem"er 5@@5, that petitioner Cit* go!ernment
of Ga&ati Cit* had pla#ed her under suspension until the Fnal disposition of her #riminal #ase. This
act of petitioner indu"ita"l* recogni'ed pri!ate respondent;s predicament and thus allowed her to
forego reporting for wor& during the pendenc* of her criminal case without the needless e)ercise of
strict formalities# At the !er* least, this o(cial communication should "e ta&en as an e+ui!alent of a
prior appro!ed lea!e of a"sence since it was her emplo*er itself which placed her under suspension
and thus e)cused her from further formalities in appl*ing for such lea!e# Goreo!er, the arran%ement
"ound the Cit& overnment to allow private respondent to return to her wor5 after the termination of
her #ase, i.e., if ac+uitted of the criminal charge# This pledge su(cientl* ser!ed as legitimate reason
for her to altogether dispense with the formal application for lea!e6 there was no reason to, as in fact
it was not re+uired, since she was for all practical purposes incapacitated or disa"led to do so#
.ndeed, pri!ate respondent did not ha!e the least intention to go on A:B< from her post as
Cler& ... of petitioner, for A:B< means the emplo*ee lea!ing or a"andoning his post without ustifa"le
reason and without notif*ing his emplo*er# .n the instant case, pri!ate respondent had a !alid reason
for failing to report for wor& as she was detained without "ail# Cence, right after her release from
detention, and when fnall* a"le to do so, she presented herself to the Gunicipal /ersonnel B(cer of
petitioner Cit* 0o!ernment to report for wor&# Certainl*, had she "een told that it was still necessar*
for her to fle an application for lea!e despite the @ 4eptem"er 5@@5 assurance from petitioner,
pri!ate respondent would ha!e lost no time in fling such piece of document# 2ut the situation
momentaril* suspending her from wor& persistedD petitioner Cit* 0o!ernment did not alter the modus
vivendi with pri!ate respondent and lulled her into "elie!ing that its commitment that her suspension
was onl* until the termination of her case was true and relia"le# Inder the circumstances pri!ate
respondent was in, prudence would ha!e dictated petitioner, more particularl* the incum"ent cit*
e)ecuti!e, in patria potestas, to ad!ise her that it was still necessar* J although indeed unnecessar*
26
and a useless ceremon* J to fle such application despite the suspension order, "efore depri!ing her
of her legitimate right to return to her position# $atria potestas in piatate de"et, non in atro#itate,
#onsistere. /aternal power should consist or "e e)ercised in a-ection, not in atrocit*#
.t is clear from the records that pri!ate respondent 0al'ote was arrested and detained without
a warrant on > 4eptem"er 5@@5 for which reason she and her co,accused were su"ected immediatel*
to in+uest proceedings# This fact is e!ident from the instant petition itself and its attachments ) ) )#
Cence, her ordeal in ail "egan on > 4eptem"er 5@@5 and ended onl* after her ac+uittal, thus lea!ing
her no time to attend to the formalit* of fling a lea!e of a"sence#
2ut petitioner Cit* 0o!ernment would unceremoniousl* set aside its @ 4eptem"er 5@@5
suspension order claiming that it was superseded three (=) *ears later "* a memorandum dropping
her from the rolls e-ecti!e 25 Eanuar* 5@@= for a"sence for more than one (5) *ear without o(cial
lea!e#$ Cence, the suspension order was !oid since there was no pending administrati!e charge
against pri!ate respondent so that she was not e)cused from fling an application for lea!e#
:e do not agree# .n placing pri!ate respondent under suspension until the fnal disposition of
her criminal case, the Gunicipal /ersonnel B(cer acted with competence, so he presuma"l* &new
that his order of suspension was not a&in to either suspension as penalt* or pre!enti!e suspension
since there was no administrati!e case against pri!ate respondent# As competence on the part of the
G/B is presumed, an* error on his part should not preudice pri!ate respondent, and that what he had
in mind was to consider her as "eing on lea!e of a"sence without pa* and their emplo*er,emplo*ee
relationship "eing merel* suspended, not se!ered, in the meantime# This construction of the order of
suspension is actuall* more consistent with logic as well as fairness and &indness to its author, the
G/B# 4ignifcantl*, the idea of a suspended emplo&er+emplo&ee relationship is widel* accepted in
la"or law to account for situations wherein la"orers would ha!e no wor& to perform for causes not
attri"uta"le to them. :e fnd no "asis for den*ing the application of this principle to the instant case
which also in!ol!es a lowl* wor&er in the pu"lic ser!ice#
Goreo!er, we certainl* cannot nullif* the Cit* 0o!ernment;s order of suspension, as we ha!e
no reason to do so, much less retroacti!el* appl* such nullifcation to depri!e pri!ate respondent of a
compelling and !alid reason for not fling the lea!e application# 1or as we ha!e held, a !oid act
though in law a mere scrap of paper nonetheless confers legitimac* upon past acts or omissions done
in reliance thereof# Conse+uentl*, the e)istence of a statute or e)ecuti!e order prior to its "eing
adudged !oid is an operati!e fact to which legal conse+uences are attached. .t would indeed "e
ghastl* unfair to pre!ent pri!ate respondent from rel*ing upon the order of suspension in lieu of a
formal lea!e application#
At an* rate, statements are, or should "e, construed against the one responsi"le for the
confusion6 otherwise stated, petitioner must assume full responsi"ilit* for the conse+uences of its own
act, hence, he should "e made to answer for the mi),up of pri!ate respondent as regards the lea!e
application# At the !er* least, it should "e considered estopped from claiming that its order of
suspension is !oid or that it did not e)cuse pri!ate respondent from fling an application for lea!e on
account of her incarceration# .t is a fact that she relied upon this order, issued "arel* three (=) da*s
from the date of her arrest, and assumed that when the criminal case would "e settled she could
return to wor& without need of an* prior act# ) ) )
A ) )
The holding of the Ci!il 4er!ice Commission that pri!ate respondent was on automati# lea!e of
a"sence during the period of her detention must "e sustained# The C4C is the constitutionall*
mandated central personnel agenc* of the 0o!ernment tas&ed to esta"lish a career ser!ice and
adopt measures to promote morale, e(cienc*, integrit*, responsi!eness, progressi!eness and
courtes* in the ci!il ser!ice$ (Const#, Art# .A,2, 4ec# =) and strengthen the merit and rewards s*stem,
integrate all human resources de!elopment programs for all le!els and ran&s, and institutionali'e a
management climate conduci!e to pu"lic accounta"ilit*#$ 2esides, the Administrative Code of 1987
further empowers the C4C to prescri"e, amend, and enforce rules and regulations for carr*ing into
e-ect the pro!isions of the Civil 2ervi#e ;aw and other pertinent laws,$ and for matters concerning
lea!es of a"sence, the Code specifcall* !ests the C4C to ordain J
4ec# >0# ;eave of a"sen#e# J B(cers and emplo*ees in the Ci!il 4er!ice shall "e
entitled to lea!e of a"sence, with or without pa*, as ma* "e pro!ided "* law and the rules and
regulations of the Ci!il 4er!ice Commission in the interest of the ser!ice#
/ursuant thereto the C4C promulgated !esolution /o. 91+11=1 dated 2% ?ecem"er 5@@5
entitled !ules .mplementin% (oo5 6 of ,?e#utive )rder /o. 797 and )ther $ertinent Civil 2ervi#e ;aws
which it has se!eral times amended through memorandum circulars# .t de!otes 9ule A3. to lea!es of
a"sence# /etitioner Cit* 0o!ernment relies upon 4ecs# 20 and =5 to de"un& the C4C ruling of an
automati# lea!e of a"sence# 4ignifcantl*, these pro!isions ha!e "een amended so that 4ec# 20 of the
Civil 2ervi#e !ules is now 4ec# 52 of 9ule A3., on ;eave of A"sen#e, of !esolution /o. 91+11=1 dated
2% ?ecem"er 5@@5 as amended "* C4C GC 8o# 45, s# 5@@F, and 4ec# =5 is now 4ec# >= as amended
"* C4C GC 8os# 45, s# 5@@F and 54, s# 5@@@#
A ) )
As a general rule, 4ecs# 20 and 52, as well as 4ecs# =5 and >=, re+uire an appro!ed lea!e of
a"sence to a!oid "eing an A:B<# Cowe!er, these pro!isions cannot "e interpreted as e)clusi!e and
27
referring onl* to one mode of securing the appro!al of a lea!e of a"sence which would re+uire an
emplo*ee to appl* for it, formalities and all, "efore e)ceeding thirt* (=0) da*s of a"sence in order to
a!oid from "eing dropped from the rolls# There are, after all, other means of see&ing and granting an
appro!ed lea!e of a"sence, one of which is the C4C recogni'ed rule of automati# lea!e of a"sence
under specifed circumstances# ) ) )
A ) )
As properl* noted, the C4C was onl* interpreting its own rules on lea!e of a"sence and not a
statutor* pro!ision (As a matter of fact, 4ec# >0 of the Administrati!e Code does not pro!ide for an*
rule on lea!e of a"sence other than that ci!il ser!ants are entitled to lea!e of a"sence) in coming up
with this uniform rule# Indou"tedl*, the C4C li&e an* other agenc* has the power to interpret its own
rules and an* phrase contained in them with its interpretation signifcantl* "ecoming part of the rules
themsel!es# ) ) )
A ) )
Inder 9A >>5> (An A#t to $rote#t the 2e#urit& of Tenure of Civil 2ervi#e )*#ers and
,mplo&ees in the .mplementation of overnment !eor%aniGation) and 9A %5>0 (The ;o#al
overnment Code of 1991), ci!il ser!ants who are found illegall* dismissed or retrenched are entitled
to full pa* for the period of their separation#
Bur fnal point# An e(cient and honest "ureaucrac* is ne!er inconsistent with the emphasis
on and the recognition of the "asic rights and pri!ileges of our ci!il ser!ants or, for that matter, the
constitutional mandates of the Ci!il 4er!ice Commission# .n fact onl* from an enlightened corps of
go!ernment wor&ers and an e-ecti!e C4C grows the professionali'ation of the "ureaucrac*# .ndeed
the go!ernment cannot "e left in the lurch6 "ut neither could we decree that go!ernment personnel
"e separated from their o"s indiscriminatel* regardless of fault# The fne line "etween these
concerns ma* "e di(cult to clearl* draw "ut if we onl* e)erted e)tra e-ort to re"el against the allure
of legal o!er,simplifcation, ustice would ha!e "een done where it is trul* due# (Cit( !overnment
of @a>ati Cit( v. Civil 1ervice Commission )7$ 1C"A 258 ?eb. $ 2002 3n 7anc
*7ellosillo,-
))5. .hat is abandonment of o8ce0 .hat are its essential elements0
Held2 A"andonment of an o(ce is the !oluntar* relin+uishment of an o(ce "* the holder,
with the intention of terminating his possession and control thereof. .n order to constitute
a"andonment of an o(ce, it must "e total and under such circumstances as clearl* to indicate an
a"solute relin+uishment# There must "e a complete a"andonment of duties of such continuance that
the law will infer a relin+uishment# A"andonment of duties is a !oluntar* act6 it springs from and is
accompanied "* deli"eration and freedom of choice. There are, therefore, two essential elements of
a"andonmentD Frst, an intention to a"andon and se#ond, an o!ert or e)ternal$ act "* which the
intention is carried into e-ect#
0enerall* spea&ing, a person holding a pu"lic o(ce ma* a"andon such o(ce "* non,user or
ac+uiescence. 8on,user refers to a neglect to use a right or pri!ilege or to e)ercise an o(ce.
Cowe!er, non,performance of the duties of an o(ce does not constitute a"andonment where such
non,performance results from temporar* disa"ilit* or from in!oluntar* failure to perform.
A"andonment ma* also result from an ac+uiescence "* the o(cer in his wrongful remo!al or
discharge, for instance, after a summar* remo!al, an unreasona"le dela* "* an o(cer illegall*
remo!ed in ta&ing steps to !indicate his rights ma* constitute an a"andonment of the o(ce. :here,
while desiring and intending to hold the o(ce, and with no willful desire or intention to a"andon it,
the pu"lic o(cer !acates it in deference to the re+uirements of a statute which is afterwards declared
unconstitutional, such a surrender will not "e deemed an a"andonment and the o(cer ma* reco!er
the e-ect# (CanoniAado v. A6'irre )%1 1C"A $%9 $$%9$$8 ?eb. 1% 2001 3n 7anc
*!onAa6a9"e(es,-
))%. 7( acceptin6 another position in the 6overnment d'rin6 the pendenc( of a case N
bro'6ht precisel( to assail the constit'tionalit( of his removal 9 ma( a person be
deemed to have abandoned his claim for reinstatement0
Held2 Although petitioners do not den* the appointment of Canoni'ado as .nspector 0eneral,
the* maintain that Canoni'ado;s initiation and tenacious pursuance of the present case would "elie
an* intention to a"andon his former o(ce# /etitioners assert that Canoni'ado should not "e faulted
for see&ing gainful emplo*ment during the pendenc* of this case# 1urthermore, petitioners point out
that from the time Canoni'ado assumed o(ce as .nspector 0eneral he ne!er recei!ed the salar*
pertaining to such position ) ) )#
A ) )
2* accepting the position of .nspector 0eneral during the pendenc* of the present case J
"rought precisel* to assail the constitutionalit* of his remo!al from the 8A/B<CBG J Canoni'ado
cannot "e deemed to ha!e a"andoned his claim for reinstatement to the latter position# 1irst of all,
Canoni'ado did not !oluntaril* lea!e his post as Commissioner, "ut was compelled to do so on the
strength of 4ection F of 9A F555 ) ) )
28
.n our decision of 25 Eanuar* 2000, we struc& down the a"o!e+uoted pro!ision for "eing
!iolati!e of petitioner;s constitutionall* guaranteed right to securit* of tenure# Thus, Canoni'ado
har"ored no willful desire or intention to a"andon his o(cial duties# .n fact, Canoni'ado, together
with petitioners ) ) ) lost no time disputing what the* percei!ed to "e an illegal remo!al6 a few wee&s
after 9A F555 too& e-ect ) ) ) petitioners instituted the current action ) ) ) assailing the
constitutionalit* of certain pro!isions of said law# The remo!al of petitioners from their positions "*
!irtue of a constitutionall* infrm act necessaril* negates a fnding of !oluntar* relin+uishment#
(CanoniAado v. A6'irre )%1 1C"A $%9 $$%9$$8 ?eb. 1% 2001 3n 7anc *!onAa6a9"e(es,-
))$. Distin6'ish ;term< of o8ce from ;ten're< of the inc'mbent.
Held2 .n the law of pu"lic o(cers, there is a settled distinction "etween term$ and tenure#$
LTMhe term of an o(ce must "e distinguished from the tenure of the incum"ent# The term means the
time during which the o(cer ma* claim to hold o(ce as of right, and f)es the inter!al after which the
se!eral incum"ents shall succeed one another# The tenure represents the term during which the
incum"ent actuall* holds the o(ce# The term of o(ce is not a-ected "* the hold,o!er# The tenure
ma* "e shorter than the term for reasons within or "e*ond the power of the incum"ent#$ (Thelma +.
!aminde v. COA !.". #o. 150))% Dec. 1) 2000 3n 7anc *+ardo,-
))7. Disc'ss the operation of the rotational plan insofar as the term of o8ce of the
Chairman and @embers of the Constit'tional Commissions is concerned.
Held2 .n !epu"li# v. .mperial, we said that the operation of the rotational plan re+uires two
conditions, "oth indispensa"le to its wor&a"ilit*D (5) that the terms of the frst three (=)
Commissioners should start on a #ommon date, and (2) that an* !acanc* due to death, resignation or
disa"ilit* "efore the e)piration of the term should onl* "e flled onl* for the une?pired "alan#e of the
term.D
Conse+uentl*, the terms of the frst Chairmen and Commissioners of the Constitutional
Commissions under the 5@F% Constitution must start on a #ommon date, irrespe#tive of the variations
in the dates of appointments and 8ualiF#ations of the appointees, in order that the e)piration of the
frst terms of se!en, f!e and three *ears should lead to the re%ular re#urren#e of the two+&ear
interval "etween the e)piration of the terms#
Appl*ing the foregoing conditions ) ) ), we rule that the appropriate startin% point of the
terms of o*#e of the Frst appointees to the Constitutional Commissions under the 1987 Constitution
must "e on Fe"ruar& 7, 1987, the date of the adoption of the 5@F% Constitution# .n case of a "elated
appointment or +ualifcation, the inter!al "etween the start of the term and the actual +ualifcation of
the appointee must "e #ounted a%ainst the latter0 (Thelma +. !aminde v. COA !.". #o. 150))%
Dec. 1) 2000 3n 7anc *+ardo,-
))8. .hat is the hold9over doctrine0 .hat is its p'rpose0
Held2 5# The concept of holdo!er when applied to a pu"lic o(cer implies that the o(ce has
a f)ed term and the incum"ent is holding onto the succeeding term# .t is usuall* pro!ided "* law that
o(cers elected or appointed for a f)ed term shall remain in o(ce not onl* for that term "ut until their
successors ha!e "een elected and +ualifed# :here this pro!ision is found, the o(ce does not
"ecome !acant upon the e)piration of the term if there is no successor elected and +ualifed to
assume it, "ut the present incum"ent will carr* o!er until his successor is elected and +ualifed, e!en
though it "e "e*ond the term f)ed "* law#
A"sent an e)press or implied constitutional or statutor* pro!ision to the contrar*, an o(cer is
entitled to sta* in o(ce until his successor is appointed or chosen and has +ualifed# The legislati!e
intent of not allowing holdo!er must "e clearl* e)pressed or at least implied in the legislati!e
enactment, otherwise it is reasona"le to assume that the law,ma&ing "od* fa!ors the same#
.ndeed, the law a"hors a !acuum in pu"lic o(ces, and courts generall* indulge in the strong
presumption against a legislati!e intent to create, "* statute, a condition which ma* result in an
e)ecuti!e or administrati!e o(ce "ecoming, for an* period of time, wholl* !acant or unoccupied "*
one lawfull* authori'ed to e)ercise its functions# This is founded on o"!ious considerations of pu"lic
polic*, for the principle of holdo!er is specifcall* intended to pre!ent pu"lic con!enience from
su-ering "ecause of a !acanc* and to a!oid a hiatus in the performance of go!ernment functions#
(=ecaroA v. 1andi6anba(an )0% 1C"A )97 @arch 2% 1999 2
nd
Div. *7ellosillo,-
2# The rule is settled that unless holding o!er "e e)pressl* or impliedl* prohi"ited, the
incum"ent ma* continue to hold o!er until someone else is elected and +ualifed to assume the
o(ce#$ This rule is demanded "* the most o"!ious re+uirements of pu"lic polic*, for without it there
must fre+uentl* "e cases where, from a failure to elect or a refusal or neglect to +ualif*, the o(ce
would "e !acant and the pu"lic ser!ice entirel* suspended#$ Btherwise stated, the purpose is to
pre!ent a hiatus in the go!ernment pending the time when the successor ma* "e chosen and
inducted into o(ce# (!alarosa v. Ialencia 227 1C"A 728 #ov. 11 199) 3n 7anc *Davide
&r.,-
))9. .hat is resi6nation0 .hat are the re:'isites of a valid resi6nation0
Held2 5# .t is the act of gi!ing up or the act of an o(cer "* which he declines his o(ce and
renounces the further right to use it# .t is an e)pression of the incum"ent in some form, e)press or
29
implied, of the intention to surrender, renounce, and relin+uish the o(ce and the acceptance "*
competent and lawful authorit*# To constitute a complete and operati!e resignation from pu"lic o(ce,
there must "eD (a) an intention to relin+uish a part of the term6 (") an act of relin+uishment6 and (c)
an acceptance "* the proper authorit*# The last one is re+uired "* reason of Article 2=F of the
9e!ised /enal Code# (1an66'nian6 7a(an of 1an Andres Catand'anes v. CA 285 1C"A 27$
&an. 1$ 1998-
2# 9esignation ) ) ) is a factual +uestion and its elements are "e*ond +ui""leD there must "e
an intent to resi%n and the intent must "e #oupled "& a#ts of relin8uishment. The !alidit* of a
resignation is not go!erned "* an* formal re+uirement as to form# .t can "e oral# .t can "e written# .t
can "e e)press# .t can "e implied# As long as the resignation is clear, it must "e gi!en legal e-ect#
(3strada v. Desierto !.". #os. 15$71091% @arch 2 2001 en 7anc *+'no,-
)50. .hat is abandonment of an o8ce0 .hat are its re:'isites0 Ho/ is it
distin6'ished from resi6nation0
Held2 A"andonment of an o*#e has "een defned as the !oluntar* relin+uishment of an
o(ce "* the holder, with the intention of terminating his possession and control thereof# .ndeed,
a"andonment of o(ce is a species of resignation6 while resignation in general is a formal
relin+uishment, a"andonment is a !oluntar* relin+uishment through nonuser#
A"andonment springs from and is accompanied "* deli"eration and freedom of choice# .ts
concomitant e-ect is that the former holder of an o(ce can no longer legall* repossess it e!en "*
forci"le reoccupanc*#
Clear intention to a"andon should "e manifested "* the o(cer concerned# 4uch intention
ma* "e e)press or inferred from his own conduct# Thus, the failure to perform the duties pertaining to
the o(ce must "e with the o(cer;s actual or imputed intention to a"andon and relin+uish the o(ce#
A"andonment of an o(ce is not wholl* a matter of intention6 it results from a complete a"andonment
of duties of such continuance that the law will infer a relin+uishment# Therefore, there are two
essential elements of a"andonment6 Frst, an intention to a"andon and, se#ond, an o!ert or e)ternal$
act "* which the intention is carried into e-ect# (1an66'nian6 7a(an of 1an Andres
Catand'anes v. CA 285 1C"A 27$ &an. 1$ 1998-
)51. .hat is the eEect of acceptance of an incompatible o8ce to a claim for
reinstatement0
Held2 The ne)t issue is whether Canoni'ado;s appointment to and acceptance of the position
of .nspector 0eneral should result in an a"andonment of his claim for reinstatement to the
8A/B<CBG# .t is a well,settled rule that he who, while occup*ing one o(ce, accepts another
incompati"le with the frst, ipso facto !acates the frst o(ce and his title is there"* terminated
without an* other act or proceeding# /u"lic polic* considerations dictate against allowing the same
indi!idual to perform inconsistent and incompati"le duties# The incompati"ilit* contemplated is not
the mere ph*sical impossi"ilit* of one person;s performing the duties of the two o(ces due to a lac&
of time or the ina"ilit* to "e in two places at the same moment, "ut that which proceeds from the
nature and relations of the two positions to each other as to gi!e rise to contrariet* and antagonism
should one person attempt to faithfull* and impartiall* discharge the duties of one toward the
incum"ent of the other#
There is no +uestion that the positions of 8A/B<CBG Commissioner and .nspector 0eneral of
the .A4 are incompati"le with each other# As pointed out "* respondents, 9A F555 prohi"its an*
personnel of the .A4 from sitting in a committee charged with the tas& of deli"erating on the
appointment, promotion, or assignment of an* /8/ personnel, whereas the 8A/B<CBG has the power
of control and super!ision o!er the /8/# Cowe!er, the rule on incompati"ilit* of duties will not appl*
to the case at "ar "ecause at no point did Canoni'ado discharge the functions of the two o(ces
simultaneousl*# Canoni'ado was forced out of his frst o(ce "* the enactment of 4ection F of 9A
F555# Thus, when Canoni'ado was appointed as .nspector 0eneral ) ) ) he had ceased to discharge
his o(cial functions as 8A/B<CBG Commissioner# ) ) ) Thus, to reiterate, the incompati"ilit* of
duties rule ne!er had a chance to come into pla* for petitioner ne!er occupied the two positions, of
Commissioner and .nspector 0eneral, nor discharged their respecti!e functions, concurrentl*#
A ) )
As in the Tan v. imeneG and onGales v. :ernandeG cases, Canoni'ado was compelled to
lea!e his position as Commissioner, not "* an erroneous decision, "ut "* an unconstitutional pro!ision
of law# Canoni'ado, li&e the petitioners in the a"o!e mentioned cases, held a second o(ce during the
period that his appeal was pending# As stated in the Comment fled "* petitioners, Canoni'ado was
impelled to accept this su"se+uent position "* a desire to continue ser!ing the countr*, in whate!er
capacit*# 4urel*, this selQess and no"le aspiration deser!es to "e placed on at least e+ual footing
with the worth* goal of pro!iding for oneself and one;s famil*, either of which are su(cient to ustif*
Canoni'ado;s acceptance of the position of .nspector 0eneral# A Contrar* ruling would depri!e
petitioner of his right to li!e, which contemplates not onl* a right to earn a li!ing, as held in pre!ious
cases, "ut also a right to lead a useful and producti!e life# 1urthermore, prohi"iting Canoni'ado from
accepting a second position during the pendenc* of his petition would "e to unustl* compel him to
"ear the conse+uences of an unconstitutional act which under no circumstance can "e attri"uted to
him# Cowe!er, "efore Canoni'ado can re,assume his post as Commissioner, he should frst resign as
30
.nspector 0eneral of the .A4,/8/# (CanoniAado v. A6'irre )%1 1C"A $%9 ?eb. 1% 2001 3n
7anc *!onAa6a9"e(es,-
)52. .hen ma( 'nconsented transfers be considered anathema to sec'rit( of ten're0
Held2 As held in 2ta. -aria v. ;opeGK
V) ) ) the rule that outlaws unconsented transfers as anathema to securit* of tenure
applies onl* to an o(cer who is appointed , not merel* assigned , to a particular station# 4uch
a rule does not prLoMscri"e a transfer carried out under a specifc statute that empowers the
head of an agenc* to periodicall* reassign the emplo*ees and o(cers in order to impro!e the
ser!ice of the agenc*# ) ) )V
The guarantee of securit* of tenure under the Constitution is not a guarantee of perpetual
emplo*ment# .t onl* means that an emplo*ee cannot "e dismissed (or transferred) from the ser!ice
for causes other than those pro!ided "* law and after due process is accorded the emplo*ee# :hat it
see&s to pre!ent is capricious e)ercise of the power to dismiss# 2ut where it is the law,ma&ing
authorit* itself which furnishes the ground for the transfer of a class of emplo*ees, no such
capriciousness can "e raised for so long as the remed* proposed to cure a percei!ed e!il is germane
to the purposes of the law# (A6ripino A. De !'Aman &r. et al. v. CO@3=3C !.". #o. 129118
&'l( 19 2000 3n 7anc *+'risima,-
)5). Disc'ss Abolition of O8ce0
Held2 The creation and a"olition of pu"lic o(ces is primaril* a legislati!e function. .t is
ac&nowledged that Congress ma* a"olish an* o(ce it creates without impairing the o(cerOs right to
continue in the position held and that such power ma* "e e)ercised for !arious reasons, such as the
lac& of funds or in the interest of econom*. Cowe!er, in order for the a"olition to "e !alid, it must "e
made in good faith, not for political or personal reasons, or in order to circum!ent the constitutional
securit* of tenure of ci!il ser!ice emplo*ees#
An a"olition of o(ce connotes an intention to do awa* with such o(ce wholl* and
permanentl*, as the word Va"olishedV denotes. :here one o(ce is a"olished and replaced with
another o(ce !ested with similar functions, the a"olition is a legal nullit*# Thus, in L.$. (oard of
!e%ents v. !asul we saidD
.t is true that a !alid and "ona Fde a"olition of an o(ce denies to the incum"ent the
right to securit* of tenure ('e la ;lana v. Al"a, 117 2C!A 790 319874). Cowe!er, in this case,
the renaming and restructuring of the /0C and its component units cannot gi!e rise to a !alid
and "ona Fde a"olition of the position of /0C ?irector# This is "ecause where the a"olished
o(ce and the o(ces created in its place ha!e similar functions, the a"olition lac&s good faith
(Aose ;. uerrero v. :on. Antonio 6. AriGa"al, .!. /o. 81978, Aune 0, 1999, 181 2C!A 198
319994). :e here"* appl* the principle enunciated in CeGar E. 'ario v. :on. 2alvador -. -ison
(171 2C!A 80 319894) that a"olition which merel* changes the nomenclature of positions is
in!alid and does not result in the remo!al of the incum"ent#
The a"o!e notwithstanding, and assuming that the a"olition of the position of the /0C
?irector and the creation of a I/,/0C Gedical Center ?irector are !alid, the remo!al of the
incum"ent is still not ustifed for the reason that the duties and functions of the two positions
are "asicall* the same#
This was also our ruling in uerrero v. AriGa"al, wherein we declared that the su"stantial
identit* in the functions "etween the two o(ces was indi#ia of "ad faith in the remo!al of petitioner
pursuant to a reorgani'ation# (Ale4is C. CanoniAado et al. v. Hon. Ale4ander +. A6'irre et al.
!.". #o. 1))1)2 &an. 2% 2000 3n 7anc *!onAa6a9"e(es,-
)55. .hat is reor6aniAation0 .hen is it valid0 .hen is it invalid0
Held2 5# 9eorgani'ation ta&es place when there is an alteration of the e)isting structure of
go!ernment o(ces or units therein, including the lines of control, authorit* and responsi"ilit*
"etween them. .t in!ol!es a reduction of personnel, consolidation of o(ces, or a"olition thereof "*
reason of econom* or redundanc* of functions. 8aturall*, it ma* result in the loss of oneOs position
through remo!al or a"olition of an o(ce# Cowe!er, for a reorgani'ation to "e !alid, it must also pass
the test of good faith, laid down in 'ario v. -isonD
) ) ) As a general rule, a reorgani'ation is carried out in Vgood faithV if it is for the
purpose of econom* or to ma&e "ureaucrac* more e(cient# .n that e!ent, no dismissal (in
case of dismissal) or separation actuall* occurs "ecause the position itself ceases to e)ist#
And in that case, securit* of tenure would not "e a Chinese wall# 2e that as it ma*, if the
Va"olitionV which is nothing else "ut a separation or remo!al, is done for political reasons or
purposel* to defeat securit* of tenure, or otherwise not in good faith, no !alid Va"olitionV ta&es
place and whate!er Va"olitionV is done, is !oid a" initio. There is an in!alid Va"olitionV as
where there is merel* a change of nomenclature of positions, or where claims of econom* are
"elied "* the e)istence of ample funds#
(Ale4is C. CanoniAado et al. v. Hon. Ale4ander +. A6'irre et al. !.". #o. 1))1)2 &an. 2%
2000 3n 7anc *!onAa6a9"e(es,-
31
2# :hile the /resident;s power to reorgani'e can not "e denied, this does not mean howe!er
that the reorgani'ation itself is properl* made in accordance with law# :ell,settled is the rule that
reorgani'ation is regarded as !alid pro!ided it is pursued in good faith# Thus, in 'ario v. -ison, this
Court has had the occasion to clarif* thatD
As a general rule, a reorgani'ation is carried out in Ngood faith; if it is for the purpose of
econom* or to ma&e the "ureaucrac* more e(cient# .n that e!ent no dismissal or separation
actuall* occurs "ecause the position itself ceases to e)ist# And in that case the securit* of
tenure would not "e a Chinese wall# 2e that as it ma*, if the a"olition which is nothing else
"ut a separation or remo!al, is done for political reasons or purposel* to defeat securit* of
tenure, or otherwise not in good faith, no !alid a"olition ta&es place and whate!er a"olition
done is !oid a" initio# There is an in!alid a"olition as where there is merel* a change of
nomenclature of positions or where claims of econom* are "elied "* the e)istence of ample
funds#$
(=arin v. 34ec'tive 1ecretar( 280 1C"A 71) Oct. 1$ 1997-
)5%. .hat are the circ'mstances evidencin6 bad faith in the removal of emplo(ees as
a res'lt of reor6aniAation and /hich ma( 6ive rise to a claim for reinstatement or
reappointment-0
Held2
:here there is a signifcant increase in the num"er of positions in the new sta(ng pattern of
the department or agenc* concerned6
:here an o(ce is a"olished and another performing su"stantiall* the same functions is
created6
:here incum"ents are replaced "* those less +ualifed in terms of status of appointment,
performance and merit6
:here there is a reclassifcation of o(ces in the department or agenc* concerned and the
reclassifed o(ces perform su"stantiall* the same functions as the original o(ces6
:here the remo!al !iolates the order of separation pro!ided in 4ection = hereof.
(1ec. 2 ".A. #o. $$%$O =arin v. 34ec'tive 1ecretar( 280 1C"A 71) Oct. 1$ 1997-
E0 ELECTION LAWS
)5$. Disc'ss the "i6ht of 1'Era6e and its s'bstantive and proced'ral re:'irements.
Held2 .n a representati!e democrac* such as ours, the right of su-rage, although accorded a
prime niche in the hierarch* of rights em"odied in the fundamental law, ought to "e e)ercised within
the proper "ounds and framewor& of the Constitution and must properl* *ield to pertinent laws
s&illfull* enacted "* the <egislature, which statutes for all intents and purposes, are crafted to
e-ecti!el* insulate such so cherished right from ra!ishment and preser!e the democratic institutions
our people ha!e, for so long, guarded against the spoils of opportunism, de"aucher* and a"use#
To "e sure, the right of su-rage ) ) ) is not at all a"solute# 8eedless to sa*, the e)ercise of
the right of su-rage, as in the eno*ment of all other rights, is su"ect to e)isting su"stanti!e and
procedural re+uirements em"odied in our Constitution, statute "oo&s and other repositories of law#
Thus, as to the su"stanti!e aspect, 4ection 5, Article 3 of the Constitution pro!idesD
4HCT.B8 5# 4I119A0H GAR 2H HAH9C.4H? 2R A<< C.T.SH84 B1 TCH /C.<.//.8H4 8BT
BTCH9:.4H ?.4TIA<.1.H? 2R <A:, :CB A9H AT <HA4T H.0CTHH8 RHA94 B1 A0H, A8? :CB
4CA<< CA3H 9H4.?H? .8 TCH /C.<.//.8H4 1B9 AT <HA4T B8H RHA9 A8? .8 TCH /<ACH
:CH9H.8 TCHR /9B/B4H TB 3BTH 1B9 AT <A4T 4.A GB8TC4 .GGH?.ATH<R /9HCH?.80 TCH
H<HCT.B8# 8B <.TH9ACR, /9B/H9TR, B9 BTCH9 4I24TA8T.3H 9HTI.9HGH8T 4CA<< 2H
.G/B4H? B8 TCH HAH9C.4H B1 4I119A0H#$
As to the procedural limitation, the right of a citi'en to !ote is necessaril* conditioned upon
certain procedural re+uirements he must undergoD among others, the process of registration#
4pecifcall*, a citi'en in order to "e +ualifed to e)ercise his right to !ote, in addition to the minimum
re+uirements set "* the fundamental charter, is o"liged "* law to register, at present, under the
pro!isions of 9epu"lic Act 8o# F5F@, otherwise &nown as the 3oter;s 9egistration Act of 5@@>#$
(A>ba(an9Bo'th v. CO@3=3C )%% 1C"A )18 @ar. 2$ 2001 3n 7anc *7'ena,-
)57. Disc'ss the nat're of IoterMs "e6istration.
Held2 4tated di-erentl*, the act of registration is an indispensa"le precondition to the right of
su-rage# 1or registration is part and parcel of the right to !ote and an indispensa"le element in the
election process# Thus, ) ) ) registration cannot and should not "e denigrated to the lowl* stature of
a mere statutor* re+uirement# /roceeding from the signifcance of registration as a necessar*
re+uisite to the right to !ote, the 4tate undou"tedl*, in the e)ercise of its inherent police power, ma*
then enact laws to safeguard and regulate the act of !oter;s registration for the ultimate purpose of
conducting honest, orderl* and peaceful election, to the incidental *et generall* important end, that
e!en pre,election acti!ities could "e performed "* the dul* constituted authorities in a realistic and
orderl* manner J one which is not indi-erent and so far remo!ed from the pressing order of the da*
and the pre!alent circumstances of the times# (A>ba(an9Bo'th v. CO@3=3C )%% 1C"A )18 @ar.
2$ 2001 3n 7anc *7'ena,-
32
)58. Disc'ss the reason behind the principle of ballot secrec(. @a( the cond'ct of e4it
polls trans6ress the sanctit( and the secrec( of the ballot to F'stif( its
prohibition0
Held2 The reason "ehind the principle of "allot secrec* is to a!oid !ote "u*ing through !oter
identifcation# Thus, !oters are prohi"ited from e)hi"iting the contents of their o(cial "allots to other
persons, from ma&ing copies thereof, or from putting distinguishing mar&s thereon so as to "e
identifed# Also proscri"ed is fnding out the contents of the "allots cast "* particular !oters or
disclosing those of disa"led or illiterate !oters who ha!e "een assisted# Clearl*, what is for"idden is
the association of !oters with their respecti!e !otes, for the purpose of assuring that the !otes ha!e
"een cast in accordance with the instructions of a third part*# This result cannot, howe!er, "e
achie!ed merel* through the !oters; !er"al and confdential disclosure to a pollster of whom the*
ha!e !oted for#
.n e)it polls, the contents of the o(cial "allot are not actuall* e)posed# 1urthermore, the
re!elation of whom an elector has !oted for is not compulsor*, "ut !oluntar*# 3oters ma* also choose
not to re!eal their identities# .ndeed, narrowl* tailored countermeasures ma* "e prescri"ed "* the
Comelec, so as to minimi'e or suppress incidental pro"lems in the conduct of e)it polls, without
transgressing the fundamental rights of our people# (A719C7# 7roadcastin6 Corporation v.
CO@3=3C !.". #o. 1))58$ &an. 28 2000 3n 7anc *+an6aniban,-
)59. Does 1ection %(d- of "ep. Act #o. 9189 violate 1ection 1 Article I of the 1987
Constit'tion of the "ep'blic of the +hilippines0
Held2 L/Metitioner posits that 4ection 5(d) is unconstitutional "ecause it !iolates 4ection 5,
Article 3 of the 5@F% Constitution which re+uires that the !oter must "e a resident in the /hilippines
for at least one *ear and in the place where he proposes to !ote for at least si) months immediatel*
preceding an election# /etitioner cites the ruling of the Court in Caasi v. Court of Appeals (.!. /o.
888=1, 8 /ovem"er 1999, 191 2C!A 779) to support his claim# .n that case, the Court held that a
green card$ holder immigrant to the Inited 4tates is deemed to ha!e a"andoned his domicile and
residence in the /hilippines#
/etitioner further argues that 4ection 5, Article 3 of the Constitution does not allow pro!isional
registration or a promise "* a !oter to perform a condition to "e +ualifed to !ote in a political
e)ercise6 that the legislature should not "e allowed to circum!ent the re+uirement of the Constitution
on the right of su-rage "* pro!iding a condition thereon which in e-ect amends or alters the
aforesaid residence re+uirement to +ualif* a 1ilipino a"road to !ote# Ce claims that the right of
su-rage should not "e granted to an*one who, on the date of the election, does not possess the
+ualifcations pro!ided for "* 4ection 5, Article 3 of the Constitution#
A ) )
The seed of the present contro!ers* is the interpretation that is gi!en to the phrase, +ualifed
citi'ens of the /hilippines a"road$ as it appears in 9#A# 8o# @5F@ ) ) )#
A ) ) Inder 4ection 5(d) of 9#A# 8o# @5F@, one of those dis+ualifed from !oting is an
immigrant or permanent resident who is recogni'ed as such in the host countr* unless hePshe
e)ecutes an a(da!it declaring that hePshe shall resume actual ph*sical permanent residence in the
/hilippines not later than three *ears from appro!al of hisPher registration under said Act#
/etitioner +uestions the rightness of the mere act of e)ecution of an a(da!it to +ualif* the
1ilipinos a"road who are immigrants or permanent residents, to !ote# Ce focuses solel* on 4ection 5,
Article 3 of the Constitution in ascri"ing constitutional infrmit* to 4ection 5(d) of 9#A# 8o# @5F@, totall*
ignoring the pro!isions of 4ection 2 empowering Congress to pro!ide a s*stem for a"sentee !oting "*
+ualifed 1ilipinos a"road#
A simple, cursor* reading of 4ection 5(d) of 9#A# 8o# @5F@ ma* indeed gi!e the impression that
it contra!enes 4ection 5, Article 3 of the Constitution# 1ilipino immigrants and permanent residents
o!erseas are percei!ed as ha!ing left and a"andoned the /hilippines to li!e permanentl* in their host
countries and therefore, a pro!ision in the law enfranchising those who do not possess the residenc*
re+uirement of the Constitution "* the mere act of e)ecuting an a(da!it e)pressing their intent to
return to the /hilippines within a gi!en period, ris&s a declaration of unconstitutionalit*# Cowe!er, the
ris& is more apparent than real#
A ) )
As the essence of 9#A# 8o# @5F@ is to enfranchise o!erseas +ualifed 1ilipinos, it "ehoo!es the
Court to ta&e a holistic !iew of the pertinent pro!isions of "oth the Constitution and 9#A# 8o# @5F@# .t
is a "asic rule in constitutional construction that the Constitution should "e construed as a whole# A )
)
9#A# 8o# @5F@ was enacted in o"eisance to the mandate of the frst paragraph of 4ection 2,
Article 3 of the Constitution that Congress shall pro!ide a s*stem for !oting "* +ualifed 1ilipinos
a"road# .t must "e stressed that 4ection 2 does not pro!ide for the parameters of the e)ercise of
legislati!e authorit* in enacting said law# Cence, in the a"sence of restrictions, Congress is presumed
33
to ha!e dul* e)ercised its function as defned in Article 3. (the <egislati!e ?epartment) of the
Constitution#
To put matters in their right perspecti!e, it is necessar* to dwell frst on the signifcance of
a"sentee !oting# The concept of a"sentee !oting is relati!el* new# A ) )
Brdinaril*, an a"sentee is not a resident and !ice !ersa6 a person cannot "e at the same time,
"oth a resident and an a"sentee (5 :B9?4 A8? /C9A4H4 2>4 citing 4a!ant !# Gercadal, >> 4o# @>5,
@>2, 5=> <a#, 24F)# Cowe!er, under our election laws and the countless pronouncements of the Court
pertaining to elections, an a"sentee remains attached to his residen#e in the /hilippines as residence
is considered s*non*mous with domi#ile#
A ) )
Aware of the domiciliar* legal tie that lin&s an o!erseas 1ilipino to his residence in this countr*,
the framers of the Constitution considered the circumstances that impelled them to re+uire Congress
to esta"lish a s*stem for o!erseas a"sentee !oting ) ) )#
A ) )
Thus, the Constitutional Commission recogni'ed the fact that while millions of 1ilipinos reside
a"road principall* for economic reasons and hence the* contri"ute in no small measure to the
economic uplift of this countr*, their !oices are marginal insofar as the choice of this countr*;s leaders
is concerned#
The Constitutional Commission reali'ed that under the laws then e)isting and considering the
no!elt* of the s*stem of a"sentee !oting in this urisdiction, !esting o!erseas 1ilipinos with the right
to !ote would spawn constitutional pro"lems especiall* "ecause the Constitution itself pro!ides for
the residenc* re+uirement of !oters ) ) )# Thus, 4ection 2, Article 3 of the Constitution came into
"eing to remo!e an* dou"t as to the inapplica"ilit* of the residenc* re+uirement in 4ection 5# .t is
precisel* to a!oid an* pro"lems that could impede the implementation of its pursuit to enfranchise
the largest num"er of +ualifed 1ilipinos who are not in the /hilippines that the Constitutional
Commission e)plicitl* mandated Congress to pro!ide a s*stem for o!erseas a"sentee !oting#
The discussion of the Constitutional Commission on the e-ect of the residenc* re+uirement
prescri"ed "* 4ection 5, Article 3 of the Constitution on the proposed s*stem for a"sentee !oting for
+ualifed 1ilipinos a"road is enlightening ) ) )#
Clearl* therefrom, the intent of the Constitutional Commission is to entrust to Congress the
responsi"ilit* of de!ising a s*stem of a"sentee !oting# The +ualifcations of !oters as stated in
4ection 5 shall remain e)cept for the residenc* re+uirement# This is in fact the reason wh* the
Constitutional Commission opted for the term 8ualiFed Filipinos a"road with respect to the s*stem of
a"sentee !oting that Congress should draw up# As stressed "* Commissioner Gonsod, "* the use of
the adecti!e 8ualiFed with respect to 1ilipinos a"road, the assumption is that the* ha!e the
+ualifcations and none of the dis+ualifcations to !ote#$ .n fne,tuning the pro!ision on a"sentee
!oting, the Constitutional Commission discussed how the s*stem should wor& ) ) )#
.t is clear from these discussions of the mem"ers of the Constitutional Commission that the*
intended to enfranchise as much as possi"le all 1ilipino citi'ens a"road who ha!e not a"andoned their
domicile of origin# The Commission e!en intended to e)tend to *oung 1ilipinos who reach !oting age
a"road whose parents; domicile of origin is in the /hilippines, and consider them +ualifed as !oters
for the frst time#
.t is in pursuance of that intention that the Commission pro!ided for 4ection 2 immediatel*
after the residenc* re+uirement of 4ection 5# 2* the doctrine of necessar* implication in statutor*
construction, which ma* "e applied in construing constitutional pro!isions (Garcelino !# Cru', 525
4C9A 55, 5>), the strategic location of 4ection 2 indicates that the Constitutional Commission
provided for an e?#eption to the a#tual residen#& re8uirement of 2e#tion 1 with respect to +ualifed
1ilipinos a"road# The same Commission has in e-ect declared that +ualifed 1ilipinos who are not in
the /hilippines ma* "e allowed to !ote though the* do not satisf* the residenc* re+uirement in
4ection 5, Article 3 of the Constitution#
That 4ection 2 of Article 3 of the Constitution is an e)ception to the residenc* re+uirement
found in 4ection 5 of the same Article was in fact the su"ect of de"ate when 4enate 2ill 8o# 2504,
which "ecame 9#A# 8o# @5F@, was deli"erated upon on the 4enate Qoor ) ) )#
A ) )
Accordingl*, 4ection 4 of 9#A# 8o# @5F@ pro!ides for the co!erage of the a"sentee !oting
process ) ) ) which does not re+uire ph*sical residenc* in the /hilippines6 and 4ection 5 of the
assailed law which enumerates those who are dis+ualifed ) ) )#
As fnall* appro!ed into law, 4ection 5(d) of 9#A# 8o# @5F@ specifcall* dis+ualifes an
immi%rant or permanent resident who is recogni'ed as such in the host countr*$ "ecause
immigration or permanent residence in another countr* implies renunciation of one;s residence in his
countr* of origin# Cowe!er, same 4ection allows an immigrant and permanent resident a"road to
register as !oter for as long as hePshe e)ecutes an a(da!it to show that hePshe has not a"andoned
34
his domicile in pursuance of the constitutional intent e)pressed in 4ections 5 and 2 of Article 3 that
all citi'ens of the /hilippines not otherwise dis+ualifed "* law$ must "e entitled to e)ercise the right
of su-rage and, that Congress must esta"lish a s*stem for a"sentee !oting6 for otherwise, if actual,
ph*sical residence in the /hilippines is re+uired, there is no sense for the framers of the Constitution
to mandate Congress to esta"lish a s*stem for a"sentee !oting#
Contrar* to the claim of petitioner, the e)ecution of the a(da!it itself is not the ena"ling or
enfranchising act# The a(da!it re+uired in 4ection 5(d) is not onl* proof of the intention of the
immigrant or permanent resident to go "ac& and resume residenc* in the /hilippines, "ut more
signifcantl*, it ser!es as an e)plicit e)pression that he had not in fact a"andoned his domicile of
origin# Thus, it is not correct to sa* that the e)ecution of the a(da!it under 4ection 5(d) !iolates the
Constitution that proscri"es pro!isional registration or a promise "* a !oter to perform a condition to
"e +ualifed to !ote in a political e)ercise#$
To repeat, the a(da!it is re+uired of immigrants and permanent residents a"road "ecause "*
their status in their host countries, the* are presumed to ha!e relin+uished their intent to return to
this countr*6 thus, without the a(da!it, the presumption of a"andonment of /hilippine domicile shall
remain#
1urther perusal of the transcripts of the 4enate proceedings discloses another reason wh* the
4enate re+uired the e)ecution of said a(da!it# .t wanted the a(ant to e)ercise the option to return
or to e)press his intention to return to his domicile of origin and not to preempt that choice "*
legislation# A ) )
A ) )
.n the ad!ent of The )verseas A"sentee 6otin% A#t of 799= or !.A. /o. 9189, the* ma* still "e
considered as a +ualifed citi'en of the /hilippines a"road$ upon fulfllment of the re+uirements of
registration under the new law for the purpose of e)ercising their right of su-rage#
.t must "e emphasi'ed that 4ection 5(d) does not onl* re+uire an a(da!it or a promise to
resume actual ph*sical permanent residence in the /hilippines not later than three *ears from
appro!al of hisPher registration,$ the 1ilipinos a"road must also declare that the* ha!e not applied for
citi'enship in another countr*# Thus, the* must return to the /hilippines otherwise, their failure to
return shall "e cause for the remo!al$ of their names from the 8ational 9egistr* of a"sentee !oters
and hisPher permanent dis+ualifcation to !ote in a"sentia.$
Thus, Congress crafted a process of registration "* which a 1ilipino !oter permanentl* residing
a"road who is at least eighteen *ears old, not otherwise dis+ualifed "* law, who has not relin8uished
$hilippine #itiGenship and who has not actuall* a"andoned hisPher intentions to return to hisPher
domicile of origin, the /hilippines, is allowed to register and !ote in the /hilippine em"ass*, consulate
or other foreign ser!ice esta"lishments of the place which has urisdiction o!er the countr* where
hePshe has indicated hisPher address for purposes of the elections, while pro!iding for safeguards to a
clean election#
A ) )
Contrar* to petitioner;s claim that 4ection 5(d) circum!ents the Constitution, Congress
enacted the law prescri"ing a s*stem of o!erseas a"sentee !oting in compliance with the
constitutional mandate# 4uch mandate e)pressl* re+uires that Congress pro!ide a s*stem of
a"sentee votin% that necessaril* presupposes that the +ualifed citi'en of the /hilippines a"road$ is
not ph*sicall* present in the countr*# The pro!isions of 4ections 5(d) and 55 are components of the
s*stem of o!erseas a"sentee !oting esta"lished "* 9#A# 8o# @5F@# The +ualifed 1ilipino a"road who
e)ecuted the a(da!it is deemed to ha!e retained his domicile in the /hilippines# Ce is presumed not
to ha!e lost his domicile "* his ph*sical a"sence from this countr*# Cis ha!ing "ecome an immigrant
or permanent resident of his host countr* does not necessaril* impl* an a"andonment of his intention
to return to his domicile of origin, the /hilippines# Therefore, under the law, he must "e gi!en the
opportunit* to e)press that he has not actuall* a"andoned his domicile in the /hilippines "* e)ecuting
the a(da!it re+uired "* 4ections 5(d) and F(c) of the law#
/etitioner;s speculati!e apprehension that the implementation of 4ection 5(d) would a-ect the
credi"ilit* of the elections is insignifcant as what is important is to ensure that all those who possess
the +ualifcations to !ote on the date of the election are gi!en the opportunit* and permitted to freel*
do so# The CBGH<HC and the ?epartment of 1oreign A-airs ga!e enough resources and talents to
ensure the integrit* and credi"ilit* of an* election conducted pursuant to 9#A# 8o# @5F@#
As to the e!entualit* that the 1ilipino a"road would renege on his underta&ing to return to the
/hilippines, the penalt* of perpetual disenfranchisement pro!ided for "* 4ection 5(d) would su(ce to
ser!e as deterrence to non,compliance with hisPher underta&ing under the a(da!it#
/etitioner argues that should a si'a"le num"er of immigrants$ renege on their promise to
return, the result of the elections would "e a-ected and could e!en "e a ground to contest the
proclamation of the winning candidates and cause further confusion and dou"t on the integrit* of the
results of the election# .ndeed, the pro"a"ilit* that after an immigrant has e)ercised the right to !ote,
he shall opt to remain in his host countr* "e*ond the third *ear from the e)ecution of the a(da!it, is
not farfetched# Cowe!er, it is not for this Court to determine the wisdom of a legislati!e e)ercise# A )
)
35
Congress itself was conscious of said pro"a"ilit* and in fact, it has addressed the e)pected
pro"lem# 4ection 5(d) itself pro!ides for a deterrence which is that the 1ilipino who fails to return as
promised stands to lose his right of su-rage# Inder 4ection @, should a registered o!erseas a"sentee
!oter fail to !ote for two consecuti!e national elections, his name ma* "e ordered remo!ed from the
8ational 9egistr* of B!erseas A"sentee 3oters#
Bther serious legal +uestions that ma* "e raised would "eD what happens to the !otes cast "*
the +ualifed !oters a"road who were not a"le to return within three *ears as promised7 :hat is the
e-ect on the !otes cast "* the non,returnees in fa!or of the winning candidates7 The !otes cast "*
+ualifed 1ilipinos a"road who failed to return within three *ears shall not "e in!alidated "ecause the*
were +ualifed to !ote on the date of the elections, "ut their failure to return shall "e cause for the
remo!al of the names of the immigrants or permanent residents from the 8ational 9egistr* of
A"sentee 3oters and their permanent dis+ualifcation to !ote in a"sentia.
.n fne, considering the underl*ing intent of the Constitution, the Court does not fnd 4ection
5(d) of 9#A# 8o# @5F@ as constitutionall* defecti!e# (@a>alintal v. CO@3=3C !.". #o. 1%701)
&'l( 10 200) 3n 7anc *A'stria9@artineA,-
)%0. Disc'ss the meanin6 and p'rpose of residenc( re:'irement in 3lection =a/.
Held2 5# The meaning and purpose of the residenc* re+uirement were e)plained recentl* in
our decision in A8uino v. Comele#, as followsD
A ) ) LTMhe place where a part* actuall* or constructi!el* has his permanent home,$
where he, no matter where he ma* "e found at an* gi!en time, e!entuall* intends to return
and remain, i.e., his domicile, is that to which the Constitution refers when it spea&s of
residence for the purposes of election law# The manifest purpose of this de!iation from the
usual conceptions of residenc* in law as e)plained in alle%o v. 6era is to e)clude strangers
or newcomers unfamiliar with the conditions and needs of the communit*$ from ta&ing
ad!antage of fa!ora"le circumstances e)isting in that communit* for electoral gain# :hile
there is nothing wrong with the practice of esta"lishing residence in a gi!en area for meeting
election law re+uirements, this nonetheless defeats the essence of representation, which is to
place through the assent of !oters those most cogni'ant and sensiti!e to the needs of a
particular district, if a candidate falls short of the period of residenc* mandated "* law for him
to +ualif*# That purpose could "e o"!iousl* "est met "* indi!iduals who ha!e either had
actual residence in the area for a gi!en period or who ha!e "een domiciled in the same area
either "* origin or "* choice#
(@arcita @amba +ereA v. CO@3=3C !.". #o. 1))955 Oct. 28 1999 3n 7anc *@endoAa,-
2# The Constitution and the law re+uires residence as a +ualifcation for see&ing and holding
electi!e pu"lic o(ce, in order to gi!e candidates the opportunit* to "e familiar with the needs,
di(culties, aspirations, potentials for growth and all matters !ital to the welfare of their
constituencies6 li&ewise, it ena"les the electorate to e!aluate the o(ce see&ers; +ualifcations and
ftness for the o" the* aspire for# .nasmuch as 3icente R# Hmano has pro!en that he, together with his
famil*, (5) had actuall* resided in a house he "ought in 5@%= in Caga*an de Bro Cit*6 (2) had actuall*
held o(ce there during his three terms as pro!incial go!ernor of Gisamis Briental, the pro!incial
capitol "eing located therein6 and (=) has registered as !oter in the cit* during the period re+uired "*
law, he could not "e deemed a stranger or newcomer$ when he ran for and was o!erwhelmingl*
!oted as cit* ma*or# Hlection laws must "e li"erall* construed to gi!e e-ect to the popular mandate#
(Tora(no 1r. v. CO@3=3C ))7 1C"A %75 A'6. 9 2000 3n 7anc *+an6aniban,-
=# 0enerall*, in re+uiring candidates to ha!e a minimum period of residence in the area in
which the* see& to "e elected, the Constitution or the law intends to pre!ent the possi"ilit* of a
stranger or newcomer unac+uainted with the conditions and needs of a communit* and not
identifed with the latter from Lsee&ingM an electi!e o(ce to ser!e that communit*#$ 4uch pro!ision is
aimed at e)cluding outsiders from ta&ing ad!antage of fa!ora"le circumstances e)isting in that
communit* for electoral gain#$ Hsta"lishing residence in a communit* merel* to meet an election law
re+uirement defeats the purpose of representationD to elect through the assent of !oters those most
cogni'ant and sensiti!e to the needs of the communit*# This purpose is "est met "* indi!iduals who
ha!e either had actual residence in the area for a gi!en period or who ha!e "een domiciled in the
same area either "* origin or "* choice#$ (Tora(no 1r. v. CO@3=3C ))7 1C"A %75 A'6. 9
2000 3n 7anc *+an6aniban,-
)%1. Does the fact that a person is re6istered as a voter in one district proof that he is
not domiciled in another district0
Held2 The fact that a person is registered as a !oter in one district is not proof that he is not
domiciled in another district# Thus, in Fa&pon v. Muirino, this Court held that the registration of a
!oter in a place other than his residence of origin is not su(cient to consider him to ha!e a"andoned
or lost his residence# (@arcita @amba +ereA v. CO@3=3C !.". #o. 1))955 Oct. 28 1999 3n
7anc *@endoAa,-
)%2. .hat are the three classes of domicile0 Disc'ss.
Held2 There are *-!ee (l),,e, " d"#$($le, namel*D domicile of origin, domicile of choice,
and domicile "* operation of law# A* )&/ %$3e& ."$&*4 ) .e!,"& ()& "&l/ -)3e "&e d"#$($le0
36
D"#$($le " "!$%$& is ac+uired "* e!er* person at "irth and continues until replaced "* the
ac+uisition of another domicile# Gore specifcall*, it is the domicile of the child;s parents or of the
persons upon whom the child is legall* dependent at "irth# Although referred to as domicile of "irth,
domicile of origin is actuall* the domicile of one;s parents at the time of "irth and ma* not necessaril*
"e the actual place of one;s "irth (7> Am Aur 7d, 'omi#il 2e# 11 at 1=). D"#$($le " (-"$(e is a
domicile chosen "* a person to replace his or her former domicile# An adult ma* change domicile at
will# The choice in!ol!es an e)ercise of free will and presumes legal capacit* to ma&e a choice# :hile
intention is a principal feature of domicile of choice, a mere intention without the fact of actual
presence in the localit* cannot "ring a"out the ac+uisition of a new domicile# ?omicile of choice
generall* consists of a "odil* presence in a particular localit* and a concurrent intent to remain there
permanentl* or at least indefnitel* (.d. at 2e# 17). D"#$(le 5/ ".e!)*$"& " l)+ is a domicile that
the law attri"utes to a person independent of a person;s residence or intention# .t applies to infants,
incompetents, and other persons under disa"ilities that pre!ent them from ac+uiring a domicile of
choice (.d. at se# 1=). (+'no Conc'rrin6 and Dissentin6 Opinion in @a>alintal v. CO@3=3C
!.". #o. 1%701) &'l( 10 200) 3n 7anc *A'stria9@artineA,-
)%). .hat is re:'ired to s'ccessf'll( eEect a chan6e of domicile0 2s a ?ilipino /ho
becomes an ;immi6rant< or ;permanent resident< of a forei6n co'ntr(
considered to have chan6ed his domicile0
Held2 .n R"#u)lde6-1)!(", 30 CO1ELEC, we ruled that d"#$($le " "!$%$& is not easil*
lost# To successfull* e-ect a change of domicile, one must demonstrate an actual remo!al or an
actual change of domicile6 a 5"&) 'de intention of a"andoning the former place of residence and
esta"lishing a new one6 and acts which correspond with purpose# T-$, (-)&%e " d"#$($le $,
e7e(*ed 5/ ) F$l$.$&" +-" 5e("#e, )& 8$##$%!)&*9 "! ) 8.e!#)&e&* !e,$de&*9 " ) "!e$%&
("u&*!/0 Thus, we held in C)),$ 30 C"u!* " A..e)l, (2upra note 0), viGD
Giguel;s application for immigrant and permanent residence in the I#4# and his
possession of a green card attesting to such status are conclusi!e proof that he is a
permanent resident of the I#4# despite his occasional !isits to the /hilippines# The wai!er of
such immigrant status should "e as indu"ita"le as his application for it# A"sent clear e!idence
that he made an irre!oca"le wai!er of that status or that he surrendered his green card to the
appropriate I#4# authorities "efore he ran for ma*or ) ) ) (.d. at 7=7)
The doctrine in C)),$ is "* no means new# Bur election laws ha!e continuousl* regarded
immigrants$ or permanent residents$ of a foreign countr* to ha!e lost their domiciles in the
/hilippines and hence are not +ualifed to run for pu"lic o(ce (2ee for instan#e, !ep. A#t /o. 7119,
se#tion 09(f)H (.$. (l%. >7, se#. 0H (.$. (l%. 881, se#. 18). T-e!e $, &" !e),"& &"* *" )..l/ *-e
Caasi !ul$&% $& d$,.u*e, $&3"l3$&% *-e :u)l$'()*$"& " 3"*e!,# .n essence, "oth cases concern
the fulfllment of the residence re+uirements# (+'no Conc'rrin6 and Dissentin6 Opinion in
@a>alintal v. CO@3=3C !.". #o. 1%701) &'l( 10 200) 3n 7anc *A'stria9@artineA,-
)%5. .hat is the =one Candidate =a/0 .hat are its salient provisions0
A&,02 The <one Candidate <aw is "ep'blic Act #o. 829%, ena#ted on Aune 1, 1997. 4ection
2 thereof pro!ides that Ipon the e)piration of the deadline for the fling of the certifcate of
candidac* in a special election called to fll a !acanc* in an electi!e position other than for /resident
and 3ice,/resident, when there is onl* one (5) +ualifed candidate for such position, the lone
candidate shall "e proclaimed elected to the position "* proper proclaiming "od* of the Commission
on Hlections without holding the special election upon certifcation "* the Commission on Hlections
that he is the onl* candidate for the o(ce and is there"* deemed elected#$
4ection = thereof pro!ides that the lone candidate so proclaimed shall assume o(ce not
earlier than the scheduled election da*, in the a"sence of an* lawful ground to den* due course or
cancel the certifcate of candidac* in order to pre!ent such proclamation, as pro!ided for under
4ections >@ and %F of 2atas /am"ansa 2ilang FF5 also &nown as the Bmni"us Hlection Code#$
)%%. .ho are dis:'aliCed to r'n in a special election 'nder the =one Candidate =a/0
A&,02 4ection 4 of the <one Candidate <aw pro!ides that .n addition to the dis+ualifcations
mentioned in 4ections 52 and >F of the Bmni"us Hlection Code and 4ection 40 of 9epu"lic Act 8o#
%5>0, otherwise &nown as the <ocal 0o!ernment Code, whene!er the e!idence of guilt is strong, the
following persons are dis+ualifed to run in a special election called to fll the !acanc* in an electi!e
o(ce, to witD
a) An* electi!e o(cial who has resigned from his o(ce "* accepting an appointi!e o(ce or
for whate!er reason which he pre!iousl* occupied "ut has caused to "ecome !acant due
to his resignation6 and
") An* person who, directl* or indirectl*, coerces, "ri"es, threatens, harasses, intimidates or
actuall* causes, inQicts or produces an* !iolence, inur*, punishment, torture, damage,
loss or disad!antage to an* person or persons aspiring to "ecome a candidate or that of
the immediate mem"er of his famil*, his honor or propert* that is meant to eliminate all
other potential candidate#$
)%$. .hat is the p'rpose of the la/ in re:'irin6 the Clin6 of certiCcate of candidac(
and in C4in6 the time limit therefor0
37
Held2 The e!ident purpose of the law in re+uiring the fling of certifcate of candidac* and in
f)ing the time limit therefor areD (a) to ena"le the !oters to &now, at least si)t* da*s "efore the
regular election, the candidates among whom the* are to ma&e the choice, and (") to a!oid confusion
and incon!enience in the ta"ulation of the !otes cast# 1or if the law did not confne the choice or
election "* the !oters to the dul* registered candidates, there might "e as man* persons !oted for as
there are !oters, and !otes might "e cast e!en for un&nown or fctitious persons as a mar& to identif*
the !otes in fa!or of a candidate for another o(ce in the same election# (@iranda v. Aba(a !.".
#o. 1)$)%1 &'l( 28 1999-
)%7. @a( a dis:'aliCed candidate and /hose certiCcate of candidac( /as denied d'e
co'rse andPor canceled b( the Comelec be validl( s'bstit'ted0
Held2 H!en on the most "asic and fundamental principles, it is readil* understood that the
concept of a su"stitute presupposes the e)istence of the person to "e su"stituted, for how can a
person ta&e the place of some"od* who does not e)ist or who ne!er was# The Court has no other
choice "ut to rule that in all instances enumerated in 4ection %% of the Bmni"us Hlection Code, the
e)istence of a !alid certifcate of candidac* seasona"l* fled is a re+uisite sine 8ua non#
All told, a dis+ualifed candidate ma* onl* "e su"stituted if he had a !alid certifcate of
candidac* in the frst place "ecause, if the dis+ualifed candidate did not ha!e a !alid and seasona"l*
fled certifcate of candidac*, he is and was not a candidate at all# .f a person was not a candidate, he
cannot "e su"stituted under 4ection %% of the Code# (@iranda v. Aba(a !.". #o. 1)$)%1 &'l(
28 1999 en 7anc *@elo,-
)%8. 1ho'ld the votes cast for the s'bstit'ted candidate be considered votes for the
s'bstit'te candidate0
A&,02 "ep'blic Act #o. 900$ otherwise 5nown as the Fair ,le#tion A#t, pro!ides in 4ection
52 thereofD .n case of !alid su"stitutions after the o(cial "allots ha!e "een printed, the !otes cast
for the su"stituted candidates shall "e considered as stra* !otes "ut shall not in!alidate the whole
"allot# 1or this purpose, the o(cial "allots shall pro!ide spaces where the !oters ma* write the name
of the su"stitute candidates if the* are !oting for the latterD /ro!ided, howe!er, That if the su"stitute
candidate is of the same famil* name, this pro!ision shall not appl*#$
)%9. .hat is the eEect of the Clin6 of certiCcate of candidac( b( elective o8cials0
A&,02 CO@3=3C "esol'tion #o. )$)$, promul%ated -ar#h 1, 7991, implementin% the Fair
,le#tion A#t (!.A. /o. 9991) pro!ides in 4ection 2> thereofD an* electi!e o(cial, whether national or
local, who has fled a certifcate of candidac* for the same or an* other o(ce shall not "e considered
resigned from his o(ce#$
8ote that 4ection >% of the Bmni"us Hlection Code and the frst pro!iso in the third paragraph
of 4ection 55 of 9epu"lic Act 8o# F4=> which modifed said 4ection >%, were e)pressl* repealed and
rendered ine-ecti!e, respecti!el*, "* 4ection 54 (9epealing Clause) of The 1air Hlection Act (9#A# 8o#
@00>)#
)$0. .hat >ind of ;material misrepresentation< is contemplated b( 1ection 78 of the
Omnib's 3lection Code as a 6ro'nd for dis:'aliCcation of a candidate0 Does it
incl'de the 'se of s'rname0
Held2 Therefore, it ma* "e concluded that the material misrepresentation contemplated "*
4ection %F of the (Bmni"us Hlection) Code refers to +ualifcations for electi!e o(ce# This conclusion
is strengthened "* the fact that the conse+uences imposed upon a candidate guilt* of ha!ing made a
false representation in his certifcate of candidac* are gra!e J to pre!ent the candidate from running
or, if elected, from ser!ing, or to prosecute him for !iolation of the election laws# .t could not ha!e
"een the intention of the law to depri!e a person of such a "asic and su"stantial political right to "e
!oted for a pu"lic o(ce upon ust an* innocuous mista&e#
LAMside from the re+uirement of materialit*, a false representation under 4ection %F must
consist of a deli"erate attempt to mislead, misinform, or hide a fact which would otherwise render a
candidate ineligi"le#$ .n other words, it must "e made with an intention to decei!e the electorate as
to one;s +ualifcations for pu"lic o(ce# The use of a surname, when not intended to mislead or
decei!e the pu"lic as to one;s identit*, is not within the scope of the pro!ision# (Iictorino 1alcedo
22 v. CO@3=3C !.". #o. 1)%88$ A'6. 1$ 1999 3n 7anc *!onAa6a9"e(es,-
)$1. .ho has a'thorit( to declare fail're of elections and the callin6 of special
election0 .hat are the three instances /here a fail're of election ma( be
declared0
Held2 The CBGH<HC;s authorit* to declare failure of elections is pro!ided in our election laws#
4ection 4 of 9A %5>> pro!ides that the Comelec sitting en "an# "* a maorit* !ote of its mem"ers
ma* decide, among others, the declaration of failure of election and the calling of special election as
pro!ided in 4ection > of the Bmni"us Hlection Code# A ) )
There are three instances where a failure of election ma* "e declared, namel*, (a) the election
in an* polling place has not "een held on the date f)ed on account of for#e maBeure, !iolence,
38
terrorism, fraud or other analogous causes6 (") the election in an* polling place has "een suspended
"efore the hour f)ed "* law for the closing of the !oting on account of for#e maBeure, !iolence,
terrorism, fraud or other analogous causes6 or (c) after the !oting and during the preparation and
transmission of the election returns or in the custod* or can!ass thereof, such election results in a
failure to elect on account of for#e maBeure, !iolence, terrorism, fraud or other analogous causes# .n
these instances, there is a resulting failure to elect# This is o"!ious in the frst two scenarios, where
the election was not held and where the election was suspended# As to the third scenario, where the
preparation and the transmission of the election returns gi!e rise to the conse+uence of failure to
elect, it must ) ) ), "e interpreted to mean that no"od* emerged as a winner# (7ana6a &r. v.
CO@3=3C ))$ 1C"A 701 &'l( )1 2000 3n 7anc *G'is'mbin6,-
)$2. .hat are the t/o conditions that m'st conc'r before the CO@3=3C can act on a
veriCed petition see>in6 to declare a afail're of election0
Held2 2efore the CBGH<HC can act on a !erifed petition see&ing to declare a failure of
election two conditions must concur, namel*D (5) no !oting too& place in the precinct or precincts on
the date f)ed "* law, or e!en if there was !oting, the election resulted in a failure to elect6 and (2) the
!otes not cast would ha!e a-ected the result of the election# 8ote that the cause of such failure of
election could onl* "e an* of the followingD for#e maBeure, !iolence, terrorism, fraud or other
analogous causes#
Thus, in 7ana6a &r. v. CO@3=3C the 4C heldD
:e ha!e painsta&ingl* e)amined the petition fled "* petitioner 2anaga "efore the
Comelec# 2ut we found that petitioner did not allege at all that elections were either not held or
suspended# 8either did he a!er that although there was !oting, no"od* was elected# Bn the
contrar*, he conceded that an election too& place for the o(ce of !ice,ma*or of /arana+ue Cit*,
and that pri!ate respondent was, in fact, proclaimed elected to that post# :hile petitioner
contends that the election was tainted with widespread anomalies, it must "e noted that to
warrant a declaration of failure of election the commission of fraud must "e such that it pre!ented
or suspended the holding of an election, or marred fatall* the preparation and transmission,
custod* and can!ass of the election returns# These essential facts ought to ha!e "een alleged
clearl* "* the petitioner "elow, "ut he did not#$
)$). Cite instances /hen Comelec ma( or ma( not validl( declare fail're of elections.
Held2 .n -itmu% v. C)-,;,C, petitioner instituted with the CBGH<HC an a#tion to de#lare
failure of ele#tion in fort*,nine precincts where less than a +uarter of the electorate were a"le to cast
their !otes# Ce also lodged an election protest with the 9egional Trial Court disputing the result of the
election in all precincts in his municipalit*# The Comelec denied motu proprio and without due notice
and hearing the petition to declare failure of election despite petitioner;s argument that he has
meritorious grounds in support thereto, that is, massi!e disenfranchisement of !oters due to
terrorism# Bn re!iew, we ruled that the Comelec did not gra!el* a"use its discretion in den*ing the
petition# .t was not pro!en that no actual !oting too& place# 8either was it shown that e!en if there
was !oting, the results thereon would "e tantamount to failure to elect# Considering that there is no
concurrence of the conditions see&ing to declare failure of election, there is no longer need to recei!e
e!idence on alleged election irregularities#
.n 2ardea v. C)-,;,C, all election materials and paraphernalia with the municipal "oard of
can!assers were destro*ed "* the s*mpathi'ers of the losing ma*oralt* candidate# The "oard then
decided to use the copies of election returns furnished to the municipal trial court# /etitioner therein
fled a petition to stop the proceedings of the "oard of can!assers on the ground that it had no
authorit* to use said election returns o"tained from the municipal trial court# The petition was denied#
8e)t, he fled a petition assailing the composition of the "oard of can!assers# ?espite that petition,
the "oard of can!assers proclaimed the winning candidates# <ater on, petitioner fled a petition to
de#lare a failure of ele#tion alleging that the attendant facts would ustif* declaration of such failure#
Bn re!iew, we ruled that petitioner;s frst two actions in!ol!ed pre,proclamation contro!ersies which
can no longer "e entertained after the winning candidates ha!e "een proclaimed# 9egarding the
petition to declare a failure of election, we held that the destruction and loss of copies of election
returns intended for the municipal "oard of can!assers on account of !iolence is not one of the causes
that would warrant the declaration of failure of election# The reason is that !oting actuall* too& place
as scheduled and other !alid election returns still e)isted# Goreo!er, the destruction or loss did not
a-ect the result of the election# :e also declared that there is failure of elections onl* when the will
of the electorate has "een muted and cannot "e ascertained# .f the will of the people is determina"le,
the same must as far as possi"le "e respected#
A ) )
.n ;oon% v. C)-,;,C, the petition for annulment of election results or to declare failure of
elections in /arang, 4ulu, on the ground of statistical impro"a"ilit* and massi!e fraud was granted "*
the CBGH<HC# H!en "efore the technical e)amination of election documents was conducted, the
Comelec alread* o"ser!ed "adges of fraud ust "* loo&ing at the election results in /arang#
8e!ertheless, the Comelec dismissed the petition for annulment of election results or to declare
failure of elections in the municipalities of Tapul, /anglima Hstino, /ata, 4iasi and Kalinggalang
Calauag# The CBGH<HC dismissed the latter action on ground of untimeliness of the petition, despite
a fnding that the same "adges of fraud e!ident from the results of the election "ased on the
certifcates of can!ass of !otes in /arang, are also e!ident in the election results of the f!e mentioned
39
municipalities# :e ruled that Comelec committed gra!e a"use of discretion in dismissing the petition
as there is no law which pro!ides for a reglementar* period to fle annulment of elections when there
is *et no proclamation# The ele#tion resulted in a failure to ele#t on a##ount of fraud. Accordingl*, we
ordered the Comelec to reinstate the aforesaid petition# Those circumstances, howe!er, are not
present in this case, so that reliance on ;oon% "* petitioner 2anaga is misplaced# (7ana6a &r. v.
CO@3=3C ))$ 1C"A 701 &'l( )1 2000 3n 7anc *G'is'mbin6,-
)$5. 2s a petition to declare fail're of election diEerent from a petition to ann'l the
election res'lts0
Held2 A pra*er to declare failure of elections and a pra*er to annul the election results ) ) )
are actuall* of the same nature# :hether an action is for declaration of failure of elections or for
annulment of election results, "ased on allegations of fraud, terrorism, !iolence or analogous causes,
the Bmni"us Hlection Code denominates them similarl*. (7ana6a &r. v. CO@3=3C ))$ 1C"A 701
&'l( )1 2000 3n 7anc *G'is'mbin6,-
)$%. .hat conditions m'st conc'r before the Comelec can act on a veriCed petition
see>in6 to declare a fail're of election0 2s lo/ t'rn9o't of voters eno'6h basis to
6rant the petition0
Held2 2efore CBGH<HC can act on a !erifed petition see&ing to declare a failure of election,
two (2) conditions must concurD Frst, no !oting has ta&en place in the precinct or precincts on the
date f)ed "* law or, e!en if there was !oting, the election ne!ertheless results in failure to elect6 and,
se#ond, the !otes not cast would a-ect the result of the election#
There can "e failure of election in a political unit onl* if the will of the maorit* has "een
defled and cannot "e ascertained# 2ut, if it can "e determined, it must "e accorded respect# After
all, there is no pro!ision in our election laws which re+uires that a maorit* of registered !oters must
cast their !otes# All the law re+uires is that a winning candidate must "e elected "* a pluralit* of
!alid !otes, regardless of the actual num"er of "allots cast# Thus, e!en if less than 25W of the
electorate in the +uestioned precincts cast their !otes, the same must still "e respected# (@itm'6 v.
CO@3=3C 2)0 1C"A %5 ?eb. 10 1995 3n 7anc *7ellosillo,-
)$$. Distin6'ish a petition to declare fail're of elections from an election protest.
Held2 :hile petitioner ma* ha!e intended to institute an election protest "* pra*ing that said
action ma* also "e considered an election protest, in our !iew, petitioner;s action is a petition to
declare a failure of elections or annul election results# .t is not an election protest#
1irst, his petition "efore the Comelec was instituted pursuant to 4ection 4 of 9epu"lic Act 8o#
%5>> in relation to 4ection > of the Bmni"us Hlection Code# 4ection 4 of 9A %5>> refers to
Cpostponement, failure of ele#tion and spe#ial ele#tionsD while 4ection > of the Bmni"us Hlection
Code relates to Cfailure of ele#tion.D .t is simpl* captioned as C$etition to 'e#lare Failure of ,le#tions
andNor For Annulment of ,le#tions.D
4econd, an election protest is an ordinar* action while a petition to declare a failure of
elections is a special action under the 5@@= Comelec 9ules of /rocedure as amended# An election
protest is go!erned "* 9ule 20 on ordinar* actions, while a petition to declare failure of elections is
co!ered "* 9ule 2> under special actions#
.n this case, petitioner fled his petition as a special action and paid the corresponding fee
therefor# Thus, the petition was doc&eted as 4/A,@F,=F=# This conforms to petitioner;s categori'ation
of his petition as one to declare a failure of elections or annul election results# .n contrast, an election
protest is assigned a doc&et num"er starting with H/C,$ meaning election protest case#
Third, petitioner did not compl* with the re+uirements for fling an election protest# Ce failed
to pa* the re+uired fling fee and cash deposits for an election protest# 1ailure to pa* fling fees will
not !est the election tri"unal urisdiction o!er the case# 4uch procedural lapse on the part of a
petitioner would clearl* warrant the outright dismissal of his action#
1ourth, an en "an# decision of Comelec in an ordinar* action "ecomes fnal and e)ecutor*
after thirt* (=0) da*s from its promulgation, while an en "an# decision in a special action "ecomes
fnal and e)ecutor* after f!e (5) da*s from promulgation, unless restrained "* the 4upreme Court
(Comele# !ules of $ro#edure, !ule 18, 2e#tion 1= 3a4, 3"4). 1or that reason, a petition cannot "e
treated as "oth an election protest and a petition to declare failure of elections#
1ifth, the allegations in the petition decisi!el* determine its nature# /etitioner alleged that the
local elections for the o(ce of !ice,ma*or in /arana+ue Cit* held on Ga* 55, 5@@F, denigrates the
true will of the people as it was marred with widespread anomalies on account of !ote "u*ing, Q*ing
!oters and glaring discrepancies in the election returns# Ce a!erred that those incidents warrant the
declaration of a failure of elections#
0i!en these circumstances, pu"lic respondent cannot "e said to ha!e gra!el* erred in treating
petitioner;s action as a petition to declare failure of elections or to annul election results# (7ana6a &r.
v. CO@3=3C ))$ 1C"A 701 &'l( )1 2000 3n 7anc *G'is'mbin6,-
40
)$7. .hat are pre9proclamation cases and e4ceptions thereto0 .hat Co'rt has
F'risdiction over pre9proclamation cases0

Held2 /re,proclamation cases refer to an* +uestion pertaining to or a-ecting the proceedings
of the "oard of can!assers which ma* "e raised "* an* candidate or "* an* registered political part*
or coalition of political parties "efore the "oard or directl* with the Commission, or an* matter raised
under 4ections 2==, 2=4, 2=5 and 2=> in relation to the preparation, transmission, receipt, custod*
and appreciation of election returns (2e#tion 701, )mni"us ,le#tion Code). The Comelec has
e)clusi!e urisdiction o!er all pre,proclamation contro!ersies (2e#tion 707, supra). As an e?#eption,
howe!er, to the general rule, 4ection 55 of 9epu"lic Act %5>> prohi"its candidates in the presidential,
!ice,presidential, senatorial and congressional elections from fling pre,proclamation cases. .t statesD
4ec# 55# $re+$ro#lamation Cases /ot Allowed in ,le#tions for $resident, 6i#e+
$resident, 2enator, and -em"ers of the :ouse of !epresentatives# , 1or purposes of the
elections for /resident, 3ice,/resident, 4enator and Gem"er of the Couse of 9epresentati!es,
no pre,proclamation cases shall "e allowed on matters relating to the preparation,
transmission, receipt, custod* and appreciation of election returns or the certifcates of
can!ass, as the case ma* "e# Cowe!er, this does not preclude the authorit* of the
appropriate can!assing "od* motu proprio or upon written complaint of an interested person
to correct manifest errors in the certifcate of can!ass or election returns "efore it#$
The prohi"ition aims to a!oid dela* in the proclamation of the winner in the election, which dela*
might result in a !acuum in these sensiti!e posts. The law, nonetheless, pro!ides an e?#eption to the
e?#eption0 The second sentence of 4ection 55 allows the fling of petitions for correction of manifest
errors in the certifcate of can!ass or election returns e!en in elections for president, !ice,president
and mem"ers of the Couse of 9epresentati!es for the simple reason that the correction of manifest
error will not prolong the process of can!assing nor dela* the proclamation of the winner in the
election# The rule is consistent with and complements the authorit* of the Comelec under the
Constitution to enforce and administer all laws and regulations relati!e to the conduct of an election,
ple"iscite, initiati!e, referendum and recall$ (2e#tion 7314, Arti#le .I+C, 1987 Constitution) and its
power to decide, e)cept those in!ol!ing the right to !ote, all +uestions a-ecting elections#$ (2e#tion
73=4, Arti#le .I+C, supra) (?ederico 1. 1andoval v. CO@3=3C !.". #o. 1))852 &an. 2$ 2000
*+'no,-
)$8. .ho has a'thorit( to r'le on petitions for correction of manifest error in the
certiCcate of canvass or election ret'rns0
Held2 The authorit* to rule on petitions for correction of manifest error is !ested in the
Comele# en "an## 4ection % of 9ule 2% of the 5@@= CBGH<HC 9ules of /rocedure pro!ides that if the
error is disco!ered "efore proclamation, the "oard of can!assers ma* motu proprio, or upon !erifed
petition "* an* candidate, political part*, organi'ation or coalition of political parties, after due notice
and hearing, correct the errors committed# The aggrie!ed part* ma* appeal the decision of the "oard
to the Commission and said appeal shall "e heard and decided "* the Commission en "an## 4ection
5, howe!er, of the same rule states that a petition for correction of manifest error ma* "e fled
directl* with the Commission en "an# pro!ided that such errors could not ha!e "een disco!ered
during the can!assing despite the e)ercise of due diligence and proclamation of the winning
candidate had alread* "een made# (?ederico 1. 1andoval v. CO@3=3C !.". #o. 1))852 &an.
2$ 2000 *+'no,-
)$9. Distin6'ish 3lection +rotest from +etition for G'o .arranto.
Held2 .n 2amad v. C)-,;,C, we e)plained that a petition for 8uo warranto under the
Bmni"us Hlection Code raises in issue the dislo*alt* or ineligi"ilit* of the winning candidate# .t is a
proceeding to unseat the respondent from o(ce "ut not necessaril* to install the petitioner in his
place# An election protest is a contest "etween the defeated and winning candidates on the ground of
frauds or irregularities in the casting and counting of the "allots, or in the preparation of the returns#
.t raises the +uestion of who actuall* o"tained the pluralit* of the legal !otes and therefore is entitled
to hold the o(ce# (D'ma(as &r. v. CO@3=3C !.". #os. 1519%29%) April 20 2001 3n 7anc
*G'is'mbin6,-

)70. .hat is a co'nter9protest0 .hen sho'ld it be Cled0
Held2 Inder the Comelec 9ules of /rocedure, the protestee ma* incorporate in his answer a
counter,protest# .t has "een said that a counter,protest is tantamount to a counterclaim in a ci!il
action and ma* "e presented as a part of the answer within the time he is re+uired to answer the
protest, i.e., within f!e (5) da*s upon receipt of the protest, unless a motion for e)tension is granted,
in which case it must "e fled "efore the e)piration of the e)tended time#
As earl* as in the case of Arrieta v. !odri%ueG, the 4C had frml* settled the rule that the
counter,protest must "e fled within the period pro!ided "* law, otherwise, the forum loses its
urisdiction to entertain the "elatedl* fled counter,protest# (Qho v. CO@3=3C 279 1C"A 5$)
1ept. 2% 1997 3n 7anc *Torres,-
)71. .hat is the eEect of death of a part( in an election protest0 1ho'ld it /arrant
the dismissal of the protest0
41
Held2 An election protest in!ol!es "oth the pri!ate interests of the ri!al candidates and the
pu"lic interest in the fnal determination of the real choice of the electorate, and for this reason, an
election contest necessaril* sur!i!es the death of the protestant or the protestee# A ) )# 2ut while
the right to a pu"lic o(ce is personal and e)clusi!e to the pu"lic o(cer, an election protest is not
purel* personal and e)clusi!e to the protestant or to the protestee such that after the death of either
would oust the court of all authorit* to continue the protest proceedings# An election contest, after
all, in!ol!es not merel* conQicting pri!ate aspirations "ut is im"ued with paramount pu"lic interests#
The death of the protestant neither constitutes a ground for the dismissal of the contest nor ousts the
trial court of its urisdiction to decide the election contest# (De Castro v. CO@3=3C 2$7 1C"A
80$ ?eb. 7 1997-
)72. Does the fact that one or a fe/ candidates in an election 6ot Aero votes in one or
a fe/ precincts ade:'atel( s'pport a Cndin6 that the election ret'rns are
statisticall( improbable0
Held2 1rom e)periences in past elections, it is possi"le for one candidate or e!en a few
candidates to get 'ero !otes in one or a few precincts#
4tanding alone and without more, the "are fact that a candidate for pu"lic o(ce recei!ed 'ero
!otes in one or two precincts can not ade+uatel* support a fnding that the su"ect election returns
are statisticall* impro"a"le# A no,!ote for a particular candidate in election returns is "ut one strand
in the we" of circumstantial e!idence that those election returns were prepared under duress, force
and intimidation#$ .n the case of Lna Oi"ad v. Comele#, the 4C warned that the doctrine of statistical
impro"a"ilit* must "e !iewed restricti!el*, the utmost care "eing ta&en lest in penali'ing the
fraudulent and corrupt practices, innocent !oters "ecome disenfranchised, a result which hardl*
commends itself# (Arth'r I. Iela(o v. CO@3=3C !.". #o. 1)%$1) @arch 9 2000 3n 7anc
*+'no,-
)7). .hat Co'rt has F'risdiction over election protests and :'o /arranto proceedin6s
involvin6 1an66'nian6 Qabataan (1Q- elections0
Held2 An* contest relating to the election of mem"ers of the 4angguniang Ka"ataan
(including the chairman) J whether pertaining to their eligi"ilit* or the manner of their election J is
cogni'a"le "* GTCs, GCTCs, and GeTCs# 4ection > of Comelec 9esolution 8o# 2F24 which pro!ides
that cases in!ol!ing the eligi"ilit* or +ualifcation of 4K candidates shall "e decided "* the
Cit*PGunicipal Hlection B(cer whose decision shall "e fnal, applies onl* to proceedings "efore the
election# 2efore proclamation, cases concerning eligi"ilit* of 4K o(cers and mem"ers are cogni'a"le
"* the Hlection B(cer# 2ut after the election and proclamation, the same cases "ecome 8uo
warranto cases cogni'a"le "* GTCs, GCTCs, and GeTCs# The distinction is "ased on the principle that
it is the proclamation which mar&s o- the urisdiction of the courts from the urisdiction of election
o(cials#
The case of Aose -. -er#ado v. (oard of ,le#tion 2upervisors, in which this Court ruled that
election protests in!ol!ing 4K elections are to "e determined "* the 2oard of Hlection 4uper!isors was
decided under the aegis of Comelec 9esolution 8o# 24@@, which too& e-ect on August 2%, 5@@2#
Cowe!er, Comelec 9esolution 8o# 2F24, which too& e-ect on 1e"ruar* >, 5@@> and was passed
pursuant to 9#A# %F0F, in relation to Arts# 252,25= of the Bmni"us Hlection Code, has since transferred
the cogni'ance of such cases from the 2oard of Hlection 4uper!isors to the GTCs, GCTCs and GeTCs#
Thus, the doctrine of -er#ado is no longer controlling# (?rancis Qin6 =. @ar:'eA v. CO@3=3C !.".
#o. 127)18 A'6. 2% 1999 3n 7anc *+'risima,-
)75. .hat acts of a Division of the CO@3=3C ma( be s'bFect of a motion for
reconsideration of the CO@3=3C en banc0
Held2 4ection 5, 9ule 5@ of the CBGH<HC 9ules of /rocedure, pro!idesD
4HC# 5# :ow -otion for !e#onsideration 'isposed of. , Ipon the fling of a motion to
reconsider a decision, resolution, order or ruling of a ?i!ision, the Cler& of Court concerned
shall, within twent*,four (24) hours from the fling thereof, notif* the presiding Commissioner#
The latter shall within two (2) da*s thereafter certif* the case to the Commission en "an##$
Inder the a"o!e,+uoted rule, the acts of a ?i!ision that are su"ect of a motion for
reconsideration must ha!e a character of Fnalit& "efore the same can "e ele!ated to the CBGH<HC en
"an## The elementar* rule is that an order is fnal in nature if it completel* disposes of the entire
case# 2ut if there is something more to "e done in the case after its issuance, that order is
interlocutor*#
As correctl* pointed out "* pu"lic respondent in its assailed order of 8o!em"er 2@, 5@@@, the
Bcto"er 55, 5@@@ did not dispose of the case completel* as there is something more to "e done which
is to decide the election protest# As such, it is the herein pu"lic respondent (4econd ?i!ision of the
CBGH<HC) which issued the interlocutor* order of Bcto"er 55, 5@@@ that should resol!e petitioner;s
motion for reconsideration, not the CBGH<HC en "an#. Accordingl*, the applica"le rule on the su"ect
is 4ection 5(c), 9ule = of the CBGH<HC 9ules of /rocedure, which statesD
9ule =, 4ection 5(c)# An* motion to reconsider a decision, resolution, order or ruling of
a ?i!ision shall "e resol!ed "* the Commission en "an# e?#ept motions on interlo#utor&
orders of the division, whi#h shall "e resolved "& the divisions whi#h issued the order.D
42
That onl* fnal orders of a ?i!ision ma* "e raised "efore the CBGH<HC en "an# is in
accordance with Article .A,C, 4ection = of the Constitution which mandates that onl* motions for
reconsideration of fnal de#isions shall "e decided "* the Commission on Hlections en "an#, thusD
4ec# =# The Commission on Hlections ma* sit en "an# or in two di!isions, and shall
promulgate its rules of procedure in order to e)pedite disposition of election cases, including
pre,proclamation contro!ersies# All su#h ele#tion #ases shall "e heard and de#ided in division,
provided that motions for re#onsideration of de#isions shall "e de#ided "& the Commission en
"an#.D
.t "ears stressing that under this constitutional pro!ision, the CBGH<HC en "an# shall decide
motions for reconsideration onl* of Cde#isionsD of a ?i!ision, meaning those acts of Fnal character#
Clearl*, the assailed order den*ing petitionerOs demurrer to e!idence, "eing interlocutor*, ma* not, "e
resol!ed "* the CBGH<HC en "an#. (!ementiAa v. Commission on 3lections )%) 1C"A 725
@arch $ 2001 3n 7anc *1andoval9!'tierreA,-
F0 THE LAW OF PUBLIC CORPORATIONS
)7%. .hat is an a'tonomo's re6ion0
A&,02 An autonomous re%ion consists of pro!inces, cities, municipalities, and geographical
areas sharing common and distincti!e historical and cultural heritage, economic and social structures,
and other rele!ant characteristics within the framewor& of the Constitution and the national
so!ereignt* as well as the territorial integrit* of the 9epu"lic of the /hilippines# (1ec. 1% Art. L
1987 Constit'tion-
)7$. .hat are administrative re6ions0 Are the( considered territorial and political
s'bdivisions of the 1tate0 .ho has the po/er to create administrative re6ions0
Held2 Administrati!e regions are mere groupings of contiguous pro!inces for administrati!e
purposes# The* are not territorial and political su"di!isions li&e pro!inces, cities, municipalities and
"aranga*s. :hile the power to merge administrati!e regions is not e)pressl* pro!ided for in the
Constitution, it is a power which has traditionall* "een lodged with the /resident to facilitate the
e)ercise of the power of general super!ision o!er local go!ernments. (Abbas v. CO@3=3C 179
1C"A 287 #ov. 10 1989 3n 7anc *Cortes,-
)77. 2s there a conKict bet/een the po/er of the +resident to mer6e administrative
re6ions /ith the constit'tional provision re:'irin6 a plebiscite in the mer6er of
local 6overnment 'nits0
Held2 There is no conQict "etween the power of the /resident to merge administrati!e
regions with the constitutional pro!ision re+uiring a ple"iscite in the merger of local go!ernment units
"ecause the re+uirement of a ple"iscite in a merger e)pressl* applies onl* to pro!inces, cities,
municipalities or "aranga*s, not to administrati!e regions# (Abbas v. CO@3=3C 179 1C"A 287
#ov. 10 1989 3n 7anc *Cortes,-
)78. .hat is the @etropolitan @anila Development A'thorit( (@@DA-0 2s it a local
6overnment 'nit or p'blic corporation endo/ed /ith le6islative po/er0 @a( it
validl( e4ercise police po/er0 Ho/ is it distin6'ished from the former @etro
@anila Co'ncil (@@C- created 'nder +D #o. 8250
Held2 -etropolitan or -etro -anila is a "od& #omposed of several lo#al %overnment units P
i.e., twel!e (52) cities and f!e (5) municipalities ) ) )# With the passa%e of !epu"li# A#t /o. 7970 in
199>, -etropolitan -anila was de#lared as a Cspe#ial development and administrative re%ionD and
the Administration of CmetrowideD "asi# servi#es aQe#tin% the re%ion pla#ed under Ca development
authorit&D referred to as the --'A.
The %overnin% "oard of the --'A is the -etro -anila Coun#il. The Council is composed of the
ma*ors of the component 52 cities and 5 municipalities, the president of the Getro Ganila 3ice,
Ga*ors; <eague and the president of the Getro Ganila Councilors; <eague# The Council is headed "* a
Chairman who is appointed "* the /resident and !ested with the ran& of ca"inet mem"er# As the
polic*,ma&ing "od* of the GG?A, the Getro Ganila Council appro!es metro,wide plans, programs and
proects, and issues the necessar* rules and regulations for the implementation of said plans6 it
appro!es the annual "udget of the GG?A and promulgates the rules and regulations for the deli!er*
of "asic ser!ices, collection of ser!ice and regulator* fees, fnes and penalties# A ) )
Clearl*, the scope of the GG?A;s function is limited to the deli!er* of the se!en (%) "asic
ser!ices# Bne of these is transport and tra(c management ) ) )#
A ) )
Clearl&, the --'A is not a politi#al unit of %overnment. The power delegated to the GG?A is
that gi!en to the Getro Ganila Council to promulgate administrati!e rules and regulations in the
43
implementation of the GG?A;s functions# There is no %rant of authorit& to ena#t ordinan#es and
re%ulations for the %eneral welfare of the inha"itants of the metropolis. This was e)plicitl* stated in
the last Committee deli"erations prior to the "ill;s presentation to Congress# A ) )
.t is thus "e&ond dou"t that the --'A is not a lo#al %overnment unit or a pu"li# #orporation
endowed with le%islative power. .t is not e!en a special metropolitan political su"di!ision$ as
contemplated in 4ection 55, Article A of the Constitution# The creation of a special metropolitan
political su"di!ision$ re+uires the appro!al "* a maorit* of the !otes cast in a ple"iscite in the
political units directl* a-ected# 9#A# 8o# %@24 was not su"mitted to the inha"itants of Getro Ganila in
a ple"iscite# The Chairman of the GG?A is not an o(cial elected "* the people, "ut appointed "* the
/resident with the ran& and pri!ileges of a ca"inet mem"er# .n fact, part of his function is to perform
such other duties as ma* "e assigned to him "* the /resident, whereas in local go!ernment units, the
/resident merel* e)ercises super!isor* authorit*# This emphasi'es the administrative #hara#ter of the
GG?A#
Clearl& then, the --C under $.'. /o. 870 is not the same entit& as the --'A under !.A. /o.
7970. Lnli5e the --C, the --'A has no power to ena#t ordinan#es for the welfare of the
#ommunit&. .t is the local go!ernment units, acting through their respecti!e legislati!e councils, that
possess legislati!e power and police power# .n the case at "ar, the 4angguniang /anlungsod of Ga&ati
Cit* did not pass an* ordinance or resolution ordering the opening of 8eptune 4treet, hence, its
proposed opening "* petitioner GG?A is illegal ) ) )# (@@DA v. 7el9Air Iilla6e Association 2nc.
)28 1C"A 8)$ @arch 27 2000 1
st
Div. *+'no,-
)79. Disc'ss the concept of local a'tonom(.
Held2 Autonom* is either de#entraliGation of administration or de#entraliGation of power.
There is de#entraliGation of administration when the central go!ernment delegates administrati!e
powers to political su"di!isions in order to "roaden the "ase of go!ernment and in the process to
ma&e local go!ernments more responsi!e and accounta"le, and ensure their fullest de!elopment as
self,reliant communities and ma&e them more e-ecti!e partners in the pursuit of national
de!elopment and social progress# At the same time, it relie!es the central go!ernment of the "urden
of managing local a-airs and ena"les it to concentrate on national concerns# The /resident e)ercises
general super!ision o!er them, "ut onl* to ensure that local a-airs are administered according to law#
Ce has no control o!er their acts in the sense that he can su"stitute their udgments with his own#
'e#entraliGation of power, on the other hand, in!ol!es an a"dication of political power in fa!or
of local go!ernment units declared autonomous# .n that case, the autonomous go!ernment is free to
chart its own destin* and shape its own future with minimum inter!ention from central authorities#
According to a constitutional author, decentrali'ation of power amounts to self,immolation,$ since in
that e!ent, the autonomous go!ernment "ecomes accounta"le not to the central authorities "ut to its
constituenc*# (=imbona v. @an6elin 170 1C"A 78$ ?eb. 28 1989 3n 7anc *1armiento,-
)80. .hat >ind of local a'tonom( is contemplated b( the Constit'tion0 .hat abo't
the a'tonom( contemplated insofar as the a'tonomo's re6ions are concerned0
Held2 5# The principle of local autonom* under the 5@F% Constitution simpl* means
decentrali'ation#$ .t does not ma&e local go!ernments so!ereign within the state or an imperium in
imperio#$ 9emaining to "e an intra so!ereign su"di!ision of one so!ereign nation, "ut not intended,
howe!er, to "e an imperium in imperio,D the local go!ernment unit is autonomous in the sense that it
is gi!en more powers, authorit*, responsi"ilities and resources# /ower which used to "e highl*
centrali'ed in Ganila, is there"* deconcentrated, ena"ling especiall* the peripheral local go!ernment
units to de!elop not onl* at their own pace and discretion "ut also with their own resources and
assets# (AlvareA v. !'in6ona &r. 2%2 1C"A $9% &an. )1 199$ 3n 7anc *Hermosisima,-
2# The constitutional guarantee of local autonom* in the Constitution refers to the
administrative autonom* of local go!ernment units or, cast in more technical language, the
decentrali'ation of go!ernment authorit*#
Bn the other hand, the creation of autonomous regions in Guslim Gindanao and the
Cordilleras, which is peculiar to the 5@F% Constitution, contemplates the grant of politi#al autonom*
and not ust administrati!e autonom* to these regions# Thus, the pro!ision in the Constitution for an
autonomous regional go!ernment with a "asic structure consisting of an e)ecuti!e department and a
legislati!e assem"l* and special courts with personal, famil* and propert* law urisdiction in each of
the autonomous regions. (Cordillera 7road Coalition v. COA 181 1C"A 59% &an. 29 1990 3n
7anc *Cortes,-
)81. .hat is the meanin6 of Rdevol'tionR0
A&,2 The term de!olution$ refers to the act "* which the 8ational go!ernment confers power
and authorit* upon the !arious local go!ernment units to perform specifc functions and
responsi"ilities# (1ec. 17*e, 2
nd
par. =ocal !overnment Code-
)82. The Cit( of 7't'an enacted an ordinance prohibitin6 the =and Transportation
O8ce (=TO- to re6ister motor vehicles tric(cles in partic'lar as /ell as to iss'e
licenses for the drivin6 thereof contendin6 that these po/ers have been
devolved to local 6overnments 'nder the =ocal !overnment Code. .as the Cit(
of 7't'an correct in its assertion0
44
Held2 Bnl* the powers of the <and Transportation 1ranchising 9egulator* 2oard (<T192) to
regulate the operation of tric*cles,for,hire and to grant franchises for the operation thereof had "een
de!ol!ed to local go!ernments under the <ocal 0o!ernment Code# Clearl* una-ected "* the <ocal
0o!ernment Code are the powers of the <TB under 9#A# 8o# 45=> re+uiring the registration of all &inds
of motor !ehicles used or operated on or upon an* pu"lic highwa*$ in the countr*# This can "e
gleaned from the e)plicit language of the statute itself, as well as the corresponding guidelines issued
"* the ?BTC# .n fact, e!en the power of <0Is to regulate the operation of tric*cles and to grant
franchises for the operation thereof are still su"ect to the guidelines prescri"ed "* the ?BTC# (=TO v.
Cit( of 7't'an !.". #o. 1)1%12 &an. 20 2000 )
rd
Div. *Iit'6,-
)8). The Cit( of +asi6 created 7aran6a(s Qaran6alan and #apico and plebiscites /ere
sched'led to ratif( said creation. 2t /as fo'nd ho/ever that the t/o proposed
baran6a(s /ere s'bFect of a pendin6 bo'ndar( disp'te bet/een the Cit( of +asi6
and the @'nicipalit( of Cainta in the "TC of Antipolo. .hether or not the
plebiscites sched'led sho'ld be s'spended or cancelled in vie/ of the pendin6
bo'ndar( disp'te bet/een the t/o local 6overnments and if one had alread(
been held /hether it sho'ld be n'lliCed.
Held2 To "egin with, we agree with the position of the CBGH<HC that Ci!il Case 8o# @4,=00>
in!ol!ing the "oundar* dispute "etween the Gunicipalit* of Cainta and the Cit* of /asig presents a
preudicial +uestion which must frst "e decided "efore the ple"iscites for the creation of the proposed
"aranga*s ma* "e held#
A ) )
.n the case at "ar, while the Cit* of /asig !igorousl* claims that the areas co!ered "* the
proposed 2aranga*s Karangalan and 8apico are within its territor*, it can not den* that portions of
the same area are included in the "oundar* dispute case pending "efore the 9egional Trial Court of
Antipolo# 4urel*, whether the areas in contro!ers* shall "e decided as within the territorial urisdiction
of the Gunicipalit* of Cainta or the Cit* of /asig has material "earing to the creation of the proposed
2aranga*s Karangalan and 8apico# .ndeed, a re+uisite for the creation of a "aranga* is for its
territorial urisdiction to "e properl* identifed "* metes and "ounds or "* more or less permanent
natural "oundaries (2e#. =813"4, !.A. /o. 7119)# /recisel* "ecause territorial urisdiction is an issue
raised in the pending ci!il case, until and unless such issue is resol!ed with fnalit*, to defne the
territorial urisdiction of the proposed "aranga*s would onl* "e an e)ercise in futilit*# 8ot onl* that,
we would "e pa!ing the wa* for potentiall* ultra !ires acts of such "aranga*s# A ) )
Goreo!er, considering the e)penses entailed in the holding of ple"iscites, it is far more
prudent to hold in a"e*ance the conduct of the same, pending fnal determination of whether or not
the entire area of the proposed "aranga*s are trul* within the territorial urisdiction of the Cit* of
/asig#
8either do we agree that merel* "ecause a ple"iscite had alread* "een held in the case of the
proposed 2aranga* 8apico, the petition of the Gunicipalit* of Cainta has alread* "een rendered moot
and academic# The issue raised "* the Gunicipalit* of Cainta in its petition "efore the CBGH<HC
against the holding of the ple"iscite for the creation of 2aranga* 8apico are still pending
determination "efore the Antipolo 9egional Trial Court#
A ) )
Therefore, the ple"iscite on the creation of 2aranga* Karangalan should "e held in a"e*ance
pending fnal resolution of the "oundar* dispute "etween the Cit* of /asig and the Gunicipalit* of
Cainta "* the 9egional Trial Court of Antipolo Cit*# .n the same !ein, the ple"iscite held on Garch 55,
5@@% to ratif* the creation of 2aranga* 8apico, /asig Cit*, should "e annulled and set aside# (Cit( of
+asi6 v. CO@3=3C )15 1C"A 179 1ept. 10 1999 3n 7anc *Bnares91antia6o,-
)85. Are the 2nternal "even'e Allotments (2"As- considered income and therefore to
be incl'ded in the comp'tation of the avera6e ann'al income of a m'nicipalit(
for p'rposes of its conversion into an independent component cit(0
Held2 Res# The .9As are items of income "ecause the* form part of the gross accretion of the
funds of the local go!ernment unit# The .9As regularl* and automaticall* accrue to the local treasur*
without need of an* further action on the part of the local go!ernment unit. The* thus constitute
income which the local go!ernment can in!aria"l* rel* upon as the source of much needed funds#
A ) )
LTMo reiterate, .9As are a regular, recurring item of income6 nil is there a "asis, too, to classif*
the same as a special fund or transfer, since .9As ha!e a technical defnition and meaning all its own
as used in the <ocal 0o!ernment Code that une+ui!ocall* ma&es it distinct from special funds or
transfers referred to when the Code spea&s of funding support from the national go!ernment, its
instrumentalities and go!ernment,owned or controlled corporations#$
Thus, ?epartment of 1inance Brder 8o# =5,@= correctl* encapsuli'es the full import of the
a"o!e dis+uisition when it defned A88IA< .8CBGH to "e re!enues and receipts reali'ed "*
pro!inces, cities and municipalities from regular sources of the <ocal 0eneral 1und in#ludin% the
45
internal revenue allotment and other shares pro!ided for in 4ections 2F4, 2@0 and 2@5 of the Code,
"ut e)clusi!e of non,recurring receipts, such as other national aids, grants, fnancial assistance, loan
proceeds, sales of f)ed assets, and similar others$# 4uch order, constituting e)ecuti!e or
contemporaneous construction of a statute "* an administrati!e agenc* charged with the tas& of
interpreting and appl*ing the same, is entitled to full respect and should "e accorded great weight "*
the courts, unless such construction is clearl* shown to "e in sharp conQict with the Constitution, the
go!erning statute, or other laws. (AlvareA v. !'in6ona &r. 2%2 1C"A $9% &an. )1 199$ 3n
7anc *Hermosisima &r. &.,-
)8%. 1tate the importance of dra/in6 /ith precise stro>es the territorial bo'ndaries of
a local 6overnment 'nit.
Held2 The importance of drawing with precise stro&es the territorial "oundaries of a local unit
of go!ernment cannot "e o!eremphasi'ed# The "oundaries must "e clear for the* defne the limits of
the territorial urisdiction of a local go!ernment unit# .t can legitimatel* e)ercise powers of
go!ernment onl* within the limits of its territorial urisdiction# 2e*ond these limits, its acts are ultra
vires. 8eedless to state, an* uncertaint* in the "oundaries of local go!ernment units will sow costl*
conQicts in the e)ercise of go!ernmental powers which ultimatel* will preudice the people;s welfare#
This is the e!il sought to "e a!oided "* the <ocal 0o!ernment Code in re+uiring that the land area of
a local go!ernment unit must "e spelled out in metes and "ounds, with technical descriptions#
(@ariano &r. v. CO@3=3C 252 1C"A 211 2179219 @ar. 7 199% 3n 7anc *+'no,-
)8$. ".A. 78%5 /as enacted convertin6 the @'nicipalit( of @a>ati into a hi6hl(
'rbaniAed cit(. 1ection 2 thereof did not provide for a cadastral t(pe of
description of its bo'ndar( b't merel( provided that the bo'ndar( of the ne/ cit(
of @a>ati shall be the bo'ndar( of the present m'nicipalit( of @a>ati.
+etitioners contended in a petition bro'6ht the 1C that ".A. 78%5 /as defective
beca'se it did not compl( /ith the re:'irement in the =ocal !overnment Code
that ;the territorial F'risdiction of ne/l( created or converted cities sho'ld be
described b( metes and bo'nds /ith technical descriptions.< #ote that at the
time the la/ /as enacted there /as a pendin6 bo'ndar( disp'te bet/een @a>ati
and one of its nei6hbors Ta6'i6 before the re6'lar co'rt. 1ho'ld the contention
be 'pheld0
Held2 0i!en the facts of the cases at "ench, we cannot percei!e how this e!il (uncertaint* in
the "oundaries of local go!ernment units will sow costl* conQicts in the e)ercise of go!ernment
powers which ultimatel* will preudice the people;s welfare) can "e "rought a"out "* the description
made in 4ection 2 of 9#A# 8o# %F54# /etitioners ha!e not demonstrated that the delineation of the
land area of the proposed Cit* of Ga&ati will cause confusion as to its "oundaries# :e note that said
delineation did not change e!en "* an inch the land area pre!iousl* co!ered "* Ga&ati as a
municipalit*# 4ection 2 did not add, su"tract, di!ide, or multipl* the esta"lished land area of Ga&ati#
.n language that cannot "e an* clearer, 4ection 2 stated that the cit*;s land area shall comprise the
present territor* of the municipalit*#$
The deli"erations of Congress will re!eal that there is a legitimate reason wh* the land area of
the proposed Cit* of Ga&ati was not defned "* metes and "ounds, with technical descriptions# At the
time of the consideration of 9#A# 8o# %F54, the territorial dispute "etween the municipalities of Ga&ati
and Taguig o!er 1ort 2onifacio was under court litigation# But of a "ecoming sense of respect to a co,
e+ual department of go!ernment, the legislators felt that the dispute should "e left to the courts to
decide# The* did not want to foreclose the dispute "* ma&ing a legislati!e fnding of fact which could
decide the issue# This would ha!e ensued if the* defned the land area of the proposed cit* "* its
e)act metes and "ounds, with technical descriptions. :e ta&e udicial notice of the fact that Congress
has also refrained from using the metes and "ounds description of the land area of other local
go!ernment units with unsettled "oundar* disputes.
:e hold that the e)istence of a "oundar* dispute does not per se present an insurmounta"le
di(cult* which will pre!ent Congress from defning with reasona"le certitude the territorial
urisdiction of a local go!ernment unit# .n the cases at "ench, Congress maintained the e)isting
"oundaries of the proposed Cit* of Ga&ati "ut as an act of fairness, made them su"ect to the ultimate
resolution "* the courts# Considering these peculiar circumstances, we are not prepared to hold that
4ection 2 of 9#A# 8o# %F54 is unconstitutional# :e sustain the su"mission of the 4olicitor 0eneral in
this regard, viGK
0oing now to 4ections % and 450 of the <ocal 0o!ernment Code, it is "e*ond ca!il
that the re+uirement stated therein, viGK Nthe territorial urisdiction of newl* created or
con!erted cities should "e descri"ed "* metes and "ounds, with technical descriptions$ J was
made in order to pro!ide a means "* which the area of said cities ma* "e reasona"l*
ascertained# .n other words, the re+uirement on metes and "ounds was meant merel* as a
tool in the esta"lishment of local go!ernment units# .t is not an end in itself# ,r%o, so long as
the territorial urisdiction of a cit* ma* "e reasona"l* ascertained, i#e#, "* referring to common
"oundaries with neigh"oring municipalities, as in this case, then, it ma* "e concluded that the
legislati!e intent "ehind the law has "een su(cientl* ser!ed#
Certainl*, Congress did not intend that laws creating new cities must contain therein
detailed technical descriptions similar to those appearing in Torrens titles, as petitioners seem
to impl*# To re+uire such description in the law as a condition sine 8ua non for its !alidit*
would "e to defeat the !er* purpose which the <ocal 0o!ernment Code see&s to ser!e# The
46
manifest intent of the Code is to empower local go!ernment units and to gi!e them their
rightful due# .t see&s to ma&e local go!ernments more responsi!e to the needs of their
constituents while at the same time ser!ing as a !ital cog in national de!elopment# To
in!alidate 9#A# 8o# %F54 on the mere ground that no cadastral t*pe of description was used in
the law would ser!e the letter "ut defeat the spirit of the Code# .t then "ecomes a case of the
master ser!ing the sla!e, instead of the other wa* around# This could not "e the intendment
of the law#$ A ) )
(@ariano &r. v. CO@3=3C 252 1C"A 211 2179219 @ar. 7 199% 3n 7anc *+'no,-
)87. Disc'ss the a'thorit( of ma(ors to iss'e or 6rant licenses and b'siness permits
and ho/ sho'ld it be e4ercised.
Held2 The authorit* of cit* ma*ors to issue or grant licenses and "usiness permits is "e*ond
ca!il# .t is pro!ided for "* law#
Cowe!er, the power to grant or issue licenses or "usiness permits must alwa*s "e e)ercised in
accordance with law, with utmost o"ser!ance of the rights of all concerned to due process and e+ual
protection of the law#
4uccinct and in point is the ruling of this Court, thatD
) ) ) :hile a "usiness ma* "e regulated, such regulation must, howe!er, "e within
the "ounds of reason, i.e., the regulator* ordinance must "e reasona"le, and its pro!ision
cannot "e oppressi!e amounting to an ar"itrar* interference with the "usiness or calling
su"ect of regulation# A lawful "usiness or calling ma* not, under the guise of regulation, "e
unreasona"l* interfered with e!en "* the e)ercise of police power# A ) )
A ) ) The e)ercise of police power "* the local go!ernment is !alid unless it
contra!enes the fundamental law of the land or an act of the legislature, or unless it is against
pu"lic polic* or is unreasona"le, oppressi!e, partial, discriminating or in derogation of a
common right#$ ((ala#uit v. CF. of A%usan del /orte, 11= 2C!A 187) (Acebedo Optical
Compan( 2nc. v. CA )29 1C"A )15 )2$9)27 @arch )1 2000 3n 7anc *+'risima,-
)88. Distin6'ish the po/er to 6rant a license or permit to do b'siness and the po/er
to iss'e a license to en6a6e in the practice of a partic'lar profession.
Held2 ?istinction must "e made "etween the grant of a license or permit to do "usiness and
the issuance of a license to engage in the practice of a particular profession# The frst is usuall*
granted "* the local authorities and the second is issued "* the 2oard or Commission tas&ed to
regulate the particular profession# A "usiness permit authori'es the person, natural or otherwise, to
engage in "usiness or some form of commercial acti!it*# A professional license, on the other hand, is
the grant of authorit* to a natural person to engage in the practice or e)ercise of his or her
profession# (Acebedo Optical Compan( 2nc. v. CA )29 1C"A )15 )28 @arch )1 2000 3n
7anc *+'risima,-
)89. Acebedo Optical Compan( 2nc. applied for a permit to en6a6e in the b'siness of
r'nnin6 an optical shop. 2ts application /as 6ranted /ith several conditions. The
conditions in essence prohibit it from en6a6in6 in the practice of optometr( as a
corporate bod( or entit(. =ater the 6rant /as revo>ed b( the @a(or on the
alle6ed 6ro'nd that it violated all the conditions of its b'siness permit. .as the
revocation valid0
Held2 .n the case at "ar, what is sought "* petitioner (Ace"edo Bptical Compan*, .nc#) from
respondent Cit* Ga*or is a permit to engage in the "usiness of running an optical shop# .t does not
purport to see& a license to engage in the practice of optometr* as a corporate "od* or entit*,
although it does ha!e in its emplo*, persons who are dul* licensed to practice optometr* "* the 2oard
of H)aminers in Bptometr*#
The case of 2amahan n% )ptometrists sa $ilipinas v. A#e"edo .nternational Corporation, 0#9#
8o# 55%0@%, promulgated "* this Court on Garch 25, 5@@%, is in point# A ) )
The 1irst ?i!ision of this Court ) ) ) ruled in fa!or of respondent Ace"edo .nternational
Corporation, holding that the fact that pri!ate respondent hires optometrists who practice their
profession in the course of their emplo*ment in pri!ate respondent;s optical shops, does not translate
into a practice of optometr* "* pri!ate respondent itself#$ The Court further elucidated that in "oth
the old and new Bptometr* <aw, 9#A# 8o# 5@@F, it is signifcant to note that there is no prohi"ition
against the hiring "* corporations of optometrists# The Court concluded thusD
All told, there is no law that prohi"its the hiring "* corporations of optometrists or
considers the hiring "* corporations of optometrists as a practice "* the corporation itself of
the profession of optometr*#$
.n the present case, the o"ecti!e of the imposition of su"ect conditions on petitioner;s
"usiness permit could "e attained "* re+uiring the optometrists in petitioner;s emplo* to produce a
!alid certifcate of registration as optometrists, from the 2oard of H)aminers in Bptometr*# A "usiness
permit is issued primaril* to regulate the conduct of "usiness and the Cit* Ga*or cannot, through the
issuance of such permit, regulate the practice of a profession, li&e that of optometr*# 4uch a function
47
is within the e)clusi!e domain of the administrati!e agenc* specifcall* empowered "* law to
super!ise the profession, in this case the /rofessional 9egulations Commission and the 2oard of
H)aminers in Bptometr*#
.t is signifcant to note that during the deli"erations of the "icameral conference committee of
the 4enate and the Couse of 9epresentati!es on 9#A# F050 ) ) ) the committee failed to reach a
consensus as to the prohi"ition on indirect practice of optometr* "* corporations# (Acebedo Optical
Compan( 2nc. v. CA )29 1C"A )15 )289))0 @arch )1 2000 3n 7anc *+'risima,-
)90. @a( a local 6overnment 'nit validl( a'thoriAe an e4propriation of private
propert( thro'6h a mere resol'tion of its la/ma>in6 bod(0
Held2 The <ocal 0o!ernment Code e)pressl* and clearl* re+uires an ordinance or a local law
for that purpose# A resolution that merel* e)presses the sentiment or opinion of the Gunicipal Council
will not su(ce# The case of $rovin#e of Camarines 2ur v. Court of Appeals which held that a mere
resolution ma* su(ce to support the e)ercise of eminent domain "* a local go!ernment unit is not in
point "ecause the applica"le law at that time was 2#/# ==%, the pre!ious <ocal 0o!ernment Code,
which had pro!ided that a mere resolution would ena"le an <0I to e)ercise eminent domain# .n
contrast, 9#A# %5>0, the present <ocal 0o!ernment Code, e)plicitl* re+uired an ordinance for this
purpose# (@'nicipalit( of +arana:'e v. I.@. "ealt( Corp. 292 1C"A $78 &'l( 20 1998
*+an6aniban,-
)91. .hat are the re:'isites before a =ocal !overnment Dnit can validl( e4ercise the
po/er of eminent domain0
Held2 .n @'nicipalit( of +arana:'e v. I.@. "ealt( Corp. (292 1C"A $78 &'l( 20 1998
*+an6aniban,- it was clarifed that the re+uisites "efore a local go!ernment unit can !alidl* e)ercise
the power of eminent domain areD
An ordinance is enacted "* the local legislati!e council authori'ing the local chief e)ecuti!e, in
"ehalf of the <0I, to e)ercise the power of eminent domain or pursue e)propriation
proceedings o!er a particular pri!ate propert*6
The power of eminent domain is e)ercised for pu"lic use, purpose or welfare, or for the "eneft
of the poor and the landless6
There is pa*ment of ust compensation, as re+uired under 4ection @, Article ... of the
Constitution, and other pertinent laws6
A !alid and defnite o-er has "een pre!iousl* made to the owner of the propert* sought to "e
e)propriated, "ut said o-er was not accepted#
)92. @a( the 1an66'nian6 +anlala/i6an validl( disapprove a resol'tion or ordinance
of a m'nicipalit( callin6 for the e4propriation of private propert( to be made site
of a ?armers Center and Other !overnment 1ports ?acilities on the 6ro'nd that
said ;e4propriation is 'nnecessar( considerin6 that there are still available lots
of the m'nicipalit( for the establishment of a 6overnment center<0
Held2 Inder the <ocal 0o!ernment Code, the 4angguniang /anlalawigan is granted the
power to declare a municipal resolution in!alid on the sole ground that it is "e*ond the power of the
4angguniang 2a*an or Ga*or to issue# As held in 6elaG#o v. (las, The onl* ground upon which a
pro!incial "oard ma* declare an* municipal resolution, ordinance or order in!alid is when such
resolution, ordinance, or order is N"e*ond the powers conferred upon the council or president ma&ing
the same#; A strictl* legal +uestion is "efore the pro!incial "oard in its consideration of a municipal
resolution, ordinance, or order# The pro!incial "oard;s disappro!al of an* resolution, ordinance, or
order must "e premised specifcall* upon the fact that such resolution, ordinance, or order is outside
the scope of the legal powers conferred "* law# .f a pro!incial "oard passes these limits, it usurps the
legislati!e functions of the municipal council or president# 4uch has "een the consistent course of
e)ecuti!e authorit*#$ (@oda( v. CA 2$8 1C"A %8$ ?eb. 20 1997-
)9). 2s a contract entered into b( the cit( ma(or involvin6 the e4pendit're of p'blic
f'nds b( the local 6overnment /itho't prior appropriation b( the cit( co'ncil
valid and bindin60
Held2 .f we are to limit our dis+uisition to the cited pro!isions of /residential ?ecree 8o# 5445,
or the Auditing Code of the /hilippines, in conunction with 4ection 5%% (") of 2atas /am"ansa 2lg#
==%, or the <ocal 0o!ernment Code of 5@F=, which empowered the 4angguniang /anlungsod to
appropriate funds for e)penses of the cit* go!ernment, and f) the salaries of its o(cers and
emplo*ees according to law,$ there would "e no de"ate that prior appropriation "* the cit* council
and a certifcation that funds are a!aila"le therefore is indeed mandatoril* re+uired#
A ) )
Cowe!er, the !er* same /residential ?ecree 8o# 5445, which is the cornerstone of petitioner;s
arguments, does not pro!ide that the a"sence of an appropriation law ipso fa#to ma&es a contract
entered into "* a local go!ernment unit null and !oid# 4ection F4 of the statute specifcall* pro!idesD
9e!enue funds shall not "e paid out of an* pu"lic treasur* or depositor* e)cept in
pursuance of an appropriation law or other spe#iF# statutor& authorit&.
48
Conse+uentl*, pu"lic funds ma* "e dis"ursed not onl* pursuant to an appropriation law, "ut
also in pursuance of other specifc statutor* authorit*, i.e., 4ection F4 of /? 5445# Thus, when a
contract is entered into "* a cit* ma*or pursuant to specifc statutor* authorit*, the law, i.e., /? 5445
allows the dis"ursement of funds from an* pu"lic treasur* or depositor* therefor# .t can thus "e
plainl* seen that the law in!o&ed "* petitioner Tue'on Cit* itself pro!ides that an appropriation law is
not the onl* authorit* upon which pu"lic funds shall "e dis"ursed#
1urthermore, then Ga*or 2rigido 4imon, Er# did not enter into the su"ect contract without legal
authorit*# The <ocal 0o!ernment Code of 5@F=, or 2#/# 2lg# ==%, which was then in force, specifcall*
and e)clusi!el* empowered the cit* ma*or to represent the cit* in its "usiness transactions, and sign
all warrants drawn on the cit* treasur* and all "onds, contracts and o"ligations of the cit*#$ 4uch
power granted to the cit* ma*or "* 2#/# 2lg# ==% was not +ualifed nor restricted "* an* prior action or
authorit* of the cit* council# :e note that while the su"se+uent <ocal 0o!ernment Code of 5@@5,
which too& e-ect after the e)ecution of the su"ect contracts, pro!ides that the ma*or;s
representation must "e upon authorit* of the sangguniang panlungsod or pursuant to law or
ordinance,$ there was no such +ualifcation under the old code# (Citations omitted)
:e must di-erentiate the pro!isions of the old <ocal 0o!ernment Code of 5@F=, 2#/# 2lg# ==%,
which was then in force, from that of the <ocal 0o!ernment Code of 5@@5, 9#A# 8o# %5>0, which now
re+uires that the ma*or;s representation of the cit* in its "usiness transactions must "e upon
authorit* of the sangguniang panlungsod or pursuant to law or ordinance$ (4ection 455 L!iM# 8o such
prior authorit* was re+uired under 2#/# 2lg# ==%# This restriction, therefore, cannot "e imposed on the
cit* ma*or then since the two contracts were entered into "efore 9#A# 8o# %5>0 was e!en enacted#
Inder 2#/# 2lg# ==%, while the cit* ma*or has no power to appropriate funds to support the
contracts, neither does said law prohi"it him from entering into contracts unless and until funds are
appropriated therefor# .n fact, it is his "ounden dut* to so represent the cit* in all its "usiness
transactions# Bn the other hand, the cit* council must pro!ide for the depositing, lea!ing or
throwing of gar"age$ and to appropriate funds for such e)penses# (4ection 5%% L"M)# .t cannot refuse
to so pro!ide and appropriate pu"lic funds for such ser!ices which are !er* !ital to the maintenance
of cleanliness of the cit* and the good health of its inha"itants#
2* entering into the two contracts, Ga*or 4imon did not usurp the cit* council;s power to
pro!ide for the proper disposal of gar"age and to appropriate funds therefor# The e)ecution of
contracts to address such a need is his statutor* dut*, ust as it is the cit* council;s dut* to pro!ide for
said ser!ices# There is no pro!ision in 2#/# 2lg# ==%, howe!er, that prohi"its the cit* ma*or from
entering into contracts for the pu"lic welfare, unless and until there is prior authorit* from the cit*
council# This re+uirement was imposed much later "* 9#A# 8o# %5>0, long after the contracts had
alread* "een e)ecuted and implemented#
H!en the !er* Charter of Tue'on Cit*, more particularl* 4ection @(f), 4ection 52(a)and 4ection
52(m) thereof, simpl* pro!ide that the ma*or shall e)ercise general powers and duties, such as
signing all warrants drawn on the cit* treasurer and all "onds, contracts, and o"ligations of the cit*,$
e!en as it grants the Cit* Council the power, "* ordinance or resolution, to ma&e all appropriations
for the e)penses of the go!ernment of the cit*,$ as well as to prohi"it the throwing or depositing of
o-al, gar"age, refuse, or other o-ensi!e matter in the same, and to pro!ide for its collection and
disposition ) ) )#$ (Citations omitted)
:hile the powers and duties of the Ga*or and the Cit* Council are clearl* delineated, there is
nothing in the cited pro!isions, nor e!en in the statute itself, that re+uires prior authori'ation "* the
cit* council "* proper enactment of an ordinance$ "efore the Cit* Ga*or can enter into contracts#
/ri!ate respondent <e)"er asserts that the su"ect contract was entered into "* Ga*or 4imon
in "ehalf of the Tue'on Cit* go!ernment pursuant to specifc statutor* authorit*, more particularl*
the pro!isions of H)ecuti!e Brder 8o# =@2 (Constituting the Getro Ganila Authorit* LGGAM)# Cit( of
G'eAon v. =e4ber 2ncorporated )%5 1C"A 59) @ar. 1% 2001 1
st
Div. *Bnares91antia6o,-
)95. .ho has the le6al a'thorit( to represent a m'nicipalit( in la/s'its0
Held2 Bnl* the pro!incial fscal, pro!incial attorne*, and municipal attorne* should represent
a municipalit* in its lawsuits# Bnl* in e)ceptional instances ma* a pri!ate attorne* "e hired "* a
municipalit* to represent it in lawsuits# ("amos v. CA 2$9 1C"A )5 @arch ) 1997-
)9%. .hat are the e4ceptional instances /hen a private attorne( ma( be validl( hired
b( a m'nicipalit( in its la/s'its0
Held2 .n Alinsu% v. !TC (r. >8, 2an Carlos Cit&, /e%ros )##idental, it was held that the law
allows a pri!ate counsel to "e hired "* a municipalit* onl* when the municipalit* is an ad!erse part*
in a case in!ol!ing the pro!incial go!ernment or another municipalit* or cit* within the pro!ince# This
pro!ision has its apparent origin in 'e uia v. The Auditor eneral where the Court held that the
municipalit*;s authorit* to emplo* a pri!ate attorne* is e)pressl* limited onl* to situations where the
pro!incial fscal would "e dis+ualifed to ser!e and represent it#$ ("amos v. CA 2$9 1C"A )5
@arch ) 1997-
)9$. Cite instances /hen the provincial Cscal ma( be dis:'aliCed to represent in co'rt
a partic'lar m'nicipalit(.
49
Held2 As held in ,nri8ueG, 2r. v. imeneG, the pro!incial fscal ma* "e dis+ualifed to
represent in court a particular municipalit* in the following instancesD
.f and when original urisdiction of case in!ol!ing the municipalit* is !ested in the 4upreme
Court6
:hen the municipalit* is a part* ad!erse to the pro!incial go!ernment or to some other
municipalit* in the same pro!ince6 and
:hen, in a case in!ol!ing the municipalit*, he, or his wife, or child, is pecuniaril* in!ol!ed, as
heir, legatee, creditor or otherwise#
("amos v. CA 2$9 1C"A )5 @arch ) 1997-
)97. @a( a m'nicipalit( be represented b( a private la/ Crm /hich had vol'nteered
its services 6ratis in collaboration /ith the m'nicipal attorne( and the Cscal0
Held2 8o# 4uch representation will "e !iolati!e of 4ection 5@F= of the old Administrati!e
Code# This strict coherence to the letter of the law appears to ha!e "een dictated "* the fact that
the municipalit* should not "e "urdened with e)penses of hiring a pri!ate law*er$ and that the
interests of the municipalit* would "e "est protected if a go!ernment law*er handles its litigations#$
/ri!ate law*ers ma* not represent municipalities on their own# 8either ma* the* do so e!en
in colla"oration with authori'ed go!ernment law*ers# This is anchored on the principle that onl*
accounta"le pu"lic o(cers ma* act for and in "ehalf of pu"lic entities and that pu"lic funds should
not "e e)pended to hire pri!ate law*ers# ("amos v. CA 2$9 1C"A )5 @arch ) 1997-
)98. @a( a m'nicipalit( adopt the /or> alread( performed in 6ood faith b( a private
la/(er /hich /or> proved beneCcial to it0
Held2 Although a municipalit* ma* not hire a pri!ate law*er to represent it in litigations, in
the interest of su"stantial ustice, howe!er, it was held that a municipalit* ma* adopt the wor&
alread* performed in good faith "* such pri!ate law*er, which wor& is "enefcial to it (5) pro!ided that
no inustice is there"* heaped on the ad!erse part* and (2) pro!ided further that no compensation in
an* guise is paid therefor "* said municipalit* to the pri!ate law*er# Inless so e)pressl* adopted, the
pri!ate law*er;s wor& cannot "ind the municipalit*# ("amos v. CA 2$9 1C"A )5 @arch ) 1997-
)99. Does the +residentMs po/er of 6eneral s'pervision e4tend to the li6a n6 m6a
baran6a( /hich is not a local 6overnment 'nit0
Held2 :e rule in the a(rmati!e# .n Bpinion 8o# 45, 4eries of 5@@5, the ?epartment of Eustice
ruled that the liga ng mga "aranga* is a go!ernment organi'ation, "eing an association, federation,
league or union created "* law or "* authorit* of law, whose mem"ers are either appointed or elected
go!ernment o(cials# The <ocal 0o!ernment Code defnes the liga ng mga "aranga* as an
organi'ation of all "aranga*s for the primar* purpose of determining the representation of the liga in
the sanggunians, and for !entilating, articulating and cr*stalli'ing issues a-ecting "aranga*
go!ernment administration and securing, through proper and legal means, solutions thereto (2e#.
091, ;o#al overnment Code). A ) )
A ) )
The ligas are primaril* go!erned "* the pro!isions of the <ocal 0o!ernment Code (2oo& ...,
Title 3., <ocal 0o!ernment Code)# Cowe!er, their respecti!e constitution and "*,laws shall go!ern
other matters a-ecting internal organi'ation of the liga not otherwise pro!ided for in the <ocal
0o!ernment Code pro!ided that the constitution and "*,laws shall "e suppletor* to the pro!isions of
2oo& ..., Title 3. of the <ocal 0o!ernment Code and shall alwa*s conform to the pro!isions of the
Constitution and e)isting laws (2e#. >97, ;o#al overnment Code).
Ca!ing in mind the foregoing principles, we rule that Gemorandum Circular 8o# @%,5@= of the
?.<0 insofar as it authori'es the fling a /etition for 9e!iew of the 2H4 with the regular courts in a post
proclamation electoral protest is of dou"tful constitutionalit*# :e agree with "oth the petitioner and
the 4olicitor 0eneral that in authori'ing the fling of the petition for re!iew of the decision of the 2H4
with the regular courts, the ?.<0 4ecretar* in e-ect amended and modifed the 0I.?H<.8H4
promulgated "* the 8ational <iga 2oard and adopted "* the <.0A which pro!ides that the decision of
the 2H4 shall "e su"ect to re!iew "* the 8ational <iga 2oard# The amendment of the 0I.?H<.8H4 is
more than an e)ercise of the power of super!ision "ut is an e)ercise of the power of control, which the
/resident does not ha!e o!er the <.0A# Although the ?.<0 is gi!en the power to prescri"e rules,
regulations and other issuances, the Administrati!e Code limits its authorit* to merel* monitoring
compliance$ "* local go!ernment units of such issuances. To monitor means to watch, o"ser!e or
chec&$ and is compati"le with the power of super!ision of the ?.<0 4ecretar* o!er local go!ernments,
which is limited to chec&ing whether the local go!ernment unit concerned or the o(cers thereof
perform their duties as per statutor* enactments. 2esides, an* dou"t as to the power of the ?.<0
4ecretar* to interfere with local a-airs should "e resol!ed in fa!or of the greater autonom* of the
local go!ernment#
The pu"lic respondent udge therefore committed gra!e a"use of discretion amounting to lac&
or e)cess of urisdiction in not dismissing the respondent;s /etition for 9e!iew for failure to e)haust all
administrati!e remedies and for lac& of urisdiction# (7ito9Onon v. ?ernandeA )%0 1C"A 7)2 &an.
)1 2001 )
rd
Div. *!onAa6a9"e(es,-
50
500. @a( the +resident validl( /ithhold a portion of the internal reven'e allotments of
=ocal !overnment Dnits le6all( d'e them b( administrative Cat0
Held2 The Constitution !ests the /resident with the power of super!ision, not control, o!er
local go!ernment units (<0Is)# 4uch power ena"les him to see to it that <0Is and their o(cials
e)ecute their tas&s in accordance with law# :hile he ma* issue ad!isories and see& their cooperation
in sol!ing economic di(culties, he cannot pre!ent them from performing their tas&s and using
a!aila"le resources to achie!e their goals# Ce ma* not withhold or alter an* authorit* or power gi!en
them "* the law# Thus, the withholding of a portion of internal re!enue allotments legall* due them
cannot "e directed "* administrati!e fat#
A ) )
4ection 4 of AB =%2 cannot ) ) ) "e upheld# A "asic feature of local fscal autonom* is the
automati# release of the shares of <0Is in the 8ational internal re!enue# This is mandated "* no less
than the Constitution. The <ocal 0o!ernment Code (2e#. 7813a4) specifes further that the release
shall "e made directl* to the <0I concerned within f!e (5) da*s after e!er* +uarter of the *ear and
Cshall not "e su"Be#t to an& lien or hold"a#5 that ma& "e imposed "& the national %overnment for
whatever purpose.D As a rule, the term shall$ is a word of command that must "e gi!en a
compulsor* meaning#$ The pro!ision is, therefore, imperati!e#
4ection 4 of AB =%2, howe!er, orders the withholding, e-ecti!e Eanuar* 5, 5@@F, of 50 percent
of the <0Is; .9A pending the assessment and e!aluation "* the ?e!elopment 2udget Coordinating
Committee of the emerging fscal situation$ in the countr*# 4uch withholding clearl* contra!enes the
Constitution and the law# Although, temporar*, it is e+ui!alent to a hold"ac&, which means
something held "ac& or withheld# Bften temporaril*#$ Cence, the temporar*$ nature of the
retention "* the national go!ernment does not matter# An* retention is prohi"ited#
.n sum, while 4ection 5 of AB =%2 ma* "e upheld as an ad!isor* e-ected in times of national
crisis, 4ection 4 thereof has no color of !alidit* at all# The latter pro!ision e-ecti!el* encroaches on
the fscal autonom* of local go!ernments# Concededl*, the /resident was well,intentioned in issuing
his Brder to withhold the <0Is; .9A, "ut the rule of law re+uires that e!en the "est intentions must "e
carried out within the parameters of the Constitution and the law# 3eril*, lauda"le purposes must "e
carried out "* legal methods# (+imentel &r. v. A6'irre !.". #o. 1)2988 ))$ 1C"A 201 &'l(
19 2000 3n 7anc *+an6aniban,-
501. .hat is meant b( Cscal a'tonom( of =ocal !overnments0 Does it r'le o't in an(
manner national 6overnment intervention b( /a( of s'pervision in order to
ens're that local pro6rams are consistent /ith national 6oals0
Held2 Inder e)isting law, local go!ernment units, in addition to ha!ing administrati!e
autonom* in the e)ercise of their functions, eno* fscal autonom* as well# 1iscal autonom* means
that local go!ernments ha!e the power to create their own sources of re!enue in addition to their
e+uita"le share in the national ta)es released "* the national go!ernment, as well as the power to
allocate their resources in accordance with their own priorities# .t e)tends to the preparation of their
"udgets, and local o(cials in turn ha!e to wor& within the constraints thereof# The* are not
formulated at the national le!el and imposed on local go!ernments, whether the* are rele!ant to local
needs and resources or not# Cence, the necessit* of a "alancing of !iewpoints and the harmoni'ation
of proposals from "oth local and national o(cials, who in an* case are partners in the attainment of
national goals#
<ocal fscal autonom* does not, howe!er, rule out an* manner of national go!ernment
inter!ention "* wa* of super!ision, in order to ensure that local programs, fscal and otherwise, are
consistent with national goals# 4ignifcantl*, the /resident, "* constitutional fat, is the head of the
economic and planning agenc* of the go!ernment (2e#tion 9, Arti#le I.. of the Constitution), primaril*
responsi"le for formulating and implementing continuing, coordinated and integrated social and
economic policies, plans and programs (2e#tion =, Chapter 1, 2u"title C, Title .., (oo5 6, ,) 797
3Administrative Code of 19874) for the entire countr*# Cowe!er, under the Constitution, the
formulation and the implementation of such policies and programs are su"ect to consultations with
the appropriate pu"lic agencies, !arious pri!ate sectors, and local go!ernment units#$ The /resident
cannot do so unilaterall*# (+imentel &r. v. A6'irre ))$ 1C"A 201 &'l( 19 2000 3n 7anc
*+an6aniban,-
502. .hat are the re:'isites before the +resident ma( interfere in local Cscal matters0
Held2 ) ) ) LTMhe <ocal 0o!ernment Code pro!ides (2e#. 780. 2ee also Art. =79 of the !ules
and !e%ulations .mplementin% the ;o#al overnment Code of 1991)D
) ) ) L.Mn the e!ent the national go!ernment incurs an unmanaged pu"lic sector
defcit, the /resident of the /hilippines is here"* authori'ed, upon the recommendation of
LtheM 4ecretar* of 1inance, 4ecretar* of the .nterior and <ocal 0o!ernment and 4ecretar* of
2udget and Ganagement, and su"ect to consultation with the presiding o(cers of "oth
Couses of Congress and the presidents of the li%a, to ma&e the necessar* adustments in the
internal re!enue allotment of local go!ernment units "ut in no case shall the allotment "e less
than thirt* percent (=0W) of the collection of national internal re!enue ta)es of the third fscal
*ear preceding the current fscal *ear ) ) )$
51
There are therefore se!eral re+uisites "efore the /resident ma* interfere in local fscal
mattersD (5) an unmanaged pu"lic sector defcit of the national go!ernment6 (2) consultations with the
presiding o(cers of the 4enate and the Couse of 9epresentati!es and the presidents of the various
lo#al lea%uesH and (=) the corresponding recommendation of the secretaries of the ?epartment of
1inance, .nterior and <ocal 0o!ernment, and 2udget and Ganagement# 1urthermore, an* adustment
in the allotment shall in no case "e less than thirt* percent (=0W) of the collection of national internal
re!enue ta)es of the third fscal *ear preceding the current one# (+imentel &r. v. A6'irre ))$
1C"A 201 &'l( 19 2000 3n 7anc *+an6aniban,-
50). On @a( ) 2001 petitioner Cled /ith the +rovincial 3lection 1'pervisor in
+a6adian Cit( a petition for the dis:'aliCcation of respondent 1'lon6 p'rs'ant
to 1ec. 50*b, of "ep'blic Act #o. 71$0 (=ocal !overnment Code- /hich
dis:'aliCes from r'nnin6 for an( elective local position ;those removed from
o8ce as a res'lt of an administrative case.< 2t appears that respondent 1'lon6
had previo'sl( /on as ma(or of =ap'(an on &an'ar( 18 1988. 2n the @a( 11
1992 and a6ain in the @a( 8 199% elections he /as reelected. 2n a petition for
dis:'aliCcation petitioner alle6ed that in 1991 d'rin6 his Crst term as ma(or of
=ap'(an respondent 1'lon6 alon6 /ith a m'nicipal co'ncilor of =ap'(an and
several other individ'als /as administrativel( char6ed (AC #o. 12991- /ith
vario's oEenses and that on ?ebr'ar( 5 1992 the 1an66'nian6 +anlala/i6an of
Samboan6a del 1'r fo'nd him 6'ilt( of the char6es and ordered his removal from
o8ce. +etitioner claimed that this decision had become Cnal and e4ec'tor( and
conse:'entl( the then vice9ma(or of =ap'(an Iicente 2mbin6 too> his oath as
ma(or vice respondent 1'lon6 on @arch ) 1992.
"espondent 1'lon6 denied that the decision in AC #o. 12991 had become
Cnal and e4ec'tor(. He averred that after receivin6 a cop( of the decision on
?ebr'ar( 17 1992 he Cled a motion for reconsideration andPor notice of appeal
thereof on ?ebr'ar( 18 1992O that on ?ebr'ar( 27 1992 the 1an66'nian6
+anlala/i6an re:'ired &im =in6atin6 the complainant in AC #o. 12991 to
comment on respondent 1'lon6Ms motion for reconsideration andPor notice of
appealO that the said complainant had not (et complied there/ith and his
(respondent 1'lon6Ms- motion had conse:'entl( remained pendin6. "espondent
1'lon6 denied he had been removed from o8ce b( virt'e of the decision in AC
#o. 12991.
Held2 /etitioner contends that the CBGH<HC en "an# erred in appl*ing the ruling in
A%uinaldo v. Commission on ,le#tions in holding that the reelection of respondent 4ulong in 5@@2 and
5@@5 as ma*or of <apu*an had the e-ect of condoning the misconduct for which he was ordered
dismissed "* the 4angguniang /anlalawigan of Sam"oanga del 4ur# /etitioner cites !e&es v.
Commission on ,le#tions in which we held that an electi!e local e)ecuti!e o(cer, who is remo!ed
"efore the e)piration of the term for which he was elected, is dis+ualifed from "eing a candidate for a
local electi!e position under 4ection 40L"M of the <ocal 0o!ernment Code#
A ) )
Cowe!er, 9e*es cannot "e applied to this case "ecause it appears that the 5@@2 decision of
the 4angguniang /anlalawigan, fnding respondent 4ulong guilt* of dishonest*, falsifcation and
mal!ersation of pu"lic funds, has not until now "ecome fnal# ) ) ) The fling of his motion for
reconsideration pre!ented the decision of 4angguniang /anlalawigan from "ecoming fnal#
:hile 9#A# 8o# %5>0 on disciplinar* actions is silent on the fling of a motion for
reconsideration, the same cannot "e interpreted as a prohi"ition against the fling of a motion for
reconsideration# ) ) )#
There is thus no decision fnding respondent guilt* to spea& of# As /ro!incial 4ecretar* of
Sam"oanga del 4ur :ilfredo Cimafranca attested, the 4angguniang /anlalawigan simpl* considered
the matter as ha!ing "ecome moot and academic "ecause it was o!erta&en "* the local elections of
Ga* L55M, 5@@2#$
8either can the succession of the then !ice,ma*or of <apu*an ) ) ) and the highest ran&ing
municipal councilor of <apu*an ) ) ) to the o(ces of ma*or and !ice,ma*or, respecti!el*, "e
considered proof that the decision in AC 8o# 52,@5 had "ecome fnal "ecause it appears to ha!e "een
made pursuant to 4ec# >F of the <ocal 0o!ernment Code, which ma&es decisions in administrati!e
cases immediatel* e)ecutor*#
.ndeed, considering the failure of the 4angguniang /anlalawigan to resol!e respondent;s
motion, it is unfair to the electorate to "e told after the* ha!e !oted for respondent 4ulong that after
all he is dis+ualifed, especiall* since at the time of the elections on Ga* 54, 2005, the decision of the
4angguniang /anlalawigan had "een rendered nearl* ten *ears ago# (Att(. @i6'el @. =in6atin6 v.
Commission on 3lections and Cesar 7. 1'lon6 !.". #o. 1%)57% #ov. 1) 2002 3n 7anc
*@endoAa,-
505. Dnder 1ection 8 Article L of the Constit'tion R*T,he term of o8ce of elective
local o8cials 4 4 4 shall be three (ears and no s'ch o8cial shall serve for more
than three consec'tive terms.R Ho/ is this term limit for elective local o8cials to
be interpreted0
52
Held2 The term limit for electi!e local o(cials must "e ta&en to refer to the ri%ht to "e
ele#ted as well as the ri%ht to serve in the same ele#tive position. Conse+uentl*, it is not enough that
an indi!idual has ser!ed three consecuti!e terms in an electi!e local o(ce, he must also ha!e "een
ele#ted to the same position for the same num"er of times "efore the dis+ualifcation can appl*#
(7orFa &r. v. CO@3=3C and Capco &r. !.". #o. 1))59% 1ept. ) 1998 29% 1C"A 1%7 3n
7anc *@endoAa,-
50%. Case #o. 1. 1'ppose A is a vice9ma(or /ho becomes ma(or b( reason of the
death of the inc'mbent. 1i4 months before the ne4t election he resi6ns and is
t/ice elected thereafter. Can he r'n a6ain for ma(or in the ne4t election0
Ans.T Res, "ecause although he has alread* frst ser!ed as ma*or "* succession and
su"se+uentl* resigned from o(ce "efore the full term e)pired, he has not actuall* ser!ed three full
terms in all for the purpose of appl*ing the term limit# Inder Art# A, 4ec# F, !oluntar* renunciation of
the o(ce is not considered as an interruption in the continuit* of his ser!ice for the full term onl* if
the term is one for which he was elected#$ 4ince A is onl* completing the ser!ice of the term for
which the deceased and not he was elected, A cannot "e considered to ha!e completed one term# Cis
resignation constitutes an interruption of the full term#
406. Case #o. 2. 1'ppose 7 is elected @a(or and d'rin6 his Crst term he is t/ice
s'spended for miscond'ct for a total of 1 (ear. 2f he is t/ice reelected after that
can he r'n for one more term in the ne4t election0
Ans.T Res, "ecause he has ser!ed onl* two full terms successi!el*#
.n "oth cases, the ma*or is entitled to run for reelection "ecause the two conditions for the
application of the dis+ualifcation pro!isions ha!e not concurred, namel*, that the local o(cial
concerned has "een elected three consecuti!e times and that he has full* ser!ed three consecuti!e
terms# .n the frst case, e!en if the local o(cial is considered to ha!e ser!ed three full terms
notwithstanding his resignation "efore the end of the frst term, the fact remains that he has not "een
elected three times# .n the second case, the local o(cial has "een elected three consecuti!e times,
"ut he has not full* served three consecuti!e terms#
507. Case #o. ). The case of vice9ma(or C /ho becomes ma(or b( s'ccession involves
a total fail're of the t/o conditions to conc'r for the p'rpose of appl(in6 Art. L
1ec. 8. 1'ppose he is t/ice elected after that term is he :'aliCed to r'n a6ain in
the ne4t election0
Ans.T Res, "ecause he was not elected to the o(ce of ma*or in the frst term "ut simpl*
found himself thrust into it "* operation of law# 8either had he ser!ed the full term "ecause he onl*
continued the ser!ice, interrupted "* the death, of the deceased ma*or# (7orFa &r. v. CO@3=3C
and Capco &r. !.". #o. 1))59% 1ept. ) 1998 29% 1C"A 1%7 3n 7anc *@endoAa,-
508. .hat are the policies embodied in the constit'tional provision barrin6 elective
local o8cials /ith the e4ception of baran6a( o8cials from servin6 more than
three consec'tive terms0
Held2 To pre!ent the esta"lishment of political d*nasties is not the onl* polic* em"odied in
the constitutional pro!ision in +uestion ("arring electi!e local o(cials, with the e)ception of "aranga*
o(cials, from ser!ing more than three consecuti!e terms)# The other polic* is that of enhancing the
freedom of choice of the people# To consider, therefore, onl* sta* in o(ce regardless of how the
o(cial concerned came to that o(ce J whether "* election or "* succession "* operation of law J
would "e to disregard one of the purposes of the constitutional pro!ision in +uestion# (7orFa &r. v.
CO@3=3C and Capco &r. !.". #o. 1))59% 1ept. ) 1998 29% 1C"A 1%7 3n 7anc
*@endoAa,-
509. =onAanida /as previo'sl( elected and served t/o consec'tive terms as ma(or of
1an Antonio Sambales prior to the @a( 199% ma(oral elections. 2n the @a( 199%
elections he a6ain ran for ma(or of 1an Antonio Sambales and /as proclaimed
/inner. He ass'med o8ce and dischar6ed the ri6hts and d'ties of ma(or 'ntil
@arch 1998 /hen he /as ordered to vacate the post b( reason of the CO@3=3C
decision on the election protest a6ainst him /hich declared his opponent &'an
AlveA the d'l( elected ma(or. AlveA served the remainin6 portion of the 199%9
1998 ma(oral term. 2s =onAanida still :'aliCed to r'n for ma(or of 1an Antonio
Sambales in the @a( 1998 local elections0
Held2 The two re+uisites for the application of the three,term rule was a"sent# First,
<on'anida cannot "e considered as ha!ing "een dul* elected to the post in the Ga* 5@@5 elections,
and second, he did not full* ser!e the 5@@5,5@@F ma*oral term "* reason of in!oluntar*
relin+uishment of o(ce# After a re,appreciation and re!ision of the contested "allots the CBGH<HC
itself declared "* fnal udgment that <on'anida lost in the Ga* 5@@5 ma*oral elections and his
pre!ious proclamation as winner was declared null and !oid# Cis assumption of o(ce as ma*or
cannot "e deemed to ha!e "een "* reason of a !alid election "ut "* reason of a !oid proclamation# .t
has "een repeatedl* held "* the 4C that a proclamation su"se+uentl* declared !oid is no
proclamation at all and while a proclaimed candidate ma* assume o(ce on the strength of the
53
proclamation of the 2oard of Can!assers he is onl* a presumpti!e winner who assumes o(ce su"ect
to the fnal outcome of the election protest# <on'anida did not ser!e a term as ma*or of 4an Antonio,
Sam"ales from Ga* 5@@5 to Garch 5@@F "ecause he was not dul* elected to the post6 he merel*
assumed o(ce as presumpti!e winner, which presumption was later o!erturned "* the CBGH<HC
when it decided with fnalit* that <on'anida lost in the Ga* 5@@5 ma*oral elections#
2e#ond, <on'anida cannot "e deemed to ha!e ser!ed the Ga* 5@@5 to 5@@F term "ecause he
was ordered to !acate his post "efore the e)piration of the term# Cis opponentsO contention that
<on'anida should "e deemed to ha!e ser!ed one full term from Ga* 5@@5,5@@F "ecause he ser!ed
the greater portion of that term has no legal "asis to support it6 it disregards the second re+uisite for
the application of the dis+ualifcation, i.e., that he has full* ser!ed three consecuti!e terms# The
second sentence of the constitutional pro!ision under scrutin* states, V3oluntar* renunciation of o(ce
for an& len%th of time shall not "e considered as an interruption in the continuit* of ser!ice for the full
term for which he was elected#V The clear intent of the framers of the Constitution to "ar an* attempt
to circum!ent the three,term limit "* a !oluntar* renunciation of o(ce and at the same time respect
the peopleOs choice and grant their elected o(cial full ser!ice of a term is e!ident in this pro!ision#
3oluntar* renunciation of a term does not cancel the renounced term in the computation of the three
term limit6 con!ersel*, in!oluntar* se!erance from o(ce for an* length of time short of the full term
pro!ided "* law amounts to an interruption of continuit* of ser!ice# <on'anida !acated his post a few
months "efore the ne)t ma*oral elections, not "* !oluntar* renunciation "ut in compliance with the
legal process of writ of e)ecution issued "* the CBGH<HC to that e-ect# 4uch in!oluntar* se!erance
from o(ce is an interruption of continuit* of ser!ice and thus, <on'anida did not full* ser!e the 5@@5,
5@@F ma*oral term#
.n sum, <on'anida was not the dul* elected ma*or and that he did not hold o(ce for the full
term6 hence, his assumption of o(ce from Ga* 5@@5 to Garch 5@@F cannot "e counted as a term for
purposes of computing the three,term limit# (=onAanida v. CO@3=3C )11 1C"A $02 &'l( 28
1999 3n 7anc *!onAa6a9"e(es,-
510. @a(or 3d/ard 1. Ha6edorn of +'erto +rincesa Cit( /as elected for three
consec'tive times in the 1992 199% and 1998 elections and served in f'll his
three consec'tive terms as @a(or. 2n the 2001 elections he ran for !overnor of
the +rovince of +ala/an and lost. 1ocrates ran and /on as @a(or of +'erto
+rincesa in that election. On &'l( 2 2002 the +reparator( "ecall Assembl( (+"A-
of +'erto +rincesa Cit( adopted a "esol'tion callin6 for the recall of inc'mbent
@a(or 1ocrates. The CO@3=3C sched'led a 1pecial "ecall 3lection for @a(or of
that Cit( on 1eptember 25 2002. 2s @a(or Ha6edorn :'aliCed to r'n a6ain for
@a(or in that 1pecial "ecall 3lection considerin6 the circ'mstances0
Held2 The three,term limit rule for electi!e local o(cials is found in 4ection F, Article A of the
Constitution ) ) )#
This three,term limit rule is reiterated in 4ection 4= (") of 9A 8o# %5>0, otherwise &nown as
the <ocal 0o!ernment Code ) ) )#
These constitutional and statutor* pro!isions ha!e two parts# The frst part pro!ides that an
electi!e local o(cial cannot ser!e for more than three consecuti!e terms# The clear intent is that onl*
#onse#utive terms count in determining the three,term limit rule# The second part states that
!oluntar* renunciation of o(ce for an* length of time does not interrupt the continuit* of ser!ice# The
clear intent is that involuntar& severan#e from o(ce for an& len%th of time interrupts continuit* of
ser!ice and pre!ents the ser!ice "efore and after the interruption from "eing oined together to form
a continuous ser!ice or consecuti!e terms#
After three consecuti!e terms, an electi!e local o(cial cannot see& immediate reele#tion for a
fourth term# The prohi"ited election refers to the ne)t regular election for the same o(ce following
the end of the third consecuti!e term# An* su"se8uent ele#tion, li&e a recall election, is no longer
co!ered "* the prohi"ition for two reasons# 1irst, a su"se+uent election li&e a recall election is no
longer an immediate reelection after three consecuti!e terms# 4econd, the inter!ening period
constitutes an in!oluntar* interruption in the continuit* of ser!ice#
A ) )
Clearl*, what the Constitution prohi"its is an immediate reele#tion for a fourth term following
three consecuti!e terms# The Constitution, howe!er, does not prohi"it a su"se+uent reelection for a
fourth term as long as the reelection is not immediatel* after the end of the third consecuti!e term# A
recall election mid,wa* in the term following the third consecuti!e term is a su"se+uent election "ut
not an immediate reelection after the third term#
8either does the Constitution prohi"it one "arred from see&ing immediate reelection to run in
an* other su"se+uent election in!ol!ing the same term of o(ce# :hat the Constitution prohi"its is a
#onse#utive fourth term# The de"ates in the Constitutional Commission e!identl* show that the
prohi"ited election referred to "* the framers of the Constitution is the immediate reele#tion after the
third term, not an* other su"se+uent election#
A ) )
54
.n the case of Cagedorn, his candidac* in the recall election on 4eptem"er 24, 2002 is not an
immediate reelection after his third consecuti!e term which ended on Eune =0, 2005# The immediate
reelection that the Constitution "arred Cagedorn from see&ing referred to the regular elections in
2005# Cagedorn did not see& reelection in the 2005 elections#
A ) )
1rom Eune =0, 2005 until the recall election on 4eptem"er 24, 2002, the ma*or of /uerto
/rincesa was 4ocrates# This period is clearl* an interruption in the continuit* of Cagedorn;s ser!ice as
ma*or, not "ecause of his !oluntar* renunciation, "ut "ecause of a legal prohi"ition# Cagedorn;s
three consecuti!e terms ended on Eune =0, 2005# Cagedorn;s new recall term from 4eptem"er 24,
2002 to Eune =0, 2004 is not a seamless continuation of his pre!ious three consecuti!e terms as
ma*or# Bne cannot stitch together Cagedorn;s pre!ious three,terms with his new recall term to ma&e
the recall term a fourth consecuti!e term "ecause factuall* it is not# An in!oluntar* interruption
occurred from Eune =0, 2005 to 4eptem"er 24, 2002 which "ro&e the continuit* or consecuti!e
character of Cagedorn;s ser!ice as ma*or#
A ) ) .n Cagedorn;s case, the nearl* 55,month period he was out of o(ce, although short of a
full term of three *ears, constituted an interruption in the continuit* of his ser!ice as ma*or# The
Constitution does not re+uire the interruption or hiatus to "e a full term of three *ears# The clear
intent is that interruption Cfor an& len%th of time,D as long as the cause is in!oluntar*, is su(cient to
"rea& an electi!e local o(cial;s continuit* of ser!ice# (Iictorino Dennis @. 1ocrates v. The
Commission on 3lections !.". #o. 1%5%12 #ov. 12 2002 3n 7anc *Carpio,-
411. +etitioners /o'ld see> the dis:'aliCcation of respondent =eonardo 7. "oman on
the 6ro'nd of his havin6 trans6ressed the three9term limit 'nder 1ection 8
Article L of the 1987 Constit'tion and 1ection 5) of "ep'blic Act #o. 71$0 (=ocal
!overnment Code-. The focal iss'e presented before the Co'rt 4 4 4 /o'ld
revolve on the :'estion of /hether or not private respondent "oman e4ceeded
the three9term limit for elective local o8cials e4pressed in the Constit'tion and
the =ocal !overnment Code /hen he a6ain ran for the position of !overnor in
the 15
th
of @a( 2001 elections havin6 occ'pied and served in that position
follo/in6 the 199) recall elections as /ell as the 199% and 1998 re6'lar
elections immediatel( prior to the 2001 elections. 2n Cne sho'ld respondentMs
inc'mbenc( to the post of !overnor follo/in6 the recall elections be incl'ded in
determinin6 the three9consec'tive term limit C4ed b( la/0
Held2 After due deli"eration, the Court !oted F to % to ?.4G.44 the petition#
3.TI0, A., oined "* R8A9H4,4A8T.A0B, A., !oted to dismiss the petition# Ce contended that as
re!ealed "* the records of the Constitutional Commission, the Constitution en!isions a continuous and
an uninterrupted ser!ice for three full terms "efore the proscription applies# Therefore, not "eing a
full term, a recall term should not "e counted or used as a "asis for the dis+ualifcation whether
ser!ed prior (as in this case) or su"se+uent (as in the 2o#rates case) to the nine,*ear, full three,term
limit#
GH8?BSA, A., in whose opinion TI.4IG2.80, A., oined, !oted to dismiss the petition on the
ground that, in accordance with the ruling in (orBa, Ar. v. C)-,;,C6 Ar#os v. C)-,;,C6 ;onGanida v.
C)-,;,C6 and Adormeo v. C)-,;,C, a term during which succession to a local electi!e o(ce ta&es
place or a recall election is held should not "e counted in determining whether an electi!e local
o(cial has ser!ed more than three consecuti!e terms# Ce argued that the Constitution does not
prohi"it electi!e local o(cials from ser!ing for more than three consecuti!e terms "ecause, in fact, it
e)cludes from the three,term limit interruptions in the continuit* of ser!ice, so long as such
interruptions are not due to the !oluntar* renunciation of the o(ce "* the incum"ent# Cence, the
period from Eune 2F, 5@@4 to Eune =0, 5@@5, during which respondent <eonardo 2# 9oman ser!ed as
go!ernor of 2ataan "* !irtue of a recall election held in 5@@=, should not "e counted# 4ince on Ga*
54, 2005 respondent had pre!iousl* ser!ed as go!ernor of 2ataan for onl* two consecuti!e terms
(5@@5,5@@F and 5@@F,2005), his election on that da* was actuall* onl* his third term for the same
position#
/A80A8.2A8, A#, oined "* /I8B, A#, also !oted to dismiss the petition# Ce argued that a recall
term should not "e considered as one full term, "ecause a contrar* interpretation would in e-ect cut
short the elected o(cial;s ser!ice to less than nine *ears and shortchange his constituents# The
desire to pre!ent monopol* of political power should "e "alanced against the need to uphold the
!oters; o"!ious preference who, in the present case, is 9oman who recei!ed @% percent of the !otes
cast# Ce e)plained that, in 2o#rates, he also !oted to a(rm the clear choice of the electorate,
"ecause in a democrac* the people should, as much as legall* possi"le, "e go!erned "* leaders freel*
chosen "* them in credi"le elections# Ce concluded that, in election cases, when two conQicting legal
positions are of almost e+ual weight, the scales of ustice should "e tilted in fa!or of the people;s
o!erwhelming choice#
ASCI8A, A., oined "* 2H<<B4.<<B, A#, also !oted to dismiss, arguing that it is clear from the
constitutional pro!ision that the dis+ualifcation applies onl* if the terms are #onse#utive and the
servi#e is full and #ontinuous. Cence, ser!ice for less than a term, e)cept onl* in case of !oluntar*
renunciation, should not count to dis+ualif* an electi!e local o(cial from running for the same
55
position# This case is di-erent from 2o#rates, where the full three consecuti!e terms had "een
continuousl* ser!ed so that dis+ualifcation had clearl* attached#
Bn the other hand, 4A8?B3A<,0IT.H99HS, A., with whom 'A6.',, C.A#, and AI4T9.A,
GA9T.8HS, CB9B8A, and CA<<HEB, 49#, AA., concurred, holds the !iew that the recall term ser!ed "*
respondent 9oman, comprising the period Eune 2F, 5@@4 to Eune =0, 5@@5, should "e considered as
one term# 4ince he thereafter ser!ed for two consecuti!e terms from 5@@5 to 5@@F and from 5@@F to
2005, his election on Ga* 54, 2005 was actuall* his fourth term and contra!enes Art# A, 4ec# F of the
Constitution# 1or this reason, she !oted to grant the petition and to declare respondent;s election on
Ga* 54, 2002 as null and !oid#
CA9/.B, A., oined "* CA9/.0,GB9A<H4, A., also dissented and !oted to grant the petition# Ce
held that a recall term constitutes one term and that to totall* ignore a recall term in determining the
three,term limit would allow local o(cials to ser!e for more than nine consecuti!e *ears contrar* to
the manifest intent of the framers of the Constitution# Ce contended that respondent 9oman;s
election in 2005 cannot e)empt him from the three,term limit imposed "* the Constitution#
.n his Se.)!)*e O.$&$"&, Eustice 3itug !oted to dismiss the petition on the following
considerationsD
.n order that the three,consecuti!e term limit can appl*, two conditions must concur, i.e., (5)
that the electi!e local o(cial concerned has "een elected for three consecuti!e terms to the same
local go!ernment position, and (2) that he has ser!ed three consecuti!e ull *e!#,, al"eit a
3"lu&*)!/ !e&u&($)*$"& of the o(ce for an* length of time shall not "e deemed to "e an
interruption in the continuit* of the ser!ice for the full term for which he is elected# The constitutional
pro!ision does not appear to "e all that imprecise for and in its application# 4ection F, Article A, of the
Constitution is e)plicit that the term of o(ce of electi!e local o(cials ) ) ) shall "e three *ears$
which phrase is forthwith followed "* its mandate that no such o(cial shall ser!e for more than three
consecuti!e terms,$ and that L!Moluntar* renunciation of the o(ce for an* length of time shall not "e
considered as an interruption in the continuit* of his ser!ice for the ull *e!# for which he LisM
elected#$ The law e!identl* contemplates a continuous ull *-!ee-/e)! term "efore the proscription
can appl*#
The Constitutional Commission, in its deli"erations, referred to a full nine (@) *ears of ser!ice
for each electi!e local go!ernment o(cial in the application of the prohi"ition, en!isioning at the
same time a continuous and uninterrupted period of nine *ears "* pro!iding for onl* one e)ception,
i.e., when an incum"ent 3"lu&*)!$l/ gi!es up the o(ce#
A ) )
A winner who dislodges in a recall election an incum"ent electi!e local o(cial merel* ser!es
the "alance of the latter;s term of o(ce6 it is not a full three,*ear term# .t also goes without sa*ing
that an incum"ent electi!e local o(cial against whom a recall election is initiated and who
ne!ertheless wins in a recall election must "e !iewed as "eing a continuing term of o(ce and not as a
"rea& in rec&oning his three consecuti!e terms# A ) )
.f $&3"lu&*)!/ se!erance from the ser!ice which results in the incum"ent;s "eing una"le to
fnish his term of o(ce "ecause of his ouster through !alid recall proceedings negates one term$ for
purposes of appl*ing the three,term limit, as so intimated in ;onGanida, it stands to reason that the
"alance of the term assumed "* the newl* elected local o(cial in a recall election should not also "e
held to "e one term in rec&oning the three,term limit# .n "oth situations, neither the electi!e local
o(cial who is una"le to fnish his term nor the elected local o(cial who onl* assumes the "alance of
the term of the ousted local o(cial following the recall election could "e considered to ha!e ser!ed a
full three,*ear term set "* the Constitution#
This !iew is not inconsistent, "ut indeed in line, with the conclusion ultimatel* reached in
S"(!)*e, 30 C"##$,,$"& "& Ele(*$"&,, where the Court has considered Cagedorn, following his
three full terms of nine *ears, still +ualifed to run in a recall election conducted a"out a *ear and a
half after the most recent regular local elections# A recall term then, not "eing a full three,*ear term,
is not to "e counted or used as a "asis for dis+ualifcation whether it is held prior or su"se+uent to the
nine *ear full three,term limit#
This same issue has "een passed and ruled upon "* the Commission on Hlections no less than
f!e times# Consistentl*, it has held that the term of a newcomer in recall elections cannot "e counted
as a full term and ma* not thus "e included in counting the three,term limit prescri"ed under the law#
The Commission on Hlections, with its fact,fnding facilities, its familiarit* with political realities, and
its peculiar e)pertise in dealing with election contro!ersies, should "e in a good !antage point to
resol!e issues of this nature# Concededl*, no read* made formulae are alwa*s e)tant to address
occasional comple) issues, allowing time and e)perience to merel* e!ol!e and ultimatel* pro!ide
accepta"le solutions# .n the administration of election laws, it would "e unsound "* an e)cessi!e 'eal
to remo!e from the Commission on Hlections the initiati!e it ta&es on such +uestions which, in fact, "*
legal mandate properl* "elong to it#
8or should it "e ignored that the law here in!ol!ed is a limitation on the right of su-rage not
onl* on the candidate for o(ce "ut also, and most importantl*, on the electorate# 9espondent 9oman
has won the election to the post of 0o!ernor of 2ataan with a comforta"le margin against his closest
opponent# :here a candidate appears to "e the clear choice of the people, dou"ts on the candidate;s
56
eligi"ilit*, e!en onl* as a practical matter, must "e so resol!ed as to respect and carr* out, not defeat,
the paramount will of the electorate# :hile the Constitution would attempt to pre!ent the
monopoli'ation of political power, indeed a wise rule, the precept of preser!ing the freedom of choice
of the people on who shall rightfull* hold the reins of go!ernment for them is no less than
fundamental in loo&ing at its o!erriding intent# (@elanio =. @endoAa and @ario 3. 2barra v.
Commission on 3lections and =eonardo 7. "oman !.". #o. 1597)$ Dec. 17 2002 3n
7anc-
512. .hen ma( a permanent vacanc( arise 'nder 1ection 55 of the =ocal !overnment
Code0
Held2 Inder 4ection 44, a permanent !acanc* arises when an electi!e o(cial flls a higher
!acant o(ce, refuses to assume o(ce, fails to +ualif*, dies, is remo!ed from o(ce, !oluntaril*
resigns, or is otherwise permanentl* incapacitated to discharge the functions of his o(ce# (#avarro
v. Co'rt of Appeals )%% 1C"A $72 @ar. 28 2001 1
st
Div. *Qap'nan,-
51). Ho/ is 1ection 5%(b- of the =ocal !overnment Code to be interpreted0 .hat is
the reason behind the ri6ht 6iven to a political part( to nominate a replacement
/here a permanent vacanc( occ'rs in the 1an66'nian0
Held2 :hat is crucial is the interpretation of 4ection 45(") pro!iding that ) ) ) onl* the
nominee of the political part* under which the 4anggunian mem"er concerned has "een elected and
whose ele!ation to the position ne)t higher in ran& created the last !acanc* in the 4anggunian shall
"e appointed in the manner hereina"o!e pro!ided# The appointee shall come from the political part*
as that of the 4anggunian mem"er who caused the !acanc* ) ) )#$
The reason "ehind the right gi!en to a political part* to nominate a replacement where a
permanent !acanc* occurs in the 4anggunian is to maintain the part* representation as willed "* the
people in the election#
:ith the ele!ation of petitioner Tama*o, who "elonged to 9H1B9GA,<G, to the position of 3ice,
Ga*or, a !acanc* occurred in the 4anggunian that should "e flled up with someone who should
"elong to the political part* of petitioner Tama*o# Btherwise, 9H1B9GA,<G;s representation in the
4anggunian would "e diminished# To argue that the !acanc* created was that formerl* held "*
9olando <alas, a <AKA4,8IC?,Kampi mem"er, would result in the increase of that part*;s
representation in the 4anggunian at the e)pense of the 9H1B9GA,<G# This interpretation is contrar*
to the letter and spirit of the law and thus !iolati!e of a fundamental rule in statutor* construction
which is to ascertain and gi!e e-ect to the intent and purpose of the law. As earlier pointed out, the
reason "ehind par# ("), section 44 of the <ocal 0o!ernment Code is the maintenance of part*
representation in the 4anggunian in accordance with the will of the electorate#
The last !acanc*$ in the 4anggunian refers to that created "* the ele!ation of the mem"er
formerl* occup*ing the ne)t higher in ran& which in turn also had "ecome !acant "* an* of the
causes alread* enumerated# The term last !acanc*$ is thus used in 4ec# 45 (") to di-erentiate it
from the other !acanc* pre!iousl* created# The term "* no means refers to the !acanc* in the 8o# F
position which occurred with the ele!ation of 9olando <alas to the se!enth position in the 4anggunian#
4uch construction will result in a"surdit*# (#avarro v. Co'rt of Appeals )%% 1C"A $72 @ar. 28
2001 1
st
Div. *Qap'nan,-
515. @a( an inc'mbent Iice9!overnor /hile conc'rrentl( the Actin6 !overnor
contin'e to preside over the sessions of the 1an66'nian6 +anlala/i6an (1+-0 2f
no /ho ma( preside in the meantime0
Held2 2eing the acting go!ernor, the 3ice,go!ernor cannot continue to simultaneousl*
e)ercise the duties of the latter o(ce, since the nature of the duties of the /ro!incial 0o!ernor calls
for a full,time occupant to discharge them# 4uch is not onl* consistent with "ut also appears to "e the
clear rationale of the new (<ocal 0o!ernment) Code wherein the polic* of performing dual functions in
"oth o(ces has alread* "een a"andoned# To repeat, the creation of a temporar* !acanc* in the o(ce
of the 0o!ernor creates a corresponding !acanc* in the o(ce of the 3ice,0o!ernor whene!er the
latter acts as 0o!ernor "* !irtue of such temporar* !acanc*# This e!ent constitutes an ina"ilit*$ on
the part of the regular presiding o(cer (3ice,0o!ernor) to preside during the 4/ sessions, which thus
calls for the operation of the remed* set in Article 4@(") of the <ocal 0o!ernment Code J concerning
the election of a temporar* presiding o(cer# The continuit* of the Acting 0o!ernor;s (3ice,0o!ernor)
powers as presiding o(cer of the 4/ is suspended so long as he is in such capacit*# Inder 4ection
4@("), in the e!ent of the ina"ilit* of the regular presiding o(cer to preside at the sanggunian
session, the mem"ers present and constituting a +uorum shall elect from among themsel!es a
temporar* presiding o(cer#$ (!amboa &r. v. A6'irre &r. !.". #o. 1)521) &'l( 20 1999 3n
7anc *Bnares91antia6o,-
51%. Distin6'ish an ordinance from a mere resol'tion.
Held2 A municipal ordinance is di-erent from a resolution# An ordinance is a law, "ut a
resolution is merel* a declaration of the sentiment or opinion of a lawma&ing "od* on a specifc
matter# An ordinance possesses a general and permanent character, "ut a resolution is temporar* in
nature# Additionall*, the two are enacted di-erentl* J a third reading is necessar* for an ordinance,
"ut not for a resolution, unless decided otherwise "* a maorit* of all the 4anggunian mem"ers.
57
(@'nicipalit( of +arana:'e v. I.@. "ealt( Corporation 292 1C"A $78 &'l( 20 1998
*+an6aniban,-
51$. On its Crst re6'lar session ma( the 1an66'nian transact b'siness other than the
matter of adoptin6 or 'pdatin6 its e4istin6 r'les or proced're0
Held2 :e cannot infer the mandate of the (<ocal 0o!ernment) Code that no other "usiness
ma* "e transacted on the frst regular session e)cept to ta&e up the matter of adopting or updating
rules# All that the law re+uires is that on the frst regular session ) ) ) the san%%unian concerned
shall adopt or update its e)isting rules or procedures#$ There is nothing in the language thereof that
restricts the matters to "e ta&en up during the frst regular session merel* to the adoption or updating
of the house rules# .f it were the intent of Congress to limit the "usiness of the local council to such
matters, then it would ha!e done so in clear and une+ui!ocal terms# 2ut as it is, there is no such
intent#
Goreo!er, adopting or updating of house rules would necessaril* entail wor& "e*ond the da*
of the frst regular session# ?oes this mean that prior thereto, the local councilOs hands were tied and
could not act on an* other matter7 That would certainl* "e a"surd for it would result in a hiatus and a
paral*sis in the local legislatureOs wor& which could not ha!e "een intended "* the law# (@alonAo v.
Samora )11 1C"A 225 &'l( 27 1999 3n 7anc *"omero,-
517. @a( local elective o8cials practice their profession or en6a6e in an( occ'pation0
A&,02 4ec# @0, <ocal 0o!ernment Code, pro!idesD
4HC# @0# $ra#ti#e of $rofession# J (a) All go!ernors, cit* and municipal ma*ors are prohi"ited
from practicing their profession or engaging in an* occupation other than the e)ercise of their
functions as local chief e)ecuti!es#
(") 4anggunian mem"ers ma* practice their professions, engage in an* occupation, or teach
in schools e)cept during session hoursD $rovided, That sanggunian mem"ers who are also mem"ers of
the 2ar shall notD
Appear as counsel "efore an* court in an* ci!il case wherein a local go!ernment unit or
an* o(ce, agenc*, or instrumentalit* of the go!ernment is the ad!erse part*6
Appear as counsel in an* criminal case wherein an o(cer or emplo*ee of the national or
local go!ernment is accused of an o-ense committed in relation to his o(ce6
Collect an* fee for their appearance in administrati!e proceedings in!ol!ing the local
go!ernment unit of which he is an o(cial6 and
Ise propert* and personnel of the go!ernment e)cept when the sanggunian mem"er
concerned is defending the interest of the 0o!ernment#
(c) ?octors of medicine ma* practice their profession e!en during o(cial hours of wor& onl*
on occasions of emergenc*D $rovided, that the o(cials concerned do not deri!e monetar*
compensation therefrom#
518. .hat is recall0
Held2 9ecall is a mode of remo!al of a pu"lic o(cer "* the people "efore the end of his term
of o(ce# The peopleOs prerogati!e to remo!e a pu"lic o(cer is an incident of their so!ereign power
and in the a"sence of constitutional restraint, the power is implied in all go!ernmental operations#
4uch power has "een held to "e indispensa"le for the proper administration of pu"lic a-airs. 8ot
undeser!edl*, it is fre+uentl* descri"ed as a fundamental right of the people in a representati!e
democrac*. (!arcia v. CO@3=3C 227 1C"A 108 Oct. % 199) 3n 7anc *+'no,-
519. .hat is the 6ro'nd for recall0 2s this s'bFect to F'dicial in:'ir(0
Held2 1ormer 4enator A+uilino /imentel, Er#, a maor author of the su"ect law in his "oo& The
;o#al overnment Code of 1991K The Oe& to /ational 'evelopment, stressed the same reason wh*
the su"stanti!e content of a !ote of lac& of confdence is "e*ond an* in+uir*, thusD
There is onl* one ground for recall of local go!ernment o(cialsD loss of confdence#
This means that the people ma* petition or the /reparator* 9ecall Assem"l* ma* resol!e to
recall an* local electi!e o(cial without specif*ing an* particular ground e)cept loss of
confdence# There is no need for them to "ring up an* charge of a"use or corruption against
the local electi!e o(cials who are su"ect of an* recall petition#
.n the case of ,vardone v. Commission on ,le#tions, et al., 790 2C!A 010, 077 (1991),
the Court ruled that Nloss of confdence; as a ground for recall is a political +uestion# .n the
words of the Court, Owhether or not the electorate of the municipalit* of 4ulat has lost
confdence in the incum"ent ma*or is a political +uestion#;$
(!arcia v. CO@3=3C 227 1C"A 108 Oct. % 199) 3n 7anc *+'no,-
520. The members of the +reparator( "ecall Assembl( (+"A- of the province of 7ataan
adopted a resol'tion callin6 for the recall of !overnor !arcia. 2t /as admitted
ho/ever b( the proponents of the recall resol'tion that onl( those members of
the assembl( inclined to a6ree /ere notiCed of the meetin6 /here said resol'tion
58
/as adopted ;as a matter of strate6( and sec'rit(.< The( F'stiCed these
selective notices on the 6ro'nd that the la/ (=ocal !overnment Code- does not
speciCcall( mandate the 6ivin6 of notice. 1ho'ld this s'bmission be s'stained0
Held2 :e reect this su"mission of the respondents# The due process clause of the
Constitution re+uiring notice as an element of fairness is in!iola"le and should alwa*s "e considered
part and parcel of e!er* law in case of its silence# The need for notice to all the mem"ers of the
assem"l* is also imperati!e for these mem"ers represent the di-erent sectors of the electorate of
2ataan# To the e)tent that the* are not notifed of the meeting of the assem"l*, to that e)tent is the
so!ereign !oice of the people the* represent nullifed# The resolution to recall should articulate the
maorit* will of the mem"ers of the assem"l* "ut the maorit* will can "e genuinel* determined onl*
after all the mem"ers of the assem"l* ha!e "een gi!en a fair opportunit* to e)press the will of their
constituents# 8eedless to stress, the re+uirement of notice is mandator* for it is indispensa"le in
determining the collecti!e wisdom of the mem"ers of the /reparator* 9ecall Assem"l*# .ts non,
o"ser!ance is fatal to the !alidit* of the resolution to recall petitioner 0arcia as 0o!ernor of the
pro!ince of 2ataan# (!arcia v. CO@3=3C !.". #o. 111%11 1ept. 21 199)O 227 1C"A 100
Oct. % 199) 3n 7anc *+'no,-
521. .ill it be proper for the Commission on 3lections to act on a petition for recall
si6ned b( F'st one person0
Held2 A petition for recall signed "* ust one person is in !iolation of the statutor* 25W
minimum re+uirement as to the num"er of signatures supporting an* petition for recall# 4ec# >@(d) of
the <ocal 0o!ernment Code of 5@@5 e)pressl* pro!ides that Orecall of an* electi!e ) ) ) municipal ) )
) o(cial ma* also "e !alidl* initiated upon petition of at least twent*,f!e percent (25W) of the total
num"er of registered !oters in the local go!ernment unit concerned during the election in which the
local o(cial sought to "e recalled was elected#O The law is plain and une+ui!ocal as to what
constitutes recall proceedingsD onl* a petition of at least 25W of the total num"er of registered !oters
ma* !alidl* initiate recall proceedings# (An6ob'n6 v. CO@3=3C !.". #o. 12$%7$ @arch %
1997-
522. .hat are the limitations on recall0
A&,02 4ection %4, <ocal 0o!ernment Code, pro!idesD
4HC# %4# ;imitations on !e#all. J (a) An* electi!e local o(cial ma* "e the su"ect of a recall
election onl* once during his term of o(ce for loss of confdence#
(") 8o recall shall ta&e place within one (5) *ear from the date of the o(cial;s assumption to
o(ce or one (5) *ear immediatel* preceding a regular local election#
52). 1ection 75 of the =ocal !overnment Code provides that ;no recall shall ta>e place
/ithin one (ear 4 4 4 immediatel( precedin6 a re6'lar local election.< .hat does
the term ;re6'lar local election< as 'sed in this section mean0
Held2 The term regular local election$ under 4ec# %4 of the <ocal 0o!ernment Code of 5@@5
which pro!ides that no recall shall ta&e place within one (5) *ear ) ) ) immediatel* preceding a
regular local election$ refers to one where the position of the o(cial sought to "e recalled is to "e
actuall* contested and flled "* the electorate ($aras v. Comele#, .!. /o. 17=119, /ov. 0, 1991). The
one,*ear time "ar will not appl* where the local o(cial sought to "e recalled is a Ga*or and the
approaching election is a "aranga* election# (An6ob'n6 v. CO@3=3C !.". #o. 12$%7$ @arch
% 1997-
525. Does the /ord ;"ecall< in para6raph (b- of 1ection 75 of the =ocal !overnment
Code incl'de the convenin6 of the +reparator( "ecall Assembl( and the Clin6 b(
it of a recall resol'tion0 Disc'ss.
Held2 :e can agree that recall is a process which "egins with the con!ening of the
preparator* recall assem"l* or the gathering of the signatures at least 25W of the registered !oters of
a local go!ernment unit, and then proceeds to the fling of a recall resolution or petition with the
CBGH<HC, the !erifcation of such resolution or petition, the f)ing of the date of the recall election,
and the holding of the election on the scheduled date# Cowe!er, as used in paragraph (") of 4ec# %4,
recall$ refers to the election itself "* means of which !oters decide whether the* should retain their
local o(cial or elect his replacement#
A ) )
To sum up, the term recall$ in paragraph (") refers to the recall election and not to the
preliminar* proceedings to initiate recall J
2ecause 4ec# %4 spea&s of limitations on recall$ which, according to 4ec# >@, is a power which
shall "e e)ercised "* the registered !oters of a local go!ernment unit# 4ince the !oters do
not e)ercise such right e)cept in an election, it is clear that the initiation of recall
proceedings is not prohi"ited within the one,*ear period pro!ided in paragraph (")6
2ecause the purpose of the frst limitation in paragraph (") is to pro!ide !oters a su(cient
"asis for udging an electi!e local o(cial, and fnal udging is not done until the da* of the
election6 and
59
2ecause to construe the limitation in paragraph (") as including the initiation of recall
proceedings would undul* curtail freedom of speech and of assem"l* guaranteed in the
Constitution#
(&ovito O. Cla'dio v. CO@3=3C !.". #o. 150%$0 @a( 5 2000 3n 7anc *@endoAa,-
52%. The members of the +reparator( "ecall Assembl( (+"A- of +'erto +rincesa Cit(
met and adopted a resol'tion callin6 for the recall of inc'mbent @a(or Dennis
Iictorino @. 1ocrates on the 6ro'nd of loss of conCdence on &'l( 2 2002. @a(or
1ocrates ar6'ed that the( have no a'thorit( to adopt said "ecall "esol'tion
beca'se a maForit( of +"A members /ere see>in6 a ne/ electoral mandate in the
baran6a( elections sched'led on &'l( 1% 2002. 1ho'ld his contention be
s'stained0
Held2 This argument deser!es scant consideration considering that when the /9A mem"ers
adopted the 9ecall 9esolution their terms of o(ce had not *et e)pired# The* were all de Bure
sangguniang "aranga* mem"ers with no legal dis+ualifcation to participate in the recall assem"l*
under 4ection %0 of the <ocal 0o!ernment Code# (Iictorino Dennis @. 1ocrates v. The
Commission on 3lections !.". #o. 1%5%12 #ov. 12 2002 3n 7anc *Carpio,-
52$. .hether or not a local elective o8cial /ho became Cit( @a(or b( le6al
s'ccession can be the s'bFect of a recall election b( virt'e of a +reparator( "ecall
Assembl( "esol'tion /hich /as passed or adopted /hen the she /as still the
Iice9@a(or.
Held2 The specifc purpose of the /reparator* 9ecall Assem"l* was to remo!e Amelita 4#
8a!arro as the elected 3ice,Ga*or of 4antiago Cit* since /9A 9esolution 8o# 5 dated Eul* 52, 5@@@
e)pressl* states that ) ) ) it is here"* resol!ed to in!o&e the rescission of the electoral mandate of
the in#um"ent Cit& 6i#e+-a&or Amelita 2. /avarro for loss of confdence through a recall election to
"e set "* the Commission on Hlection as pro!ided for under 4ection %5 of the <ocal 0o!ernment Code
of 5@@5#$ Cowe!er, the said /9A 9esolution 8o# 5 is no longer applica"le to her inasmuch as she had
alread* !acated the o(ce of 3ice,Ga*or on Bcto"er 55, 5@@@ when she assumed the position of Cit*
Ga*or of 4antiago Cit*#
H!en if the /reparator* 9ecall Assem"l* were to recon!ene to adopt another resolution for the
recall of Amelita 8a!arro, this time as Ga*or of 4antiago Cit*, the same would still not prosper in !iew
of 4ection %4 (") of the <ocal 0o!ernment Code of 5@@5 which pro!ides that 8o recall shall ta&e
place within one (5) *ear from the date of the o(cial;s assumption of o(ce or one (5) *ear
immediatel* preceding a regular election#$ There is no more allowa"le time in the light of that law
within which to hold recall elections for that purpose# The then 3ice,Ga*or Amelita 4# 8a!arro
assumed o(ce as Ga*or of 4antiago Cit* on Bcto"er 55, 5@@@# Bne *ear after her assumption of
o(ce as Ga*or will "e Bcto"er 55, 2000 which is alread* within the one (5) *ear prohi"ited period
immediatel* preceding the ne)t regular election in Ga* 2005# (ACado v. Commission on
3lections )50 1C"A $00 1ept. 18 2000 3n 7anc *De =eon,
527. @a( the +'non6 7aran6a( validl( appoint or remove the baran6a( treas'rer the
baran6a( secretar( and other appointive baran6a( o8cials /itho't the
conc'rrence of the maForit( of all the members of the 1an66'nian6 7aran6a(0
Held2 The <ocal 0o!ernment Code e)plicitl* !ests on the punon% "aran%a&, upon appro!al "*
a maorit* of all the mem"ers of the san%%unian% "aran%a&, the power to appoint or replace the
"aran%a& treasurer, the "aran%a& secretar*, and other appointi!e "aran%a& o(cials# 3eril*, the
power of appointment is to "e e)ercised conointl* "* the punon% "aran%a& and a maorit* of all the
mem"ers of the san%%unian% "aran%a&# :ithout such conoint action, neither an appointment nor a
replacement can "e e-ectual#
Appl*ing the rule that the power to appoint includes the power to remo!e ) ) ) the +uestioned
dismissal from o(ce of the "aran%a& o(cials "* the punon% "aran%a& without the concurrence of the
maorit* of all the mem"ers of the 2an%%unian% (aran%a& cannot "e legall* ustifed# To rule
otherwise could also create an a"surd situation of the 2an%%unian% (aran%a& mem"ers refusing to
gi!e their appro!al to the replacements selected "* the punon% "aran%a& who has unilaterall*
terminated the ser!ices of the incum"ents# .t is li&el* that the legislature did not intend this a"surdit*
to follow from its enactment of the law# ("amon Al:'iAola 1r. v. !allardo Ocol !.". #o.
1)251) A'6. 27 1999 )
rd
Div. *Iit'6,-
;0 PUBLIC INTERNATIONAL LAW
528. .hat is the Doctrine of 2ncorporation0 Ho/ is it applied b( local co'rts0
Held2 Inder the doctrine of incorporation, rules of international law form part of the law of
the land and no further legislati!e action is needed to ma&e such rules applica"le in the domestic
sphere#
The doctrine of incorporation is applied whene!er municipal tri"unals (or local courts) are
confronted with situations in which there appears to "e a conQict "etween a rule of international law
and the pro!isions of the Constitution or statute of the local state# H-orts should frst "e e)erted to
harmoni'e them, so as to gi!e e-ect to "oth since it is to "e presumed that municipal law was
60
enacted with proper regard for the generall* accepted principles of international law in o"ser!ance of
the .ncorporation Clause in 4ection 2, Article .. of the Constitution# .n a situation howe!er, where the
conQict is irreconcila"le and a choice has to "e made "etween a rule of international law and
municipal law, urisprudence dictates that municipal law should "e upheld "* the municipal courts for
the reason that such courts are organs of municipal law and are accordingl* "ound "* it in all
circumstances# The fact that international law has "een made part of the law of the land does not
pertain to or impl* the primac* of international law o!er national or municipal law in the municipal
sphere# The doctrine of incorporation, as applied in most countries, decrees that rules of international
law are gi!en e+ual standing with, "ut are not superior to, national legislati!e enactments#
Accordingl*, the principle of le? posterior dero%at priori ta&es e-ect J a treat* ma* repeal a statute
and a statute ma* repeal a treat*# .n states where the Constitution is the highest law of the land,
such as the 9epu"lic of the /hilippines, "oth statutes and treaties ma* "e in!alidated if the* are in
conQict with the Constitution# (1ecretar( of &'stice v. Hon. "alph C. =antion !.". #o. 1)95$%
&an. 18 2000 3n 7anc *@elo,-
529. Disc'ss the contemporar( vie/ on the ri6htf'l place of an 2ndivid'al in
2nternational =a/0 Does he remain a mere ;obFect< of 2nternational =a/ or is he
no/ a proper ;s'bFect< of 2nternational =a/0
Held2 Then came the long and still ongoing de"ate on what should "e the su"Be#t of
international law# The 20
th
centur* saw the dramatic rise and fall of di-erent t*pes and hues of
authoritarianism J the fascism of .tal*;s Gussolini and 0erman*;s Citler, the militarism of Eapan;s
Cirohito and the communism of 9ussia;s 4talin, etc# The sin5in% of these isms led to the elevation of
the ri%hts of the individual a%ainst the state. .ndeed, some species of human rights ha!e alread*
"een accorded universal re#o%nition. Toda*, the dri!e to internationali'e rights of women and
children is also on high gear. The higher rating gi!en to human rights on the hierarch* of !alues
necessaril* led to the re,e)amination of the rightful place of the indi!idual in international law# 0i!en
the harshest e*e is the moss,co!ered doctrine that international law deals onl& with 2tates and that
individuals are not its su"Be#t. 1or its undesira"le corollar* is that su",doctrine that an indi!idual;s
right in international law is a near cipher# Translated in e)tradition law, the !iew that once
commanded a consensus is that since a fugiti!e is a mere o"Be#t and not a su"Be#t of international
law, he is "ereft of rights# An e)traditee, so it was held, is a mere o"ect transported from one state
to the other as an e)ercise of the so!ereign will of the two states in!ol!ed#$ The re,e)amination
consigned this pernicious doctrine to the museum of ideas. The new thin&ers of international law then
ga!e a signifcant shape to the role and rights of the indi!idual in state,concluded treaties and other
international agreements# ) ) ) (Conc'rrin6 Opinion +'no &. in &eEre( =ian6 *H'efen6, v.
+eople !.". #o. 12%8$% @ar. 2$ 2001 1
st
Div. *@otion for "econsideration,-
5)0. .hat m'st a person /ho feels a66rieved b( the acts of a forei6n soverei6n do to
espo'se his ca'se0
Held2 /ri!ate respondent is not left without an* legal remed* for the redress of its
grie!ances# Inder "oth /u"lic .nternational <aw and Transnational <aw, a person who feels aggrie!ed
"* the acts of a foreign so!ereign can as& his own go!ernment to espouse his cause through
diplomatic channels#
/ri!ate respondent can as& the /hilippine go!ernment, through the 1oreign B(ce, to espouse
its claims against the Col* 4ee# .ts frst tas& is to persuade the /hilippine go!ernment to ta&e up with
the Col* 4ee the !alidit* of its claim# Bf course, the 1oreign B(ce shall frst ma&e a determination of
the impact of its espousal on the relations "etween the /hilippine go!ernment and the Col* 4ee.
Bnce the /hilippine go!ernment decides to espouse the claim, the latter ceases to "e a pri!ate cause#
According to the /ermanent Court of .nternational Eustice, the forerunner of the .nternational
Court of EusticeD
2* ta&ing up the case of one of its su"ects and "* resorting to diplomatic action or
international udicial proceedings on his "ehalf, a 4tate is in realit* asserting its own rights , its
right to ensure, in the person of its su"ects, respect for the rules of international law$ (The
-avrommatis $alestine Con#essions, 1 :udson, World Court !eports 79=, =97 319704).
(Hol( 1ee The v. "osario &r. 2)8 1C"A %25 %)89%)9 Dec. 1 1995 3n 7anc *G'iason,-
5)1. Disc'ss the 2ndi6eno's 2nternational @ovement. 2s the +hilippines an active
participant in the 2ndi6eno's 2nternational @ovement0
HeldD The .ndigenous /eoples 9ights Act (./9A) is a recognition of our acti!e participation in
the indigenous international mo!ement#
The indigenous mo!ement can "e seen as the heir to a histor* of anti,imperialism stretching
"ac& to prehistoric times# The mo!ement recei!ed a massi!e impetus during the 5@>0;s from two
sources# 1irst, the decoloni'ation of Asia and Africa "rought into the limelight the possi"ilit* of
peoples controlling their own destinies# 4econd, the right of self,determination was enshrined in the
I8 ?eclaration on Cuman 9ights. The rise of the ci!il rights mo!ement and anti,racism "rought to
the attention of 8orth American .ndians, A"origines in Australia, and Gaori in 8ew Sealand the
possi"ilit* of fghting for fundamental rights and freedoms#
.n 5@%4 and 5@%5, international indigenous organi'ations were founded, and during the
5@F0;s, indigenous a-airs were on the international agenda# The people of the /hilippine Cordillera
61
were the frst Asians to ta&e part in the international indigenous mo!ement# .t was the Cordillera
/eople;s Alliance that carried out successful campaigns against the "uilding of the Chico 9i!er ?am in
5@F5,F2 and the* ha!e since "ecome one of the "est,organi'ed indigenous "odies in the world.
/resentl*, there is a growing concern for indigenous rights in the international scene# This
came as a result of the increased pu"licit* focused on the continuing disrespect for indigenous human
rights and the destruction of the indigenous peoples; en!ironment, together with the national
go!ernments; ina"ilit* to deal with the situation. .ndigenous rights came as a result of "oth human
rights and en!ironmental protection, and ha!e "ecome a part of toda*;s priorities for the international
agenda.
.nternational organi'ations and "odies ha!e reali'ed the necessit* of appl*ing policies,
programs and specifc rules concerning ./s in some nations# The :orld 2an&, for e)ample, frst
adopted a polic* on ./s as a result of the dismal e)perience of proects in <atin America. The :orld
2an& now see&s to appl* its current polic* on ./s to some of its proects in Asia# This polic* has
pro!ided an inQuential model for the proects of the Asian ?e!elopment 2an&.
The 5@F% /hilippine Constitution formall* recogni'es the e)istence of .CCsP./s and declares as
a 4tate polic* the promotion of their rights within the framewor& of national unit* and de!elopment
(2e#tion 77, Arti#le .., 1987 Constitution). The ./9A amalgamates the /hilippine categor* of .CCs with
the international categor* of ./s, and is hea!il* inQuenced "* "oth the .nternational <a"or
Brgani'ation (.<B) Con!ention 5>@ and the Inited 8ations (I8) ?raft ?eclaration on the 9ights of
.ndigenous /eoples.
.<B Con!ention 8o# 5>@ is entitled the Con!ention Concerning .ndigenous and Tri"al /eoples
in .ndependent Countries$ (also referred to as the C.ndi%enous and Tri"al $eoples Convention, 1989D)
and was adopted on Eune 2%, 5@F@# .t is "ased on the Ini!ersal ?eclaration of Cuman 9ights, the
.nternational Co!enant on Hconomic, 4ocial and Cultural 9ights, the .nternational Co!enant on Ci!il
and /olitical 9ights, and man* other international instruments on the pre!ention of discrimination.
.<B Con!ention 8o# 5>@ re!ised the Con!ention Concerning the /rotection and .ntegration of
.ndigenous and Bther Tri"al and 4emi,Tri"al /opulations in .ndependent Countries$ passed on Eune 2>,
5@5%# ?e!elopments in international law made it appropriate to adopt new international standards on
indigenous peoples with a !iew to remo!ing the assimilationist orientation of the earlier standards,$
and recogni'ing the aspirations of these peoples to e)ercise control o!er their own institutions, wa*s
of life and economic de!elopment#$ (1eparate Opinion +'no &. in Cr'A v. 1ecretar( of
3nvironment and #at'ral "eso'rces )57 1C"A 128 2)89251 Dec. $ 2000 3n 7anc-
5)2. 2s soverei6nt( reall( absol'te and all9encompassin60 2f no /hat are its
restrictions and limitations0
Held2 :hile so!ereignt* has traditionall* "een deemed a"solute and all,encompassing on the
domestic le!el, it is howe!er su"ect to restrictions and limitations !oluntaril* agreed to "* the
/hilippines, e)pressl* or impliedl*, as a mem"er of the famil* of nations# 2* the doctrine of
incorporation, the countr* is "ound "* generall* accepted principles of international law, which are
considered to "e automaticall* part of our own laws# Bne of the oldest and most fundamental rules in
international law is pa#ta sunt servanda J international agreements must "e performed in good faith#
A state which has contracted !alid international o"ligations is "ound to ma&e in its legislations such
modifcations as ma* "e necessar* to ensure the fulfllment of the o"ligations#
2* their inherent nature, treaties reall* limit or restrict the a"soluteness of so!ereignt*# 2*
their !oluntar* act, nations ma* surrender some aspects of their state power in e)change for greater
"enefts granted "* or deri!ed from a con!ention or pact# After all, states, li&e indi!iduals, li!e with
coe+uals, and in pursuit of mutuall* co!enanted o"ecti!es and "enefts, the* also commonl* agree to
limit the e)ercise of their otherwise a"solute rights# Thus, treaties ha!e "een used to record
agreements "etween 4tates concerning such widel* di!erse matters as, for e)ample, the lease of
na!al "ases, the sale or cession of territor*, the termination of war, the regulation of conduct of
hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the
la*ing down of rules go!erning conduct in peace and the esta"lishment of international organi'ations#
The so!ereignt* of a state therefore cannot in fact and in realit* "e considered a"solute# Certain
restrictions enter into the pictureD (5) limitations imposed "* the !er* nature of mem"ership in the
famil* of nations and (2) limitations imposed "* treat* stipulations# (Tanada v. An6ara 272 1C"A
18 @a( 2 1997 *+an6aniban,-
5)). Disc'ss the 1tat's of the Iatican and the Hol( 1ee in 2nternational =a/.
Held2 2efore the anne)ation of the /apal 4tates "* .tal* in 5F%0, the /ope was the monarch
and he, as the Col* 4ee, was considered a su"ect of .nternational <aw# :ith the loss of the /apal
4tates and the limitation of the territor* under the Col* 4ee to an area of 50F#% acres, the position of
the Col* 4ee in .nternational <aw "ecame contro!ersial#
.n 5@2@, .tal* and the Col* 4ee entered into the <ateran Treat*, where .tal* recogni'ed the
e)clusi!e dominion and so!ereign urisdiction of the Col* 4ee o!er the 3atican Cit*# .t also recogni'ed
the right of the Col* 4ee to recei!e foreign diplomats, to send its own diplomats to foreign countries,
and to enter into treaties according to .nternational <aw#
62
The <ateran Treat* esta"lished the statehood of the 3atican Cit* for the purpose of assuring
to the Col* 4ee a"solute and !isi"le independence and of guaranteeing to it indisputa"le so!ereignt*
also in the feld of international relations#$
.n !iew of the wordings of the <ateran Treat*, it is di(cult to determine whether the statehood
is !ested in the Col* 4ee or in the 3atican Cit*# 4ome writers e!en suggested that the treat* created
two international persons , the Col* 4ee and 3atican Cit*#
The 3atican Cit* fts into none of the esta"lished categories of states, and the attri"ution to it
of so!ereignt*$ must "e made in a sense di-erent from that in which it is applied to other states. .n
a communit* of national states, the 3atican Cit* represents an entit* organi'ed not for political "ut for
ecclesiastical purposes and international o"ects# ?espite its si'e and o"ect, the 3atican Cit* has an
independent go!ernment of its own, with the /ope, who is also head of the 9oman Catholic Church, as
the Col* 4ee or Cead of 4tate, in conformit* with its traditions, and the demands of its mission in the
world# .ndeed, the worldwide interests and acti!ities of the 3atican Cit* are such as to ma&e it in a
sense an international state#$
Bne authorit* wrote that the recognition of the 3atican Cit* as a state has signifcant
implication , that it is possi"le for an* entit* pursuing o"ects essentiall* di-erent from those pursued
"* states to "e in!ested with international personalit*#
.nasmuch as the /ope prefers to conduct foreign relations and enter into transactions as the
Col* 4ee and not in the name of the 3atican Cit*, one can conclude that in the /opeOs own !iew, it is
the Col* 4ee that is the international person#
The 9epu"lic of the /hilippines has accorded the Col* 4ee the status of a foreign so!ereign#
The Col* 4ee, through its Am"assador, the /apal 8uncio, has had diplomatic representations with the
/hilippine go!ernment since 5@5%# This appears to "e the uni!ersal practice in international relations#
(Hol( 1ee The v. "osario &r. 2)8 1C"A %25 %))9%)5 Dec. 1 1995 3n 7anc *G'iason,-
5)5. .hat are the conditions before the ri6hts of belli6erenc( ma( be accorded the
rebels0
A&,02 As a matter of legal theor*, the re"els ha!e to fulfll certain conditions "efore the rights
of "elligerenc* are accorded them, namel*D
An organi'ed ci!il go!ernment that has control and direction o!er the armed struggle
launched "* the re"els6
Bccupation of a su"stantial portion of the national territor*6
4eriousness of the struggle, which must "e so widespread there"* lea!ing no dou"t as to the
outcome6
:illingness on the part of the re"els to o"ser!e the rules and customs of war#
5)%. Disc'ss the le6al conse:'ences that follo/ reco6nition of belli6erenc(.
A&,02 2efore recognition as such, it is the legitimate go!ernment that is responsi"le for the
acts of the re"els a-ecting foreign nationals and their properties# Bnce recognition is gi!en, the
legitimate go!ernment ma* no longer "e held responsi"le for their acts6 responsi"ilit* is shifted to the
re"el go!ernment6
The legitimate go!ernment, once it recogni'es the re"els as "elligerents, is "ound to o"ser!e
the laws and customs of war in conducting the hostilities6
1rom the point of !iew of third 4tates, the e-ect of recognition of "elligerenc* is to put them
under o"ligation to o"ser!e strict neutralit* and a"ide "* the conse+uences arising from that position6
Bn the side of the re"els, recognition of "elligerenc* puts them under responsi"ilit* to third
4tates and to the legitimate go!ernment for all their acts which do not conform to the laws and
customs of war# (1alon6a U Bap +'blic 2nternational =a/ %th 3d. *1992, p. ))-
5)$. Disc'ss the occasions /hen the 'se of force ma( be allo/ed 'nder the D#
Charter.
A&,02 There are onl* two occasions when the use of force is allowed under the I8 Charter#
The frst is when it is authori'ed in pursuance of the enforcement action that ma* "e decreed "* the
4ecurit* Council under Art# 42# The second is when it is emplo*ed in the e)ercise of the inherent right
of self,defense under conditions prescri"ed in Art# 55# (&'stice 2sa6ani A. Cr'A in an article
entitled ;A #e/ .orld Order< /ritten in his col'mn ;1eparate Opinion< p'blished in the
@arch )0 200) iss'e of the +hilippines Dail( 2n:'irer-
5)7. 2s the Dnited 1tates F'stiCed in invadin6 2ra: invo>in6 its ri6ht to defend itself
a6ainst an e4pected attac> b( 2ra: /ith the 'se of its biolo6ical and chemical
/eapons of mass destr'ction0
A&,02 The Inited 4tates is in!o&ing its right to defend itself against an e)pected attac& "*
.ra+ with the use of its "iological and chemical weapons of mass destruction# There is no e!idence of
such a threat, "ut 2ush is pro"a"l* in!o&ing the modern !iew that a state does not ha!e to wait until
63
the potential enem* fres frst# The cow"o* from Te)as sa*s that outdrawing the foe who is a"out to
shoot is an act of self,defense#
Art# 55 sa*s, howe!er, that there must frst "e an armed attac&$ "efore a state can e)ercise
its inherent right of self,defense, and onl* until the 4ecurit* Council, to which the aggression should
"e reported, shall ha!e ta&en the necessar* measures to maintain international peace and securit*# .t
was the Inited 4tates that made the armed attac&$ frst, thus "ecoming the aggressor, not .ra+# .ra+
is now not onl* e)ercising its inherent right of self,defense as recogni'ed "* the I8 Charter# (&'stice
2sa6ani A. Cr'A in an article entitled ;A #e/ .orld Order< /ritten in his col'mn ;1eparate
Opinion< p'blished in the @arch )0 200) iss'e of the +hilippines Dail( 2n:'irer-
5)8. .ill the s'bse:'ent discover( of /eapons of mass destr'ction in 2ra: after its
invasion b( the D1 F'stif( the attac> initiated b( the latter0
A&,02 H!en if .ra+;s hidden arsenal is disco!ered J or actuall* used J and the Inited 4tates is
ustifed in its suspicions, that circumstance will not !alidate the procedure ta&en against .ra+# .t is
li&e searching a person without warrant and curing the irregularit* with the disco!er* of prohi"ited
drugs in his possession# The process cannot "e re!ersed# The warrant must frst "e issued "efore the
search and sei'ure can "e made#
The American in!asion was made without permission from the 4ecurit* Council as re+uired "*
the I8 Charter# An* su"se+uent disco!er* of the prohi"ited "iological and chemical weapons will not
retroacti!el* legali'e that in!asion, which was, legall* spea&ing, null and !oid a" initio. (&'stice
2sa6ani A. Cr'A in an article entitled ;A #e/ .orld Order< /ritten in his col'mn ;1eparate
Opinion< p'blished in the @arch )0 200) iss'e of the +hilippines Dail( 2n:'irer-
5)9. .hat Crimes come /ithin the F'risdiction of the "ome 1tat'te of the 2nternational
Criminal Co'rt0
A&,02 5# The urisdiction of the Court shall "e limited to the most serious crimes of concern to
the international communit* as a whole# The Court has urisdiction in accordance with this 4tatute
with respect to the following crimesD
The crime of genocide6
Crimes against humanit*6
:ar crimes6
The crime of aggression#
2# The Court shall e)ercise urisdiction o!er the crime of aggression once a pro!ision is
adopted in accordance with articles 525 and 52= defning the crime and setting out the conditions
under which the Court shall e)ercise urisdiction with respect to this crime# 4uch a pro!ision shall "e
consistent with the rele!ant pro!isions of the Charter of the Inited 8ations# (Art. % "ome 1tat'te
of the 2nternational Criminal Co'rt-
550. .hat is !enocide0
A&,02 1or the purpose of this 4tatute, genocide$ means an* of the following acts committed
with intent to destro*, in whole or in part, a national, ethnical, racial or religious group, such asD
Killing mem"ers of the group6
Causing serious "odil* or mental harm to mem"ers of the group6
?eli"eratel* inQicting on the group conditions of life calculated to "ring a"out its ph*sical
destruction in whole or in part6
.mposing measures intended to pre!ent "irths within the group6
1orci"l* transferring children of the group to another group#
(Art. $ "ome 1tat'te of the 2nternational Criminal Co'rt-
551. .hat are Crimes a6ainst H'manit(0
A&,02 5# 1or the purpose of this 4tatute, crime against humanit*$ means an* of the following
acts when committed as part of a widespread or s*stematic attac& directed against an* ci!ilian
population, with &nowledge of the attac&D
Gurder6
H)termination6
Hnsla!ement6
?eportation or forci"le transfer of population6
.mprisonment or other se!ere depri!ation of ph*sical li"ert* in !iolation of fundamental rules
of international law6
Torture6
9ape, se)ual sla!er*, enforced prostitution, forced pregnanc*, enforced sterili'ation, or an*
other form of se)ual !iolence of compara"le gra!it*6
/ersecution against an* identifa"le group or collecti!it* on political, racial, national, ethnic,
cultural, religious, gender as defned in paragraph =, or other grounds that are uni!ersall*
recogni'ed as impermissi"le under international law, in connection with an* act referred to
in this paragraph or an* crime within the urisdiction of the Court6
Hnforced disappearance of persons6
64
The crime of apartheid6
Bther inhumane acts of a similar character intentionall* causing great su-ering, or serious
inur* to "od* or to mental or ph*sical health#
2# 1or the purpose of paragraph 5D
Attac& directed against an* ci!ilian population$ means a course of conduct in!ol!ing the
multiple commission of acts referred to in paragraph 5 against an* ci!ilian population,
pursuant to or in furtherance of a 4tate or organi'ational polic* to commit such attac&6
H)termination$ includes the intentional inQiction of conditions of life, inter alia the depri!ation
of access to food and medicine, calculated to "ring a"out the destruction of part of a
population6
Hnsla!ement$ means the e)ercise of an* or all of the powers attaching to the right of
ownership o!er a person and includes the e)ercise of such power in the course of
tra(c&ing in persons, in particular women and children6
?eportation or forci"le transfer of population$ means forced displacement of the persons
concerned "* e)pulsion or other coerci!e acts from the area in which the* are lawfull*
present, without grounds permitted under international law6
Torture$ means the intentional inQiction of se!ere pain or su-ering, whether ph*sical or
mental, upon a person in the custod* or under the control of the accused6 e)cept that
torture shall not include pain or su-ering arising onl* from, inherent in or incidental to
lawful, sanctions6
1orced pregnanc*$ means the unlawful confnement, of a woman forci"l* made pregnant,
with the intent of a-ecting the ethnic composition of an* population or carr*ing out other
gra!e !iolations of international law# This defnition shall not in an* wa* "e interpreted as
a-ecting national laws relating to pregnanc*6
/ersecution$ means the intentional and se!ere depri!ation of fundamental rights contrar* to
international law "* reason of the identit* of the group or collecti!it*6
The crime of apartheid$ means inhumane acts of a character similar to those referred to in
paragraph 5, committed in the conte)t of an institutionali'ed regime of s*stematic
oppression and domination "* one racial group o!er an* other racial group or groups and
committed with the intention of maintaining that regime6
Hnforced disappearance of persons$ means the arrest, detention or a"duction of persons "*,
or with the authori'ation, support or ac+uiescence of, a 4tate or a political organi'ation,
followed "* a refusal to ac&nowledge the depri!ation of freedom or to gi!e information on
the fate or wherea"outs of those persons, with the intention of remo!ing them from the
protection of the law for a prolonged period of time#
=# 1or the purpose of this 4tatute, it is understood that the term gender$ refers to the two
se)es, male and female, within the conte)t of societ*# The term gender$ does not indicate an*
meaning di-erent from the a"o!e#
(Art. 7 "ome 1tat'te of the 2nternational Criminal Co'rt-
552. .hat are 2nternational Or6aniAations0 Disc'ss their nat're.
Held2 .nternational or%aniGations are institutions constituted "* international agreement
"etween two or more 4tates to accomplish common goals# The legal personalit* of these
international organi'ations has "een recogni'ed not onl* in municipal law, "ut in international law as
well#
/ermanent international commissions and administrati!e "odies ha!e "een created "* the
agreement of a considera"le num"er of 4tates for a !ariet* of international purposes, economic or
social and mainl* non,political# .n so far as the* are autonomous and "e*ond the control of an* one
4tate, the* ha!e distinct uridical personalit* independent of the municipal law of the 4tate where
the* are situated# As such, the* are deemed to possess a species of international personalit* of their
own# (13A?D3C9AGD v. #="C 20$ 1C"A 28) ?eb. 15 1992-
55). Disc'ss the basic imm'nities of international or6aniAations and the reason for
aEordin6 them s'ch imm'nities.
Held2 Bne of the "asic immunities of an international organi'ation is immunit* from local
urisdiction, i.e., that it is immune from legal writs and processes issued "* the tri"unals of the
countr* where it is found# The o"!ious reason for this is that the su"ection of such an organi'ation to
the authorit* of the local courts would a-ord a con!enient medium through which the host
go!ernment ma* interfere in their operations or e!en inQuence or control its policies and decisions6
"esides, such su"ection to local urisdiction would impair the capacit* of such "od* to discharge its
responsi"ilities impartiall* on "ehalf of its mem"er,states# (13A?D3C9AGD v. #="C 20$ 1C"A
28) ?eb. 5 1992-
555. 2s the determination of the e4ec'tive branch of the 6overnment that a state or
instr'mentalit( is entitled to soverei6n or diplomatic imm'nit( s'bFect to F'dicial
revie/ or is it a political :'estion and therefore concl'sive 'pon the co'rts0
Held2 The issue of petitioner;s (The Col* 4ee) non,sua"ilit* can "e determined "* the trial
court without going to trial in light of the pleadings ) ) )# 2esides, the pri!ilege of so!ereign
immunit* in this case was su(cientl* esta"lished "* the Gemorandum and Certifcation of the
?epartment of 1oreign A-airs# As the department tas&ed with the conduct of the /hilippines; foreign
65
relations, the ?epartment of 1oreign A-airs has formall* inter!ened in this case and o(ciall* certifed
that the Hm"ass* of the Col* 4ee is a dul* accredited diplomatic mission to the 9epu"lic of the
/hilippines e)empt from local urisdiction and entitled to all the rights, pri!ileges and immunities of a
diplomatic mission or em"ass* in this countr*# The determination of the e)ecuti!e arm of go!ernment
that a state or instrumentalit* is entitled to so!ereign or diplomatic immunit* is a political +uestion
that is conclusi!e upon the courts. :here the plea of immunit* is recogni'ed and a(rmed "* the
e)ecuti!e "ranch, it is the dut* of the courts to accept this claim so as not to em"arrass the e)ecuti!e
arm of the go!ernment in conducting the countr*;s foreign relations. As in .nternational Catholi#
-i%ration Commission and in World :ealth )r%aniGation, we a"ide "* the certifcation of the
?epartment of 1oreign A-airs# (Hol( 1ee The v. "osario &r. 2)8 1C"A %25 Dec. 1 1995 3n
7anc *G'iason,-
55%. 1ho'ld Co'rts blindl( adhere and ta>e on its face the comm'nication from the
Department of ?orei6n AEairs (D?A- that a person is covered b( an( imm'nit(0
Held2 Courts cannot "lindl* adhere and ta&e on its face the communication from the ?1A that
petitioner is co!ered "* an* immunit*# The ?1A;s determination that a certain person is co!ered "*
immunit* is onl* preliminar* which has no "inding e-ect in courts# .n recei!ing e? parte the ?1A;s
ad!ice and in motu proprio dismissing the two criminal cases without notice to the prosecution, the
latter;s right to due process was !iolated# .t should "e noted that due process is a right of the
accused as much as it is of the prosecution# The needed in+uir* in what capacit* petitioner was
acting at the time of the alleged utterances re+uires for its resolution e!identiar* "asis that has *et to
"e presented at the proper time. At an* rate, it has "een ruled that the mere in!ocation of the
immunit* clause does not ipso fa#to result in the dropping of the charges. (=ian6 v. +eople )2)
1C"A $92 &an. 28 2000 1
st
Div. *Bnares91antia6o,-
55$. Disc'ss the basis of the ar6'ment that a determination b( the D?A that a person
is entitled to diplomatic imm'nit( is a political :'estion bindin6 on the co'rts.
Held2 /etitioner;s argument that a determination "* the ?epartment of 1oreign A-airs that he
is entitled to diplomatic immunit* is a political +uestion "inding on the courts, is anchored on the
ruling enunciated in the case of W:), et al. v. A8uino, et al., viGD
.t is a recogni'ed principle of international law and under our s*stem of separation of
powers that diplomatic immunit* is essentiall* a political +uestion and courts should refuse to
loo& "e*ond a determination "* the e)ecuti!e "ranch of the go!ernment, and where the plea
of diplomatic immunit* is recogni'ed and a(rmed "* the e)ecuti!e "ranch of the go!ernment
as in the case at "ar, it is then the dut* of the courts to accept the claim of immunit* upon
appropriate suggestion "* the principal law o(cer of the go!ernment, the 4olicitor 0eneral in
this case, or other o(cer acting under his direction# Cence, in adherence to the settled
principle that courts ma* not so e)ercise their urisdiction "* sei'ure and detention of
propert*, as to em"arrass the e)ecuti!e arm of the go!ernment in conducting foreign
relations, it is accepted doctrine that in such cases the udicial department of the go!ernment
follows the action of the political "ranch and will not em"arrass the latter "* assuming an
antagonistic urisdiction#$
This ruling was reiterated in the su"se+uent cases of .nternational Catholi# -i%ration
Commission v. CalleBaH The :ol& 2ee v. !osario, Ar.H ;as#o v. Lnited /ationsH and 'FA v. /;!C.
The case of W:) v. A8uino in!ol!ed the search and sei'ure of personal e-ects of petitioner
<eonce 3erstu*ft, an o(cial of the :CB# 3erstu*ft was certifed to "e entitled to diplomatic immunit*
pursuant to the Cost Agreement e)ecuted "etween the /hilippines and the :CB#
.C-C v. CalleBa concerned a petition for certifcation election fled against .CGC and .99.# As
international organi'ations, .CGC and .99. were declared to possess diplomatic immunit*# .t was held
that the* are not su"ect to local urisdictions# .t was ruled that the e)ercise of urisdiction "* the
?epartment of <a"or o!er the case would defeat the !er* purpose of immunit*, which is to shield the
a-airs of international organi'ations from political pressure or control "* the host countr* and to
ensure the unhampered performance of their functions#
:ol& 2ee v. !osario, Ar. in!ol!ed an action for annulment of sale of land against the Col* 4ee,
as represented "* the /apal 8uncio# The Court upheld the petitioner;s defense of so!ereign immunit*#
.t ruled that where a diplomatic en!o* is granted immunit* from the ci!il and administrati!e
urisdiction of the recei!ing state o!er an* real action relating to pri!ate immo!a"le propert* situated
in the territor* of the recei!ing state, which the en!o* holds on "ehalf of the sending state for the
purposes of the mission, with all the more reason should immunit* "e recogni'ed as regards the
so!ereign itself, which in that case is the Col* 4ee#
.n ;as#o v. Lnited /ations, the Inited 8ations 9e!ol!ing 1und for 8atural 9esources
H)ploration was sued "efore the 8<9C for illegal dismissal# The Court again upheld the doctrine of
diplomatic immunit* in!o&ed "* the 1und#
1inall*, 'FA v. /;!C in!ol!ed an illegal dismissal case fled against the Asian ?e!elopment
2an&# /ursuant to its Charter and the Cead+uarters Agreement, the diplomatic immunit* of the Asian
?e!elopment 2an& was recogni'ed "* the Court#
66
.t "ears to stress that all of these #ases pertain to the diplomati# immunit& enBo&ed "&
international or%aniGations. $etitioner asserts that he is entitled to the same diplomati# immunit&
and he #annot "e prose#uted for a#ts alle%edl& done in the e?er#ise of his o*#ial fun#tions.
The term international organi'ations$ J
is generall* used to descri"e an organi'ation set up "* agreement "etween two or
more states# Inder contemporar* international law, such organi'ations are endowed with
some degree of international legal personalit* such that the* are capa"le of e)ercising specifc
rights, duties and powers# The* are organi'ed mainl* as a means for conducting general
international "usiness in which the mem"er states ha!e an interest#$ (.C-C v. CalleBa)
.nternational pu"lic o(cials ha!e "een defned asD
) ) ) persons who, on the "asis of an international treat* constituting a particular
international communit*, are appointed "* this international communit*, or "* an organ of it,
and are under its control to e)ercise, in a continuous wa*, functions in the interest of this
particular international communit*, and who are su"ect to a particular personal status#$
4peciali'ed agencies$ are international organi'ations ha!ing functions in particular felds,
such as posts, telecommunications, railwa*s, canals, ri!ers, sea transport, ci!il a!iation, meteorolog*,
atomic energ*, fnance, trade, education and culture, health and refugees. (Conc'rrin6 Opinion
+'no &. in &eEre( =ian6 *H'efen6, v. +eople !.". #o. 12%8$% @ar. 2$ 2001 1
st
Div.
*@otion for "econsideration,-
557. .hat are the diEerences bet/een Diplomatic and 2nternational 2mm'nities0
Disc'ss.
Held2 There are three maBor diQeren#es "etween diplomati# and international immunities.
Firstl&, one of the recogni'ed limitations of diplomatic immunit* is that mem"ers of the diplomatic
sta- of a mission ma* "e appointed from among the nationals of the recei!ing 4tate onl* with the
e)press consent of that 4tate6 apart from in!iola"ilit* and immunit* from urisdiction in respect of
o(cial acts performed in the e)ercise of their functions, nationals eno* onl* such pri!ileges and
immunities as ma* "e granted "* the recei!ing 4tate# .nternational immunities ma* "e speciall*
important in relation to the 4tate of which the o(cial is a national# 2e#ondl&, the immunit* of a
diplomatic agent from the urisdiction of the recei!ing 4tate does not e)empt him from the urisdiction
of the sending 4tate6 in the case of international immunities there is no sending 4tate and an
e+ui!alent for the urisdiction of the 4ending 4tate therefore has to "e found either in wai!er of
immunit* or in some international disciplinar* or udicial procedure# Thirdl&, the e-ecti!e sanctions
which secure respect for diplomatic immunit* are the principle of reciprocit* and the danger of
retaliation "* the aggrie!ed 4tate6 international immunities eno* no similar protection# (Conc'rrin6
Opinion +'no &. in &eEre( =ian6 *H'efen6, v. +eople !.". #o. 12%8$% @ar. 2$ 2001 1
st
Div. *@otion for "econsideration,-
558. Disc'ss the imm'nit( of 2nternational O8cials.
Held2 The %enerall& a##epted prin#iples whi#h are now re%arded as the foundation of
international immunities are #ontained in the .;) -emorandum, whi#h redu#ed them in three "asi#
propositions, namel*D (5) that international institutions should ha!e a status which protects them
against control or interference "* an* one go!ernment in the performance of functions for the
e-ecti!e discharge of which the* are responsi"le to democraticall* constituted international "odies in
which all the nations concerned are represented6 (2) that no countr* should deri!e an* fnancial
ad!antage "* le!*ing fscal charges on common international funds6 and (=) that the international
organi'ation should, as a collecti!it* of 4tates Gem"ers, "e accorded the facilities for the conduct of
its o(cial "usiness customaril* e)tended to each other "* its indi!idual mem"er 4tates# The thin5in%
underl&in% these propositions is essentiall& institutional in #hara#ter. .t is not #on#erned with the
status, di%nit& or privile%es of individuals, "ut with the elements of fun#tional independen#e
ne#essar& to free international institutions from national #ontrol and to ena"le them to dis#har%e
their responsi"ilities impartiall& on "ehalf of all their mem"ers. (Conc'rrin6 Opinion +'no &. in
&eEre( =ian6 *H'efen6, v. +eople !.". #o. 12%8$% @ar. 2$ 2001 1
st
Div. *@otion for
"econsideration,-
559. .hat are the three methods of 6rantin6 privile6es and imm'nities to the
personnel of international or6aniAations0 Dnder /hat cate6or( does the Asian
Development 7an> and its +ersonnel fall0
Held2 /ositi!e international law has de!ised three methods of granting pri!ileges and
immunities to the personnel of international or%aniGations. The Frst is "* simple con!entional
stipulation, as was the case in the Cague Con!entions of 5F@@ and 5@0%# The se#ond is "* internal
legislation where"* the go!ernment of a state, upon whose territor* the international organi'ation is
to carr* out its functions, recogni'es the international character of the organi'ation and grants, "*
unilateral measures, certain pri!ileges and immunities to "etter assure the successful functioning of
the organi'ation and its personnel# .n this situation, treat* o"ligation for the state in +uestion to grant
concessions is lac&ing# 4uch was the case with the Central Commission of the 9hine at 4tras"ourg
and the .nternational .nstitute of Agriculture at 9ome# The third is a com"ination of the frst two# .n
this third method, one fnds a con!entional o"ligation to recogni'e a certain status of an international
organi'ation and its personnel, "ut the status is descri"ed in "road and general terms# The specifc
67
defnition and application of those general terms are determined "* an accord "etween the
organi'ation itself and the state wherein it is located# This is the case with the <eague of 8ations, the
/ermanent Court of Eustice, and the Inited 8ations.
The Asian 'evelopment (an5 and its $ersonnel fall under this third #ate%or&0
There is a connection "etween diplomatic pri!ileges and immunities and those e)tended to
international o(cials# The connection consists in the granting, "* contractual pro!isions, of the
relati!el* well,esta"lished "od* of diplomatic pri!ileges and immunities to international functionaries#
This connection is purel* historical# 2oth t*pes of o(cials fnd the "asis of their special status in the
necessit* of retaining functional independence and freedom from interference "* the state of
residence# Cowe!er, the legal relationship "etween an am"assador and the state to which he is
accredited is entirel* di-erent from the relationship "etween the international o(cial and those states
upon whose territor* he might carr* out its functions.
The privile%es and immunities of diplomats and those of international o*#ials rest upon
diQerent le%al foundations. :hereas those immunities awarded to diplomatic agents are a right of
the sending state "ased on customar* international law, those granted to international o(cials are
"ased on treat* or con!entional law# Customar* international law places no o"ligation on a state to
recogni'e a special status of an international o(cial or to grant him urisdictional immunities# 4uch
an o"ligation can onl* result from specifc treat* pro!isions.
The special status of the diplomatic en!o* is regulated "* the principle of reciprocit* "* which
a state is free to treat the en!o* of another state as its en!o*s are treated "* that state# The uridical
"asis of the diplomat;s position is frml* esta"lished in customar* international law# The diplomatic
en!o* is appointed "* the sending 4tate "ut it has to ma&e certain that the agreement of the
recei!ing 4tate has "een gi!en for the person it proposes to accredit as head of the mission to that
4tate (Arti#le 0, 6ienna Convention on 'iplomati# !elations).
The staQ personnel of an international or%aniGation P the international o*#ials P assume a
diQerent position as re%ards their spe#ial status. The* are appointed or elected to their position "*
the organi'ation itself, or "* a competent organ of it6 the* are responsi"le to the organi'ation and
their o(cial acts are imputed to it# The Buridi#al "asis of their special position is found in con!entional
law, since there is no esta"lished "asis of usage or custom in the case of the international o(cial#
Goreo!er, the relationship "etween an international organi'ation and a mem"er,state does not admit
of the principle of reciprocit*, for it is contradictor* to the "asic principle of e+ualit* of states# An
international organi'ation carries out functions in the interest of e!er* mem"er state e+uall*# The
international o(cial does not carr* out his functions in the interest of an* state, "ut in ser!ing the
organi'ation he ser!es, indirectl*, each state e+uall*# Ce cannot "e, legall*, the o"ect of the
operation of the principle of reciprocit* "etween states under such circumstances# .t is contrar* to
the principle of e+ualit* of states for one state mem"er of an international organi'ation to assert a
capacit* to e)tract special pri!ileges for its nationals from other mem"er states on the "asis of a
status awarded "* it to an international organi'ation# .t is upon this principle of so!ereign e+ualit*
that international organi'ations are "uilt#
.t follows from this same legal circumstance that a state called upon to admit an o(cial of an
international organi'ation does not ha!e a capacit* to declare him persona non %rata.
The fun#tions of the diplomat and those of the international o(cial are +uite di-erent# Those
of the diplomat are functions in the national interest# The tas& of the am"assador is to represent his
state, and its specifc interest, at the capital of another state# The functions of the international
o(cial are carried out in the international interest# Ce does not represent a state or the interest of
an* specifc state# Ce does not usuall* represent$ the organi'ation in the true sense of that term#
Cis functions normall* are administrati!e, although the* ma* "e udicial or e)ecuti!e, "ut the* are
rarel* political or functions of representation, such as those of the diplomat#
There is a di-erence of degree as well as of &ind# The interruption of the acti!ities of a
diplomatic agent is li&el* to produce serious harm to the purposes for which his immunities were
granted# 2ut the interruption of the acti!ities of the international o(cial does not, usuall*, cause
serious dislocation of the functions of an international secretariat.
Bn the other hand, the* are similar in the sense that acts performed in an o(cial capacit* "*
either a diplomatic en!o* or an international o(cial are not attri"uta"le to him as an indi!idual "ut
are imputed to the entit* he represents, the state in the case of the diplomat, and the organi'ation in
the case of the international o(cial. (Conc'rrin6 Opinion +'no &. in &eEre( =ian6 *H'efen6, v.
+eople !.". #o. 12%8$% @ar. 2$ 2001 1
st
Div. *@otion for "econsideration,-
5%0. .hat is the reason behind the c'rrent tendenc( of red'cin6 privile6es and
imm'nities of personnel of international or6aniAations to a minim'm0
Held2 <oo&ing "ac& o!er 550 *ears of pri!ileges and immunities granted to the personnel of
international organi'ations, it is clear that the* were accorded a wide scope of protection in the
e)ercise of their functions J The 9hine Treat* of 5F04 "etween the 0erman Hmpire and 1rance which
pro!ided all the rights of neutralit*$ to persons emplo*ed in regulating na!igation in the international
interest6 The Treat* of 2erlin of 5F%F which granted the Huropean Commission of the ?anu"e
complete independence of territorial authorities$ in the e)ercise of its functions6 The Con!ention of
the <eague which granted diplomatic immunities and pri!ileges#$ Toda*, the age of the Inited
68
8ations fnds the scope of protection narrowed# The #urrent tenden#& is to redu#e privile%es and
immunities of personnel of international or%aniGations to a minimum. The tendenc* cannot "e
considered as a lowering of the standard "ut rather as a recognition that the pro"lem on the
pri!ileges and immunities of international o(cials is new# The solution to the pro"lem presented "*
the e)tension of diplomatic prerogati!es to international functionaries lies in the general reduction of
the special position of "oth t*pes of agents in that the special status of each agent is granted in the
interest of function# The wide %rant of diplomati# prero%atives was #urtailed "e#ause of pra#ti#al
ne#essit& and "e#ause the proper fun#tionin% of the or%aniGation did not re8uire su#h e?tensive
immunit& for its o*#ials. :hile the current direction of the law seems to "e to narrow the
prerogati!es of the personnel of international organi'ations, the re!erse is true with respect to the
prerogati!es of the organi'ations themsel!es, considered as legal entities# :istori#all&, states have
"een more %enerous in %rantin% privile%es and immunities to or%aniGations than the& have to the
personnel of these or%aniGations.
Thus, 4ection 2 of the 0eneral Con!ention on the /ri!ileges and .mmunities of the Inited
8ations states that the I8 shall eno* immunit* from e!er* form of legal process e)cept insofar as in
an* particular case it has e)pressl* wai!ed its immunit*# 4ection 4 of the Con!ention on the
/ri!ileges and .mmunities of the 4peciali'ed Agencies li&ewise pro!ides that the speciali'ed agencies
shall eno* immunit* from e!er* form of legal process su"ect to the same e)ception# 1inall*, Article
50L5M of the A?2 Charter and 4ection 5 of the Cead+uarters Agreement similarl* pro!ide that the
"an& shall eno* immunit* from e!er* form of legal process, e)cept in cases arising out of or in
connection with the e)ercise of its powers to "orrow mone*, to guarantee o"ligations, or to "u* and
sell or underwrite the sale of securities#
The phrase immunit* from e!er* form of legal process$ as used in the I8 0eneral
Con!ention has "een interpreted to mean a"solute immunit* from a state;s urisdiction to adudicate
or enforce its law "* legal process, and it is said that states ha!e not sought to restrict that immunit*
of the Inited 8ations "* interpretation or amendment# 4imilar pro!isions are contained in the 4pecial
Agencies Con!ention as well as in the A?2 Charter and Cead+uarters Agreement# These
organi'ations were accorded pri!ileges and immunities in their charters "* language similar to that
applica"le to the Inited 8ations# .t is clear therefore that these organi'ations were intended to ha!e
similar pri!ileges and immunities. 1rom this, it can "e easil* deduced that international organi'ations
eno* a"solute immunit* similar to the diplomatic prerogati!es granted to diplomatic en!o*s#
H!en in the Inited 4tates this seems to "e the pre!ailing rule ) ) )#
Bn the other hand, international o*#ials are %overned "& a diQerent rule. 4ection 5FLaM of the
0eneral Con!ention on /ri!ileges and .mmunities of the Inited 8ations states that o(cials of the
Inited 8ations shall "e immune from legal process in respect of words spo&en or written and all acts
performed "* them in their o(cial capacit*# The Con!ention on 4peciali'ed Agencies carries e)actl*
the same pro!ision# The Charter of the A'( pro!ides under Article 55LiM that o(cers and emplo*ees
of the "an& shall "e immune from legal process with respect to acts performed "* them in their
o(cial capacit* e)cept when the 2an& wai!es immunit*# 4ection 45 LaM of the A?2 Cead+uarters
Agreement accords the same immunit* to the o(cers and sta- of the "an&# There #an "e no dispute
that international o*#ials are entitled to immunit& onl& with respe#t to a#ts performed in their o*#ial
#apa#it&, unli5e international or%aniGations whi#h enBo& a"solute immunit&.
Clearl*, the most important immunit* to an international o(cial, in the discharge of his
international functions, is immunit* from local urisdiction# There is no argument in doctrine or
practice with the principle that an international o(cial is independent of the urisdiction of the local
authorities for his o*#ial a#ts. Those acts are not his, "ut are imputed to the organi'ation, and
without wai!er the local courts cannot hold him lia"le for them# .n stri#t law, it would seem that even
the or%aniGation itself #ould have no ri%ht to waive an o*#ialRs immunit& for his o*#ial a#ts. This
permits lo#al authorities to assume Burisdi#tion over an individual for an a#t whi#h is not, in the wider
sense of the term, his a#t al all. .t is the or%aniGation itself, as a Buristi# person, whi#h should waive
its own immunit& and appear in #ourt, not the individual, e?#ept insofar as he appears in the name of
the or%aniGation. $rovisions for immunit& from Burisdi#tion for o*#ial a#ts appear, aside from the
aforementioned treatises, in the #onstitution of most modern international or%aniGations. The
a##eptan#e of the prin#iple is su*#ientl& widespread to "e re%arded as de#larator& of international
law. (Conc'rrin6 Opinion +'no &. in &eEre( =ian6 *H'efen6, v. +eople !.". #o. 12%8$%
@ar. 2$ 2001 1
st
Div. *@otion for "econsideration,-
5%1. .hat is the stat's of the international o8cial /ith respect to his private acts0
Held2 4ection 5F LaM of the 0eneral Con!ention has "een interpreted to mean that o(cials of
the specifed categories are denied immunit& from local urisdiction for a#ts of their private life and
empowers local courts to assume urisdiction in such cases without the necessit* of wai!er. .t has
earlier "een mentioned that historicall*, international o(cials were granted diplomatic pri!ileges and
immunities and were thus considered immune for "oth pri!ate and o(cial acts# .n practice, this wide
grant of diplomatic prerogati!es was curtailed "ecause of practical necessit* and "ecause the proper
functioning of the organi'ation did not re+uire such e)clusi!e immunit* for its o(cials# Thus, the
#urrent status of the law does not maintain that states %rant Burisdi#tional immunit& to international
o*#ials for a#ts of their private lives. This mu#h is e?pli#it from the #harter and :ead8uarters
A%reement of the A'( whi#h #ontain su"stantiall& similar provisions to that of the eneral
Convention. (Conc'rrin6 Opinion +'no &. in &eEre( =ian6 *H'efen6, v. +eople !.". #o.
12%8$% @ar. 2$ 2001 1
st
Div. *@otion for "econsideration,-
69
5%2. .ho is competent to determine /hether a 6iven act of international o8cials and
representatives is private or o8cial0
Held2 .n connection with this +uestion, the current tenden#& to narrow the scope of pri!ileges
ad immunities of international o(cials and representati!es is most apparent# /rior to the regime of
the Inited 8ations, the determination of this +uestion rested with the organi'ation and its decision
was fnal# 2* the new formula, the state itself tends to assume this competence# .f the organi'ation
is dissatisfed with the decision, under the pro!isions of the 0eneral Con!ention of the Inited 8ations,
or the 4pecial Con!ention for 4peciali'ed Agencies, the 4wiss Arrangement, and other current
dominant instruments, it ma* appeal to an international tri"unal "* procedures outlined in these
instruments# Thus, the state assumes this competence in the frst instance# .t means that, if a local
court assumes urisdiction o!er an act without the necessit* of wai!er from the organi'ation, the
determination of the nature of the act is made at the national le!el.
.t appears that the in#lination is to pla#e the #ompeten#e to determine the nature of an a#t as
private or o*#ial in the #ourts of the state #on#erned. That the practical notion seems to "e to lea!e
to the local courts determination of whether or not a gi!en act is o(cial or pri!ate does not
necessaril* mean that such determination is fnal# .f the Inited 8ations +uestions the decision of the
Court, it ma* in!o&e proceedings for settlement of disputes "etween the organi'ation and the
mem"er states as pro!ided in 4ection =0 of the 0eneral Con!ention# Thus, the decision as to whether
a gi!en act is o(cial or pri!ate is made "* the national courts in the frst instance, "ut it ma* "e
su"ected to re!iew in the international le!el if +uestioned "* the Inited 8ations.
) ) )
Inder the Third 9estatement of the <aw, it is suggested that since an international o(cial
does not eno* personal in!iola"ilit* from arrest or detention and has immunit* onl* with respect to
o(cial acts, he is su"ect to udicial or administrati!e process and must claim his immunit* in the
proceedings "* showing that the act in +uestion was an o(cial act# :hether an act was performed in
the indi!idual;s o(cial capacit* is a +uestion for the court in which a proceeding is "rought, "ut if the
international organi'ation disputes the court;s fnding, the dispute "etween that organi'ation and the
state of the forum is to "e resol!ed "* negotiation, "* an agreed mode of settlement or "* ad!isor*
opinion of the .nternational Court of Eustice.
9ecogni'ing the di(cult* that "* reason of the right of a national court to assume urisdiction
o!er pri!ate acts without a wai!er of immunit*, the determination of the o(cial or pri!ate character
of a particular act ma* pass from international to national, Een&s proposes three wa*s of a!oiding
di(cult* in the matter# The Frst would "e for a municipal court "efore which a +uestion of the o(cial
or pri!ate character of a particular act arose to accept as conclusi!e in the matter an* claim "* the
international organi'ation that the act was o(cial in character, such a claim "eing regarded as
e+ui!alent to a go!ernmental claim that a particular act is an act of 4tate# 4uch a claim would "e in
e-ect a claim "* the organi'ation that the proceedings against the o(cial were a !iolation of the
urisdictional immunit* of the organi'ation itself which is un+ualifed and therefore not su"ect to
delimitation in the discretion of the municipal court# The se#ond would "e for a court to accept as
conclusi!e in the matter a statement "* the e)ecuti!e go!ernment of the countr* where the matter
arises certif*ing the o(cial character of the act# The third would "e to ha!e recourse to the
procedure of international ar"itration# Een&s opines that it is possi"le that none of these three
solutions would "e applica"le in all cases6 the frst might "e readil* accepta"le onl* in the clearest
cases and the second is a!aila"le onl* if the e)ecuti!e go!ernment of the countr* where the matter
arises concurs in the !iew of the international organi'ation concerning the o(cial character of the act#
Cowe!er, he surmises that ta&en in com"ination, these !arious possi"ilities ma* a-ord the elements
of a solution to the pro"lem. (Conc'rrin6 Opinion +'no &. in &eEre( =ian6 *H'efen6, v.
+eople !.". #o. 12%8$% @ar. 2$ 2001 1
st
Div. *@otion for "econsideration,-
5%). Disc'ss the e4tent of the international o8cialMs imm'nit( for o8cial acts.
Held2 The international o(cial;s immunit* for o(cial acts ma* "e li&ened to a consular
o(cial;s immunit* from arrest, detention, and criminal or ci!il process which is not a"solute "ut
applies onl* to acts or omissions in the performance of his o(cial functions, in the a"sence of special
agreement# 4ince a consular o(cer is not immune from all legal processes, he must respond to an*
process and plead and pro!e immunit* on the ground that the act or omission underl*ing the process
was in the performance of his o(cial functions# The issue has not "een authoritati!el* determined,
"ut apparentl* the "urden is on the consular o(cial to pro!e his status as well as his e)emption in the
circumstances# .n the Inited 4tates, the I4 ?epartment of 4tate generall* has left it to the courts to
determine whether a particular act was within a consular o(cer;s o(cial duties. (Conc'rrin6
Opinion +'no &. in &eEre( =ian6 *H'efen6, v. +eople !.". #o. 12%8$% @ar. 2$ 2001 1
st
Div. *@otion for "econsideration,-
5%5. Disc'ss the t/o conKictin6 concepts of soverei6n imm'nit( from s'it.
Held2 There are two conQicting concepts of so!ereign immunit*, each widel* held and frml*
esta"lished# According to the classical or a"solute theor*, a so!ereign cannot, without its consent, "e
made a respondent in the courts of another so!ereign# According to the newer or restricti!e theor*,
the immunit* of the so!ereign is recogni'ed onl* with regard to pu"lic acts or acts Bure imperii of a
state, "ut not with regard to pri!ate acts or acts Bure %estionis.
70
4ome states passed legislation to ser!e as guidelines for the e)ecuti!e or udicial
determination when an act ma* "e considered as Bure %estionis. The Inited 4tates passed the
1oreign 4o!ereign .mmunities Act of 5@%>, which defnes a commercial acti!it* as either a regular
course of commercial conduct or a particular commercial transaction or act#$ 1urthermore, the law
declared that the commercial character of the acti!it* shall "e determined "* reference to the nature
of the course of conduct or particular transaction or act, rather than "* reference to its purpose#$ The
Canadian /arliament enacted in 5@F2 an Act to /ro!ide 1or 4tate .mmunit* in Canadian Courts# The
Act defnes a commercial acti!it*$ as an* particular transaction, act or conduct or an* regular course
of conduct that "* reason of its nature, is of a commercial character#$
The restricti!e theor*, which is intended to "e a solution to the host of pro"lems in!ol!ing the
issue of so!ereign immunit*, has created pro"lems of its own# <egal treatises and the decisions in
countries which follow the restricti!e theor* ha!e di(cult* in characteri'ing whether a contract of a
so!ereign state with a pri!ate part* is an act Bure %estionis or an act Bure imperii.
The restricti!e theor* came a"out "ecause of the entr* of so!ereign states into purel*
commercial acti!ities remotel* connected with the discharge of go!ernmental functions# This is
particularl* true with respect to the Communist states which too& control of nationali'ed "usiness
acti!ities and international trading# (Hol( 1ee The v. "osario &r. 2)8 1C"A %25 Dec. 1 1995
3n 7anc *G'iason,-
5%%. Cite some transactions b( a forei6n state /ith private parties that /ere
considered b( the 1'preme Co'rt as acts ;F're imperii< and acts ;F're 6estionis.<
Held2 This Court has considered the following transactions "* a foreign state with pri!ate
parties as acts Bure imperiiD (5) the lease "* a foreign go!ernment of apartment "uildings for use of its
militar* o(cers6 (2) the conduct of pu"lic "idding for the repair of a wharf at a Inited 4tates 8a!al
4tation6 and (=) the change of emplo*ment status of "ase emplo*ees.
Bn the other hand, this Court has considered the following transactions "* a foreign state with
pri!ate parties as acts Bure %estionisD (5) the hiring of a coo& in the recreation center, consisting of
three restaurants, a cafeteria, a "a&er*, a store, and a co-ee and pastr* shop at the Eohn Ca* Air
4tation in 2aguio Cit*, to cater to American ser!icemen and the general pu"lic6 and (2) the "idding for
the operation of "ar"er shops in Clar& Air 2ase in Angeles Cit*. The operation of the restaurants and
other facilities open to the general pu"lic is undou"tedl* for proft as a commercial and not a
go!ernmental acti!it*# 2* entering into the emplo*ment contract with the coo& in the discharge of its
proprietar* function, the Inited 4tates go!ernment impliedl* di!ested itself of it so!ereign immunit*
from suit# (Hol( 1ee The v. "osario &r. 2)8 1C"A %25 Dec. 1 1995 3n 7anc *G'iason,-
5%$. .hat sho'ld be the 6'idelines to determine /hat activities and transactions shall
be considered ;commercial< and as constit'tin6 acts ;F're 6estionis< b( a forei6n
state0
Held2 .n the a"sence of legislation defning what acti!ities and transactions shall "e
considered commercial$ and as constituting acts Bure %estionis, we ha!e to come out with our own
guidelines, tentati!e the* ma* "e#
Certainl*, the mere entering into a contract "* a foreign state with a pri!ate part* cannot "e
the ultimate test# 4uch an act can onl* "e the start of the in+uir*# The logical +uestion is whether the
foreign state is engaged in the acti!it* in the regular course of "usiness# .f the foreign state is not
engaged regularl* in a "usiness or trade, the particular act or transaction must then "e tested "* its
nature# .f the act is in pursuit of a so!ereign acti!it*, or an incident thereof, then it is an act Bure
imperii, especiall* when it is not underta&en for gain or proft#
As held in Lnited 2tates of Ameri#a v. uintoD
There is no +uestion that the Inited 4tates of America, li&e an* other state, will "e
deemed to ha!e impliedl* wai!ed its non,sua"ilit* if it has entered into a contract in its
proprietar* or pri!ate capacit*# .t is onl* when the contract in!ol!es its so!ereign or
go!ernmental capacit* that no such wai!er ma* "e implied#$
(Hol( 1ee The v. "osario &r. 2)8 1C"A %25 Dec. 1 1995 3n 7anc *G'iason,-
5%7. @a( the Hol( 1ee be s'ed for sellin6 the land it ac:'ired b( donation from the
Archdiocese of @anila to be made site of its mission or the Apostolic #'nciat're
in the +hilippines b't /hich p'rpose cannot be accomplished as the land /as
occ'pied b( s:'atters /ho ref'sed to vacate the area0
Held2 .n the case at "ench, if petitioner (Col* 4ee) has "ought and sold lands in the ordinar*
course of a real estate "usiness, surel* the said transaction can "e categori'ed as an act Bure
%estionis. Cowe!er, petitioner has denied that the ac+uisition and su"se+uent disposal of <ot 5,A
were made for proft "ut claimed that it ac+uired said propert* for the site of its mission or the
Apostolic 8unciature in the /hilippines# ) ) )
<ot 5,A was ac+uired "* petitioner as a donation from the Archdiocese of Ganila# The donation
was made not for commercial purpose, "ut for the use of petitioner to construct thereon the o(cial
place of residence of the /apal 8uncio# The right of a foreign so!ereign to ac+uire propert*, real or
personal, in a recei!ing state, necessar* for the creation and maintenance of its diplomatic mission, is
71
recogni'ed in the 5@>5 3ienna Con!ention on ?iplomatic 9elations. This treat* was concurred in "*
the /hilippine 4enate and entered into force in the /hilippines on 8o!em"er 55, 5@>5#
.n Article =5(a) of the Con!ention, a diplomatic en!o* is granted immunit* from the ci!il and
administrati!e urisdiction of the recei!ing state o!er an* real action relating to pri!ate immo!a"le
propert* situated in the territor* of the recei!ing state which the en!o* holds on "ehalf of the sending
state for the purposes of the mission# .f this immunit* is pro!ided for a diplomatic en!o*, with all the
more reason should immunit* "e recogni'ed as regards the so!ereign itself, which in this case is the
Col* 4ee#
The decision to transfer the propert* and the su"se+uent disposal thereof are li&ewise clothed
with a go!ernmental character# /etitioner did not sell <ot 5,A for proft or gain# .t merel* wanted to
dispose o- the same "ecause the s+uatters li!ing thereon made it almost impossi"le for petitioner to
use it for the purpose of the donation# (Hol( 1ee The v. "osario &r. 2)8 1C"A %25 Dec. 1
1995 3n 7anc *G'iason,-
5%8. Ho/ is soverei6n or diplomatic imm'nit( pleaded in a forei6n co'rt0
Held2 .n /u"lic .nternational <aw, when a state or international agenc* wishes to plead
so!ereign or diplomatic immunit* in a foreign court, it re+uests the 1oreign B(ce of the state where it
is sued to con!e* to the court that said defendant is entitled to immunit*#
.n the Inited 4tates, the procedure followed is the process of suggestion,$ where the foreign
state or the international organi'ation sued in an American court re+uests the 4ecretar* of 4tate to
ma&e a determination as to whether it is entitled to immunit*# .f the 4ecretar* of 4tate fnds that the
defendant is immune from suit, he, in turn, as&s the Attorne* 0eneral to su"mit to the court a
suggestion$ that the defendant is entitled to immunit*# .n Hngland, a similar procedure is followed,
onl* the 1oreign B(ce issues a certifcation to that e-ect instead of su"mitting a suggestion$#
.n the /hilippines, the practice is for the foreign go!ernment or the international organi'ation
to frst secure an e)ecuti!e endorsement of its claim of so!ereign or diplomatic immunit*# 2ut how
the /hilippine 1oreign B(ce con!e*s its endorsement to the courts !aries# .n .nternational Catholi#
-i%ration Commission v. CalleBa, the 4ecretar* of 1oreign A-airs ust sent a letter directl* to the
4ecretar* of <a"or and Hmplo*ment, informing the latter that the respondent,emplo*er could not "e
sued "ecause it eno*ed diplomatic immunit*# .n World :ealth )r%aniGation v. A8uino, the 4ecretar*
of 1oreign A-airs sent the trial court a telegram to that e-ect# .n (aer v. TiGon, the I#4# Hm"ass*
as&ed the 4ecretar* of 1oreign A-airs to re+uest the 4olicitor 0eneral to ma&e, in "ehalf of the
commander of the Inited 4tates 8a!al 2ase at Blongapo Cit*, Sam"ales, a suggestion$ to
respondent Eudge# The 4olicitor 0eneral em"odied the suggestion$ in a Ganifestation and
Gemorandum as ami#us #uriae.
.n the case at "ench, the ?epartment of 1oreign A-airs, through the B(ce of <egal A-airs
mo!ed with this Court to "e allowed to inter!ene on the side of petitioner# The Court allowed the said
?epartment to fle its memorandum in support of petitioner;s claim of so!ereign immunit*#
.n some cases, the defense of so!ereign immunit* was su"mitted directl* to the local courts
"* the respondents through their pri!ate counsels# .n cases where the foreign states "*pass the
1oreign B(ce, the courts can in+uire into the facts and ma&e their own determination as to the nature
of the acts and transactions in!ol!ed# (Hol( 1ee The v. "osario &r. 2)8 1C"A %25 Dec. 1
1995 3n 7anc *G'iason,-
5%9. .hat is e4tradition0 To /hom does it appl(0
Held2 .t is the process "* which persons charged with or con!icted of crime against the law
of a 4tate and found in a foreign 4tate are returned "* the latter to the former for trial or punishment#
.t applies to those who are merel* charged with an o-ense "ut ha!e not "een "rought to trial6 to
those who ha!e "een tried and con!icted and ha!e su"se+uentl* escaped from custod*6 and those
who ha!e "een con!icted in a"sentia# .t does not appl& to persons merel* suspected of ha!ing
committed an o-ense "ut against whom no charge has "een laid or to a person whose presence is
desired as a witness or for o"taining or enforcing a ci!il udgment#$ (.eston ?al> DJ Amato
2nternational =a/ and Order 2
nd
ed. p. $)0 *1990, cited in Dissentin6 Opinion +'no &. in
1ecretar( of &'stice v. Hon. "alph C. =antion !.". #o. 1)95$% &an. 18 2000 3n 7anc-
5$0. Disc'ss the basis for allo/in6 e4tradition.
Held2 H)tradition was frst practiced "* the Hg*ptians, Chinese, Chaldeans and Ass*ro,
2a"*lonians "ut their "asis for allowing e)tradition was unclear# 4ometimes, it was granted due to
pacts6 at other times, due to plain good will# The #lassi#al #ommentators on international law thus
focused their earl* !iews on the nature of the dut& to surrender an e)traditee ,,, whether the dut* is
legal or moral in character# 0rotius and 3attel led the school of thought that international law
imposed a le%al dut& called #ivitas ma?ima to e)tradite criminals# .n sharp contrast, /u-endorf and
2illot led the school of thought that the so,called dut* was "ut an Simperfe#t o"li%ation which could
"ecome enfor#ea"le onl& "* a contract or agreement "etween states#
Godern nations tilted towards the !iew of /u-endorf and 2illot that under international law
there is no dut* to e)tradite in the a"sence of treat*, whether "ilateral or multilateral# Thus, the I4
4upreme Court in L2 v. !aus#her, heldD ) ) ) it is onl& in modern times that the nations of the earth
72
ha!e imposed upon themsel!es the o"ligation of deli!ering up these fugiti!es from ustice to the
states where their crimes were committed, for trial and punishment# This has "een done generall* "*
treaties ) ) )# /rior to these treaties, and apart from them there was no well,defned o"ligation on
one countr* to deli!er up such fugiti!es to another6 and though such deli!er* was often made it was
upon the principle of comit* ) ) )#$ (Dissentin6 Opinion +'no &. in 1ecretar( of &'stice v.
Hon. "alph C. =antion !.". #o. 1)95$% &an. 18 2000 3n 7anc-
5$1. .hat is the nat're of an e4tradition proceedin60 2s it a>in to a criminal
proceedin60
Held2 LAMn e)tradition proceeding is sui %eneris. .t is not a #riminal pro#eedin% which will call
into operation all the rights of an accused as guaranteed "* the 2ill of 9ights# To "egin with, the
pro#ess of e?tradition does not involve the determination of the %uilt or inno#en#e of an a##used. Cis
guilt or innocence will "e adudged in the court of the state where he will "e e)tradited# Cence, as a
rule, constitutional rights that are onl* rele!ant to determine the guilt or innocence of an accused
cannot "e in!o&ed "* an e)traditee especiall* "* one whose e)tradition papers are still undergoing
e!aluation. As held "* the I4 4upreme Court in Lnited 2tates v. alanisK
An e)tradition proceeding is not a criminal prosecution, and the constitutional
safeguards that accompan* a criminal trial in this countr* do not shield an accused from
e)tradition pursuant to a !alid treat*#$ (Wiehl, ,?tradition ;aw at the CrossroadsK The Trend
Toward ,?tendin% reater Constitutional $ro#edural $rote#tions To Fu%itives Fi%htin%
,?tradition from the Lnited 2tates, 19 -i#hi%an Aournal of .nternational ;aw 779, 701 319984,
#itin% Lnited 2tates v. alanis, 079 F. 2upp. 171> 3'. Conn. 19774)
There are other diQeren#es "etween an e)tradition proceeding and a criminal proceeding# An
e)tradition proceeding is summar* in nature while criminal proceedings in!ol!e a full,"lown trial. .n
contradistinction to a criminal proceeding, the rules of e!idence in an e)tradition proceeding allow
admission of e!idence under less stringent standards. .n terms of the +uantum of e!idence to "e
satisfed, a criminal case re+uires proof "e*ond reasona"le dou"t for con!iction while a fugiti!e ma*
"e ordered e)tradited upon showing of the e)istence of a prima facie case#$ 1inall*, unli&e in a
criminal case where udgment "ecomes e)ecutor* upon "eing rendered fnal, in an e)tradition
proceeding, our courts ma* adudge an indi!idual e)tradita"le "ut the /resident has the fnal
discretion to e)tradite him. The Inited 4tates adheres to a similar practice where"* the 4ecretar* of
4tate e)ercises wide discretion in "alancing the e+uities of the case and the demands of the nationOs
foreign relations "efore ma&ing the ultimate decision to e)tradite#
As an e?tradition pro#eedin% is not #riminal in #hara#ter and the evaluation sta%e in an
e?tradition pro#eedin% is not a5in to a preliminar& investi%ation, the due pro#ess safe%uards in the
latter do not ne#essaril& appl& to the former. This we hold for the procedural due process re+uired "*
a gi!en set of circumstances must "egin with a determination of the pre#ise nature of the
%overnment fun#tion involved as well as the private interest that has "een aQe#ted "& %overnmental
a#tion.D The concept of due process is Je?i"le for not all situations calling for procedural safeguards
call for the same &ind of procedure#$ (1ecretar( of &'stice v. Hon. "alph C. =antion !.". #o.
1)95$% Oct. 17 2000 3n 7anc *+'no,-
5$2. .ill the retroactive application of an e4tradition treat( violate the constit'tional
prohibition a6ainst Re4 post factoR la/s0
Held2 The prohi"ition against e? post fa#to law applies onl* to criminal legislation which
a-ects the su"stantial rights of the accused# This "eing so, there is no merit in the contention that
the ruling sustaining an e)tradition treat*;s retroacti!e application !iolates the constitutional
prohi"ition against e? post fa#to laws# The treat* is neither a piece of criminal legislation nor a
criminal procedural statute# (.ri6ht v. CA 2)% 1C"A )51 A'6. 1% 1995 *Qap'nan,-
5$). Disc'ss the r'les in the interpretation of e4tradition treaties.
Held2 LAMll treaties, including the 9/,I4 H)tradition Treat*, should "e interpreted in li%ht of
their intent. 8othing less than the 6ienna Convention on the ;aw of Treaties to which the /hilippines
is a signator* pro!ides that a treat* shall "e interpreted in good faith in accordance with the ordinar*
meaning to "e gi!en to the terms of the treat* in their conte)t and in li%ht of its o"Be#t and purpose#$
) ) )# .t cannot "e gainsaid that toda*, countries li&e the /hilippines forge e)tradition treaties to
arrest the dramatic rise of international and transnational crimes li&e terrorism and drug tra(c&ing#
H)tradition treaties pro!ide the assurance that the punishment of these crimes will not "e frustrated
"* the frontiers of territorial so!ereignt*# .mplicit in the treaties should "e the un"ending commitment
that the perpetrators of these crimes will not "e coddled "* an* signator* state#
.t ought to follow that the 9/,I4 H)tradition Treat* calls for an interpretation that will minimi'e
if not pre!ent the escape of e)traditees from the long arm of the law and e)pedite their trial# ) ) )
LAMn e+uall* compelling factor to consider is the understandin% of the parties themsel!es to
the 9/,I4 H)tradition Treat* as well as the %eneral interpretation of the issue in 8uestion "& other
#ountries with similar treaties with the $hilippines# The rule is recogni'ed that while courts ha!e the
power to interpret treaties, the meaning gi!en them "* the departments of go!ernment particularl*
charged with their negotiation and enforcement is accorded great weight. The reason for the rule is
laid down in 2antos ... v. /orthwest )rient Airlines, et al., where we stressed that a treat* is a oint
e)ecuti!e,legislati!e act which eno*s the presumption that it was frst carefull* studied and
73
determined to "e constitutional "efore it was adopted and gi!en the force of law in the countr*#$
(1ecretar( of &'stice v. Hon. "alph C. =antion !.". #o. 1)95$% Oct. 17 2000 3n 7anc
*+'no,-
5$5. Disc'ss the ?ive +ost'lates of 34tradition.
Held2
5# H)tradition .s a Gaor .nstrument for the 4uppression of Crime#
First, e)tradition treaties are entered into for the purpose of suppressing crime "* facilitating
the arrest and custodial transfer of a fugiti!e from one state to the other#
:ith the ad!ent of easier and faster means of international tra!el, the Qight of aXuent
criminals from one countr* to another for the purpose of committing crime and e!ading prosecution
has "ecome more fre+uent# Accordingl*, go!ernments are adusting their methods of dealing with
criminals and crimes that transcend international "oundaries#
Toda*, a maorit* of nations in the world communit* ha!e come to loo& upon e?tradition as
the maBor eQe#tive instrument of international #o+operation in the suppression of #rime.D .t is the
onl* regular s*stem that has "een de!ised to return fugiti!es to the urisdiction of a court competent
to tr* them in accordance with municipal and international law#
A ) )
.ndeed, in this era of glo"ali'ation, easier and faster international tra!el, and an e)panding
ring of international crimes and criminals, we cannot a-ord to "e an isolationist state# :e need to
cooperate with other states in order to impro!e our chances of suppressing crime in our countr*#
2# The 9e+uesting 4tate :ill Accord ?ue /rocess to the Accused#
2e#ond, an e)tradition treat* presupposes that "oth parties thereto ha!e e)amined, and that
"oth accept and trust, each other;s legal s*stem and udicial process. Gore pointedl*, our dul*
authori'ed representati!e;s signature on an e)tradition treat* signifes our confdence in the capacit*
and willingness of the other state to protect the "asic rights of the person sought to "e e)tradited.
That signature signifes our full faith that the accused will "e gi!en, upon e)tradition to the re+uesting
state, all rele!ant and "asic rights in the criminal proceedings that will ta&e place therein6 otherwise,
the treat* would not ha!e "een signed, or would ha!e "een directl* attac&ed for its
unconstitutionalit*#
=# The /roceedings Are 4ui 0eneris#
Third, as pointed out in 2e#retar& of Austi#e v. ;antion, e)tradition proceedings are not criminal
in nature# .n criminal proceedings, the constitutional rights of the accused are at fore6 in e)tradition
which is sui %eneris J in a class "* itself J the* are not#
A ) )
0i!en the foregoing, it is e!ident that the e)tradition court is not called upon to ascertain the
guilt or the innocence of the person sought to "e e)tradited# 4uch determination during the
e)tradition proceedings will onl* result in needless duplication and dela*# H)tradition is merel* a
measure of international udicial assistance through which a person charged with or con!icted of a
crime is restored to a urisdiction with the "est claim to tr* that person# .t is not part of the function of
the assisting authorities to enter into +uestions that are the prerogati!e of that urisdiction. The
ultimate purpose of e?tradition pro#eedin%s in #ourt is onl& to determine whether the e?tradition
re8uest #omplies with the ,?tradition Treat&, and whether the person sou%ht is e?tradita"le.
Compliance 4hall 2e in 0ood 1aith#
Fourth, our e)ecuti!e "ranch of go!ernment !oluntaril* entered into the H)tradition Treat*,
and our legislati!e "ranch ratifed it# Cence, the Treat* carries the presumption that its
implementation will ser!e the national interest#
1ulflling our o"ligations under the H)tradition Treat* promotes comit* (.n line with the
/hilippine polic* of cooperation and amit* with all nations set forth in Article .., 4ection 2,
Constitution)# Bn the other hand, failure to fulfll our o"ligations thereunder paints at "ad image of
our countr* "efore the world communit*# 4uch failure would discourage other states from entering
into treaties with us, particularl* an e)tradition treat* that hinges on reciprocit*#
3eril*, we are "ound "* pa#ta sunt servanda to compl* in good faith with our o"ligations under
the Treat*. This principle re+uires that we deli!er the accused to the re+uesting countr* if the
conditions precedent to e)tradition, as set forth in the Treat*, are satisfed# .n other words, LtMhe
demanding go!ernment, when it has done all that the treat* and the law re+uire it to do, is entitled to
the deli!er* of the accused on the issue of the proper warrant, and the other go!ernment is under
o"ligation to ma&e the surrender#$ Accordingl*, the /hilippines must "e read* and in a position to
deli!er the accused, should it "e found proper#
74
There .s an Inderl*ing 9is& of 1light#
Fifth, persons to "e e)tradited are presumed to "e Qight ris&s# This prima facie presumption
fnds reinforcement in the e)perience of the e)ecuti!e "ranchD nothing short of confnement can
ensure that the accused will not Qee the urisdiction of the re+uested state in order to thwart their
e)tradition to the re+uesting state# (!overnment of the Dnited 1tates of America v. Hon.
!'illermo +'r6anan !.". #o. 158%71 1ept. 25 2002 3n 7anc *+an6aniban,-
5$%. Disc'ss the Ten +oints to consider in 34tradition +roceedin6s0
Held2 5# The ultimate purpose of e)tradition proceedings is to determine whether the re+uest
e)pressed in the petition, supported "* its anne)es and the e!idence that ma* "e adduced during the
hearing of the petition, complies with the H)tradition Treat* and <aw6 and whether the person sought
is e)tradita"le# The proceedings are intended merel* to assist the re+uesting state in "ringing the
accused J or the fugiti!e who has illegall* escaped J "ac& to its territor*, so that the criminal process
ma* proceed therein#
2# 2* entering into an e)tradition treat*, the /hilippines is deemed to ha!e reposed its trust in
the relia"ilit* or soundness of the legal and udicial s*stem of its treat* partner6 as well as in the
a"ilit* and the willingness of the latter to grant "asic rights to the accused in the pending criminal
case therein#
=# 2* nature then, e)tradition proceedings are not e+ui!alent to a criminal case in which guilt
or innocence is determined# Conse+uentl*, an e)tradition case is not one in which the constitutional
rights of the accused are necessaril* a!aila"le# .t is more a&in, if at all, to a court;s re+uest to police
authorities for the arrest of the accused who is at large or has escaped detention or umped "ail#
Ca!ing once escaped the urisdiction of the re+uesting state, the reasona"le prima facie presumption
is that the person would escape again if gi!en the opportunit*#
4# .mmediatel* upon receipt of the petition for e)tradition and its supporting documents, the
udge shall ma&e a prima facie fnding whether the petition is su(cient in form and su"stance,
whether it complies with the H)tradition Treat* and <aw, and whether the person sought is
e)tradita"le# The magistrate has discretion to re+uire the petitioner to su"mit further documentation,
or to personall* e)amine the a(ants or witnesses# .f con!inced that a prima facie case e)ists, the
udge immediatel* issues a warrant for the arrest of the potential e)traditee and summons him or her
to answer and to appear at scheduled hearings on the petition#
5# After "eing ta&en into custod*, potential e)traditees ma* appl* for "ail# 4ince the
applicants ha!e a histor* of a"sconding, the* ha!e the "urden of showing that (a) there is no Qight
ris& and no danger to the communit*6 and (") there e)ist special, humanitarian or compelling
circumstances# The grounds used "* the highest court in the re+uesting state for the grant of "ail
therein ma* "e considered, under the principle of reciprocit* as a special circumstance# .n e)tradition
cases, "ail is not a matter of right6 it is su"ect to udicial discretion in the conte)t of the peculiar facts
of each case#
># /otential e)traditees are entitled to the rights to due process and to fundamental fairness#
?ue process does not alwa*s call for a prior opportunit* to "e heard# A su"se8uent opportunit* is
su(cient due to the Qight ris& in!ol!ed# .ndeed, a!aila"le during the hearings on the petition and the
answer is the full chance to "e heard and to eno* fundamental fairness that is #ompati"le with the
summar& nature of e)tradition#
%# This Court will alwa*s remain a protector of human rights, a "astion of li"ert*, a "ulwar& of
democrac* and the conscience of societ*# 2ut it is also well aware of the limitations of its authorit*
and of the need for respect for the prerogati!es of the other co,e+ual and co,independent organs of
go!ernment#
F# :e reali'e that e)tradition is essentiall* an e)ecuti!e, not a udicial, responsi"ilit* arising
out of the presidential power to conduct foreign relations and to implement treaties# Thus, the
H)ecuti!e ?epartment of go!ernment has "road discretion in its dut* and power of implementation#
@# Bn the other hand, courts merel* perform o!ersight functions and e)ercise re!iew authorit*
to pre!ent or e)cise gra!e a"use and t*rann*# The* should not allow contortions, dela*s and o!er,
due process$ e!er* little step of the wa*, lest these summar& e)tradition proceedings "ecome not
onl* inutile "ut also sources of international em"arrassment due to our ina"ilit* to compl* in good
faith with a treat* partner;s simple re+uest to return a fugiti!e# :orse, our countr* should not "e
con!erted into a du"ious ha!en where fugiti!es and escapees can unreasona"l* dela*, mummif*,
moc&, frustrate, chec&mate and defeat the +uest for "ilateral ustice and international cooperation#
50# At "ottom, e)tradition proceedings should "e conducted with all deli"erate speed to
determine compliance with the H)tradition Treat* and <aw6 and, while safeguarding "asic indi!idual
rights, to a!oid the legalistic contortions, dela*s and technicalities that ma* negate that purpose#
(!overnment of the Dnited 1tates of America v. Hon. !'illermo +'r6anan !.". #o.
158%71 1ept. 25 2002 3n 7anc *+an6aniban,-
< Characteristics of an e4tradition Treat(
75
H)tradition has thus "een characteri'ed as the right of a foreign power, created "* treat*, to
demand the surrender of one accused or con!icted of a crime within its territorial urisdiction, and the
correlati!e dut* of the other state to surrender him to the demanding state# .t is not a criminal
proceeding# H!en if the potential e)traditee is a criminal, an e)tradition proceeding is not "* its nature
criminal, for it is not punishment for a crime, e!en though such punishment ma* follow e)tradition# .t
is sui %eneris, tracing its e)istence wholl* to treat* o"ligations "etween di-erent nations# I* $, &"* )
*!$)l *" de*e!#$&e *-e %u$l* "! $&&"(e&(e " *-e ."*e&*$)l e=*!)d$*ee0 8or is it a full,"lown ci!il
action, "ut one that is merel* administrati!e $& (-)!)(*e!0
5=
.ts o"ect is to pre!ent the escape of a
person accused or con!icted of a crime and to secure his return to the state from which he Qed, for
the purpose of trial or punishment#
2ut while e)tradition is not a criminal proceeding, it is characteri'ed "* the followingD (a) it entails a
depri!ation of li"ert* on the part of the potential e)traditee and (") *-e #e)&, e#.l"/ed *" )**)$&
*-e .u!.",e " e=*!)d$*$"& $, )l," >*-e #)(-$&e!/ " (!$#$&)l l)+0> This is shown "* 4ection >
of /#?# 8o# 50>@ (The /hilippine H)tradition <aw) which mandates the V$##ed$)*e )!!e,* )&d
*e#."!)!/ de*e&*$"& " *-e )((u,edV if such Vwill "est ser!e the interest of ustice#V :e further
note that 4ection 20 allows the re+uesting state Vin case of urgenc*V to as& for the V.!"3$,$"&)l
)!!e,* " *-e )((u,ed4 .e&d$&% !e(e$.* " *-e !e:ue,* "! e=*!)d$*$"&?V and that release from
pro!isional arrest Vshall not preudice re,arrest and e)tradition of the accused if a re+uest for
e)tradition is recei!ed su"se+uentl*#V
B"!iousl*, an e)tradition proceeding, while ostensi"l* administrati!e, "ears all earmar&s of a criminal
process# A ."*e&*$)l e=*!)d$*ee #)/ 5e ,u5@e(*ed *" )!!e,*4 *" ) .!"l"&%ed !e,*!)$&* "
l$5e!*/4 )&d "!(ed *" *!)&,e! *" *-e de#)&d$&% ,*)*e "ll"+$&% *-e .!"(eed$&%,0
VTemporar* detentionV ma* "e a necessar* step in the process of e)tradition, "ut the length of time of
the detention should "e reasona"le#
(Hon6>on6 !overnment vs. Olalia !.". #o. 1%)$7% April 19 2007-
5$$. .hat is a Treat(0 Disc'ss.
Held2 A treat*, as defned "* the 6ienna Convention on the ;aw of Treaties, is an
international instrument concluded "etween 4tates in written form and go!erned "* international law,
whether em"odied in a single instrument or in two or more related instruments, and whate!er its
particular designation#$ There are man* other terms used for a treat* or international agreement,
some of which areD act, protocol, agreement, #ompromis dT ar"itra%e, concordat, con!ention,
declaration, e)change of notes, pact, statute, charter and modus vivendi. All writers, from Cugo
0rotius onward, ha!e pointed out that the names or titles of international agreements included under
the general term treat& ha!e little or no signifcance# Certain terms are useful, "ut the* furnish little
more than mere description
Article 2L2M of the 3ienna Con!ention pro!ides that the pro!isions of paragraph 5 regarding
the use of terms in the present Con!ention are without preudice to the use of those terms, or to the
meanings which ma* "e gi!en to them in the internal law of the 4tate#$ (7ABA# *7a6on6
Al(ansan6 @a>aba(an, v. 34ec'tive 1ecretar( "onaldo Samora !.". #o. 1)8%70 Oct. 10
2000 3n 7anc *7'ena,-
5$7. Disc'ss the bindin6 eEect of treaties and e4ec'tive a6reements in international
la/.
Held2 L.Mn international law, there is no di-erence "etween treaties and e)ecuti!e
agreements in their "inding e-ect upon states concerned, as long as the functionaries ha!e remained
within their powers. .nternational law continues to ma&e no distinction "etween treaties and
e)ecuti!e agreementsD the* are e+uall* "inding o"ligations upon nations# (7ABA# *7a6on6
Al(ansan6 @a>aba(an, v. 34ec'tive 1ecretar( "onaldo Samora !.". #o. 1)8%70 Oct. 10
2000 3n 7anc *7'ena,-
5$8. Do the +hilippines reco6niAe the bindin6 eEect of e4ec'tive a6reements even
/itho't the conc'rrence of the 1enate or Con6ress0
Held2 .n our urisdiction, we ha!e recogni'ed the "inding e-ect of e)ecuti!e agreements e!en
without the concurrence of the 4enate or Congress# .n Commissioner of Customs v. ,astern 2ea
Tradin%, we had occasion to pronounceD
) ) ) the right of the H)ecuti!e to enter into "inding agreements without the
necessit* of su"se+uent Congressional appro!al has "een #onFrmed "& lon% usa%e. 1rom the
earliest da*s of our histor* we ha!e entered into e)ecuti!e agreements co!ering such su"ects
as commercial and consular relations, most,fa!ored,nation rights, patent rights, trademar&
and cop*right protection, postal and na!igation arrangements and the settlement of claims#
The validit& of these has never "een seriousl& 8uestioned "& our #ourts.S
(7ABA# *7a6on6 Al(ansan6 @a>aba(an, v. 34ec'tive 1ecretar( "onaldo Samora !.". #o.
1)8%70 Oct. 10 2000 3n 7anc *7'ena,-
5$9. .hat is a Rprotocol de clot'reR0 .ill it re:'ire conc'rrence b( the 1enate0
Held2 A Fnal a#t, sometimes called proto#ol de #loture, is an instrument which records the
winding up of the proceedings of a diplomatic conference and usuall* includes a reproduction of the
76
te)ts of treaties, con!entions, recommendations and other acts agreed upon and signed "* the
plenipotentiaries attending the conference# .t is not the treat* itself# .t is rather a summar* of the
proceedings of a protracted conference which ma* ha!e ta&en place o!er se!eral *ears# .t will not
re+uire the concurrence of the 4enate# The documents contained therein are deemed adopted
without need for ratifcation# (Tanada v. An6ara 272 1C"A 18 @a( 2 1997 *+an6aniban,-
570. .hat is the ;most9favored9nation< cla'se0 .hat is its p'rpose0
A&,+e!2 5# The most,fa!ored,nation clause ma* "e defned, in general, as a pledge "* a
contracting part* to a treat* to grant to the other part* treatment not less fa!ora"le than that which
has "een or ma* "e granted to the most fa!ored$ among other countries# The clause has "een
commonl* included in treaties of commercial nature# (1alon6a U Bap +'blic 2nternational =a/
%
th
3dition 1992 pp. 1519152-
2# The purpose of a most fa!ored nation clause is to grant to the contracting part* treatment
not less fa!ora"le than that which has "een or ma* "e granted to the Vmost fa!oredV among other
countries# The most fa!ored nation clause is intended to esta"lish the principle of e+ualit* of
international treatment "* pro!iding that the citi'ens or su"ects of the contracting nations ma* eno*
the pri!ileges accorded "* either part* to those of the most fa!ored nation (Commissioner of
2nternal "even'e v. 1.C. &ohnson and 1on 2nc. )09 1C"A 87 1079108 &'ne 2% 1999 )
rd
Div. *!onAa6a9"e(es,-
571. .hat are the t/o t(pes of most9favored nation cla'se0
HeldD There are generall* two t*pes of most,fa!ored,nation clause, namel*, conditional and
unconditional# According to the clause in its unconditional form, an* ad!antage of whate!er &ind
which has "een or ma* in future "e granted "* either of the contracting parties to a third 4tate shall
simultaneousl* and unconditionall* "e e)tended to the other under the same or e+ui!alent conditions
as those under which it has "een granted to the third 4tate# (1alon6a U Bap +'blic 2nternational
=a/ %
th
3dition 1992 pp. 1519152-
572. Disc'ss the essence of the principle behind the Rmost9favored9nationR cla'se as
applied to ta4 treaties0
Held2 The essence of the principle is to allow the ta)pa*er in one state to a!ail of more
li"eral pro!isions granted in another ta) treat* to which the countr* of residence of such ta)pa*er is
also a part* pro!ided that the su"ect matter of ta)ation ) ) ) is the same as that in the ta) treat*
under which the ta)pa*er is lia"le#
.n Commissioner of 2nternal "even'e v. 1.C. &ohnson and 1on 2nc. )09 1C"A 87
&'ne 2% 1999 the 4C did not grant the claim fled "* 4#C# Eohnson and 4on, .nc#, a non,resident
foreign corporation "ased in the I4A, with the 2.9 for refund of o!erpaid withholding ta) on ro*alties
pursuant to the most,fa!ored,nation clause of the 9/,I4 Ta) Treat* in relation to the 9/,:est
0erman* Ta) Treat*# .t heldD
0i!en the purpose underl*ing ta) treaties and the rationale for the most fa!ored nation
clause, the concessional ta) rate of 50 percent pro!ided for in the 9/,0erman* Ta) Treat*
should appl* onl* if the ta)es imposed upon ro*alties in the 9/,I4 Ta) Treat* and in the 9/,
0erman* Ta) Treat* are paid under similar circumstances# This would mean that pri!ate
respondent (4#C# Eohnson and 4on, .nc#) must pro!e that the 9/,I4 Ta) Treat* grants similar
ta) reliefs to residents of the Inited 4tates in respect of the ta)es imposa"le upon ro*alties
earned from sources within the /hilippines as those allowed to their 0erman counterparts
under the 9/,0erman* Ta) Treat*#
The 9/,I4 and the 9/,:est 0erman* Ta) Treaties do not contain similar pro!isions on
ta) crediting# Article 24 of the 9/,0erman* Ta) Treat* ) ) ) e)pressl* allows crediting against
0erman income and corporation ta) of 20W of the gross amount of ro*alties paid under the
law of the /hilippines# Bn the other hand, Article 2= of the 9/,I4 Ta) Treat*, which is the
counterpart pro!ision with respect to relief for dou"le ta)ation, does not pro!ide for similar
crediting of 20W of the gross amount of ro*alties paid# A ) )
A ) ) The entitlement of the 50W rate "* I#4# frms despite the a"sence of matching
credit (20W for ro*alties) would derogate from the design "ehind the most fa!ored nation
clause to grant e+ualit* of international treatment since the ta) "urden laid upon the income
of the in!estor is not the same in the two countries# The similarit* in the circumstances of
pa*ment of ta)es is a condition for the eno*ment of most fa!ored nation treatment precisel*
to underscore the need for e+ualit* of treatment#
57). Disc'ss the nat're of ratiCcation in the treat(9ma>in6 process0
Held2 9atifcation is generall* held to "e an e)ecuti!e act, underta&en "* the head of state or
of the go!ernment, as the case ma* "e, through which the formal acceptance of the treat* is
proclaimed. A 4tate ma* pro!ide in its domestic legislation the process of ratifcation of a treat*#
(7ABA# *7a6on6 Al(ansan6 @a>aba(an, v. 34ec'tive 1ecretar( "onaldo Samora !.". #o.
1)8%70 Oct. 10 2000 3n 7anc *7'ena,-
77
575. Ho/ is the consent of the 1tate to be bo'nd b( a treat( b( ratiCcation
e4pressed0
HeldD The consent of the 4tate to "e "ound "* a treat* is e)pressed "* ratifcation whenD (a)
the treat* pro!ides for such ratifcation, (") it is otherwise esta"lished that the negotiating 4tates
agreed that ratifcation should "e re+uired, (c) the representati!e of the 4tate has signed the treat*
su"ect to ratifcation, or (d) the intention of the 4tate to sign the treat* su"ect to ratifcation appears
from the full powers of its representati!e, or was e)pressed during the negotiation. (7ABA#
*7a6on6 Al(ansan6 @a>aba(an, v. 34ec'tive 1ecretar( "onaldo Samora !.". #o. 1)8%70
Oct. 10 2000 3n 7anc *7'ena,-
57%. Disc'ss the eEect of the ratiCcation of the Iisitin6 ?orces A6reement (I?A-.
Held2 :ith the ratifcation of the 31A, which is e+ui!alent to fnal acceptance, and with the
e)change of notes "etween the /hilippines and the Inited 4tates of America, it now "ecomes
o"ligator* and incum"ent on our part, under the principles of international law, to "e "ound "* the
terms of the agreement# Thus, no less than 4ection 2, Article .. of the Constitution, declares that the
/hilippines adopts the generall* accepted principles of international law as part of the law of the land
and adheres to the polic* of peace, e+ualit*, ustice, freedom, cooperation and amit* with all nations#
As a mem"er of the famil* of nations, the /hilippines agrees to "e "ound "* generall*
accepted rules for the conduct of its international relations# :hile the international o"ligation
de!ol!es upon the state and not upon an* particular "ranch, institution, or indi!idual mem"er of its
go!ernment, the /hilippines is nonetheless responsi"le for !iolations committed "* an* "ranch or
su"di!ision of its go!ernment or an* o(cial thereof# As an integral part of the communit* of nations,
we are responsi"le to assure that our go!ernment, Constitution and laws will carr* out our
international o"ligation. Cence, we cannot readil* plead the Constitution as a con!enient e)cuse for
non,compliance with our o"ligations, duties and responsi"ilities under international law#
2e*ond this, Article 5= of the ?eclaration of 9ights and ?uties of 4tates adopted "* the
.nternational <aw Commission in 5@4@ pro!idesD ,ver& 2tate has the dut& to #arr& out in %ood faith its
o"li%ations arisin% from treaties and other sour#es of international law, and it ma& not invo5e
provisions in its #onstitution or its laws as an e?#use for failure to perform this dut&.
H+uall* important is Article 2> of the Con!ention which pro!ides that H!er* treat* in force is
"inding upon the parties to it and must "e performed "* them in good faith#$ This is &nown as the
principle of pa#ta sunt servanda which preser!es the sanctit* of treaties and ha!e "een one of the
most fundamental principles of positi!e international law, supported "* the urisprudence of
international tri"unals. (7ABA# *7a6on6 Al(ansan6 @a>aba(an, v. 34ec'tive 1ecretar(
"onaldo Samora !.". #o. 1)8%70 Oct. 10 2000 )52 1C"A 559 592959) 3n 7anc
*7'ena,-
57$. 34plain the ;pacta s'nt servanda< r'le.
Held2 Bne of the oldest and most fundamental rules in international law is pa#ta sunt
servanda P international agreements must "e performed in good faith# A treat* engagement is not a
mere moral o"ligation "ut creates a legall* "inding o"ligation on the parties ) ) )# A state which has
contracted !alid international o"ligations is "ound to ma&e in its legislations such modifcations as
ma* "e necessar* to ensure the fulfllment of the o"ligations underta&en#$ (Tanada v. An6ara 272
1C"A 18 @a( 2 1997 *+an6aniban,-
577. 34plain the Rreb's sic stantib'sR r'le (i.e. thin6s remainin6 as the( are-.
Held2 According to Aessup, the doctrine constitutes an attempt to formulate a legal principle
which would ustif* non,performance of a treat* o"ligation if the conditions with rela tion to which the
parties contracted ha!e changed so materiall* and so une)pectedl* as to create a situation in which
the e)action of performance would "e unreasona"le# The &e* element of this doctrine is the !ital
change in the condition of the contracting parties that the* could not ha!e foreseen at the time the
treat* was concluded# (1antos 222 v. #orth/est Orient Airlines 210 1C"A 2%$ &'ne 2) 1992-
578. Does the ;reb's sic stantib's< r'le operate a'tomaticall( to render a treat(
inoperative0
Held2 The doctrine of re"us si# stanti"us does not operate automaticall* to render the treat*
inoperati!e# There is a necessit* for a formal act of reection, usuall* made "* the head of state, with
a statement of the reasons wh* compliance with the treat* is no longer re+uired# (1antos 222 v.
#orth/est Orient Airlines 210 1C"A 2%$ &'ne 2) 1992-
579. .hat is the ;Doctrine of 3Eective #ationalit(< (!en'ine =in> Doctrine-0
Held2 This principle is e)pressed in Arti#le > of the :a%ue Convention of 19=9 on the ConJi#t
of /ationalit& ;aws as followsD
Art# 5# :ithin a third 4tate a person ha!ing more than one nationalit* shall "e treated
as if he had onl* one# :ithout preudice to the application of its law in matters of personal
status and of an* con!ention in force, a third 4tate shall, of the nationalities which an* such
person possesses, recogni'e e)clusi!el* in its territor* either the nationalit* of the countr* in
78
which he is ha"ituall* and principall* resident or the nationalit* of the countr* with which in
the circumstances he appears to "e in fact most closel* connected# (?rivaldo v. CO@3=3C
175 1C"A 25% &'ne 2) 1989-

79