POLITICAL LAW

I. GENERAL PRINCIPLES
Definition of Political Law
Is the branch of public law which deals with the organization and operation of
the governmental organs of the State and defines the relations of the State
with the inhabitants of its territory. It embraces constitutional law, law of
public officers, law on elections, and law of public corporations.
Backgroun of t!e "#$% Con&titution
1. Proclamation of the Freedom Constitution
a. Proclamation o. 1, February !", 1#$%, announcing that she &Corazon
'(uino) and *P +aurel were assuming power.
b. ,-ecutive .rder o.1, &Febrauary !$, 1#$%)
c. Proclamation o./, 0arch !", 1#$%, announced the promulgation of the
Provisional &Freedom) Constitution, pending the drafting and ratification
of a new Constitution. It adopted certain provisions in the 1#1/
Constitution, contained additional articles on the e-ecutive department,
on government reorganization, and on e-isting laws. It also provided of
the calling of a Constitutional Commission to be composed of /23"2
members to draft a new Constitution.
!. 'doption of the Constitution
a. Proclamation o. #, creating the Constitutional Commission of "2
members.
b. 'pproval of the draft Constitution by the Constitutional Commission on
.ctober 1", 1#$%
c. Plebiscite held on February !, 1#$1
d. Proclamation o. "$, proclaiming the
e. 4atification of the Constitution.
/. ,ffectivity of the 1#$1 Constitution5 February !
In re' Puno
1
6he government under Cory '(uino and the Freedom Constitution is a de 7ure
government. It was established by authority of the legitimate sovereign, the
people. It was a revolutionary government in defiance of the 1#1/
Constitution.
E&traa (&. Arro)o
ISS*E NO. "'
.ur leading case is 6anada v. Cuenco, where this Court, through former Chief
8ustice 4oberto Concepcion, held that +olitical ,ue&tion& refer -to t!o&e
,ue&tion& w!ic!. uner t!e Con&titution. are to /e ecie /) t!e +eo+le
in t!eir &o(ereign ca+acit). or in regar to w!ic! full i&cretionar)
aut!orit) !a& /een elegate to t!e legi&lati(e or e0ecuti(e /ranc! of t!e
go(ern1ent. It is concerned with issues dependent upon the wisdom, not legality
of a particular measure.9 6o a great degree, the 1#$1 Constitution has narrowed the
reach of the political (uestion doctrine when it e-panded the power of 7udicial
review of this court not only to settle actual controversies involving rights which are
legally demandable and enforceable but also to determine whether or not there has
been a grave abuse of discretion amounting to lac: or e-cess of 7urisdiction on the
part of any branch or instrumentality of government.
No le&& t!an t!e 2reeo1 Con&titution eclare t!at t!e A,uino
go(ern1ent wa& in&talle t!roug! a irect e0erci&e of t!e +ower of t!e
2ili+ino +eo+le -in efiance of t!e +ro(i&ion& of t!e "#%3 Con&titution. a&
a1ene.- In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is /e)on 4uicial &crutin) for t!at
go(ern1ent auto1aticall) or/it& out of t!e con&titutional loo+. In
chec:ered contrast, the government of respondent 'rroyo is not revolutionary in
character. 6he oath that she too: at the ,;S' Shrine is the oath under the 1#$1
Constitution. In her oath, she categorically swore to preserve and defend the 1#$1
Constitution. Indeed, she has stressed that she is discharging the powers of the
presidency under the authority of the 1#$1 Constitution.
In fine, the legal distinction between ,;S' People Power I ,;S' People Power II is
clear. EDSA I in(ol(e& t!e e0erci&e of t!e +eo+le +ower of re(olution w!ic!
o(ert!rew t!e w!ole go(ern1ent. EDSA II i& an e0erci&e of +eo+le +ower
of freeo1 of &+eec! an freeo1 of a&&e1/l) to +etition t!e go(ern1ent
for rere&& of grie(ance& w!ic! onl) affecte t!e office of t!e Pre&ient.
,;S' I is e-tra constitutional and the legitimacy of the new government that
resulted from it cannot be the sub7ect of 7udicial review, but ,;S' II is intra
constitutional and the resignation of the sitting President that it caused and the
succession of the *ice President as President are sub7ect to 7udicial review. EDSA I
+re&ente a +olitical ,ue&tion5 EDSA II in(ol(e& legal ,ue&tion&. ' brief
!
discourse on freedom of speech and of the freedom of assembly to petition the
government for redress of grievance which are the cutting edge of ,;S' People
Power II is not inappropriate.
&in short5 'rroyo<s ascendancy is sub7ect to 7udicial review, which comes to the ne-t
(uestion, is her administration a legitimate one=)
ISS*E NO. 6'
6he issue then is whether the petitioner resigned as President or should be
considered resigned as of 8anuary !2, !221 when respondent too: her oath as the
1>th President of the Public. 4esignation is not a high level legal abstraction. It is a
factual (uestion and its elements are beyond (uibble5 t!ere 1u&t /e an intent to
re&ign an t!e intent 1u&t /e cou+le /) act& of relin,ui&!1ent. T!e
(aliit) of a re&ignation i& not go(erne /) an) for1al re,uire1ent a& to
for1. It can /e oral. It can /e written. It can /e e0+re&&. It can /e i1+lie.
A& long a& t!e re&ignation i& clear. it 1u&t /e gi(en legal effect.
In the cases at bar, the facts show that petitioner did not write any formal letter of
resignation before he evacuated 0alaca?ang Palace in the afternoon of 8anuary !2,
!221 after the oath3ta:ing of respondent 'rroyo. Conse(uently, whether or not
petitioner resigned has to be determined from his act and omissions before, during
and after 8anuary !2, !221 or by the totality of prior, contemporaneous and
posterior facts and circumstantial evidence bearing a material relevance on the
issue.
@sing this totality test, we hold that petitioner resigned as President.
6he window is provided in the 9Final ;ays of 8oseph ,7ercito ,strada,9 the diary of
,-ecutive Secretary 'ngara serialized in the Philippine ;aily In(uirer.
6he petitioner decided to call for a snap presidential election and stressed he
would not be a candidate. 6he proposal for a snap election for president in
0ay where he would not be a candidate is an indicium that petitioner had
intended to give up the presidency even at that time.
Former President 4amos called up Secretary 'ngara and re(uested, 9,d,
magtulungan tayo para mag:aroon tayo ng &letAs cooperate to ensure a)
peaceful and orderly transfer of power.9 6here was no defiance to the
re(uest. Secretary 'ngara readily agreed. 'gain, we note that at this stage,
the problem was already about a peaceful and orderly transfer of power. 6he
resignation of the petitioner was implied.
/
Petitioner contends that the impeachment proceeding is an administrative
investigation that, under section 1! of 4' /21#, bars him from resigning. Be
hold otherwise. 6he e-act nature of an impeachment proceeding is
debatable. Cut even assuming arguendo that it is an administrative
proceeding, it cannot /e con&iere +ening at t!e ti1e +etitioner
re&igne /ecau&e t!e +roce&& alrea) /roke own w!en a 1a4orit)
of t!e &enator74uge& (ote again&t t!e o+ening of t!e &econ
en(elo+e. t!e +u/lic an +ri(ate +ro&ecutor& walke out. t!e +u/lic
+ro&ecutor& file t!eir 8anife&tation of Wit!rawal of A++earance.
an t!e +roceeing& were +o&t+one inefinitel). 6here was, in effect,
no impeachment case pending against petitioner when he resigned.
9Sec. 1!. o public officer shall be allowed to resign or retire pending
an investigation, criminals or administrative, or pending a prosecution
against him, for any offense under this 'ct or under the provisions of
the 4evised Penal Code on bribery.9
&6herefore, through his implied acts, notwithstanding section 1! of 4' /21#,
petitioner is deemed resigned.)
ISS*E NO. 3
W!at lea+& to t!e e)e fro1 t!e&e irrefuta/le fact& i& t!at /ot! !ou&e& of
Congre&& !a(e recogni9e re&+onent Arro)o a& t!e Pre&ient. Implicitly
clear in that recognition is the premise that the inability of petitioner ,strada is no
longer temporary. Congress has clearly re7ected petitionerAs claim of inability.
6hrough Douse 4esolution 11% and 11$ and Senate 4esolution $! and $/ which
confirms PE0'<s assumption of office and confirming Euingona<s nomination as well
as both houses of Congress started sending bills to be signed into law by
respondent 'rroyo as President is clear proof that ,strada<s claim for inability has
been re7ected by CongressF
6he (uestion is whether this Court has 7urisdiction to review the claim of temporary
inability of petitioner ,strada and thereafter revise the decision of both Douses of
Congress recognizing respondent 'rroyo as president of the Philippines. Following
Ta:aa (. Cuenco. we !ol t!at t!i& Court cannot e0erci&e it& 4uicial
+ower or t!i& i& an i&&ue -in regar to w!ic! full i&cretionar) aut!orit)
!a& /een elegate to t!e Legi&lati(e 000 /ranc! of t!e go(ern1ent.- Or
to u&e t!e language in Baker (&. Carr. t!ere i& a -te0tuall) e1on&tra/le
or a lack of 4uiciall) i&co(era/le an 1anagea/le &tanar& for re&ol(ing
it.- Clearly, the Court cannot pass upon petitionerAs claim of inability to discharge
the power and duties of the presidency. T!e ,ue&tion i& +olitical in nature an
are&&e &olel) to Congre&& /) con&titutional fiat. It i& a +olitical i&&ue.
>
w!ic! cannot /e ecie /) t!i& Court wit!out tran&gre&&ing t!e +rinci+le
of &e+aration of +ower&.
In fine, even if the petitioner can prove that he did not resign, still, he cannot
successfully claim that he is a President on leave on the ground that he is merely
unable to govern temporarily. T!at clai1 !a& /een lai to re&t /) Congre&&
an t!e eci&ion t!at re&+onent Arro)o i& t!e e 4ure. +re&ient 1ae /)
a co7e,ual /ranc! of go(ern1ent cannot /e re(iewe /) t!i& Court.
ISS*E NO. ;
Since. t!e I1+eac!1ent Court i& now functu& officio. it i& untena/le for
+etitioner to e1an t!at !e &!oul fir&t /e i1+eac!e an t!en
con(icte /efore !e can /e +ro&ecute. 6he plea if granted, would put a
perpetual bar against his prosecution. Such a submission has nothing to commend
itself for it will place him in a better situation than a non3sitting President who has
not been sub7ected to impeachment proceedings and yet can be the ob7ect of a
criminal prosecution. To /e &ure. t!e e/ate& in t!e Con&titutional
Co11i&&ion 1ake it clear t!at w!en i1+eac!1ent +roceeing& !a(e
/eco1e 1oot ue to t!e re&ignation of t!e Pre&ient. t!e +ro+er cri1inal
an ci(il ca&e& 1a) alrea) /e file again&t !i1.
Be now come to the scope of immunity that can be claimed by petitioner as a non3
sitting President. 6he cases filed against petitioner ,strada are criminal in character.
6hey involve plunder, bribery and graft and corruption. Cy no stretch of the
imagination can these crimes, especially plunder which carries the death penalty,
be covered by the alleged mantle of immunity of a non3sitting president. Petitioner
cannot cite any decision of this Court licensing the President to commit criminal
acts and wrapping him with post3tenure immunity from liability. It will /e
ano1alou& to !ol t!at i11unit) i& an inoculation fro1 lia/ilit) for
unlawful act& an conition&. T!e rule i& t!at unlawful act& of +u/lic
official& are not act& of t!e State an t!e officer w!o act& illegall) i& not
acting a& &uc! /ut &tan& in t!e &a1e footing a& an) tre&+a&&er.
In the 1#1> case of @S v. i-on, @S President 4ichard i-on, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his
conversations with aids and advisers. Seven advisers of President i-onAs
associates were facing charges of conspiracy to obstruct 8ustice and other offenses,
which were committed in a burglary of the ;emocratic ational Dead(uarters in
BashingtonAs Batergate Dotel during the 1#1! presidential campaign. President
i-on himself was named an unindicted co3conspirator. President i-on moved to
(uash the subpoena on the ground, among others, that the President was not
sub7ect to 7udicial process and that he should first be impeached and removed from
office before he could be made amenable to 7udicial proceedings. T!e clai1 wa&
"
re4ecte /) t!e *S Su+re1e Court. It conclue t!at -w!en t!e groun for
a&&erting +ri(ilege a& to &u/+oenae 1aterial& &oug!t for u&e in a cri1inal
trial i& /a&e onl) on t!e generali9e intere&t in confientialit). it cannot
+re(ail o(er t!e funa1ental e1an& of ue +roce&& of law in t!e fair
a1ini&tration of cri1inal 4u&tice.- In the 1#$! case of Ni0on (. 2it9geral.
t!e *S Su+re1e Court furt!er !el t!at t!e i11unit) of t!e +re&ient
fro1 ci(il a1age& co(er& onl) -official act&.- 4ecently, the @S Supreme Court
had the occasion to reiterate this doctrine in the case of Clinton (. <one& w!ere it
!el t!at t!e *S Pre&ient=& i11unit) fro1 &uit& for 1one) a1age&
ari&ing out of t!eir official act& i& ina++lica/le to unofficial conuct.
ISS*E NO. >
Petitioner also contends that the respondent .mbudsman should be stopped from
conducting the investigation of the cases filed against him due to the barrage of
pre7udicial publicity on his guilt. De submits that the respondent .mbudsman has
developed bias and is all set file the criminal cases violation of his right to due
process.
In People vs. 6eehan:ee, 8r., later reiterated in the case of +arranaga vs. court of
'ppeals, et al., we laid down the doctrine that5
Per(a&i(e +u/licit) i& not +er &e +re4uicial to t!e rig!t of an accu&e to
fair trial. 6he mere fact that the trial of appellant was given a day3to3day, gavel3to3
gavel coverage does not by itself prove that the publicity so permeated the mind of
the trial 7udge and impaired his impartiality. For one, it is impossible to seal the
minds of members of the bench from pre3trial and other off3court publicity of
sensational criminal cases. T!e &tate of t!e art of our co11unication &)&te1
/ring& new& a& t!e) !a++en &traig!t to our /reakfa&t ta/le& an rig!t to
our /eroo1&. T!e&e new& for1 +art of our e(er)a) 1enu of t!e fact&
an fiction& of life. 2or anot!er. our iea of a fair an i1+artial 4uge i&
not t!at of a !er1it w!o i& out of touc! wit! t!e worl. Be have not installed
the 7ury system whose members are overly protected from publicity lest they lose
their impartially. --- --- ---. Our 4uge& are learne in t!e law an traine
to i&regar off7court e(ience an on7ca1era +erfor1ance& of +artie& to
litigation. T!eir 1ere e0+o&ure to +u/lication& an +u/licit) &tunt& oe&
not +er &e fatall) infect t!eir i1+artialit).
't best, appellant can only con7ure possibility of pre7udice on the part of the trial
7udge due to the barrage of publicity that characterized the investigation and trial of
the case. In 8artelino. et al. (. Ale4anro. et al.. we re4ecte t!i& &tanar
of +o&&i/ilit) of +re4uice an ao+te t!e te&t of actual +re4uice a& we
rule t!at to warrant a fining of +re4uicial +u/licit). t!ere 1u&t /e
allegation an +roof t!at t!e 4uge& !a(e /een unul) influence. not
%
&i1+l) t!at t!e) 1ig!t /e. /) t!e /arrage of +u/licit). In the case at a bar,
the records do not show that the trial 7udge developed actual bias against
appellants as a conse(uence of the e-tensive media coverage of the pre3trial and
trial of his case. T!e totalit) of circu1&tance& of t!e ca&e oe& not +ro(e
t!at t!e trial 4uge ac,uire a fi0e o+inion a& a re&ult of +re4uicial
+u/licit). w!ic! i& inca+a/le of c!ange e(en /) e(ience +re&ente uring
t!e trial. A++ellant !a& t!e /uren to +ro(e t!i& actual /ia& an !e !a& not
i&c!arge t!e /uren.=
II. PRINCIPLES AND POLICIES O2 T?E P?ILIPPINE GO@ERN8ENT
T?E PREA8BLE
Be, the sovereign Filipino people, imploring the aid of 'lmighty Eod, in order to
build a 7ust and humane society, and establish a Eovernment that shall embody our
ideals and aspirations, promote the common good, conserve and develop our
patrimony, and secure to ourselves and our posterity, the blessings of
independence and democracy under the rule of law and a regime of truth, 7ustice,
freedom, love, e(uality, and peace, do ordain and promulgate this Constitution.
ART. II' PRINCIPLES AND STATE POLICIES
P4ICIP+,S
Section 1. 6he Philippines is a e1ocratic an re+u/lican State. So(ereignt)
re&ie& in t!e +eo+le an all go(ern1ent aut!orit) e1anate&
fro1 t!e1.
Section !. 6he Philippines renounce& war a& an in&tru1ent of national
+olic). ao+t& t!e generall) acce+te +rinci+le& of
international law a& +art of t!e law of t!e lan and adheres to
the policy of peace, e(uality, 7ustice, freedom, cooperation, and amity
with all nations.
Section /. Ci(ilian aut!orit) i&. at all ti1e&. &u+re1e o(er t!e 1ilitar).
6he 'rmed Forces of the Philippines is the protector of the people and
the State. Its goal is to &ecure t!e &o(ereignt) of t!e State an
t!e integrit) of t!e national territor).
Section >. 6he +ri1e ut) of t!e Go(ern1ent i& to &er(e an +rotect t!e
+eo+le. 6he Eovernment may call upon the people to defend the
State and, in the fulfillment thereof, all citizens may be re(uired, under
conditions provided by law, to render personal, military or civil service.
Section ". 6he 1aintenance of +eace an orer. t!e +rotection of life.
li/ert). an +ro+ert). an +ro1otion of t!e general welfare are
1
essential for the en7oyment by all the people of the blessings of
democracy.
Section %. 6he &e+aration of C!urc! an State &!all /e in(iola/le.
S6'6, P.+ICI,S
Section 1. 6he State &!all +ur&ue an ine+enent foreign +olic). In its
relations with other states, the +ara1ount con&ieration &!all /e
national &o(ereignt). territorial integrit). national intere&t.
an t!e rig!t to &elf7eter1ination.
Section $. 6he Philippines, consistent with the national interest, ao+t& an
+ur&ue& a +olic) of freeo1 fro1 nuclear wea+on& in it&
territor).
Section #. 6he State &!all +ro1ote a 4u&t an )na1ic &ocial orer t!at will
en&ure t!e +ro&+erit) an ine+enence of t!e nation and free
the people from poverty through policies that provide ade(uate social
services, promote full employment, a rising standard of living, and an
improved (uality of life for all.
Section 12. 6he State &!all +ro1ote &ocial 4u&tice in all +!a&e& of national
development.
Section 11. 6he State (alue& t!e ignit) of e(er) !u1an +er&on an
guarantee& full re&+ect for !u1an rig!t&.
Section 1!. 6he State recogni9e& t!e &anctit) of fa1il) life an &!all +rotect
an &trengt!en t!e fa1il) a& a /a&ic autono1ou& &ocial
in&titution. It shall e(ually protect the life of the mother and the life
of the unborn from conception. 6he natural and primary right and duty
of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the
Eovernment.
Section 1/. 6he State recognizes the vital role of the youth in nation3building and
shall promote and protect their physical, moral, spiritual, intellectual,
and social well3being. It &!all inculcate in t!e )out! +atrioti&1
an nationali&1. an encourage t!eir in(ol(e1ent in +u/lic
an ci(ic affair&.
Section 1>. 6he State recognizes the role of women in nation3building, and shall
en&ure t!e funa1ental e,ualit) /efore t!e law of wo1en an
1en.
$
Section 1". 6he State shall protect and promote the right to health of the people
and in&till !ealt! con&ciou&ne&& a1ong t!e1.
Section 1%. 6he State &!all +rotect an a(ance t!e rig!t of t!e +eo+le to a
/alance an !ealt!ful ecolog) in accord with the rhythm and
harmony of nature.
Section 11. 6he State &!all gi(e +riorit) to eucation. &cience an
tec!nolog). art&. culture. an &+ort& to fo&ter +atrioti&1 an
nationali&1, accelerate social progress, and promote total human
liberation and development.
Section 1$. 6he State affir1& la/or a& a +ri1ar) &ocial econo1ic force. It
&!all +rotect t!e rig!t& of worker& an +ro1ote t!eir welfare.
Section 1#. 6he State &!all e(elo+ a &elf7reliant an ine+enent national
econo1) effecti(el) controlle /) 2ili+ino&.
Section !2. 6he State recogni9e& t!e ini&+en&a/le role of t!e +ri(ate
&ector. encourage& +ri(ate enter+ri&e. an +ro(ie& incenti(e&
to neee in(e&t1ent&.
Section !1. 6he State &!all +ro1ote co1+re!en&i(e rural e(elo+1ent an
agrarian refor1.
Section !!. 6he State recogni9e& an +ro1ote& t!e rig!t& of inigenou&
cultural co11unitie& within the framewor: of national unity and
development.
Section !/. 6he State &!all encourage non7go(ern1ental. co11unit)7
/a&e. or &ectoral organi9ation& that promote the welfare of the
nation.
Section !>. 6he State recogni9e& t!e (ital role of co11unication an
infor1ation in nation7/uiling.
Section !". 6he State shall en&ure t!e autono1) of local go(ern1ent&.
Section !%. 6he State &!all guarantee e,ual acce&& to o++ortunitie& for
+u/lic &er(ice an +ro!i/it +olitical )na&tie& as may be defined
by law.
Section !1. 6he State &!all 1aintain !one&t) an integrit) in t!e +u/lic
&er(ice and ta:e positive and effective measures against graft and
corruption.
#
Section !$. Sub7ect to reasonable conditions prescribed by law, the State ao+t&
an i1+le1ent& a +olic) of full +u/lic i&clo&ure of all it&
tran&action& in(ol(ing +u/lic intere&t.
6he Concept of State
' State is a community of persons, more or less numerous, permanently
occupying a definite portion of territory, independent of e-ternal control, and
possessing a government to which a great body of inhabitants render
habitual obedience. &CI4 vs. Campos 4ueda)
6he ,lements of a State
6erritory
6he national territory comprises the
P!ili++ine arc!i+elago,
with all the islands and waters embraced therein,
an all ot!er territorie& o(er w!ic! t!e P!ili++ine& !a&
&o(ereignt) or 4uri&iction.
consisting of its terre&trial. flu(ial an aerial
o1ain&,
including its territorial &ea. t!e &ea/e. t!e &u/&oil.
t!e in&ular &!el(e&, and other &u/1arine area&.
6he water& aroun. /etween. an connecting t!e
i&lan& of the archipelago, regardless of their breadth
and dimensions, for1 +art of t!e internal water& of
t!e P!ili++ine&. &'46. I)
'rt. ! of the 4evised Penal Code ma:es certain crimes punishable even
if committed outside the Philippines or 'rt. 1" of the Civil Code which
provides that +aws relating to family rights and duties or to the status,
condition, and legal capacity of persons are binding upon the citizens
of the Philippines, even though living abroad.
People
4efers to the sovereign Filipino people of the Philippines. 6he Preamble
of the 1#$1 Constitution e-pressly states that G Be, the sovereign
12
Filipino peopleH Gdo ordain and promulgate this Constitution.H 6hey are
the Citizens of the country because they alone en7oy civil and political
rights, entitled to vote and be voted to public positions and be
appointed to public offices, where they meet the re(uired
(ualifications. Bhile foreigners living in the country are entitled to
protection under the laws and re(uired to obey the laws, they are not
the sovereign Filipino people.
Citizenship &'rt. >, 1#$1 Constitution)
Section ". T!e following are citi9en& of t!e P!ili++ine&'
". T!o&e w!o are citi9en& of t!e P!ili++ine& at t!e ti1e of t!e
ao+tion of t!i& Con&titution5
6. T!o&e w!o&e fat!er& or 1ot!er& are citi9en& of t!e
P!ili++ine&5
3. T!o&e /orn /efore <anuar) "%. "#%3. of 2ili+ino 1ot!er&.
w!o elect P!ili++ine citi9en&!i+ u+on reac!ing t!e age of
1a4orit)5 an
;. T!o&e w!o are naturali9e in accorance wit! law.
Section !. atural3born citizens are those who are citizens of the Philippines from
birth without having to perform any act to ac(uire or perfect their
Philippine citizenship. 6hose who elect Philippine citizenship in
accordance with paragraph &/), Section 1 hereof shall be deemed
natural3born citizens.
Section /. Philippine citizenship may be lost or reac(uired in the manner provided
by law.
Section >. Citizens of the Philippines who marry aliens shall retain their
citizenship, unless by their act or omission, they are deemed, under
the law, to have renounced it.
Section ". ;ual allegiance of citizens is inimical to the national interest and shall
be dealt with by law.
Beng9on (& Cru9
T!ere are two wa)& of ac,uiring citi9en&!i+' A"B /) /irt!. an A6B /)
naturali9ation. T!e&e wa)& of ac,uiring citi9en&!i+ corre&+on to t!e two
kin& of citi9en&' t!e natural7/orn citi9en. an t!e naturali9e citi9en. A
+er&on w!o at t!e ti1e of !i& /irt! i& a citi9en of a +articular countr). i& a
natural7/orn citi9en t!ereof.
11
's defined in the same Constitution, natural7/orn citi9en& -are t!o&e citi9en&
of t!e P!ili++ine& fro1 /irt! wit!out !a(ing to +erfor1 an) act to ac,uire
or +erfect !i& P!ili++ine citi9en&!i+.-
On t!e ot!er !an. naturali9e citi9en& are t!o&e w!o !a(e /eco1e
2ili+ino citi9en& t!roug! naturali9ation. generally under Commonwealth 'ct
o. >1/, otherwise :nown as the 4evised aturalization +aw, which repealed the
former aturalization +aw &'ct o. !#!1), and by 4epublic 'ct o. "/2. 6o be
naturalized, an applicant has to prove that he possesses all the (ualifications and
none of the dis(ualifications provided by law to become a Filipino citizen. 6he
decision granting Philippine citizenship becomes e-ecutory only after two &!) years
from its promulgation when the court is satisfied that during the intervening period,
the applicant has &1) not left the PhilippinesF &!) has dedicated himself to a lawful
calling or professionF &/) has not been convicted of any offense or violation of
Eovernment promulgated rulesF or &>) committed any act pre7udicial to the interest
of the nation or contrary to any Eovernment announced policies.
In 'ngat v. 4epublic, we held5
---. Parenthetically, under these statutes Ireferring to 4' os. #%" and !%/2J, t!e
+er&on e&iring to reac,uire P!ili++ine citi9en&!i+ woul not e(en /e
re,uire to file a +etition in court. an all t!at !e !a to o wa& to take an
oat! of allegiance to t!e Re+u/lic of t!e P!ili++ine& an to regi&ter t!at
fact wit! t!e ci(il regi&tr) in t!e +lace of !i& re&ience or w!ere !e !a
la&t re&ie in t!e P!ili++ine&. IItalics in the original.J
0oreover, re+atriation re&ult& in t!e reco(er) of t!e original nationalit).
6his means that a naturalized Filipino who lost his citizenship will be restored to his
prior status as a naturalized Filipino citizen. .n the other hand, if he was originally
a natural3born citizen before he lost his Philippine citizenship, he will be restored to
his former status as a natural3born Filipino.
Daving thus ta:en the re(uired oath of allegiance to the 4epublic and having
registered the same in the Civil 4egistry of 0agantarem, Pangasinan in accordance
with the aforecited provision, respondent Cruz is deemed to have recovered his
original status as a natural3born citizen, a status which he ac(uired at birth as the
son of a Filipino father. It /ear& &tre&&ing t!at t!e act of re+atriation allow&
!i1 to reco(er. or return to. !i& original &tatu& /efore !e lo&t !i&
P!ili++ine citi9en&!i+.
T!e +re&ent Con&titution. !owe(er. now con&ier& t!o&e /orn of 2ili+ino
1ot!er& /efore t!e effecti(it) of t!e "#%3 Con&titution an w!o electe
P!ili++ine citi9en&!i+ u+on reac!ing t!e 1a4orit) age a& natural7/orn.
Eovernment
1!
Eovernment is defined as that institution or aggregate of institutions by
which an independent society ma:es and carries out those rules of action
which are necessary to enable men to live in a Social state, or which are
imposed upon the people forming that society by those who possess the
power or authority of prescribing them. Eovernment is the aggregate of
authorities which rule a society.
Sovereignty
Sovereign means the supreme uncontrollable power, the 7ures summi imperii,
the absolute right to governF it is the supreme will of the State, the power to
ma:e laws and enforce them by all the means of coercion it cares to employF
I11unit) fro1 &uit
'rt. K*I, Section /. T!e State 1a) not /e &ue wit!out it& con&ent.
CAWAWANACOA (& POLDBANC
' sovereign is e-empt from suit, not because of any formal conception or obsolete
theory, but on the logical and practical ground that there can be no legal right as
against the authority that ma:es the law on which the right depends.
8us Imperii vs 8us Eestionis
P*BLIC ?IG?WADS (& SAN DIEGO
T!e uni(er&al rule t!at w!ere t!e State gi(e& it& con&ent to /e &ue /)
+ri(ate +artie& eit!er /) general or &+ecial law. it 1a) li1it clai1ant=&
action -onl) u+ to t!e co1+letion of +roceeing& anterior to t!e &tage of
e0ecution- an t!at t!e +ower of t!e Court& en& w!en t!e 4ug1ent i&
renere. since government funds and properties may not be seized under writs of
e-ecution or garnishment to satisfy such 7udgments, is based on obvious
considerations of public policy. Di&/ur&e1ent& of Pu/lic fun& 1u&t /e
co(ere /) t!e corre&+oning a++ro+riation a& re,uire /) law. T!e
function& an +u/lic &er(ice& renere /) t!e State cannot /e allowe to
/e +aral)9e or i&ru+te /) t!e i(er&ion of +u/lic fun& fro1 t!eir
legiti1ate an &+ecific o/4ect&. a& a++ro+riate /) law.
6hus, as pointed out by the Court in Celleng vs. 4epublic, w!ile t!e State !a&
gi(en it& con&ent to /e &ue in co1+en&ation ca&e&. t!e +au+er7clai1ant
t!erein 1u&t look &+ecificall) to t!e Co1+en&ation Guarantee 2un
+ro(ie /) t!e Work1en=& Co1+en&ation Act for t!e corre&+oning
i&/ur&e1ent in &ati&faction of !i& clai1. since the State in 'ct /2$/, the
general law waiving its immunity from suit 9upon any money claim involving liability
arising from contract e-press or implied,9 imposed the limitation in Sec. % t!ereof
1/
t!at -no e0ecution &!all i&&ue u+on an) 4ug1ent renere /) an) Court
again&t t!e Go(ern1ent of t!e AP!ili++ine&B uner t!e +ro(i&ion& of t!i&
Act5- an t!at ot!erwi&e. t!e clai1ant woul !a(e to +ro&ecute !i& 1one)
clai1 again&t t!e State uner Co11onwealt! Act 36%.
ACTS <*RE I8PERII AND <*RE GESTIONIS. DISTING*IS?ED. E
96here are two conflicting concepts of sovereign immunity, each widely held and
firmly established. Accoring to t!e cla&&ical or a/&olute t!eor). a &o(ereign
cannot. wit!out it& con&ent. /e 1ae a re&+onent in t!e Court& of
anot!er &o(ereign. Accoring to t!e newer or re&tricti(e t!eor). t!e
i11unit) of t!e &o(ereign i& recogni9e onl) wit! regar to +u/lic act& or
act& 4ure i1+erii of a &tate. /ut not wit! regar to +ri(ate act or act& 4ure
ge&tioni&. - - - Certainly, the mere entering into a contract by a foreign state with
a private party cannot be the ultimate test. Such an act can only be the start of the
in(uiry. 6he logical (uestion is whether the foreign state is engaged in the activity
in the regular course of business. If the foreign state is not engaged regularly in a
business or trade, the particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it
is an act 7ure imperii, especially when it is not underta:en for gain or profit.9 6he
service contracts referred to by private respondent have not been intended by the
';C for profit or gain but are official acts over which a waiver of immunity would
not attach.
OPOSA (& 2ACTORAN
Since timber licenses are not contracts, the non3impairment clause, which reads5
FSec. "G. No law i1+airing. t!e o/ligation of contract& &!all /e +a&&e.H
cannot be invo:ed.
In t!e &econ +lace. e(en if it i& to /e a&&u1e t!at t!e &a1e are
contract&. t!e in&tant ca&e oe& not in(ol(e a law or e(en an e0ecuti(e
i&&uance eclaring t!e cancellation or 1oification of e0i&ting ti1/er
licen&e&. ?ence. t!e non7i1+air1ent clau&e cannot a& )et /e in(oke.
evertheless, granting further that a law has actually been passed mandating
cancellations or modifications, the same cannot still be stigmatized as a violation of
the non3impairment clause. T!i& i& /ecau&e /) it& (er) nature an +ur+o&e.
&uc! a& law coul !a(e onl) /een +a&&e in t!e e0erci&e of t!e +olice
+ower of t!e &tate for t!e +ur+o&e of a(ancing t!e rig!t of t!e +eo+le to
a /alance an !ealt!ful ecolog). +ro1oting t!eir !ealt! an en!ancing
t!e general welfare. In A/e (&. 2o&ter W!eeler Cor+. t!i& Court &tate'
6he freedom of contract, under our system of government, is not meant to be
absolute. T!e &a1e i& uner&too to /e &u/4ect to rea&ona/le legi&lati(e
regulation ai1e at t!e +ro1otion of +u/lic !ealt!. 1oral. &afet) an
1>
welfare. In other words, the constitutional guaranty of non3impairment of
obligations of contract is limited by the e-ercise of the police power of the State, in
the interest of public health, safety, moral and general welfare.
6he reason for this is emphatically set forth in Ne/ia (&. New Dork. ,uote in
P!ili++ine A1erican Life In&urance Co. (&. Auitor General. to wit5
@nder our form of government the use of property and t!e 1aking of contract&
are nor1all) 1atter& of +ri(ate an not of +u/lic concern. T!e general rule
i& t!at /ot! &!all /e free of go(ern1ental interference. Cut neither property
rights nor contract rights are absoluteF for government cannot e-ist if the citizen
may at will use his property to the detriment of his fellows, or e-ercise his freedom
of contract to wor: them harm. ,(ually fundamental with the private right is that of
the public to regulate it in the common interest.
In &!ort. t!e non7i1+air1ent clau&e 1u&t )iel to t!e +olice +ower of t!e
&tate.
Art. III. Sec. "G'
Section 12. 6he Congress shall, upon recommendation of the economic and
planning agency, when the national interest dictates, reserve to
citizens of the Philippines or to corporations or associations at least
si-ty per centum of whose capital is owned by such citizens, or such
higher percentage as Congress may prescribe, certain areas of
investments. 6he Congress shall enact measures that will encourage
the formation and operation of enterprises whose capital is wholly
owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to (ualified
Filipinos.
6he State shall regulate and e-ercise authority over foreign
investments within its national 7urisdiction and in accordance with its
national goals and priorities.
8ANILA PRINCE (& GSIS
Bhether the provisions of the Constitution, particularly 'rticle KII Section 12,
are self3e-ecuting.
Bhether the "1L share is part of the national patrimony.
A +ro(i&ion w!ic! la)& own a general +rinci+le. &uc! a& t!o&e foun in
Article II of t!e "#$% Con&titution. i& u&uall) not &elf7e0ecuting. But a
+ro(i&ion w!ic! i& co1+lete in it&elf an /eco1e& o+erati(e wit!out t!e
1"
ai of &u++le1entar) or ena/ling legi&lation. or t!at w!ic! &u++lie&
&ufficient rule /) 1ean& of w!ic! t!e rig!t it grant& 1a) /e en4o)e or
+rotecte. i& &elf7e0ecuting. 6hus a constitutional provision is self3e-ecuting if
the nature and e-tent of the right conferred and the liability imposed are fi-ed by
the constitution itself, so that they can be determined by an e-amination and
construction of its terms, and there is no language indicating that the sub7ect is
referred to the legislature for action. In self3e-ecuting constitutional provisions, the
legislature may still enact legislation to facilitate the e-ercise of powers directly
granted by the constitution, further the operation of such a provision, prescribe a
practice to be used for its enforcement, provide a convenient remedy for the
protection of the rights secured or the determination thereof, or place reasonable
safeguards around the e-ercise of the right. 6he mere fact that legislation may
supplement and add to or prescribe a penalty for the violation of a self3e-ecuting
constitutional provision does not render such a provision ineffective in the absence
of such legislation. T!e o1i&&ion fro1 a con&titution of an) e0+re&& +ro(i&ion
for a re1e) for enforcing a rig!t or lia/ilit) i& not nece&&aril) an
inication t!at it wa& not intene to /e &elf7e0ecuting. T!e rule i& t!at a
&elf7e0ecuting +ro(i&ion of t!e con&titution oe& not nece&&aril) e0!au&t
legi&lati(e +ower on t!e &u/4ect. /ut an) legi&lation 1u&t /e in !ar1on)
wit! t!e con&titution. furt!er t!e e0erci&e of con&titutional rig!t an 1ake
it 1ore a(aila/le. Su/&e,uent legi&lation !owe(er oe& not nece&&aril)
1ean t!at t!e &u/4ect con&titutional +ro(i&ion i& not. /) it&elf. full)
enforcea/le. 's against constitutions of the past, modern constitutions have been
generally drafted upon a different principle and have often become in effect
e-tensive codes of laws intended to operate directly upon the people in a manner
similar to that of statutory enactments, and the function of constitutional
conventions has evolved into one more li:e that of a legislative body. Dence, unless
it is e-pressly provided that a legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions of the constitution are self3
e-ecuting. If the constitutional provisions are treated as re(uiring legislation instead
of self3e-ecuting, the legislature would have the power to ignore and practically
nullify the mandate of the fundamental law. In fine. Section "G. &econ
+aragra+!. Art. III of t!e "#$% Con&titution i& a 1anator). +o&iti(e
co11an w!ic! i& co1+lete in it&elf an w!ic! nee& no furt!er
guieline& or i1+le1enting law& or rule& for it& enforce1ent. 2ro1 it&
(er) wor& t!e +ro(i&ion oe& not re,uire an) legi&lation to +ut it in
o+eration.
In its plain and ordinary meaning, the term patrimony pertains to heritage. Bhen
the Constitution spea:s of national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have very well used the term
natural resources, but also to the cultural heritage of the Filipinos. It also refers to
Filipino<s intelligence in arts, sciences and letters. In the present case, 0anila Dotel
has become a landmar:, a living testimonial of Philippine heritage. Bhile it was
restrictively an 'merican hotel when it first opened in 1#1!, a concourse for the
elite, it has since then become the venue of various significant events which have
shaped Philippine history. In the granting of economic rights, privileges, and
concessions, especially on matters involving national patrimony, when a choice has
1%
to be made between a G(ualified foreignerH and a G(ualified Filipino,H the latter shall
be chosen over the former.
6he Supreme Court directed the ESIS, the 0anila Dotel Corporation, the Committee
on Privatization and the .ffice of the Eovernment Corporate Counsel to cease and
desist from selling "1L of the Share of the 0DC to 4enong Cerhad, and to accept
the matching bid of 0anila Prince Dotel at P>> per shere and thereafter e-ecute the
necessary agreements and document to effect the sale, to issue the necessary
clearances and to do such other acts and deeds as may be necessary for the
purpose.
TANADA (& ANGARA
2act&
.n 'pril 1", 1##>, the Philippine Eovernment represented by its Secretary of the
;epartment of 6rade and Industry signed the Final 'ct binding the Philippine
Eovernment to submit to its respective competent authorities the B6. &Borld
6rade .rganization) 'greements to see: approval for such. .n ;ecember 1>, 1##>,
4esolution o. #1 was adopted by the Philippine Senate to ratify the B6.
'greement.
6his is a petition assailing the constitutionality of the B6. agreement as it violates
Sec 1#, 'rticle II, providing for the development of a self reliant and independent
national economy, and Sections 12 and 1!, 'rticle KII, providing for the GFilipino
firstH policy.
I&&ue
Bhether or not the 4esolution o. #1 ratifying the B6. 'greement is
unconstitutional
Ruling
6he Supreme Court ruled the 4esolution o. #1 is not unconstitutional. Bhile the
constitution mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business e-change with
the rest of the world on the bases of e(uality and reciprocity and limits protection of
Filipino interests only against foreign competition and trade practices that are
unfair. In other words, the Constitution did not intend to pursue an isolationalist
policy. 2urt!er1ore. t!e con&titutional +olic) of a F&elf7reliant an
ine+enent national econo1)H oe& not nece&&aril) rule out t!e entr) of
foreign in(e&t1ent&. goo& an &er(ice&. It conte1+late& neit!er
Fecono1ic &eclu&ionH nor F1enicanc) in t!e international co11unit).H
6he Senate, after deliberation and voting, gave its consent to the B6. 'greement
thereby ma:ing it Ga part of the law of the landH. 6he Supreme Court gave due
11
respect to an e(ual department in government. It presumes its actions as regular
and done in good faith unless there is convincing proof and persuasive agreements
to the contrary. A& a re&ult. t!e ratification of t!e WTO Agree1ent li1it& or
re&trict& t!e a/&olutene&& of &o(ereignt). A treat) engage1ent i& not a
1ere o/ligation /ut create& a legall) /ining o/ligation on t!e +artie&. A
&tate w!ic! !a& contracte (ali international o/ligation& i& /oun to
1ake it& legi&lation& &uc! 1oification& a& 1a) /e nece&&ar) to en&ure
t!e fulfill1ent of t!e o/ligation& unertaken.
III. T?E BRANC?ES O2 GO@ERN8ENT
T!e Congre&& AArt. JB
Section ".
6he legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a Douse of 4epresentatives, e-cept to the e-tent
reserved to the people by the provision on initiative and referendum.
Section >
1. 6he Douse of 4epresentatives shall be composed of not more than two
hundred and fifty members, unless otherwise fi-ed by law, who shall
be elected from legislative districts apportioned among the provinces,
cities, and the 0etropolitan 0anila area in accordance with the number
of their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be elected
through a party3list system of registered national, regional, and
sectoral parties or organizations.
!. 6he party3list representatives shall constitute twenty per centum of the
total number of representatives including those under the party list.
For three consecutive terms after the ratification of this Constitution,
one3half of the seats allocated to party3list representatives shall be
filled, as provided by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural communities, women, youth,
and such other sectors as may be provided by law, e-cept the religious
sector.
/. ,ach legislative district shall comprise, as far as practicable,
contiguous, compact, and ad7acent territory. ,ach city with a
population of at least two hundred fifty thousand, or each province,
shall have at least one representative.
1$
>. Bithin three years following the return of every census, the Congress
shall ma:e a reapportionment of legislative districts based on the
standards provided in this section.
BAGONG BADANI (& CO8ELEC
It has been held that certiorari is available, notwithstanding the presence of other
remedies, 9where the issue raised is one purely of law, where public interest is
involved, and in case of urgency.9 Indeed, the instant case is indubitably imbued
with public interest and with e-treme urgency, for it potentially involves the
composition of !2 percent of the Douse of 4epresentatives.
In its Petition, 'ng Cagong Cayani3.FB +abor Party contends that 9the inclusion of
political parties in the party3list system is the most ob7ectionable portion of the
(uestioned 4esolution.9 For its part, Petitioner Cayan 0una ob7ects to the
participation of 9ma7or political parties.9 .n the other hand, the .ffice of the
Solicitor Eeneral, li:e the impleaded political parties, submits that the Constitution
and 4' o. 1#>1 allow political parties to participate in the party3list elections. It
argues that the party3list system is, in fact, open to all 9registered national, regional
and sectoral parties or organizations.9
@nder the Constitution and 4' 1#>1, private respondents cannot be dis(ualified
from the party3list elections, merely on the ground that they are political parties.
Section ", 'rticle *I of the Constitution provides that members of the Douse of
4epresentatives may 9be elected through a party3list system of registered national,
regional, and sectoral parties or organizations.9
6hat political parties may participate in the party3list elections does not mean,
however, that any political party 33 or any organization or group for that matter 33
may do so. 6he re(uisite character of these parties or organizations must be
consistent with the purpose of the party3list system, as laid down in the Constitution
and 4' 1#>1. Section ", 'rticle *I of the Constitution, provides as follows5
(2) The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party list. For three
consecutive terms after the ratification of this Constitution, one-half of the seats
allocated to party-list representatives shall be filled, as provided by law, by
selection or election from the labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as may be provided by law,
ecept the religious sector.! ("mphasis supplied.)
T!e intent of t!e Con&titution i& clear' to gi(e genuine +ower to t!e
+eo+le. not onl) /) gi(ing 1ore law to t!o&e w!o !a(e le&& in life. /ut
1ore &o /) ena/ling t!e1 to /eco1e (erita/le law1aker& t!e1&el(e&.
Consistent with this intent, the policy of the implementing law, we repeat, is
1#
li:ewise clear5 -to ena/le 2ili+ino citi9en& /elonging to 1arginali9e an
unerre+re&ente &ector&. organi9ation& an +artie&. 0 0 0. to /eco1e
1e1/er& of t!e ?ou&e of Re+re&entati(e&.- Bhere the language of the law is
clear, it must be applied according to its e-press terms.
6he import of the open party3list system may be more vividly understood when
compared to a student dormitory 9open house,9 which by its nature allows outsiders
to enter the facilities. .bviously, the 9open house9 is for the benefit of outsiders
only, not the dormers themselves who can enter the dormitory even without such
special privilege. In the same vein, the open party3list system is only for the
9outsiders9 who cannot get elected through regular elections otherwiseF it is not for
the non3marginalized or overrepresented who already fill the ran:s of Congress.
6he Supreme Court ruled li:ewise that Gnot only must the candidate party or
organization represent marginalized and underrepresented sectorsF so must its
nominees.H
Sec. # of 4' 1#>1 lists the (ualifications of nominees, as follows5
1. natural3born citizenF
!. registered voterF
/. resident of the Philippines for not less than one year immediately preceding
the election dayF
>. able to read and writeF
". twenty3five years of ageF and
%. Ga bona fide member of the party or organization which he see:s to represent
for at least ninety &#2) days preceding the day of the election.H
Section J
o person shall be a 0ember of the Douse of 4epresentatives unle&& !e i& a
natural7/orn citi9en of t!e P!ili++ine& an. on t!e a) of t!e election. i& at
lea&t twent)7fi(e )ear& of age. a/le to rea an write. and, e-cept the party3
list representatives, a regi&tere (oter in t!e i&trict in w!ic! !e &!all /e
electe. and a re&ient t!ereof for a +erio of not le&& t!an one )ear
i11eiatel) +receing t!e a) of t!e election.
8ARCOS (& CO8ELEC Are&ience an o1icile. for +ur+o&e& of election
law& are &)non)1ou&KB
!2
6he mischief which this provision M reproduced verbatim from the 1#1/
Constitution M see:s to prevent is the possibility of a 9stranger or newcomer
unac(uainted with the conditions and needs of a community and not identified with
the latter, from an elective office to serve that community.9
Petitioner Imelda 4omualdez30arcos filed her Certificate of Candidacy for the
position of 4epresentative of the First ;istrict of +eyte with the Provincial ,lection
Supervisor on 0arch $, 1##".
Private respondent Cirilo 4oy 0onte7o, the incumbent 4epresentative of the First
;istrict of +eyte and a candidate for the same position, filed a 9Petition for
Cancellation and ;is(ualification9 with the Commission on ,lections alleging that
petitioner did not meet the constitutional re(uirement for residency. In his petition,
private respondent contended that 0rs. 0arcos lac:ed the ConstitutionAs one year
residency re(uirement for candidates for the Douse of 4epresentatives.
Deld5
So settled is the concept &of domicile) in our election law that in these and other
election law cases, this Court has stated that the 1ere a/&ence of an ini(iual
fro1 !i& +er1anent re&ience wit!out t!e intention to a/anon it oe&
not re&ult in a lo&& or c!ange of o1icile.
It stands to reason therefore, that petitioner merely committed an honest mista:e
in 7otting the word 9seven9 in the space provided for the residency (ualification
re(uirement. It would be plainly ridiculous for a candidate to deliberately and
:nowingly ma:e a statement in a certificate of candidacy which would lead to his or
her dis(ualification.
4esidence in the civil law is a material fact, referring to the physical presence of a
person in a place. ' person can have two or more residences, such as a country
residence and a city residence. 4esidence is ac(uired by living in placeF on the
other hand, domicile can e-ist without actually living in the place. 6he important
thing for domicile is that, once residence has been established in one place, there
be an intention to stay there permanently, even if residence is also established in
some other place.
For political purposes the concepts of residence and domicile are dictated by the
peculiar criteria of political laws. A& t!e&e conce+t& !a(e e(ol(e in our
election law. w!at !a& clearl) an une,ui(ocall) e1erge i& t!e fact t!at
re&ience for election +ur+o&e& i& u&e &)non)1ou&l) wit! o1icile.
In Nu(al (&. Gura). t!e Court !el t!at -t!e ter1 re&ience. . . i&
&)non)1ou& wit! o1icile w!ic! i1+ort& not onl) intention to re&ie in a
fi0e +lace. /ut al&o +er&onal +re&ence in t!at +lace. cou+le wit! conuct
!1
inicati(e of &uc! intention.- +arena vs. 6eves reiterated the same doctrine in a
case involving the (ualifications of the respondent therein to the post of 0unicipal
President of ;umaguete, egros .riental. Faypon vs. Nuirino, held that the absence
from residence to pursue studies or practice a profession or registration as a voter
other than in the place where one is elected does not constitute loss of residence.
So settled is the concept &of domicile) in our election law that in these and other
election law cases, this Court has stated that the mere absence of an individual
from his permanent residence without the intention to abandon it does not result in
a loss or change of domicile.
In Co vs. ,lectoral 6ribunal of the Douse of 4epresentatives, this Court concluded
that the framers of the 1#$1 Constitution obviously adhered to the definition given
to the term residence in election law, regaring it a& !a(ing t!e &a1e 1eaning
a& o1icile.
AL*INO @S CO8ELEC
'(uino was a resident of 6arlac for "! years prior to his winning the Congressional
seat in 0a:ati, to which he only resided for at least 12 months while renting a
condominiumF
?el'
Clearl). t!e +lace -w!ere a +art) actuall) or con&tructi(el) !a& !i&
+er1anent !o1e.- w!ere !e. no 1atter w!ere !e 1a) /e foun at an)
gi(en ti1e. e(entuall) inten& to return an re1ain. i.e.. !i& o1icile. i&
t!at to w!ic! t!e Con&titution refer& w!en it &+eak& of re&ience for t!e
+ur+o&e& of election law. 6he manifest purpose of this deviation from the usual
conceptions of residency in law as e-plained in Eallego vs. *era is 9to e0clue
&tranger& or newco1er& unfa1iliar wit! t!e conition& an nee& of t!e
co11unit)- from ta:ing advantage of favorable circumstances e-isting in that
community for electoral gain.
In fine. we are left wit! no c!oice /ut to affir1 t!e CO8ELEC=& conclu&ion
eclaring !erein +etitioner ineligi/le for t!e electi(e +o&ition of
Re+re&entati(e of 8akati Cit)=& Secon Di&trict on t!e /a&i& of re&+onent
co11i&&ion=& fining t!at +etitioner lack& t!e one )ear re&ience in t!e
i&trict 1anate /) t!e "#$% Con&titution. ' democratic government is
necessarily a government of laws. In a republican government those laws are
themselves ordained by the people. 6hrough their representatives, they dictate the
(ualifications necessary for service in government positions. 'nd as petitioner
clearly lac:s one of the essential (ualifications for running for membership in the
Douse of 4epresentatives. not e(en t!e will of a 1a4orit) or +luralit) of t!e
(oter& of t!e Secon Di&trict of 8akati Cit) woul &u/&titute for a
re,uire1ent 1anate /) t!e funa1ental law it&elf.
!!
Section ""
' Senator or 0ember of the Douse of 4epresentatives shall, in all offen&e&
+uni&!a/le /) not 1ore t!an &i0 )ear& i1+ri&on1ent. /e +ri(ilege fro1
arre&t w!ile t!e Congre&& i& in &e&&ion. o 0ember shall be (uestioned nor be
held liable in any other place for any speech or debate in the Congress or in any
committee thereof.
Section 6"
6he Senate or the Douse of 4epresentatives or any of its respective committees
1a) conuct in,uirie& in ai of legi&lation in accorance wit! it& ul)
+u/li&!e rule& of +roceure. 6he rights of persons appearing in, or affected
by, such in(uiries shall be respected.
BENGMON @S BL*E RIBBON
Petition for prohibition to review the decision of the Senate Clue 4ibbon Committee.
Eranted.
F'C6S5 .n /2 8uly 1#$1, the 4epublic of the Philippines, represented by the
Presidential Commission on Eood Eovernance &PCEE), filed a complaint with
Sandiganbayan against the petitioners of this case. PCEE allege, among others,
that5 defendants &petitioners therein) Cen7amin GOo:oyH 4omualdez and 8uliette.
Eomez 4omualdez, alleged GcroniesH of former President 0arcos and First +ady
Imelda 4omualdez 0arcos, engaged in schemes and stratagems to un7ustly enrich
themselves at the e-pense of the Filipino people. 'mong these stratagems are &1)
obtained control of some big business enterprises such as 0,4'+C., Pilipinas Shell,
and PCI Can:, &!) manipulated the formation of ,rectors Dolding Inc, to appear
viable and borrow more capital, reaching a total of more that P! billion, &/)
collaborated with lawyers &petitioners therein) of the Cengzon +aw .ffices in
concealing funds and properties, in maneuvering the purported sale of interests in
certain corporations, in misusing the 0eralco Pension Fund worth P!" million, and in
cleverly hiding behind the veil of corporate entity. .n 1/ September 1#$$, Sen. 8uan
Ponce ,nrile delivered a speech before the Senate on the alleged ta:e3over of Sol.il
Incorporated by 4icardo +opa &who died during the pendency of this case) and
called upon the senate to loo: into possible violation of the 'nti Eraft and Corrupt
Practices 'ct or 4' /21#. 6he Senate Committee on 'ccountability of Public .fficers
or Clue 4ibbon Committee &SC4C) started its investigation through a hearing on !/
0ay 1#$#, but +opa and Cengzon declined to testify. 6he SC4C re7ected petitioner
Cengzon<s plea and voted to pursue its investigation. Petitioner claims that the
SC4C, in re(uiring their attendance and testimony, acted in e-cess of its 7urisdiction
and legislative purpose. Dence this petition.
ISS@,S5
!/
1. B. the court has 7urisdiction over this case.
!. B. the SC4C<s in(uiry has a valid legislative purpose.
/. B. the sale or disposition of the 4omualdez corporations is a purely private
transaction which is beyond the power of the SC4C to in(uire into.
>. B. the in(uiry violates the petitioners< right to due process.
D,+;5
1. P,S. 's the court held in 'ngara vs. ,lectoral Commission, the separation of
powers is a fundamental principle in our system of government. It obtains not
through e-press provision but by actual division in our Constitution. ,ach
department of the government has e-clusive cognizance of matters within its
7urisdiction, and is supreme within its own sphere. But it oe& not follow fro1
t!e fact t!at t!e t!ree +ower& are to /e ke+t &e+arate an i&tinct t!at
t!e Con&titution intene t!e1 to /e a/&olutel) unre&traine an
ine+enent of eac! ot!er. T!e Con&titution +ro(ie for an ela/orate
&)&te1 of c!eck& an /alance& to &ecure coorination in t!e working& of
t!e e+art1ent& of t!e go(ern1ent. and it is the 7udiciary that was vested of
the powers to determine the scope, nature and e-tent of such powers.
!. .. A& !el in <ean L. Arnault (&. Leon Na9areno. et al.. t!e in,uir). to
/e wit!in t!e 4uri&iction of t!e legi&lati(e /o) 1aking it. 1u&t /e
1aterial or nece&&ar) to t!e e0erci&e of a +ower (e&te /) t!e
Con&titution. &uc! a& to legi&late or to e0+el a 1e1/er. 6he speech of Sen.
,nrile contained no suggestion on contemplated legislationF he merely called upon
the Senate to loo: into a possible violation of Sec. " of 4' /21#. 6he purpose of the
in(uiry to be conducted by respondent SC4C was to find out B. the relatives of
President '(uino, particularly 4icardo +opa, had violated the law in connection with
the alleged sale of the /%Q/# corporations of Oo:oy 4omualdez to the +opa Eroup.
6here appears, therefore, no intended legislation involved. 6he in(uiry also is not
conducted pursuant to Senate 4esolution o. !1!/ &S4 !1!/), as the committee
alleges. 6he in(uiry under S4 !1!/ is to loo: into the charges against PCEE filed by
stoc:holders of .riental Petroleum in connection with the implementation of Section
!% 'rticle K*III of the Constitution.
/. P,S. 0r. +opa and the petitioners are not connected with the government and did
their acts as private citizens, hence such a case of alleged graft and corruption is
within the 7urisdiction, not of the SC4C, but of the courts. Sandiganbayan already
too: 7urisdiction of this issue before the SC4C did. 6he in(uiry of the respondent
committee into the same 7usticiable controversy already before the Sandiganbayan
would be an encroachment of into the e-clusive domain of 7udicial 7urisdiction.
!>
In Bat:ins vs @nited States5 T!e +ower of congre&& to conuct in(e&tigation&
in in!erent in t!e legi&lati(e +roce&&. 6hat power is broad. it encompasses
in(uiries concerning the administration of e-isting laws as well as proposed, or
possibly needed statutes. It inclue& &ur(e)& of efect& in our
&ocial.econo1ic. or +olitical &)&te1 for t!e +ur+o&e of ena/ling Congre&&
to re1e) t!e1. It comprehends probes into departments of the Federal
Eovernment to e-pose corruption, inefficiency or waste. Cut /roa a& it i&. t!i&
+ower of in,uir). i& not unli1ite. T!ere i& no general aut!orit) to e0+o&e
t!e +ri(ate affair& of ini(iual& wit!out 4u&tification in ter1& of t!e
function& of congre&&. 6his was freely conceded by Solicitor Eeneral in his
argument in this case. or is the Congress a law enforcement or trial agency. 6hese
are functions of the e-ecutive and 7udicial departments of government. o in(uiry is
an end in itselfF it must be related to and in furtherance of a legitimate tas: of
Congress. In(e&tigation& conucte &ol) for t!e +er&onal aggrani9e1ent
of t!e in(e&tigator& or to -+uni&!- t!o&e in(e&tigate are inefen&i/le.
>. .. 6he Constitution provides the right of an accused of a crime to remain silentF
this e-tends also to respondents in administrative investigation but only if they
parta:e of the nature of a criminal proceeding. 6his is not so in this case. C@6 since
the court already held that the in(uiry is not in aid of legislation, the petitioners
therein cannot be compelled to testify.
2ISCAL PRO@ISIONS
Section 6;
All a++ro+riation. re(enue or tariff /ill&. /ill& aut!ori9ing increa&e of t!e
+u/lic e/t, bills of local application, and private bills, shall originate e0clu&i(el)
in t!e ?ou&e of Re+re&entati(e&, but the Senate 1a) +ro+o&e or concur wit!
a1en1ent&.
Section 6$
". 6he rule of ta0ation &!all /e unifor1 an e,uita/le. 6he Congress
shall evolve a +rogre&&i(e &)&te1 of ta0ation.
6. 6he Congress may, by law, aut!ori9e t!e Pre&ient to fi0 wit!in
&+ecifie li1it&. an &u/4ect to &uc! li1itation& an re&triction& as
it may i1+o&e. tariff rate&. i1+ort an e0+ort ,uota&, tonnage an
w!arfage ue&. an ot!er utie& or i1+o&t& within the framewor: of
the national development program of the Eovernment.
3. Charitable institutions, churches and personages or convents appurtenant
thereto, mos(ues, non3profit cemeteries, and all lands, buildings, and
improvements, actuall). irectl). an e0clu&i(el) u&e for religiou&.
!"
c!arita/le. or eucational +ur+o&e& &!all /e e0e1+t fro1
ta0ation.
;. o law granting an) ta0 e0e1+tion shall be passed wit!out t!e
concurrence of a 1a4orit) of all t!e 8e1/er& of t!e Congre&&.
TOLENTINO @S SEC. O2 2INANCE
Facts5
6he value3added ta- &*'6) is levied on the sale, barter or e-change of goods and
properties as well as on the sale or e-change of services. 4' 111% see:s to widen
the ta- base of the e-isting *'6 system and enhance its administration by
amending the ational Internal 4evenue Code. 6here are various suits challenging
the constitutionality of 4' 111% on various grounds.
One contention i& t!at RA %%"J i not originate e0clu&i(el) in t!e ?ou&e
of Re+re&entati(e& a& re,uire /) Art. @I. Sec. 6; of t!e Con&titution.
/ecau&e it i& in fact t!e re&ult of t!e con&oliation of 6 i&tinct /ill&. ?. No.
"""#% an S. No. "J3G. 6here is also a contention that S. o. 1%/2 did not pass /
readings as re(uired by the Constitution.
Issue5 Bhether or not 4' 111% violates 'rt. *I, Secs. !> and !%&!) of the
Constitution
Deld5
6he argument that 4' 111% did not originate e-clusively in the Douse of
4epresentatives as re(uired by 'rt. *I, Sec. !> of the Constitution will not bear
analysis. To /egin wit!. it i& not t!e law /ut t!e re(enue /ill w!ic! i&
re,uire /) t!e Con&titution to originate e0clu&i(el) in t!e ?ou&e of
Re+re&entati(e&. 6o insist that a revenue statute and not only the bill which
initiated the legislative process culminating in the enactment of the law must
substantially be the same as the Douse bill would be to deny the Senates
power not only to concur with amendments but also to propose
amendments. Indeed, w!at t!e Con&titution &i1+l) 1ean& i& t!at t!e
initiati(e for filing re(enue. tariff or ta0 /ill&. /ill& aut!ori9ing an increa&e
of t!e +u/lic e/t. +ri(ate /ill& an /ill& of local a++lication 1u&t co1e
fro1 t!e ?ou&e of Re+re&entati(e& on t!e t!eor) t!at. electe a& t!e) are
fro1 t!e i&trict&. t!e 1e1/er& of t!e ?ou&e can /e e0+ecte to /e 1ore
&en&iti(e to t!e local nee& an +ro/le1&. or does the Constitution prohibit
the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from
the Douse, so long as action by the Senate as a body is withheld pending receipt of
the Douse bill.
!%
6he ne-t argument of the petitioners was that S. o. 1%/2 did not pass / readings
on separate days as re(uired by the Constitution because the second and third
readings were done on the same day. But t!i& wa& /ecau&e t!e Pre&ient !a
certifie S. No. "J3G a& urgent. T!e +re&iential certification i&+en&e
wit! t!e re,uire1ent not onl) of +rinting /ut al&o t!at of reaing t!e /ill
on &e+arate a)&. 6hat upon the certification of a bill by the President the
re(uirement of / readings on separate days and of printing and distribution can be
dispensed with is supported by the weight of legislative practice.
Section 6J
". ,very bill passed by the Congress &!all e1/race onl) one &u/4ect
which shall be e-pressed in the title thereof.
6. No /ill +a&&e by either Douse &!all /eco1e a law unle&& it !a&
+a&&e t!ree reaing& on &e+arate a)&, and +rinte co+ie& thereof
in its final form have been i&tri/ute to its 8e1/er& t!ree a)&
/efore it& +a&&age, e-cept when the Pre&ient certifie& to t!e
nece&&it) of its immediate enactment to 1eet a +u/lic cala1it) or
e1ergenc). @pon the la&t reaing of a /ill, no a1en1ent t!ereto
&!all /e allowe, and the vote thereon shall be ta:en immediately
thereafter, and the yeas and nays entered in the 8ournal.
Sec. "' One Congre&&. Two ?ou&e&
Sec. 15 6he legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a Douse of 4epresentatives, e-cept to the
e-tent reserved to the people by the provision on initiative and referendum.
POWERS'
#egislative
4epublican Systems5
a. .riginal R possessed by the sovereign people
b. ;erivative R that which is delegated by the sovereign people to the
legislative bodies and is subordinate to the original power of the peopleF
vested in Congress
Power according to its application5
1. Constituent R power to amend the Constitution
!. .rdinary R power to pass ordinary laws
!1
$on-legislative
.6' C,,5
%owers of Congress may be inherent (li&e the determination of its rules of
proceedings and discipline of its members) or implied (li&e the power to punish for
contempt in legislative investigations).
The people, through amendatory process, can eercise constituent power, and,
through initiative and referendum, legislative power.
Sec. 1!5 Full ;isclosure
Sec. 1/ and 1>5 ;is(ualifications
Cannot hold any other office or employment in the Eovernment, or any
subdivision, agency, or instrumentality thereof, including E.CCs or their
subsidiaries, during term without forfeiting his seat &incompatible office)
Cannot be appointed to an office created or the emolument of which was
increased during his term &prohibited office)
Cannot personally appear as counsel before any court of 7ustice or before the
,lectoral 6ribunals, or (uasi37udicial and other administrative bodies
Cannot be directly or indirectly interested financially in any contract with, or in
any franchise or special privilege granted by the Eovernment, or any
subdivision, agency or instrumentality thereof, including E.CCs or its subsidiary,
during term
Cannot intervene in any matter before any government office for his pecuniary
benefit or where he may be called upon to act on account of his office
Sec. ">' Se&&ion&
4,E@+'4 R once every year on the fourth 0onday of 8uly, unless a different
date is fi-ed by law, and shall continue to be in session for such number of
days as it may determine until /2 days before the ne-t regular session
SP,CI'+ R anytime when called by the President
Sec. "J' Officer&. Luoro1. Rule& of Proceeing&. Di&ci+line of 8e1/er&
;ISCIP+I,5
,-pulsion R disorderly behavior
Suspension R should not be for more than %2 days
$'T( )"$"* The +,-day suspension imposed by Congress to discipline its member
does not include the preventive suspension which may be imposed by the
-andiganbayan for prosecution of offenses.
!$
Courts have no authority to interfere in the manner of choosing officers in the
-enate. such prerogative belongs to the -enate
Sec. "%' Electoral Tri/unal&
CO8POSITION' A# 1e1/er&B
/ SC 8ustices R senior 8ustice is the Chairman
% Congressmen &Senators or 4epresentatives)
Cased on proportional representation from the political parties or party3lists
Instituted within /2 days after organization of Senate and Douse with election
of President and Spea:er
2*NCTIONS'
,-clusive power to determine the (ualifications of members of Congress
Sole 7urisdiction to 7udge election contest between a member and the
defeated candidate
?RET !a& &ole an e0clu&i(e 4uri&iction to 4uge election conte&t&
concerning it& 1e1/er&5 ?ou&e !a& no +ower to interfere5 ?RET 1e1/er&
are entitle to &ecurit) of tenure. regarle&& of an) c!ange in t!eir
+olitical affiliation&
Bonoc (&. Pinea. G.R. No. #%%"G. Se+t. 6J. "##"
If t!e (aliit) of t!e +rocla1ation i& t!e core i&&ue of t!e i&,ualification
ca&e. t!e +rocla1ation of t!e caniate cannot i(e&t Co1elec en /anc of
it& 4uri&iction to re(iew it& (aliit)5 8ini&terial ut) of t!e ?ou&e to
a1ini&ter oat! of office
Codilla vs. de *enecia, E.4. no. 1"2%2", ;ec. 12, !22!
$'T( )"$"*
/istinguish between Codilla and )arbers. 0n Codilla, the action was still
pending in the Comelec when the proclamation was made and the main issue
raised was the legality of the proclamation. Thus, Comelec could not be
divested of its 1urisdiction to see the case through even when the proclaimed
winner already assumed office. 'n the other hand, in the )arbers case, the
action was only ta&en after the proclamation of the winning candidate. Thus,
the proper forum should have been the -"T, and not the Comelec, since the
act of proclaiming the winner made the latter a member of the -enate and
thus within the sole 1urisdiction of the -"T.
(ppeal, as a general rule, does not lie in election contests decided by the
-"T234"T. 3owever, the -upreme Court may eercise its power of 1udicial
review if the circumstances warrant.
!#
L' W!o i& t!e +ro+er +art) to +ut u+ an election conte&t again&t a winning
caniateN
'5 Follow the rule on real party3in3interest. 6he proper party is the one who stands
to benefit or lose as a result of the decision. 6hus, only a losing candidate &!nd or
/rd placer) can file an election contest.
L' W!at if t!e winning caniate i& a lone caniate. W!o can ,ue&tion !i&
,ualificationN W!o !a& 4uri&ictionN
'5 It is submitted that in case of a winning candidate who is a lone candidate, a non3
candidate may (uestion his (ualification. In which case, 7urisdiction belongs with the
electoral tribunal of the Douse concerned in (uo warranto proceedings.
Re1e)' Petition for Cancellation of Caniac) /efore election. or Luo
Warrant wit!in "G a)& fro1 +rocla1ation
Sampayan vs. ;aza, !1/ SC4' $21
Enrolle Bill an <ournal
0'66,4S 4,N@I4,; 6. C, ,6,4,; I 6D, 8.@4'+5
6he yeas and nays on the third and final reading of a bill
6he yeas and nays on any (uestion, at the re(uest of 1Q" of the members
present
6he yeas and nays upon repassing a bill over the President<s veto
6he President<s ob7ection to a bill he had vetoed
Sec. 1$5 Commission on 'ppointments
CO8POSITION5
President of Senate as e- officio Chairman
1! Senators
1! 4eps
'ct on all appointments within /2 session days of Congress from their
submission
0a7ority vote of all members
CINDS O2 APPOINT8ENT'
1. Regular R re(uires concurrence of C'F if revo:ed by C', can return to his
old post but cannot be reappointedF if bypassed by C', reappointment is
allowed
!. A Interi1 R permanent and effective until revo:ed or disapproved by
C'F if revo:ed by C', cannot return to his old post or be reappointedF if
bypassed, the appointment shall only last until the ne-t ad7ournment of
Congress and official may be reappointed to the same position
'd interim appointments that the President may ma:e during the recess of
the Congress are those made during a period of time from the ad7ournment
of the Congress to the opening session, regular or special, of the same
Congress. 6hus, the ad interim appointment remains effective until such
/2
disapproval or ne-t ad7ournment, signifying that it can no longer be
withdrawn or revo:ed by the President. 6he fear that the President can
withdraw or revo:e at any time and for any reason an ad interim
appointment is utterly without basis.'n ad interim appointment can be
terminated for two causes specified in the Constitution. 6he first cause is the
disapproval of his ad interim appointment by the Commission on
'ppointments. 6he second cause is the ad7ournment of Congress without the
Commission on 'ppointments acting on his appointment.
/. Te1+orar) R appointments in acting capacityF no need for concurrence
of C' and shall last only for a period not e-ceeding one year
Legi&lati(e In,uirie&OIn(e&tigation&
CINDS5
In 'id of +egislation &Sec. !1)
Nuestion Dour &Sec. !!)
In Ai of Legi&lation
CONDITIONS'
8u&t /e in ai of legi&lation E either in ma:ing a new legislation or improving a
defective one
6he rules and regulations providing for its conduct must be duly published
6he rights of individuals must be respected &e.g. right against self3incrimination)
Lue&tion ?our R Congress may summon heads of e-ecutive departments to shed
light on certain matters in aid of legislation or the heads may appear before
Congress upon their own initiative with approval of the PresidentF either in the
Congressional Chamber or the ,-ecutive .ffice
L' Can a 1e1/er of t!e Ca/inet refu&e to a++ear /efore Congre&&N
'5 ' distinction must be made between the (uestion hour and in(uiries in aid of
legislation. 6he former is merely permissive and does not, as a rule, include
compulsory processes such that a Cabinet member may validly refuse to appear
before Congress. Dowever, if the in(uiry is in aid of legislation, Congress is
empowered to issue subpoenas and may rightly cite anyone called before it in
contempt should they refuse to appear. 6he only e-emption to this power is if the
President or the ,-ecutive Secretary by the President<s authority invo:es e-ecutive
privilege.
Sec. 63' Power to Declare E0i&tence of War an Delegate E1ergenc)
Power&
L' Can Congre&& eclare warN
'5 o. 6he power to declare war rests with the President. 'll that the Congress can
do, via two3thirds vote of all its members in a 7oint session, is to declare its
e-istence.
/1
L' ?ow oe& Congre&& elegate e1ergenc) +ower& to t!e Pre&ientN
'5 6hrough a law passed for purpose of carrying out a declared national policy. It
ceases with the passing of another resolution from Congress without need for
President<s approval. If no resolution is passed, the power will automatically cease
upon the ne-t ad7ournment of Congress.
Re,ui&ite& to Declare E0i&tence of War ASee Da(i (&. Arro)oB
Sec. 6;' Bill& Originating fro1 t!e ?ou&e of Re+&
8*ST ORIGINATE 2RO8 T?E ?O*SE O2 REPS'
'ppropriation, revenue and tariff bills &'46)
Cills authorizing the increase of public debt
Cills of local application
Private bills
L' W!) &!oul t!e&e /ill& originate fro1 t!e ?ou&e of Re+&N
'5 6he Douse 4eps are elected by district, hence, they are more familiar with the
needs of their constituents. 6hey are also more numerous, therefore, representative
of the people.
L' Doe& Sec. 6; (iolate t!e co7e,ualit) /etween t!e ?ou&e Re+& an
SenateN
'5 o, because the Senate can still file ahead of the Douse 4eps any of the bills
mentioned above. Dowever, they must withhold any action on the bill until it has
received the version filed by the Douse of 4eps.
Sec. 6>' ART Bill&. Tran&fer of 2un&. Di&cretionar) 2un&
A++ro+riation Bill R a statue the primary and specific purpose of which is to
authorize the release of funds from the treasury
6 CINDS O2 APPROPRIATION BILLS'
Eeneral 'ppropriation
Special 'ppropriation
SPECI2IC REL*IRE8ENTS O2 GENERAL APPROPRIATION BILL'
0ust originate from the Douse of 4eps which has the power of the purse
0ust be based on a budget prepared by the President
6he particular provision must relate to a particular item in the said bill
0ust not be for the use, benefit or support of any sect, church, denomination,
sectarian institution, or system of religion, or any priest, preacher, minister or
other religious teacher, or dignitary as such, ,KC,P65 when such priest, etc. is
assigned to the armed forces, or to any penal institution, or government
orphanage or leprosarium
/!
L' Can a law creating an office an at t!e &a1e ti1e +ro(ie for
i&/ur&e1ent of fun& /e con&iere an a++ro+riation /illN
'5 o, because the main purpose of that law is not the disbursement of funds but
the creation of an office.
L' Can Congre&& increa&e t!e /uget a++ro+riate or reco11ene /)
t!e Pre&ientN
'5 o, but Congress can decrease the amount.
L' W!at !a++en& if Congre&& fail& to +a&& a general a++ro+riation& actN
'5 6he previous act will be re3enacted to be used for the fiscal year until such time
that a Eeneral 'ppropriations Cill shall be passed.
SPECI2IC REL*IRE8ENTS O2 SPECIAL APPROPRIATION BILL'
0ust be for a specific purpose
0ust have a certification from the ational 6reasurer that the funds are
available or if there is an accompanying revenue proposal as to how to raise
the funds needed
NOTA BENE:
Certification from the $ational Treasurer is needed in order to avoid 5sub
rosa6 appropriation, wherein a special appropriations measure is done even
though the funds are not available.
)ut a special appropriation bill may be filed even if there is no budget yet so
long as there is an accompanying revenue proposal on how to raise the
funds.
Ta0ORe(enue R enforced proportional contributions from persons and property,
levied by the State by virtue of its sovereignty, for the support of government and
for public needs
IN?ERENT CONSTIT*TIONAL LI8ITATIONS O2 TAIATION'
6a-es are for public purposes
on3delegation of ta-ing power
6erritoriality or situs of ta-ation
6a- e-emptions as provided in the Constitution with concurrence of ma7ority
of Congress
International comity
6a-es should not be oppressive
;ue process must be observed
'dheres to the bill of rights
on3infringement of religious freedom
on3impairment of contracts
//
6a- levied for a special purpose shall be treated as a special fund and paid
out for such purpose only &any balance shall be transferred to the general
funds of the Eovernment
6a- laws must be uniform and e(uitable
Progressive ta- system
Di&cretionar) 2un&
CONDITIONS'
;isbursed for a public purpose
;uly supported by appropriate vouchers
Sub7ect to guidelines prescribed by law
Tran&fer of 2un&
GR' tran&fer of fun& i& not allowe
"7C* if the transfer is only within one department, or if there is surplus or savings
and the transfer is for the purpose of augmenting any item in the appropriation law
W?O 8AD TRANS2ER 2*NDS'
President
Senate President
Spea:er of the Douse
Chief 8ustice
Deads of the Constitutional Commissions
Sec. 6J' Re,uire1ent& a& to Bill&
REL*IRE8ENTS5
One &u/4ect +er title R to prevent hodgepodge or logrolling legislation
wherein many sub7ects are contained in a single bill in order to accommodate
some sub7ects that cannot possibly pass through a single bill on its own and
so that greater support for the bill is garnered
Su/4ect of t!e /ill 1u&t /e e0+re&&e in t!e title R to prevent surprise
or fraud beause some members of Congress might not be able to read the
whole billF a way of informing the public of what the bill is all about
Some bills 1u&t originate EICL*SI@ELD from the Douse of 4eps
3 reaing& on 3 &e+arate a)& and printing and distribution at least /
days before final approval R ,KC,P6I.5 when the President certifies the
necessity of its immediate enactment to meet a public calamity or
emergency
$'T( )"$"*
#ogrolling legislation is sought to be prevented in order to avoid a situation wherein
what had been disapproved if ta&en on its own, may be approved because it was
lumped in a favorable sub1ect.
/>
0t is enough that the title must be able to state what the bill is all about, without
necessarily enumerating the details of the bill.
%residential certification dispenses with both the 8-day printing and the 8 readings
on 8 separate days. )ut the bill must still go through 8 readings, which may be
done on the same day. This is not sub1ect to 1udicial review, as a general rule,
because there is no factual basis of grave abuse of discretion to spea& of.
Sec. 6%' Pre&ientP& @eto
?OW PRESIDENT EIERCISES @ETO POWER'
Eeneral R for all bills e-cept '46 billsF veto the whole bill &general rule)
+ine or Item R only for '46 bills because each item of '46 is a bill in itself in
terms of importanceF veto only certain provisions that are inappropriate
INAPPROPRIATE PRO@ISIONS'
'ny provision that does not relate to a particular, distinctive appropriation or
itemF in such a case, the inappropriate provision shall be treated as an item
and therefore can be vetoed
'ny provision bloc:ing admnistrative action in implementing the law or
re(uiring legislative approval for e-ecutive action
'ny provision that is unconstitutional
'ny provision that amends a certain law
L' W!en oe& a /ill /eco1e a lawN
'5 ' bill becomes a law after the President<s approval. ' bill may also become a law
through the President<s inaction &given /2 days to either approve or veto a billF if no
action, it is implied approval). 'nother way for a bill to become a law is if Congress,
after the President<s veto, overrides the same by !Q/ votes of the members of each
Douse.
L' W!at i& t!e effect of an in(ali (etoN
'5 It will be li:e there was no veto at all.
L' W!at i& a +ocket (etoN
'5 6he rule is that if the President, after receiving a copy of the bill, does not act on
the same within /2 days, neither indicating his approval nor veto, the bill shall pass
into law as if he had signed it. 6he e-ception is before the lapse of the /23day
period the Congress ad7ourns and the President does not act on the bill until the
said period lapses, thus effectively vetoing it. Ignoring legislation, or Gputting a bill
in one<s poc:etH until Congress ad7ourns is thus called a poc:et veto. Since
Congress cannot vote while in ad7ournment, a poc:et veto cannot be overridden.
L' W!en oe& a law take effectN
'5 ' law becomes effective 1" days after publication, unless otherwise provided.
6he phrase Gunless otherwise providedHdoes not mean that publication may be
dispensed with. 4ather, the phrase refers to the 1"3day period. In other words, the
/"
law itself may provide, through its effectivity clause, that it becomes effective after
the lapse of a different period. &See 6anada vs. 6uvera)
T!e Legi&lati(e 8ill
Drafting R done by either a member of the Douse or the Cill ;rafting
;ivision. 6he draft goes to the Plenary 'ffairs Cureau of the Inde- and Cills
;ivision where it will be doc:eted and assigned a bill number, e.g. Douse Cill o.
2ir&t Reaing R only the title and the number of the bill is read, after which,
the Senate President or the Douse Spea:er will refer it to the right committee,
depending on the titleF the committee will study the bill and, if necessary,
conduct public hearingsF this is where the bill either gets G:illedH or
recommended for approval, with amendments, if any, or consolidated with other
bills on the same sub7ect
Secon Reaing R involves a reading of the whole te-t of the bill, not 7ust
the title and doc:et numberF the sponsor of the bill will ma:e his Sponsorship
Speech, followed by the 6urno en Contra who will oppose the passage of the billF
then comes the debate and interpellation, after which, the amendments agreed
upon are finalizedF the bill as amended is then printed and distributed to the
members at least / days before the /rd reading
T!ir Reaing R no more debates or discussions or (uestionsF members are
only there to vote to approve or re7ect the bill and, if re(uired by law, to e-plain
why soF voting will be done through yeas and nays
Referral R after the /rd reading, the bill will be referred to the other chamber
where it will also undergo / readingsF in case of conflict, the bill will be referred
to the Cicameral Chamber, which is a committee composed of members of each
DouseF the Cicameral Chamber will draft a compromise measure that, if
approved by both Douses, will be submitted to the President for him to veto or
approve into law
Li1itation& on Legi&lati(e Power
Substantive 3 curtail the contents of a law
on3delegation of legislative power
Prohibiting passage of irrepealable laws
Prohibiting passage of law that increases the appellate 7urisdiction of
SC without its advice and concurrence &Sec. /2)
Prohibiting law granting royalty or nobility &Sec. /1)
Procedural R curtail the manner of passing a law
T!e Pre&ient AArt. %B
Section "
6he e-ecutive power shall be vested in the President of the Philippines.
8ARCOS @S 8ANGLAP*S I AND II
/%
Facts5 6his case involves a petition of mandamus and prohibition as:ing the court to
order the respondents Secretary of Foreign 'ffairs, etc. 6o issue a travel documents
to former Pres. 0arcos and the immediate members of his family and to en7oin the
implementation of the PresidentAs decision to bar their return to the Philippines.
Petitioners assert that the right of the 0arcoses to return in the Philippines is
guaranteed by the Cill of 4ights, specifically Sections 1 and %. 6hey contended that
Pres. '(uino is without power to impair the liberty of abode of the 0arcoses
because only a court may do so within the limits prescribed by law. or the
President impair their right to travel because no law has authorized her to do so.
6hey further assert that under international law, their right to return to the
Philippines is guaranteed particularly by the @niversal ;eclaration of Duman 4ights
and the International Covenant on Civil and Political 4ights, which has been ratified
by the Philippines.
Issue5 Bhether or not, in the e-ercise of the powers granted by the constitution, the
President &'(uino) may prohibit the 0arcoses from returning to the Philippines.
Deld5 9It must be emphasized that the individual right involved is not the right to
travel from the Philippines to other countries or within the Philippines. 6hese are
what the right to travel would normally connote. ,ssentially, the right involved in
this case at bar is the right to return to oneAs country, a distinct right under
international law, independent from although related to the right to travel. T!u&.
t!e *ni(er&al Declaration of ?u1an Rig!t& an t!e International Co(enant
on Ci(il an Political Rig!t& treat t!e rig!t to freeo1 of 1o(e1ent an
a/oe wit!in t!e territor) of a &tate. t!e rig!t to lea(e t!e countr). an
t!e rig!t to enter one=& countr) a& &e+arate an i&tinct rig!t&. Bhat the
;eclaration spea:s of is the 9right to freedom of movement and residence within
the borders of each state9. .n the other hand, the Covenant guarantees the right to
liberty of movement and freedom to choose his residence and the right to be free to
leave any country, including his own. Suc! rig!t& 1a) onl) /e re&tricte /)
law& +rotecting t!e national &ecurit). +u/lic orer. +u/lic !ealt! or 1oral&
or t!e &e+arate rig!t& of ot!er&. Dowever, right to enter oneAs country cannot
be arbitrarily deprived. It would be therefore inappropriate to construe the
limitations to the right to return to ones country in the same conte-t as those
pertaining to the liberty of abode and the right to travel.
6he Cill of rights treats only the liberty of abode and the right to travel, but it is a
well3considered view that the right to return may be considered, as a generally
accepted principle of International +aw and under our Constitution as part of the law
of the land.
T!e court !el t!at Pre&ient i not act ar/itraril) or wit! gra(e a/u&e of
i&cretion in eter1ining t!at t!e return of t!e 2or1er Pre&. 8arco& an
/1
!i& fa1il) +o&e& a &eriou& t!reat to national intere&t an welfare. President
'(uino has determined that the destabilization caused by the return of the
0arcoses would wipe away the gains achieved during the past few years after the
0arcos regime.
6he return of the 0arcoses poses a serious threat and therefore prohibiting their
return to the Philippines, the instant petition is hereby ;IS0ISS,;.
8OTION 2OR RECONSIDERATION
o. 6he 0arcoses were not allowed to return. 0otion for 4econsideration denied
because of lac: of merit.
4atio5
Petitioners failed to show any compelling reason to warrant reconsideration.
Factual scenario during the time Court rendered its decision has not changed. 6he
threats to the government, to which the return of the 0arcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased. Imelda 0arcos also
called President '(uino GillegalH claiming that it is Ferdinand 0arcos who is the
legal president.
President has unstated residual powers implied from grant of e-ecutive power.
,numerations are merely for specifying principal articles implied in the definitionF
leaving the rest to flow from general grant that power, interpreted in conformity
with other parts of the Constitution &Damilton). ,-ecutive unli:e Congress can
e-ercise power from sources not enumerates so long as not forbidden by
constitutional te-t &0yers vs. @S). 6his does not amount to dictatorship.
'mendment o. % e-pressly granted 0arcos power of legislation whereas 1#$1
Constitution granted '(uino with implied powers.
It is within '(uino<s power to protect S promote interest S welfare of the people.
She bound to comply wQ that duty and there is no proof that she acted arbitrarily
AL8ONTE @S @ASL*EM
' subpoena duces tecum was issued by the .mbudsman in connection with his
investigation of an anonymous letter alleging that funds representing savings from
unfilled positions in the ,IIC had been illegally disbursed. 6he letter, purporting to
have been written by an employee of the ,IIC and a concerned citizen, was
addressed to the Secretary of Finance, with copies furnished several government
offices, including the .ffice of the .mbudsman.
Issues5
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BD,6D,4 .4 .6 9'++ ;.C@0,6S 4,+'6IE 6. P,4S.'+ S,4*IC,S F@;S
F.4 6D, P,'4 1#$$ '; '++ ,*I;,C,S, S@CD 'S *.@CD,4S &S'+'4P) F.4 6D,
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6D, 4,'CD .F P@C+IC 4,SP.;,6AS S@CP.,' ;@C,S 6,C@0.
Deld5
In @nited States v. i-on5
The epectation of a %resident to the confidentiality of his conversations and
correspondence, li&e the claim of confidentiality of 1udicial deliberations, for
eample, has all the values to which we accord deference for the privacy of all
citi9ens and, added to those values, is the necessity for protection of the
public interest in candid, obecti!e, and e!en blunt or harsh opinions in
"residential decision#ma$in%. A "resident and those who assist him must
be free to e&plore alternati!es in the process of shapin% policies and
ma$in% decisions and to do so in a way many would be unwillin% to
e&press e&cept pri!ately. These are the considerations 1ustifying a presumptive
privilege for %residential communications. The privilege is fundamental to the
operation of the government and inetricably rooted in the separation of powers
under the Constitution. . . .
0n each case, the showing of necessity which is made will determine how far the
court should probe in satisfying itself that the occasion for invo&ing the privilege is
appropriate. 'here there is a stron% showin% of necessity, the claim of
pri!ile%e should not be li%htly accepted, but e!en the most compellin%
necessity cannot o!ercome the claim of pri!ile%e if the court is ultimately
satisfied that military secrets are at sta$e. A fortiori, where necessity is
dubious, a formal claim of pri!ile%e, made under the circumstances of this
case, will ha!e to pre!ail.
In t!e ca&e at /ar. t!ere i& no clai1 t!at 1ilitar) or i+lo1atic &ecret& will
/e i&clo&e /) t!e +rouction of recor& +ertaining to t!e +er&onnel of
t!e EIIB. Indeed, ,IICAs function is the gathering and evaluation of intelligence
reports and information regarding 9illegal activities affecting the national economy,
such as, but not limited to, economic sabotage, smuggling, ta- evasion, dollar
salting.9 Con&e,uentl). w!ile in ca&e& w!ic! in(ol(e &tate &ecret& it 1a) /e
/#
&ufficient to eter1ine fro1 t!e circu1&tance& of t!e ca&e t!at t!ere i&
rea&ona/le anger t!at co1+ul&ion of t!e e(ience will e0+o&e 1ilitar)
1atter& wit!out co1+elling +rouction. no similar e-cuse can be made for a
privilege resting on other considerations.
'bove all, even if the subpoenaed documents are treated as presumptively
privileged, this decision would only 7ustify ordering their inspection in ca1era /ut
not t!eir non+rouction. Dowever, as concession to the nature of the functions
of the ,IIC and 7ust to be sure no information of a confidential character is disclosed,
the e-amination of records in this case should be made in strict confidence by the
.mbudsman himself.
Petitioners contend that under 'rt. KI, T 1/&>) the .mbudsman can act only 9in any
appropriate case, and sub7ect to such limitations as may be provided by law9 and
that because the complaint in this case is unsigned and unverified, the case is not
an appropriate one. 6his contention lac:s merit. 's already stated. t!e
Con&titution e0+re&&l) en4oin& t!e O1/u&1an to act on an) co1+laint
file -in an) for1 or 1anner- concerning official act& or o1i&&ion&. T!u&.
Art. II. Q "6 +ro(ie&'
6he .mbudsman and his ;eputies, as protectors of the people, shall act promptly
on co1+laint& file in an) for1 or 1anner against public officials or employees
of the Eovernment, or any subdivision, agency, or instrumentality thereof, including
government3owned or controlled corporations and shall in appropriate cases, notify
the complainants of the action ta:en and the result thereof. &,mphasis added)
SENATE @S ER8ITA
T!e +ower of Congre&&ional in,uir) i& not a/&olute.
Section !1, 'rticle *I establishes crucial safeguards that proscribe the legislative
power of in(uiry. T!e +ro(i&ion re,uire& t!at t!e in,uir) /e one in
accorance wit! t!e Senate or ?ou&eP& ul) +u/li&!e rule& of +roceure.
nece&&aril) i1+l)ing t!e con&titutional infir1it) of an in,uir) conucte
wit!out ul) +u/li&!e rule& of +roceure. Section !1 also mandates that the
rights of persons appearing in or affected by such in(uiries be respected, an
imposition that obligates Congress to adhere to the guarantees in the Cill of 4ights.
T!e&e a/u&e& are. or cour&e. re1eia/le /efore t!e court&. u+on t!e
+ro+er &uit file /) t!e +er&on affecte. e(en if t!e) /elong to t!e
e0ecuti(e /ranc!. onetheless, there may be e-ceptional circumstances, wherein
a clear pattern of abuse of the legislative power of in(uiry might be established,
resulting in palpable violations of the rights guaranteed to members of the
e-ecutive department under the Cill of 4ights. In such instances, depending on the
>2
particulars of each case, attempts by the ,-ecutive Cranch to forestall these abuses
may be accorded 7udicial sanction.
Conce+t of e0ecuti(e +ri(ilege.
,-ecutive privilege is Ft!e +ower of t!e Go(ern1ent to wit!!ol infor1ation
fro1 t!e +u/lic. t!e court&. an t!e Congre&&.H It is the right of the President
and high3level e-ecutive branch offices to withhold information from Congress, the
courts and ultimately the public.
T)+e& or kin& of e0ecuti(e +ri(ilege.
,-ecutive privilege is not a clear or unitary concept. It has encompassed claims of
varying :inds.
.ne variety of the privilege, is t!e &tate &ecret& +ri(ilege in(oke /) *.S.
Pre&ient&, beginning with Bashington, on the ground that the information is such
nature that its disclosure would subvert crucial military or diplomatic ob7ectives.
'nother variety is t!e infor1erP& +ri(ilege. or t!e +ri(ilege of t!e
Go(ern1ent not to i&clo&e t!e ientit) of +er&on& w!o furni&!
infor1ation of (iolation& of law to officers charged with the enforcement of that
law. Finally, a generic +ri(ilege for internal eli/eration& has been said to
attach to intra3governmental documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which
government decisions and policies are formulated.
Ba&i& for t!e t!ree kin& of e0ecuti(e +ri(ilege.
Since the beginnings of our nation, e-ecutive officials have claimed a variety of
privileges to resist disclosure of information, t!e confientialit) of w!ic! t!e)
felt wa& crucial to t!e fulfill1ent of t!e uni,ue role an re&+on&i/ilitie& of
t!e e0ecuti(e /ranc! of our go(ern1ent. Courts ruled early that the e-ecutive
had a right to withhold documents that might reveal military or state secrets. 6he
courts have also granted the e-ecutive a right to withhold the identity of
government informers in some circumstances and a (ualified right to withhold
information related to pending investigations. &In re Sealed, 1!1 F. ed. 1!#, /!% @.S.
'pp. ;.C. !1%F)
A++earance uring t!e ,ue&tion !our not 1anator).
6he framers of the 1#$1 Constitution removed the mandatory nature of such
appearance during the (uestion hour in the present Constitution so as to conform
more fully to a system of separation of powers. 6o that e-tent, the (uestion hour, as
it is presently understood in this 7urisdiction, departs from the (uestion period of the
parliamentary system. T!at e+art1ent !ea& 1a) not /e re,uire to
a++ear in a ,ue&tion !our oe& not. !owe(er. 1ean t!at t!e legi&lature i&
>1
renere +owerle&& to elicit infor1ation fro1 t!e1 in all circu1&tance&. In
fact, in light of the absence of a mandatory (uestion period, the need to enforce
Congress< right to e-ecutive information in the performance of its legislative
function becomes more imperative.
Ba&i& of t!e +ower of Congre&& to co1+el t!e a++earance of e0ecuti(e
official& or t!e lack of it.
T!e +ower of Congre&& to co1+el t!e a++earance of e0ecuti(e official&
uner Section 6" an t!e lack of it uner Section 66 fin t!eir /a&i& in t!e
+rinci+le of &e+aration +ower&. Bhile the e-ecutive branch is a co3e(ual branch
of the legislature, it cannot frustrate the power of Congress to legislate by refusing
to comply with its demands for information, otherwise, it would not be able to
perform intelligently its power of legislation.

8eaning of t!e re,uire1ent of +rior con&ent of t!e Pre&ient or t!e !ea
of office ing an official to a++ear /efore t!e Congre&&.
*+on a eter1ination /) t!e e&ignate !ea of office or /) t!e Pre&ient
t!at an official i& Fco(ere /) t!e e0ecuti(e +ri(ilege.H &uc! official i&
&u/4ect to t!e re,uire1ent t!at !e fir&t &ecure t!e con&ent of t!e
Pre&ient +rior to a++earing /efore t!e Congre&&. 6his re(uirement
effectively bars the appearance of the official concerned unless the same is
permitted by the President. 6he provision allowing the President to give its consent
means nothing more than that the President may reverse a prohibition which
already e-ists by virtue of ,... >%>.
6hus, underlying this re(uirement of prior consent is the determination by the head
of office, authorized by the President under ,... >%>, or by the President herself,
that such official is in possession of information that is covered by e-ecutive
privilege. 6his determination then becomes the basis for the official<s not showing
up in the legislative investigation.
In (iew t!ereof. w!ene(er an official in(oke& E.O. ;J; to 4u&tif) !i& failure
to /e +re&ent. &uc! in(ocation 1u&t /e con&true a& a eclaration to
Congre&& t!at t!e Pre&ient. or a !ea of office aut!ori9e /) t!e
Pre&ient. !a& eter1ine t!at t!e re,ue&te infor1ation i& +ri(ilege.
an t!at t!e Pre&ient !a& not re(er&e &uc! eter1ination. Such
declaration, however, even without mentioning the term Ge-ecutive privilege,H
amounts to an implied claim that the information is being withheld by the e-ecutive
>!
branch, by authority of the President, on the basis of e-ecutive privilege. *erily,
there is an implied claim of privilege. &Senate, et al. vs. ,rmita, et al.).
In(ocation of e0ecuti(e +ri(ilege to /e acco1+anie /) rea&on&.
6he invocation of e-ecutive privilege must be accompanied by specific reasons.
Certainl). Congre&& !a& t!e rig!t to know w!) t!e e0ecuti(e con&ier& t!e
re,ue&te infor1ation +ri(ilege. It oe& not &uffice to 1erel) eclare
t!at t!e Pre&ient. or an aut!ori9e !ea of office. !a& eter1ine t!at it
i& &o. an t!at t!e Pre&ient !a& not o(erturne t!at eter1ination. Such
declaration leaves Congress in the dar: on how the re(uested information could be
classified as privileged. 6hat the message is couched in terms that, on first
impression, do not seem li:e a claim of privilege only ma:es it more pernicious. It
threatens to ma:e Congress doubly blind to the (uestion of why the e-ecutive
branch is not providing it with the information that it has re(uested.
No nee to &+ecif) t!e e0act rea&on.
Congre&& 1u&t not re,uire t!e e0ecuti(e to &tate t!e rea&on& for t!e clai1
wit! &uc! +articularit) a& to co1+el i&clo&ure of t!e infor1ation w!ic!
t!e +ri(ilege i& 1eant to +rotect. ' useful analogy in determining the re(uisite
degree of particularity would be the privilege against self3incrimination.
No clai1 of e0ecuti(e +ri(ilege /) 1ere &ilence.
Such presumptive authorization is contrary to the e-ceptional nature of the
privilege. ,-ecutive privilege is recognized with respect to information the
confidential nature of which is crucial to the fulfillment of the uni(ue rule and
responsibilities of the e-ecutive branch, or in those instances where e-emption
from disclosure is necessary to the discharge of highly important e-ecutive
responsibilities. 6he doctrine of e-ecutive privilege is thus, premised on the fact
that certain information must, as a matter of necessity, be :ept confidential in the
pursuit of the public interest. 6he privilege being, by definition, an e-emption from
the obligation to disclose information, in this case to Congress, the necessity must
be of such high degree as to outweigh the public interest in enforcing that
obligation in a particular case.
Onl) t!e Pre&ient can clai1 +ri(ilege.
In view of the highly e-ceptional nature of the privilege, it i& e&&ential to li1it to
t!e Pre&ient t!e +ower to in(oke t!e +ri(ilege. S!e 1a) of cour&e
aut!ori9e t!e E0ecuti(e Secretar) to in(oke t!e +ri(ilege on !er /e!alf. in
w!ic! ca&e t!e E0ecuti(e Secretar) 1u&t &tate t!at t!e aut!orit) i& FB)
t!e orer of t!e Pre&ient.H w!ic! 1ean& t!at !e +er&onall) con&ulte
wit! !er. 6he privilege being an e-traordinary power, it must be wielded only by
>/
the highest official in the e-ecutive hierarchy. In other words, the Pre&ient 1a)
not aut!ori9e !er &u/orinate& to e0erci&e &uc! +ower. 6here is even less
reason to uphold such authorization where the authorization is not e-plicit but mere
silence. Section /, in relation to Section !&b), is invalid on this score.
Sec. "' Pre&ient
G6he e-ecutive power shall be vested in the President of the Philippines.H
Sec. 6' Lualification&
atural3born citizen
4egistered voter
'ble to read and write
't least >2 yrs old on the day of election
4esident for at least 12 yrs immediately preceding the election
Sec. 3' @ice7Pre&ient
Same (ualifications and term of office as President
,lected and removed in same manner as President
0ay be a member of the Cabinet without need of confirmation
Sec. ;' Election an Ter1 of Office
P4,SI;,6 R si- years without re3election
*IC,3P4,SI;,6 R si- years, ! successive terms
N5 If the *ice3President succeeds in the Presidency, is he allowed to run for
President in the ne-t election=
'5 Pes, provided he did not hold the office of the President for 1ore t!an ; )r&.
Congre&& a& Boar of Can(a&&er&
P4.C,;@4,5
;uly certified returns from each province or city shall be transmitted to Congress,
directed to the Senate President
>>
@pon receipt of certificate of canvass, the Senate President shall, not later than /2
days after election day, open all the certificates in the presence of the Senate and
the Douse of reps in a 7oint public session
Congress shall determine the due authenticity and due e-ecution of the certificate
canvass and start canvassing the votes
Congress shall proclaim the candidate having the highest number of votes
In case of tie, Congress shall vote separately and the candidate having the ma7ority
votes of all members of both Douses shall be proclaimed the winner
4ole of Congress in Presidential ,lection is to canvass the votes &See Carbers vs.
Comelec)
Su+re1e Court en /anc a& Pre&iential Electoral Tri/unal
Sole 7udge of all contents relating to the election, returns, and (ualifications of the
President or *ice3President, and may promulgate its rules for the purpose
.6' C,,5
$o pre-proclamation controversy is allowed against %residential or :ice-%residential
candidates, "7C"%T* the correction of manifest errors in the certificate of canvass
or election returns or -tate of :otes.
'nly the candidate who garners the second or third highest number of votes may
;uestion the proclamation of a winner.
CO8ELEC !a& no 4uri&iction o(er +re7+rocla1ation contro(er&ie& in
+re&iential. (ice7+re&iential. &enatorial an congre&&ional election&5
Correction of 0anifest ,rror in the Statement of *otes may be filed directly with
C.0,+,C en banc
%rotestant cannot be substituted by widow in case of death of the former pending
resolution of election protest. -ubstitute must be a real party in interest. %oe vs
(rroyo
Sec. J' Pri(ilege an Salar)
P4I*I+,E,S5
.fficial residence &0alacanang Palace)
>"
Immunity from suit R not provided in the ConstitutionF to prevent distraction from
performance of duties
S'+'4P
Fi-ed by law
Cannot be decreased during tenure &actual time he held office) and cannot be
increased during his term &only upon e-piration of the term)
Shall not receive during tenure any other emolument from Eovernment or any
other source
Sec. % an $' A&&u1+tion of Office an Succe&&ion
BD,5 before noon of 8une /2
If President3elect fails to (ualify, dies or is permanently incapacitated, *ice3
President3elect becomes the President
If the President3elect becomes incapacitated temporarily, the *ice3President3
elect will act as President until such a time that the President can assume office
If there is failure to elect the president, the *ice3President will assume or act as
President
If the President, during his term, dies, gets disabled permanently, is removed
from office, or resigns, the *ice3President becomes the President
S*CCESSION IN CASE O2 @ACANCD'
*ice3President
Senate President
Spea:er of the Douse
Sec. #' @acanc) of @ice7Pre&ienc)
>%
6he President shall nominate one from the Senate and the Douse of 4eps who shall
assume office upon confirmation by a ma7ority vote of all the 0embers of the
Douses, voting separately
Sec. "G' S+ecial Election in Ca&e of @acanc)
BD,5 12522 a.m. of the third day after the vacancy
Congress will convene without need of a call and within 1 days enact a law
calling for a special election to be held not earlier than >" days nor later than
%2 days from time of such call
Sec. ""' Acting Pre&ient
E4.@;5 inability to discharge the powers and duties of the office
D.B5 written declaration of the President or ma7ority of his Cabinet
*ice3President shall assume office as 'cting President
4,S@0P6I. .F .FFIC,5 also through written declaration of the PresidentF if
ma7ority of Cabinet denies such declaration, Congress shall decide the issue
&if not in session, Congress will convene within >$ hrs) within 12 days &1!
days if not in session), by !Q/ vote
Sec. "6' Illne&& of t!e Pre&ient
Public shall be informed of the state of his health
0embers of the Cabinet in charge of national security and foreign relations
and the Chief of Staff of the 'rmed Forces shall not be denied access to the
President during such illness
Sec. "3' Pro!i/ition
Cannot hold any other office or employment during tenure
Cannot, during tenure, directly or indirectly practice any profession,
participate in any business or be financially interested in any contract with, or
in any franchise, or special privilege granted by the Eovernment
>1
Strictly avoid conflict of interest in the conduct of their office
President<s spouse and relatives by consanguinity or affinity within the >th
civil degree be appointed as members of the Constitutional Commissions, or
the .ffice of the .mbudsman, or as Secretaries, @ndersecretaries, chairmen
or heads of bureaus or offices, including E.CCs and subsidiaries
W?O CANNOT ?OLD AND OT?ER O22ICE D*RING TEN*RE'
President
*ice3President
Cabinet 0embers
;eputies and 'ssistants
,KC,P6I.S5
Bhen *ice3President is appointed as member of the Cabinet
Bhen *ice3President acts as President
Bhen Secretary of 8ustice is also a member of the 8udiciary
L' Doe& t!e Pre&ient !a(e t!e &a1e +ro!i/ition a& Congre&&N
'5 o, because Congress is only prohibited from holding offices in E.CCs and any
other government instrumentality, agency or subsidiary during term while ,-ecutive
is prohibited from holding any other office, whether public or private during tenure.
L' W!at i& e0 officio ca+acit)N
'5 Bhen an official holds other duties for the same office where he does not receive
additional compensation and the office is re(uired by his primary function.
ESTRADA @S ARRODO S*PRA
CLINTON @S <ONES
A &itting Pre&ient of t!e *nite State& !a& no i11unit) fro1 ci(il law
litigation again&t !i1. for act& one /efore taking office an unrelate to
t!e office.
Sec. "; an ">' A++oint1ent& e0tene /) Acting Pre&ient
,ffective unless revo:ed by the elected President within #2 days from his
assumption or reassumption of office
>$
'cting President shall not ma:e appointments ! mos immediately before the
ne-t presidential elections and up to the end of his term, ,KC,P65 temporary
appointments to e-ecutive positions when continued vacancies therein will
pre7udice public service or endanger public safety
Sec. "J' A++ointing Power
6PP,S .F 'PP.I60,65
4egular
'd Interim
6emporary
'cting 'ppointments, effect and validity &See Pimentel vs. ,-ecutive Secretary)
L' W!en i& Congre&& con&iere to /e in rece&&N
'5 4ecess it not the time between the ad7ournment of Congress and the start of its
regular session. 6he recess referred to here is the times of interval of the session of
the same Congress.
L' ?ow long will a interi1 a++oint1ent& la&tN
'5 Such appointments will last until disapproved by the Commission on
'ppointments or until the ne-t ad7ournment of Congress.
W?O ARE APPOINTED BD PRESIDENT'
?ea& of e0ecuti(e e+art1ent&. a1/a&&aor&. ot!er +u/lic
1ini&ter& an con&ul&. officer& of t!e ar1e force& fro1 t!e rank of
colonel or na(al ca+tain. an ot!er officer& w!o&e a++oint1ent& are
(e&te in !i1 in t!i& Con&titution R re(uires confirmation from
Commission on 'ppointments
All ot!er officer& of t!e Go(ern1ent w!o&e a++oint1ent& are not
ot!erwi&e +ro(ie /) law
6hose whom the President 1a) /e aut!ori9e /) law to a++oint
.fficers lower in ran: whose appointments the Congress 1a) /) law (e&t in
t!e Pre&ient alone
Section "%
>#
6he President shall have control of all the e-ecutive departments, bureaus, and
offices. De shall ensure that the laws be faithfully e-ecuted.
Pre&ientP& Power of Control
6he presidential power of control over the ,-ecutive branch of government e-tends
to all e-ecutive employees from the ;epartment Secretary to the lowliest cler:. 6his
constitutional power of the President is self3e-ecuting and does not re(uire any
implementing law. Congress cannot limit or curtail the President<s power of control
over the ,-ecutive branch.
GR' Congre&& !a& +ower to a/oli&!
6he general rule has always been that the power to abolish a public office is lodged
with the legislature. 6his proceeds from the legal precept that the power to create
includes the power to create includes the power to destroy. ' public office is either
created by the Constitution, by statute, or by authority of law. 6hus, e-cept where
the office was created by the Constitution itself, may be abolished by the same
legislature that brought it into e-istence.
T!e e0ce+tion. !owe(er. i& t!at a& far a& /ureau&. agencie& or office& in
t!e e0ecuti(e e+art1ent are concerne. t!e Pre&ientP& +ower of control
1a) 4u&tif) !i1 to inacti(ate t!e function& of a +articular office. or certain
law& 1a) grant !i1 t!e /roa aut!orit) to carr) out reorgani9ation
1ea&ure&.
W!at +ower& 1a) not /e elegate
--- 6here are certain presidential powers which arise out of e-ceptional
circumstances, and if e-ercised, would involve the suspension of fundamental
freedoms, or at least call for the supersedence of e-ecutive prerogatives over those
e-ercised by co3e(ual branches of government. T!e eclaration of 1artial law.
t!e &u&+en&ion of t!e writ of !a/ea& cor+u&. an t!e e0erci&e of t!e
+aroning +ower notwit!&taning t!e 4uicial eter1ination of guilt of t!e
accu&e. all fall wit!in t!i& &+ecial cla&& t!at e1an& t!e e0clu&i(e
e0erci&e /) t!e Pre&ient of t!e con&titutionall) (e&te +ower. 6he list is by
no means e-clusive, but there must be a showing that the e-ecutive power in
(uestion is of similar gravitas and e-ceptional import.
Be cannot conclude that the power of the President to contract or guarantee
foreign debts falls within the same e-ceptional class. Indubitably, the decision to
contract or guarantee foreign debts is of vital public interest, but only a:in to any
contractual obligation underta:en by the sovereign, which arises not from any
e-traordinary incident, but from the established functions of governance.
"2
'nother important (ualification must be made. 6he Secretary of Finance or any
designated alter ego of the President is bound to secure the latter<s prior consent to
or subse(uent ratification of his acts.
Sec. "$' Co11aner7in7C!ief Power& of t!e Pre&ient'
Power to call on the military or armed forces
Power to suspend the writ of habeas corpus
Power to declare martial law
CALLING O*T POWER
Conditions for calling out the armed forces5
6o suppress lawless violence, rebellion or invasion
Bhenever it becomes necessary
8ARTIAL LAW
Conditions for declaration of 0artial +aw5
Bhen there is &1) rebellion or &!) invasion &grounds)
Public safety re(uires the declaration
.6' C,,5 6here must be actual rebellion or invasion. ;iffer this from the calling
out power which does not re(uire actual rebellion or invasion but only that
whenever it &the e-ercise of the calling out power) becomes necessary to suppress
lawless violence, rebellion or invasion. &See Sanla:as vs. 4eyes, E.4. o. 1"#2$",
Feb. /, !22>)
W!at !a++en& w!en 8artial Law i& eclare'
o suspension of operation of the Constitution
o supplanting of the functioning of the civil courts and legislative assemblies
o conferment of 7urisdiction on military courts and agencies over civilians
where civil courts are able to function
o automatic suspension of the writ of habeas corpus
Con&titutional guar& again&t t!e +ower to eclare 8artial Law'
Bill last only for %2 days, unless sooner revo:ed by Congress
Bithin >$ hours after declaration, President is re(uired to submit a report to
Congress
"1
Congress shall revo:e or e-tend the period by 7ointly voting with an absolute
ma7ority and President may not reverse such revocation
If Congress is not in session, they shall convene within !> hours from such
declaration without need for call
Supreme Court may nullify the declaration on the ground of lac: of factual
basis, 7udgment to be rendered within /2 days from its filing by any ordinary
citizen
S*SPENSION O2 T?E WRIT O2 ?ABEAS CORP*S
&.6,5 the conditions and effect of the suspension of the writ is similar to
declaration of martial law)
Re&triction& to t!e &u&+en&ion of t!e writ of !a/ea& cor+u&'
'pply only to persons 7udicially charged for rebellion
'pply only to persons 7udicially charged for offenses inherent in or directly
connected with invasion
6he person arrested must be 7udicially charged within / days from arrest,
otherwise he shall be released
DA@ID @S ARRODO
96a:e Care9 Power of the President
Powers of the Chief ,-ecutive
6he power to promulgate decrees belongs to the +egislature
F'C6S5
6hese 1 consolidated petitions (uestion the validity of PP 1211 &declaring a state of
national emergency) and Eeneral .rder o. " issued by President Eloria 0acapagal3
'rroyo. Bhile the cases are pending, President 'rroyo issued PP 12!1, declaring
that the state of national emergency has ceased to e-ist, thereby, in effect, lifting
PP 1211.
ISS*E'
Bhether or not PP 1211 and E... o. " arrogated upon the President the
power to enact laws and decrees
If so, whether or not PP 1211 and E... o. " are unconstitutional
?ELD'
FTake7CareH Power
"!
6his refers to the power of the President to ensure that the laws be faithfully
e-ecuted, based on Sec. 11, 'rt. *II5 G6he President shall have control of all the
e-ecutive departments, bureaus and offices. De shall ensure that the laws be
faithfully e-ecuted.H
's the ,-ecutive in whom the e-ecutive power is vested, the primary function of the
President is to enforce the laws as well as to formulate policies to be embodied in
e-isting laws. De sees to it that all laws are enforced by the officials and employees
of his department. Cefore assuming office, he is re(uired to ta:e an oath or
affirmation to the effect that as President of the Philippines, he will, among others,
Ge-ecute its laws.H In the e-ercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander3in3Chief of all the
armed forces of the country, including the Philippine ational Police under the
;epartment of Interior and +ocal Eovernment.
T!e &+ecific +ortion of PP "G"% ,ue&tione i& t!e ena/ling clau&e' Fto
enforce o/eience to all t!e law& an to all ecree&. orer& an
regulation& +ro1ulgate /) 1e +er&onall) or u+on 1) irection.H
I& it wit!in t!e o1ain of Pre&ient Arro)o to +ro1ulgate Fecree&HN
6he President is granted an .rdinance Power under Chap. !, Coo: III of ,... !#!.
Pre&ient Arro)oP& orinance +ower i& li1ite to t!o&e i&&uance&
1entione in t!e foregoing +ro(i&ion. S!e cannot i&&ue ecree& &i1ilar to
t!o&e i&&ue /) 2or1er Pre&ient 8arco& uner PP "G$". Presidential
;ecrees are laws which are of the same category and binding force as statutes
because they were issued by the President in the e-ercise of his legislative power
during the period of 0artial +aw under the 1#1/ Constitution.
6his Court rules that the assailed PP 1211 is unconstitutional insofar as it grants
President 'rroyo the authority to promulgate Gdecrees.H +egislative power is
peculiarly within the province of the +egislature. Sec. 1, 'rt. *I categorically states
that Gthe legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a Douse of 4epresentatives.H To /e &ure. neit!er
8artial Law nor a &tate of re/ellion nor a &tate of e1ergenc) can 4u&tif)
Pre&ient Arro)oP& e0erci&e of legi&lati(e +ower /) i&&uing ecree&.
Cut can President 'rroyo enforce obedience to all decrees and laws through the
military=
A& t!i& Court &tate earlier. Pre&ient Arro)o !a& no aut!orit) to enact
ecree&. It follow& t!at t!e&e ecree& are (oi an. t!erefore. cannot /e
enforce. Bith respect to Glaws,H she cannot call the military to enforce or
"/
implement certain laws, such as customs laws, laws governing family and property
relations, laws on obligations and contracts and the li:e. S!e can onl) orer t!e
1ilitar). uner PP "G"%. to enforce law& +ertinent to it& ut) to &u++re&&
lawle&& (iolence.
Sec. "#' E0ecuti(e Cle1encie&
G,-cept in cases of impeachment, or as otherwise provided in this Constitution, t!e
Pre&ient 1a) grant re+rie(e&. co11utation&. an +aron&. an re1it
fine& an forfeiture&. after con(iction /) final 4ug1ent.
De shall also have the power to grant amnesty with the concurrence of a ma7ority of
all the 0embers of the Congress.H
EIEC*TI@E CLE8ENCIES'
'mnesty
Pardon
4eprieve
Commutation
4emit fines and forfeitures
A1ne&t) R an act of grace by the Chief ,-ecutive as a result of the grant of
amnesty, the criminal liability of the offender and all the effects of the crime are
completely erased. It i& a /lanket +aron gi(en to a cla&& of +er&on& w!o
co11itte cri1e& t!at are +olitical in nature. 6o be valid, Congress has to
concur with a ma7ority vote &thus, it is a public act) and the accused must admit his
guilt.
Paron R a private act of the %resident granted after 1udgment by final conviction
for ordinary offenses. 0t may be absolute or condition, in which case, acceptance of
condition R if burdensome to the accused R is necessary. 6he effect is to relieve the
accused from further punishment, thus, if given after sentence has been served, its
effect is to e-tinguish the accessory penalties. In case of administrative cases,
effect is reinstatement but no payment of bac:wages.
Re+rie(e R discretionary upon the President to &u&+en t!e enforce1ent of
4ug1ent
8ONSANTO @S 2ACTORAN
">
Paron cannot 1a&k t!e act& con&tituting t!e cri1e. 6hese are 9historical9
facts which, despite the public manifestation of mercy and forgiveness implicit in
pardon, 9ordinary, prudent men will ta:e into account in their subse(uent dealings
with the actor.9
Paron grante after con(iction free& t!e ini(iual fro1 all t!e +enaltie&
an legal i&a/ilitie& an re&tore& !i1 to all !i& ci(il rig!t&. Cut unless
e-pressly grounded on the personAs innocence &which is rare), it cannot /ring
/ack lo&t re+utation for !one&t). integrit) an fair ealing. 6his must be
constantly :ept in mind lest we lose trac: of the true character and purpose of the
privilege.
6hus, notwithstanding the e-pansive and effusive language of the Earland case, we
are in full agree1ent wit! t!e co11onl)7!el o+inion t!at +aron oe&
not i+&o facto re&tore a con(icte felon to +u/lic office nece&&aril)
relin,ui&!e or forfeite /) rea&on of t!e con(iction although such pardon
undoubtedly restores his eligibility for appointment to that office.
6o regain her former post as assistant city treasurer, Petitioner must re3apply and
undergo the usual procedure re(uired for a new appointment.
Sec. 6G' Power to Contract or Guarantee 2oreign Loan&
Sec. 6"' Treat)71aking Power
Go treaty or international agreement shall be valid and effective unle&&
concurre in /) at lea&t two7t!ir& of all t!e 8e1/er& of t!e Senate.H
Power to enter into an ratif) treatie& i& &ole +rerogati(e of t!e E0ecuti(e
Sec. 66' Pre+aration an Su/1i&&ion of Buget
6he President shall submit to the Congress within thirty3days from the opening of
every regular session, as the basis of the general appropriations bill, a budget of
e-penditures and sources of financing, including receipts from e-isting and
proposed revenue measures.
Sec. 63' SONA
6he President shall address the Congress at the opening of its regular session. De
may also appear before it at any other time.
Ratification /) Pre&ient (i&7R7(i& Concurrence of Senate
""
Borth stressing too, is that the ratification, by the President, of the *F' and the
concurrence of the Senate should be ta:en as a clear an une(uivocal e-pression of
our nation<s consent to be bound by said treaty, with the concomitant duty to
uphold the obligations and responsibilities embodied thereunder.
4atification is generally held to be an e-ecutive act, underta:en by the head of the
state or of the government, as the case may be, through which the formal
acceptance of the treaty is proclaimed. ' State may provide in its domestic
legislation the process of ratification of a treaty. 6he consent of the State to be
bound by a treaty is e-pressed by ratification when5 &a) the treaty provides for such
ratification, &b) it is otherwise established that the negotiating States agreed that
ratification should be re(uired, &c) the representative of the State has signed the
treaty sub7ect to ratification, or &d) the intention of the State to sign the treaty
sub7ect to ratification appears from the full powers of its representative, or was
e-pressed during the negotiation.
In our 7urisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature. 6he role of the Senate is limited only to
giving or withholding its consent, or concurrence, to the ratification.
Bith the ratification of the *F', which is e(uivalent to final acceptance, and with
the e-change of notes between the Philippines and the @nited States of 'merica, it
now becomes obligatory and incumbent on our part, under the principles of
international law, to be bound by the terms of the agreement.
6he Supreme Court
Section "
6he 7udicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
<uicial +ower includes the duty of the courts of 7ustice to &ettle actual
contro(er&ie& involving rights which are legall) e1ana/le an enforcea/le,
and to eter1ine w!et!er or not t!ere !a& /een a gra(e a/u&e of
i&cretion a1ounting to lack or e0ce&& of 4uri&iction on the part of any
branch or instrumentality of the Eovernment.
8ARB*RD @S 8ADISON
6hat for every violation of a vested legal right, there must be a legal remedy.
'cts of Congress that conflict with the Constitution are not laws and the
Courts are bound instead to follow the Constitution, affirming the principle of
7udicial review.
"%
96o what purpose are powers limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time, be passed by those
intended to be restrained=9
It is emphatically the province and duty of the 8udicial ;epartment Ithe
7udicial branchJ to say what the law is. 6hose who apply the rule to particular
cases must, of necessity, e-pound and interpret that rule. If two laws conflict
with each other, the Courts must decide on the operation of each.
Section >
6he Supreme Court shall have the following powers5
1. ,-ercise original 4uri&iction o(er ca&e& affecting a1/a&&aor&. ot!er
+u/lic 1ini&ter& an con&ul&, and over petitions for certiorari.
+ro!i/ition. 1ana1u&. ,uo warranto. an !a/ea& cor+u&.
!. Re(iew. re(i&e. re(er&e. 1oif). or affir1 on appeal or certiorari, as the
law or the 4ules of Court may provide, final 7udgments and orders of lower
courts in5
a. 'll ca&e& in w!ic! t!e con&titutionalit) or (aliit) of an) treat),
international or e-ecutive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in (uestion.
b. 'll cases involving the legalit) of an) ta0. i1+o&t. a&&e&&1ent. or
toll. or an) +enalt) imposed in relation thereto.
c. 'll cases in which t!e 4uri&iction of an) lower court i& in i&&ue.
d. 'll criminal cases in which the penalty imposed is reclu&ion +er+etua
or !ig!er.
e. 'll cases in which only an error or ,ue&tion of law i& in(ol(e.
/. A&&ign te1+oraril) 4uge& of lower court& to other stations as public
interest may re(uire. Such temporary assignment shall not e-ceed si-
months without the consent of the 7udge concerned.
>. .rder a c!ange of (enue or +lace of trial to avoid a miscarriage of 7ustice.
". Promulgate rules concerning the +rotection an enforce1ent of
con&titutional rig!t&, +leaing. +ractice. an +roceure in all court&.
the a1i&&ion to t!e +ractice of law. t!e integrate /ar. an legal
a&&i&tance to t!e uner7+ri(ilege. Such rules shall provide a simplified
and ine-pensive procedure for the speedy disposition of cases, shall be
uniform for all courts of the same grade, and &!all not i1ini&!. increa&e.
"1
or 1oif) &u/&tanti(e rig!t&. 4ules of procedure of special courts and
(uasi37udicial bodies shall remain effective unless disapproved by the
Supreme Court.
%. A++oint all official& an e1+lo)ee& of t!e <uiciar) in accordance with
the Civil Service +aw.
+egal Standing
CILOSBADAN @S G*INGONA
Section 1&C) of 4.'. o. 11%#, as amended by C.P. Clg. >!, prohibits the PCS. from
holding and conducting charity sweepsta:es races, lotteries, and other similar
activities 9in collaboration, association or 7oint venture with any person, association,
company or entity, foreign or domestic.9 PCS. enters into a contract of lease with
PE0C, such that the latter would operate lotteries with their own operational
e-penses for 1" years after which termination of lease would then succeed all
properties to PCS.F opposed by Oilosbayan composed of concerned citizenF
;o they have legal standing=
Is the contract valid=
?el'
Eeneral 4ule5 -T!e unc!allenge rule i& t!at t!e +er&on w!o i1+ugn& t!e
(aliit) of a &tatute 1u&t !a(e a +er&onal an &u/&tantial intere&t in t!e
ca&e &uc! t!at !e !a& &u&taine. or will &u&tain. irect in4ur) a& a re&ult of
it& enforce1ent.
?owe(er' In the first ,mergency Powers Cases, ordinary citizens and ta-payers
were allowed to (uestion the constitutionality of several e-ecutive orders issued by
President Nuirino alt!oug! t!e) were in(oking onl) an inirect an general
intere&t shared in common with the public. 6he Court dismissed the ob7ective that
they were not proper parties and rule t!at t!e tran&cenental i1+ortance to
t!e +u/lic of t!e&e ca&e& e1an& t!at t!e) /e &ettle +ro1+tl) an
efinitel), brushing aside, if we must, technicalities of procedure. Be have since
then applied this e-ception in many other cases.
We fin t!e in&tant +etition to /e of tran&cenental i1+ortance to t!e
+u/lic. T!e i&&ue& it rai&e are of +ara1ount +u/lic intere&t an of a
categor) e(en !ig!er t!an t!o&e in(ol(e in 1an) of t!e aforecite ca&e&.
6he ramifications of such issues immeasurably affect the social, economic, and
moral well3being of the people even in the remotest barangays of the country and
"$
the counter3productive and retrogressive effects of the envisioned on3line lottery
system are as staggering as the billions in pesos it is e-pected to raise. 6he legal
standing then of the petitioners deserves recognition and, in the e-ercise of its
sound discretion, this Court hereby brushes aside the procedural barrier which the
respondents tried to ta:e advantage of.
Contract of +ease is contrary to law5 Section " of R.A. No. ""J#. a& a1ening
/) B.P. Blg. ;6. +ro!i/it& t!e PCSO fro1 !oling an conucting lotterie&
-in colla/oration. a&&ociation or 4oint (enture wit! an) +er&on.
a&&ociation. co1+an) or entit). w!et!er o1e&tic or foreign.- PCS. had
nothing but its franchise, which it solemnly guaranteed it had in the Eeneral
Information of the 4FP. Dowsoever viewed then, from the very inception, the PCS.
and the PE0C mutually understood that any arrangement between them would
necessarily leave to the PE0C the technical, operations, and management aspects
of the on3line lottery system while the PCS. would, primarily, provide the franchise.
2RANCISCO @S 2ERNANDO
E&&ential Re,ui&ite& for <uicial Re(iew
's clearly stated in 'ngara v. ,lectoral Commission, the courtsA power of 7udicial
review, li:e almost all powers conferred by the Constitution, is sub7ect to several
limitations, namely5
1. an actual ca&e or contro(er&) calling for the e-ercise of 7udicial powerF
!. the person challenging the act 1u&t !a(e -&taning- to challengeF he must
have a +er&onal an &u/&tantial intere&t in the case such that he has
sustained, or will sustain, direct in7ury as a result of its enforcementF
/. the ,ue&tion of con&titutionalit) 1u&t /e rai&e at t!e earlie&t
+o&&i/le o++ortunit)F and &
>. the issue of constitutionality must be t!e (er) li& 1ota of the case.
+ocus standi or legal standing or has been defined as a +er&onal an &u/&tantial
intere&t in t!e ca&e &uc! t!at t!e +art) !a& &u&taine or will &u&tain irect
in4ur) a& a re&ult of t!e go(ern1ental act t!at i& /eing c!allenge. 6he gist
of the (uestion of standing is whether a +art) allege& &uc! +er&onal &take in
the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for illumination
of difficult constitutional (uestions.
Staning i& a &+ecial concern in con&titutional law /ecau&e in &o1e ca&e&
&uit& are /roug!t not /) +artie& w!o !a(e /een +er&onall) in4ure /) t!e
o+eration of a law or /) official action taken. /ut /) concerne citi9en&.
"#
ta0+a)er& or (oter& w!o actuall) &ue in t!e +u/lic intere&t. Dence the
(uestion in standing is whether such parties have 9alleged such a personal sta:e in
the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional (uestions.9
- - -
On t!e ot!er !an. t!e ,ue&tion a& to -real +art) in intere&t- i& w!et!er !e
i& -t!e +art) w!o woul /e /enefite or in4ure /) t!e 4ug1ent. or t!e
=+art) entitle to t!e a(ail& of t!e &uit.=-
W!en &uing a& a citi9en. t!e intere&t of t!e +etitioner a&&ailing t!e
con&titutionalit) of a &tatute 1u&t /e irect an +er&onal. ?e 1u&t /e a/le
to &!ow. not onl) t!at t!e law or an) go(ern1ent act i& in(ali. /ut al&o
t!at !e &u&taine or i& in i11inent anger of &u&taining &o1e irect in4ur)
a& a re&ult of it& enforce1ent. an not 1erel) t!at !e &uffer& t!ere/) in
&o1e inefinite wa). It must appear that the person complaining has been or is
about to be denied some right or privilege to which he is lawfully entitled or that he
is about to be sub7ected to some burdens or penalties by reason of the statute or
act complained of. In fine. w!en t!e +roceeing in(ol(e& t!e a&&ertion of a
+u/lic rig!t. t!e 1ere fact t!at !e i& a citi9en &ati&fie& t!e re,uire1ent of
+er&onal intere&t.
Ta0+a)erP& Suit
In t!e ca&e of a ta0+a)er. !e i& allowe to &ue w!ere t!ere i& a clai1 t!at
+u/lic fun& are illegall) i&/ur&e. or t!at +u/lic 1one) i& /eing
eflecte to an) i1+ro+er +ur+o&e. or t!at t!ere i& a wa&tage of +u/lic
fun& t!roug! t!e enforce1ent of an in(ali or uncon&titutional law. Cefore
he can invo:e the power of 7udicial review, however, he must specifically prove that
he has sufficient interest in preventing the illegal e-penditure of money raised by
ta-ation and that he would sustain a direct in7ury as a result of the enforcement of
the (uestioned statute or contract. It is not sufficient that he has merely a general
interest common to all members of the public.
( tapayer may challenge the validity of a statute, which provides for the
disbursement of public funds, upon the theory that the ependiture of public funds,
by an officer of the -tate for the purpose of administering an unconstitutional act
constitutes a misapplication of such funds, which may be en1oined by a tapayer.
A& for a legi&lator. !e i& allowe to &ue to ,ue&tion t!e (aliit) of an)
official action w!ic! !e clai1& infringe& !i& +rerogati(e& a& a legi&lator.
Indeed, a member of the Douse of 4epresentatives has standing to maintain
%2
inviolate the prerogatives, powers and privileges vested by the Constitution in his
office.
In t!e &a1e (ein. w!en ealing wit! cla&& &uit& file in /e!alf of all
citi9en&. +er&on& inter(ening 1u&t /e &ufficientl) nu1erou& to full)
+rotect t!e intere&t& of all concerne to ena/le t!e court to eal +ro+erl)
wit! all intere&t& in(ol(e in t!e &uit. for a 4ug1ent in a cla&& &uit.
w!et!er fa(ora/le or unfa(ora/le to t!e cla&&. i&. uner t!e re& 4uicata
+rinci+le. /ining on all 1e1/er& of t!e cla&& w!et!er or not t!e) were
/efore t!e court. Bhere it clearly appears that not all interests can be sufficiently
represented as shown by the divergent issues raised in the numerous petitions
before this Court, E.4. o. 1%2/%" as a class suit ought to fail. Since petitioners
additionally allege standing as citizens and ta-payers, however, their petition will
stand.
6here being no doctrinal definition of transcendental importance, the following
instructive determinants formulated by former Supreme Court 8ustice Florentino P.
Feliciano are instructive5
1. the c!aracter of t!e fun& or ot!er a&&et& involved in the caseF
!. the presence of a clear ca&e of i&regar of a con&titutional or
&tatutor) +ro!i/ition by the public respondent agency or instrumentality of
the governmentF and
/. the lack of an) ot!er +art) wit! a 1ore irect an &+ecific intere&t in
raising the (uestions being raised.
'pplying these determinants, this Court is satisfied that the issues raised herein
are indeed of transcendental importance.
RIPENESS AND PRE8AT*RITD
In 6an v. 0acapagal, this Court, through Chief 8ustice Fernando, held that for a case
to be considered ripe for ad7udication, 9it is a prere(uisite that something had by
then been accomplished or performed by either branch before a court may come
into the picture.9 .nly then may the courts pass on the validity of what was done, if
and when the latter is challenged in an appropriate legal proceeding.
<*STICIABILITD
6he term 9political (uestion9 connotes, in legal parlance, what it means in ordinary
parlance, namely, a (uestion of policy. In other words, in the language of Corpus
8uris Secundum, it refers to -t!o&e ,ue&tion& w!ic!. uner t!e Con&titution.
are to /e ecie /) t!e +eo+le in t!eir &o(ereign ca+acit). or in regar to
w!ic! full i&cretionar) aut!orit) !a& /een elegate to t!e Legi&lature or
%1
e0ecuti(e /ranc! of t!e Go(ern1ent.- It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure. &Italics in the original)
Li& 8ota
It is a well3settled ma-im of ad7udication that an issue assailing the constitutionality
of a governmental act should be avoided whenever possible. 6hus, in the case of
Sotto v. Commission on ,lections, this Court held5
- - - It i& a well7e&ta/li&!e rule t!at a court &!oul not +a&& u+on a
con&titutional ,ue&tion an ecie a law to /e uncon&titutional or in(ali.
unle&& &uc! ,ue&tion i& rai&e /) t!e +artie& an t!at w!en it i& rai&e. if
t!e recor al&o +re&ent& &o1e ot!er groun u+on w!ic! t!e court 1a)
re&t it& 4ug1ent. that course will be adopted and the constitutional (uestion will
be left for consideration until a case arises in which a decision upon such (uestion
will be unavoidable.
Succinctly put, courts will not touch the issue of constitutionality unless it is truly
unavoidable and is the very lis mota or cru- of the controversy.
1. that there be absolute nece&&it) of eciing a ca&e
!. that rule& of con&titutional law &!all /e for1ulate only as re(uired
by the facts of the case
/. that 4ug1ent 1a) not /e &u&taine on some other ground
>. that there be actual in4ur) &u&taine /) t!e +art) by reason of the
operation of the statute
". that the parties are not in e&to++el
%. that the Court u+!ol& t!e +re&u1+tion of con&titutionalit)
It is thus clear that the framers intended -initiation- to &tart wit! t!e filing of
t!e co1+laint. In his amicus curiae brief, Co11i&&ioner 8aa1/ong e0+laine
t!at -t!e o/(iou& rea&on in eleting t!e +!ra&e -to initiate i1+eac!1ent
+roceeing&- a& containe in t!e te0t of t!e +ro(i&ion of Section 3 A3B wa&
to &ettle an 1ake it uner&too once an for all t!at t!e initiation of
i1+eac!1ent +roceeing& &tart& wit! t!e filing of t!e co1+laint. an t!e
(ote of one7t!ir of t!e ?ou&e in a re&olution of i1+eac!1ent oe& not
initiate t!e i1+eac!1ent +roceeing& which was already initiated by the filing
of a verified complaint under Section /, paragraph &!), 'rticle KI of the
Constitution.9
Daving concluded that the initiation take& +lace /) t!e act of filing an
referral or enor&e1ent of t!e i1+eac!1ent co1+laint to t!e ?ou&e
Co11ittee on <u&tice or. /) t!e filing /) at lea&t one7t!ir of t!e 1e1/er&
of t!e ?ou&e of Re+re&entati(e& wit! t!e Secretar) General of t!e ?ou&e.
the meaning of Section / &") of 'rticle KI becomes clear. .nce an impeachment
complaint has been initiated, another impeachment complaint may not be filed
against the same official within a one year period.
%!
Doctrine of O+erati(e 2act
96he doctrine of operative fact, as an e-ception to the general rule, only applies as
a matter of e(uity and fair play. It nullifie& t!e effect& of an uncon&titutional
law /) recogni9ing t!at t!e e0i&tence of a &tatute +rior to a eter1ination
of uncon&titutionalit) i& an o+erati(e fact and may have conse(uences which
cannot always be ignored. 6he past cannot always be erased by a new 7udicial
declaration.9
7 Planter& Prouct& (& 2erti+!il Cor+.
POLITICAL L*ESTION
6he term 9political (uestion9 connotes, in legal parlance, what it means in ordinary
parlance, namely, a (uestion of policy. In other words, in the language of Corpus
8uris Secundum, it refers to -t!o&e ,ue&tion& w!ic!. uner t!e Con&titution.
are to /e ecie /) t!e +eo+le in t!eir &o(ereign ca+acit). or in regar to
w!ic! full i&cretionar) aut!orit) !a& /een elegate to t!e Legi&lature or
e0ecuti(e /ranc! of t!e Go(ern1ent.- It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure. &Italics in the original)
8ACEDA @S @ASL*EM
Facts5
4espondent apoleon 'biera of P'. filed a complaint before the .ffice of the
.mbudsman against petitioner 46C 8udge Conifacio Sanz 0aceda. 4espondent
'biera alleged that petitioner 0aceda has falsified his certificate of service by
certifying that all civil and criminal cases which have been submitted for decision
for a period of #2 days have been determined and decided on or before 8anuary /1,
1#$#, when in truth and in fact, petitioner 0aceda :new that no decision had been
rendered in " civil and 12 criminal cases that have been submitted for decision.
4espondent 'biera alleged that petitioner 0aceda falsified his certificates of service
for 11 months.
Issue5
Bhether or not the investigation made by the .mbudsman constitutes an
encroachment into the SC<s constitutional duty of supervision over all inferior courts
Deld5
%/
' 7udge who falsifies his certificate of service is administratively liable to the SC for
serious misconduct and under Sec. 1, 4ule 1>2 of the 4ules of Court, and criminally
liable to the State under the 4evised Penal Code for his felonious act.
In t!e a/&ence of an) a1ini&trati(e action taken again&t !i1 /) t!e Court
wit! regar to !i& certificate& of &er(ice. t!e in(e&tigation /eing
conucte /) t!e O1/u&1an encroac!e& into t!e CourtP& +ower of
a1ini&trati(e &u+er(i&ion o(er all court& an it& +er&onnel. in (iolation of
t!e octrine of &e+aration of +ower&.
Art. @III. Sec. J of t!e Con&titution e0clu&i(el) (e&t& in t!e SC
a1ini&trati(e &u+er(i&ion o(er all court& an court +er&onnel. fro1 t!e
Pre&iing <u&tice of t!e CA own to t!e lowe&t 1unici+al trial court clerk.
B) (irtue of t!i& +ower. it i& onl) t!e SC t!at can o(er&ee t!e 4uge&P an
court +er&onnelP& co1+liance wit! all law&. an take t!e +ro+er
a1ini&trati(e action again&t t!e1 if they commit any violation thereof. o
other branch of government may intrude into this power, without running afoul of
the doctrine of separation of powers.
Bhere a criminal complaint against a 7udge or other court employee arises from
their administrative duties, the .mbudsman must defer action on said complaint
and refer the same to the SC for determination whether said 7udge or court
employee had acted within the scope of their administrative duties.
Section ""
6he 0embers of the Supreme Court and 7udges of lower courts &!all !ol office
uring goo /e!a(ior until t!e) reac! t!e age of &e(ent) )ear& or /eco1e
inca+acitate to discharge the duties of their office. 6he Su+re1e Court en
/anc &!all !a(e t!e +ower to i&ci+line 4uge& of lower court&. or orer
t!eir i&1i&&al /) a (ote of a 1a4orit) of t!e 8e1/er& who actually too: part
in the deliberations on the issues in the case and voted thereon.
PEO @S GACOTT
Facts5
For failure to chec: the citations of the prosecution, the order of respondent 46C
8udge ,usta(uio Eacott, 8r. dismissing a criminal case was annulled by the SC. 6he
respondent 7udge was also sanctioned with a reprimand and a fine of P12,222.22 for
gross ignorance of the law. 6he 7udgment was made by the Second ;ivision of the
SC.
Issue5
Bhether or not the Second ;ivision of the SC has the competence to
administratively discipline respondent 7udge
%>
Deld5
6o support the Court<s ruling, 8ustice 4egalado relied on his recollection of a
conversation with former Chief 8ustice 4oberto Concepcion who was the Chairman
of the Committee on the 8udiciary of the 1#$% Constitutional Commission of which
4egalado was also a member.
6he very te-t of the present Sec. 11, 'rt. *III of the Constitution clearly shows that
there are actually two situations envisaged therein. 6he first clause which states
that Ft!e SC en /anc &!all !a(e t!e +ower to i&ci+line 4uge& of lower
court&.H i& a eclaration of t!e grant of t!at i&ci+linar) +ower to. an t!e
eter1ination of t!e +roceure in t!e e0erci&e t!ereof /). t!e Court en
/anc. It was not t!erein intene t!at all a1ini&trati(e i&ci+linar) ca&e&
&!oul /e !ear an ecie /) t!e w!ole Court &ince it woul re&ult in an
a/&urit).
6he second clause, which refers to the second situation contemplated therein and is
intentionally separated from the first by a comma, eclare& on t!e ot!er !an
t!at t!e Court en /anc can Forer t!eir i&1i&&al /) a (ote of a 1a4orit) of
t!e 8e1/er& w!o actuall) took +art in t!e eli/eration& on t!e i&&ue& in
t!e ca&e an (ote t!erein.H In this instance, the administrative case must be
deliberated upon and decided by the full Court itself.
Pur&uant to t!e fir&t clau&e w!ic! confer& a1ini&trati(e i&ci+linar)
+ower to t!e Court en /anc. a eci&ion en /anc i& neee onl) w!ere t!e
+enalt) to /e i1+o&e i& t!e i&1i&&al of a 4uge. officer or e1+lo)ee of
t!e <uiciar). i&/ar1ent of a law)er. or eit!er t!e &u&+en&ion of an) of
t!e1 for a +erio of 1ore t!an " )ear or a fine e0ceeing P"G. GGG.GG or
/ot!.
Indeed, to re(uire the entire Court to deliberate upon and participate in all
administrative matters or cases regardless of the sanctions, imposable or imposed,
would result in a congested doc:et and undue delay in the ad7udication of cases in
the Court, especially in administrative matters, since even cases involving the
penalty of reprimand would re(uire action by the Court en banc.
T?E CONSTIT*TIONAL CO88ISSIONS
II7A CO88ON PRO@ISIONS
Civil Service Commission
Commission on ,lections
Commission on 'udit
W!at are t!e in!i/ition& on t!e 1e1/er& of t!e Con&titutional
Co11i&&ion&N
Section 6
o member of a Constitutional Commission shall, during his tenure,
%"
Dold any other office or employment
,ngage in the practice of any profession
6a:e part in the active management or control of any business which, in any
way, may be affected by the functions of his office,
Ce financially interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Eovernment, any of its subdivisions,
agencies, or instrumentalities, including government3owned or controlled
corporations or their subsidiaries.
Section %
,ach Commission &!all ecie /) a 1a4orit) (ote of all it& 8e1/er&, any case
or matter brought before it wit!in &i0t) a)& fro1 t!e ate of it& &u/1i&&ion
for eci&ion or re&olution. ' case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or memorandum re(uired by
the rules of the Commission or by the Commission itself. @nless otherwise provided
by this Constitution or by law, an) eci&ion. orer. or ruling of eac!
Co11i&&ion 1a) /e /roug!t to t!e Su+re1e Court on certiorari /) t!e
aggrie(e +art) wit!in t!irt) a)& fro1 recei+t of a co+) t!ereof.
So1e e(ience of t!e ine+enence of t!e Con&titutional Co11i&&ion
1. Salaries are fi-ed by law and shall not be decreased during their tenure
!. Shall en7oy fiscal autonomy
/. 6he Commissioners can be removed by impeachment only
>. 6he President cannot designate an acting Chairman, li:e the Chairman of the
Comelec &Crillantes vs Porac)
ota bene5
'ppointment to any vacancy shall only be for the une-pired term of the
predecessorF
Ci(il Ser(ice Co11i&&ion
6he Civil Service embraces all branches, subdivisions, instrumentalities, and
agencies of the government, including government3owned or controlled
corporations with original chartersF
Chairman
&!) Commissioners
o atural born citizens
o 't least /"" years at the time of appointment
o 0ust not have been candidates for any elective position in the
elections immediately preceding their appointment
'ppointed by the President with the consent of the Commission on
'ppointments
1 years for Chairman
%%
" years for Commissioners and another commissioner for / years without
reappointment
o temporary or acting capacity in appointments
Positions e-empt from competitive e-amination
Policy determining
Primarily confidential
Dighly technical
ota bene5
o officer or employee in the civil service shall engage directly or
indirectly in any electioneering or partisan political campaignF &soliciting
votes is prohibited) mere introduction in a political rally is not sufficient to
warrant electioneeringF
Section J
o candidate who has lo&t in an) election &!all, wit!in one )ear after &uc!
election, be appointed to any office in the Eovernment or any Eovernment3owned
or controlled corporations or in any of their subsidiaries.
Section %
o elective official shall be eligible for appointment or designation in any capacity
to any public office or position during his tenure.
*nle&& ot!erwi&e allowe /) law or /) t!e +ri1ar) function& of !i&
+o&ition. no appointive official shall hold any other office or employment in the
Eovernment or any subdivision, agency or instrumentality thereof, including
Eovernment3owned or controlled corporations or their subsidiaries.
Section $
o elective or appointive public officer or employee &!all recei(e aitional.
ou/le. or inirect co1+en&ation, unless specifically authorized by law, nor
acce+t wit!out t!e con&ent of t!e Congre&&, an) +re&ent. e1olu1ent.
office. or title of an) kin fro1 an) foreign go(ern1ent.
Pensions or gratuities shall not be considered as additional, double, or indirect
compensation.
Co11i&&ion on Election&
Chairman
% Commissioners
Lualification&
atural born citizen
't leats /" at the time of appointment
%1
Dolders of a college degree
0ust not have been candidates for any elective position in the
immediately preceding elections. ' ma7ority of the members, including the
Chairman, shall be members of the Philippine Car who have been engaged
in the practice of law for at least 12 yearsF
'ppointed by the President with the consent of the C.'
1 years for Chairman, three members first appointed shall hold office for 1
years, ! members for " years, and the last members for / yearsF
o temporary or acting capacity
ota bene5
Comelec has the e-clusive power to investigate and prosecute election
offensesF
Can, however, deputize the fiscal to conduct preliminary investigation on
election offenses and prosecute themF if not deputized, fiscal has no power to
assume the role of prosecutor of election offensesF
Persons holding a public appointive office is considered resigned upon filing
of his certificate of candidacy for public officeF whether government owned or
controlled corporation with or without original chartersF
Comelec may issue a writ of in7unction only in appellate 7urisdictionF
I@. T?E A8ENDING PROCESS
'rticle K*II, Section !
'mendments to this Constitution may li:ewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number
of registered voters, of which every legislative district must be represented by at
least three per centum of the registered voters therein. o amendment under this
section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.
SANTIAGO @S CO8ELEC
Constitutional provision on PeopleAs Initiative is not self3e-ecutory
Principle of on3delegation of Powers, ,-ceptions
F'C6S5
Petitioners in this case sought to amend certain provisions of the Constitution,
specifically lifting the limit of terms of elective officials, through people<s initiative.
Santiago et al. opposed on the ground that the constitutional provision on people<s
initiative to amend the Constitution can only be implemented by law to be passed
by Congress. 6here is no law passed yet and 4' %1/", which provides for initiative
on statues and local legislation but not initiative on the Constitution.
ISS@,5
%$
Bhether or not 4' %1/" ade(uately provided for people<s initiative on Constitution
4@+IE5
Con&titutional +ro(i&ion on +eo+leP& initiati(e i& not &elf7e0ecutor)5
Sec. ! of 'rt. K*II of the Constitution...is not self3e-ecutory. ---
Cluntly stated, t!e rig!t of t!e +eo+le to irectl) +ro+o&e a1en1ent& to
t!e Con&titution t!roug! t!e &)&te1 of initiati(e woul re1ain ento1/e
in t!e col nic!e of t!e Con&titution until Congre&& +ro(ie& for it&
i1+le1entation. Stated otherwise, while the Constitution has recognized or
granted that right, the people cannot e-ercise it if Congress, for whatever reason,
does not provide for its implementation.
Das Congress GprovidedH for the implementation of the e-ercise of this right=
6here is, of course, no other better way for Congress to implement the e-ercise of
the right than through the passage of a statute or legislative act. ---
Be agree that 4' %1/" was, as its history reveals, intended to cover initiative to
propose amendments to the Constitution.
But i& RA J%3> a full co1+liance wit! t!e +ower an ut) of Congre&& to
F+ro(ie for t!e i1+le1entation of t!e e0erci&e of t!e rig!tNH
' careful scrutiny of the 'ct yields a negative answer.
First. Contrar) to t!e a&&ertion of +u/lic re&+onent& CO8ELEC. Sec. 6 of
t!e Act oe& not &ugge&t an initiati(e on a1en1ent& to t!e Con&titution.
6he said section reads5
S,C6I. !. Statement and Policy. R 6he +ower of t!e +eo+le uner a &)&te1 of
initiati(e an referenu1 to irectl) +ro+o&e. enact. a++ro(e or re4ect. in
w!ole or in +art. t!e Con&titution, laws, ordinances, or resolutions passed by
any legislative body upon compliance with the re(uirements of this 'ct is hereby
affirmed, recognized and guaranteed.
6he inclu&ion of t!e wor FCon&titutionH t!erein wa& a ela)e
aftert!oug!t. 6hat word is neither germane nor relevant to said section, which
e-clusively relates to initiative and referendum on national laws and local laws,
ordinances, and resolutions. 6hat section is silent as to amendments on the
Constitution. 's pointed out earlier, initiati(e on t!e Con&titution i& confine
onl) to +ro+o&al& to A8END. T!e +eo+le are not accore t!e +ower to
Firectl) +ro+o&e. enact. a++ro(e. or re4ect. in w!ole or in +art. t!e
Con&titutionH t!roug! t!e &)&te1 of initiati(e. 6hey can only do so with
respect to Glaws, ordinances, or resolutions.H
---
%#
Second. It is true that Sec. 3 ADefinition of Ter1&B of t!e Act efine& initiati(e
on a1en1ent& to t!e Con&titution and mentions it as one of the three
systems of initiative, and that Sec. > ARe,uire1ent&B re&tate& t!e
con&titutional re,uire1ent& as to the percentage of the registered voters who
must submit the proposal. Cut unli:e in the case of the other systems of initiative,
t!e Act oe& not +ro(ie for t!e content& of a +etition for initiati(e on t!e
Con&titution. Sec. ", paragraph &c) re(uires, among other things, statement of the
proposed law sought to be enacted, approved or re7ected, amended or repealed, as
the case may be. It does not include, as among the contents of the petition, the
provisions of the Constitution sought to be amended, in the case of initiative on the
Constitution.
---
6hird. Bhile the Act +ro(ie& &u/title& for National Initiati(e an
Referenu1 ASu/title IIB an for Local Initiati(e an Referenu1 ASu/title
IIIB. no &u/title i& +ro(ie for initiati(e on t!e Con&titution. 6his
conspicuous silence as to the latter simply means that the main thrust of the 'ct is
initiative and referendum on national and local laws. If Congre&& intene RA
J%3> to full) +ro(ie for t!e i1+le1entation of t!e initiati(e on
a1en1ent& to t!e Con&titution. it coul !a(e +ro(ie for a &u/title
t!erefor. considering that in the order of things, the primacy of interest, or
hierarchy of values, the right of the people to directly propose amendments to the
Constitution is far more important than the initiative on national and local laws.
---
T!e foregoing /ring& u& to t!e conclu&ion t!at RA J%3> i& inco1+lete.
inae,uate. or wanting in e&&ential ter1& an conition& in&ofar a&
initiati(e on a1en1ent& to t!e Con&titution i& concerne. Its lacunae on
this substantive matter are fatal and cannot be cured by GempoweringH the
C.0,+,C Gto promulgate such rules and regulations as may be necessary to carry
out the purposes of the 'ct.H
Princi+le of non7elegation of +ower
6he rule is that what has been delegated, cannot be delegated or as e-pressed in a
+atin ma-im5 potestas delegata non delegari potest. 6he recognized e-ceptions to
the rule are as follows5
;elegation of tariff powers to the President under Sec. !$&!), 'rt. *IF
;elegation of emergency powers to the President under Sec. !/&!), 'rt. *IF
;elegation to the people at largeF
;elegation to local governmentsF and
;elegation to administrative bodies.
,mpowering the C.0,+,C, an administrative body e-ercising (uasi37udicial
functions, to promulgate rules and regulations is a form of delegation of legislative
12
authority under no. " above. Dowever, in e(er) ca&e of +er1i&&i/le elegation.
t!ere 1u&t /e a &!owing t!at t!e elegation it&elf i& (ali. It i& (ali onl)
if t!e law AaB i& co1+lete in it&elf. &etting fort! t!erein t!e +olic) to /e
e0ecute. carrie out. or i1+le1ente /) t!e elegate5 an A/B fi0e& a
&tanar E t!e li1it& of w!ic! are &ufficientl) eter1inate an
eter1ina/le E to w!ic! t!e elegate 1u&t confor1 in t!e +erfor1ance of
!i& function&. ' sufficient standard is one which defines legislative policy, mar:s
its limits, maps out its boundaries and specifies the public agency to apply it. It
indicates the circumstances under which the legislative command is to be effected.
Insofar as initiative to propose amendments to the Constitution is concerned, 4'
%1/" miserably failed to satisfy both re(uirements in subordinate legislation. 6he
delegation of the power to the C.0,+,C is then invalid.
CONSTIT*TIONAL LAW
I. ID,4,6 P.B,4S
P.+IC, P.B,4
Police +ower i& t!e +lenar) +ower (e&te in t!e legi&lature to 1ake.
orain. an e&ta/li&! w!ole&o1e an rea&ona/le law&. &tatute& an
orinance&. not re+ugnant to t!e Con&titution. for t!e goo an welfare of
t!e +eo+le. 6his power to prescribe regulations to promote the health, morals,
education, good order or safety, and general welfare of the people flows from the
recognition that salus populi est suprema le- R the welfare of the people is the
supreme law.
Bhile police power rests primarily with the legislature, such power may be
delegated, as it is in fact increasingly being delegated. Cy virtue of a valid
delegation, the power may be e-ercised by the President and administrative boards
as well as by the lawma:ing bodies of municipal corporations or local governments
under an e-press delegation by the +ocal Eovernment Code of 1##1. &00;', et al.
v. *iron 6rans. Co., Inc., supra.).
ER8ITA @S 8ADOR O2 8ANILA
Bhether .rdinance o. >1%2 of the City of 0anila is violative of the due
process clause.
6hat Section 1 of the challenged ordinance is unconstitutional and void for
being unreasonable and violative of due process insofar as it would impose
P%,222.22 fee per annum for first class motels and P>,"22.22 for second class
motelsF
6hat it re(uires that guest need to fill up re(uired information to be admitted
to such hotel or motels in the presence of the hotel manager, owner, operator
or representativeF
it also being provided that the premises and facilities of such hotels, motels
and lodging houses would be open for inspection either by the City 0ayor, or
the Chief of Police, or their duly authorized representatives
11
that Section ! of the challenged ordinance classifying motels into two classes
and re(uiring the maintenance of certain minimum facilities in first class
motels such as a telephone in each room, a dining room or, restaurant and
laundry similarly offends against the due process clause for being arbitrary,
unreasonable and oppressive, a conclusion which applies to the portion of the
ordinance re(uiring second class motels to have a dining room
that the provision of Section ! of the challenged ordinance prohibiting a
person less than 1$ years old from being accepted in such hotels, motels,
lodging houses, tavern or common inn unless accompanied by parents or a
lawful guardian and ma:ing it unlawful for the owner, manager, :eeper or
duly authorized representative of such establishments to lease any room or
portion thereof more than twice every !> hours
and that insofar as the penalty provided for in Section > of the challenged
ordinance for a subse(uent conviction would, cause the automatic
cancellation of the license of the offended party
Deld5
T!e +re&u1+tion of (aliit) of a &tatute'
Pri1aril) w!at call& for a re(er&al of &uc! a eci&ion i& t!e a/&ence of
an) e(ience to off&et t!e +re&u1+tion of (aliit) t!at attac!e& to a
c!allenge &tatute or orinance. A& wa& e0+re&&e categoricall) /)
<u&tice 8alcol1' -T!e +re&u1+tion i& all in fa(or of (aliit)H. 6he
8udiciary should not lightly set aside legislative action when there is not a clear
invasion of personal or property rights under the guise of police regulation. It
admits of no doubt therefore that there being a presumption of validity, the
necessity for evidence to rebut it is unavoidable, unless the statute or ordinance
is void on its face which is not the case here
@ali e0erci&e of +olice +ower'
On t!e legi&lati(e organ& of t!e go(ern1ent. w!et!er national or local.
+ri1aril) re&t t!e e0erci&e of t!e +olice +ower. w!ic!. it cannot /e too
often e1+!a&i9e. i& t!e +ower to +re&cri/e regulation& to +ro1ote t!e
!ealt!. 1oral&. +eace. goo orer. &afet) an general welfare of t!e
+eo+le. In view of the re(uirements of due process, e(ual protection and other
applicable constitutional guaranties however, the e-ercise of such police power
insofar as it may affect the life, liberty or property of any person is sub7ect to
7udicial in(uiry. Bhere such e-ercise of police power may be considered as
either capricious, whimsical, un7ust or unreasonable, a denial of due process or a
violation of any other applicable constitutional guaranty may call for correction
by the courts.
Ta0ation 1a) /e 1ae to i1+le1ent t!e &tate=& +olice +ower'
In the e(ually leading case of +utz v. 'raneta!> this Court affirmed the
doctrine earlier announced by the 'merican Supreme Court that ta-ation may be
made to implement the stateAs police power.
1!
It has been the settled law, as far bac: as 1#!! that municipal license fees
could be classified into those imposed for ". regulating occu+ation& or
regular enter+ri&e&. 6. for t!e regulation or re&triction of non7u&eful
occu+ation& or enter+ri&e& an 3. for re(enue +ur+o&e& onl). 's was
e-plained more in detail in the above Cu *n4ieng ca&e' A6B Licen&e& for non7
u&eful occu+ation& are al&o inciental to t!e +olice +ower an t!e rig!t
to e0act a fee 1a) /e i1+lie fro1 t!e +ower to licen&e an regulate.
but in fi-ing amount of the license fees the 1unici+al cor+oration& are
allowe a 1uc! wier i&cretion in t!i& cla&& of ca&e& t!an in t!e
for1er, and aside from applying the well3:nown legal principle that municipal
ordinances must not be unreasonable, oppressive, or tyrannical, court& !a(e.
a& a general rule. ecline to interfere wit! &uc! i&cretion. 6he
e&ira/ilit) of i1+o&ing re&traint u+on t!e nu1/er of +er&on& w!o
1ig!t ot!erwi&e engage in non7u&eful enter+ri&e& i&. of cour&e.
generall) an i1+ortant factor in t!e eter1ination of t!e a1ount of
t!i& kin of licen&e fee. Dence license fees clearly in the nature of privilege
ta-es for revenue have fre(uently been upheld, especially in of licenses for the
sale of li(uors. In fact, in the latter cases the fees have rarely been declared
unreasonable.
Non7i1+air1ent of contract& &till &u/4ect to +olice +ower'
T!e li/ert) of t!e citi9en 1a) /e re&traine in t!e intere&t of t!e +u/lic
!ealt!. or of t!e +u/lic orer an &afet). or ot!erwi&e wit!in t!e +ro+er
&co+e of t!e +olice +ower.
' similar observation was made by 8ustice +aurel5 -Pu/lic welfare. t!en. lie&
at t!e /otto1 of t!e enact1ent of &ai law. an t!e &tate in orer to
+ro1ote t!e general welfare 1a) interfere wit! +er&onal li/ert). wit!
+ro+ert). an wit! /u&ine&& an occu+ation&. Per&on& an +ro+ert)
1a) /e &u/4ecte to all kin& of re&traint& an /uren&. in orer to
&ecure t!e general co1fort. !ealt!. an +ro&+erit) of t!e &tate - - - 6o
this fundamental aim of our Eovernment the rig!t& of t!e ini(iual are
&u/orinate. +iberty is a blessing, without which life is a misery, but liberty
should not be made to prevail over authority because then society will fall into
anarchy. either should authority be made to prevail over liberty because then
the individual will fall into slavery. T!e citi9en &!oul ac!ie(e t!e re,uire
/alance of li/ert) an aut!orit) in !i& 1in t!roug! eucation an
+er&onal i&ci+line. &o t!at t!ere 1a) /e e&ta/li&!e t!e re&ultant
e,uili/riu1. w!ic! 1ean& +eace an orer an !a++ine&& for all.
ACEBEDO @S CA
Police Power as e-ercised by +E@s, restrictions and (ualifications
Power of city mayor to grantQcancelQrevo:e business permits
Eranting of business permits vs. granting of permit to practice profession
F'C6S5
1/
Petitioner applied with the .ffice of the City 0ayor of Iligan for a business permit.
Permit was therefor issued, sub7ect to certain conditions li:e prohibition of putting
up an optical clinic, e-amining andQor prescribing reading and similar optical
glasses, etc. Bhen it was found that petitioner violated these conditions, its
business permit was cancelled.
ISS@,5
Bhether or not the imposition of special conditions by the public respondents were
acts ultra vires
4@+IE5
Police Power e0erci&e /) LG*&
Police power as an inherent attribute of sovereignty is the power to prescribe
regulations to promote the health, morals, peace, education, good order or safety
and general welfare of the people. T!e State. t!roug! t!e legi&lature. !a&
elegate t!e e0erci&e of +olice +ower to local go(ern1ent unit&. a&
agencie& of t!e State. in order to effectively accomplish and carry out the
declared ob7ects of their creation. 6his delegation of police power is embodied in the
general welfare clause of the +ocal Eovernment Code ---
T!e &co+e of +olice +ower !a& /een !el to /e &o co1+re!en&i(e a& to
enco1+a&& al1o&t all 1atter& affecting t!e !ealt!. &afet). +eace. orer.
1oral&. co1fort an con(enience of t!e co11unit). Police power is
essentially regulatory in nature and the power to issue licenses or grant business
permits. if e0erci&e for a regulator) an not re(enue7rai&ing +ur+o&e, is
within the ambit of this power.
Power of cit) 1a)or to grant /u&ine&& +er1it&
6he authority of city mayors to issue or grant licenses and business permits is
beyond cavil. It is provided for by law.
Dowever, the power to grant or issue licenses or business permits 1u&t alwa)&
/e e0erci&e in accorance wit! law. wit! ut1o&t o/&er(ance of t!e
rig!t& of all concerne to ue +roce&& an e,ual +rotection of t!e law.
Cut can city mayor cancel business permits or impose special conditions= 's
aptly discussed by the Solicitor Eeneral in his Comment. t!e +ower to i&&ue
licen&e& an +er1it& nece&&aril) inclue& t!e corollar) +ower to re(oke.
wit!raw or cancel t!e &a1e. 'nd the power to revo:e or cancel, li:ewise
includes the power to restrict through the imposition of certain conditions.
Di t!e conition& or re&triction& i1+o&e a1ount to a confi&cation of t!e
/u&ine&&N
Di&tinction 1u&t /e 1ae /etween t!e grant of a licen&e or +er1it to
o /u&ine&& an t!e i&&uance of a licen&e to engage in t!e +ractice of a
+articular +rofe&&ion. 6he first is usually granted by t!e local aut!oritie&
and the second is issued /) t!e Boar or Co11i&&ion tas:ed to regulate the
particular profession. A /u&ine&& +er1it aut!ori9e& t!e +er&on. natural or
ot!erwi&e. to engage in /u&ine&& or &o1e for1 of co11ercial acti(it).
A +rofe&&ional licen&e. on t!e ot!er !an. i& t!e grant of aut!orit) to a
1>
natural +er&on to engage in t!e +ractice or e0erci&e of !i& or !er
+rofe&&ion.
In the case at bar, what is sought by petitioner from respondent City 0ayor is a
permit to engage in the business of running an optical shop. It does not purport
to see: a license to engage in the practice of optometry as a corporate body or
entity, although it does have in its employ, persons who are duly licensed to
practice optometry by the Coard of ,-aminers in .ptometry.
88DA @S GARIN
00;' confiscated 4espondent<s driver<s license. 4espondent opposed the sanction
of 00;' claiming it has no authority to e-ercise police powerF 00;' contends that
a license to operate a motor vehicle is neither a contract nor a property right, but is
a privilege sub7ect to reasonable regulation under the police power in the interest of
the public safety and welfare. 6he petitioner further argues that revocation or
suspension of this privilege does not constitute a ta:ing without due process as long
as the licensee is given the right to appeal the revocation.
Deld5
A licen&e to o+erate a 1otor (e!icle i& a +ri(ilege t!at t!e &tate 1a)
wit!!ol in t!e e0erci&e of it& +olice +ower.
6he petitioner correctly points out that a license to operate a motor vehicle is
not a property right, but a privilege granted by the state, which may be
suspended or revo:ed by the state in the e-ercise of its police power, in the
interest of the public safety and welfare, sub7ect to the procedural due process
re(uirements.
In State e-. 4el. Sullivan, the Court held that, Gthe legislative power to regulate
travel over the highways and thoroughfares of the state for the general welfare
is e-tensive. It may be e-ercised in any reasonable manner to conserve the
safety of travelers and pedestrians. Since 1otor (e!icle& are in&tru1ent&
of +otential anger. t!eir regi&tration an t!e licen&ing of t!eir
o+erator& !a(e /een re,uire al1o&t fro1 t!eir fir&t a++earance. T!e
rig!t to o+erate t!e1 in +u/lic +lace& i& not a natural an unre&traine
rig!t. /ut a +ri(ilege &u/4ect to rea&ona/le regulation. uner t!e +olice
+ower. in t!e intere&t of t!e +u/lic &afet) an welfare. 6he power to
license imports further power to withhold or to revo:e such license upon
noncompliance with prescribed conditions.H
+i:ewise, the petitioner (uotes the Pennsylvania Supreme Court in
Commonwealth v. Fun:, to the effect that5 FAuto1o/ile& are (e!icle& of
great &+ee an +ower. T!e u&e of t!e1 con&titute& an ele1ent of
anger to +er&on& an +ro+ert) u+on t!e !ig!wa)&. Carefull)
o+erate. an auto1o/ile i& &till a angerou& in&tru1entalit). /ut. w!en
o+erate /) carele&& or inco1+etent +er&on&. it /eco1e& an engine of
e&truction. T!e Legi&lature. in t!e e0erci&e of t!e +olice +ower of t!e
co11onwealt!. not onl) 1a). /ut 1u&t. +re&cri/e !ow an /) w!o1
1otor (e!icle& &!all /e o+erate on t!e !ig!wa)&. .ne of the primary
purposes of a system of general regulation of the sub7ect matter, as here by the
1"
*ehicle Code, is to insure the competency of the operator of motor vehicles.
Such a general law is manifestly directed to the promotion of public safety and is
well within the police power.H
T!e 88DA i& not (e&te wit! +olice +ower
In 0etro 0anila ;evelopment 'uthority v. Cel3'ir *illage 'ssociation, Inc., we
categorically stated that Re+. Act No. %#6; oe& not grant t!e 88DA wit!
+olice +ower. let alone legi&lati(e +ower. an t!at all it& function& are
a1ini&trati(e in nature.
6racing the legislative history of 4ep. 'ct o. 1#!> creating the 00;', we
concluded that the 88DA i& not a local go(ern1ent unit or a +u/lic
cor+oration enowe wit! legi&lati(e +ower. an. unlike it&
+reece&&or. t!e 8etro 8anila Co11i&&ion. it !a& no +ower to enact
orinance& for t!e welfare of t!e co11unit). 6hus, in the absence of an
ordinance from the City of 0a:ati, its own order to open the street was invalid.
Sec. >AfB grant& t!e 88DA wit! t!e ut) to enforce e0i&ting traffic rule&
an regulation&
6his is consistent with our ruling in Cel3'ir that the 00;' is a development
authority created for the purpose of laying down policies and coordinating with
the various national government agencies, people<s organizations, non3
governmental organizations and the private sector, which may enforce, but not
enact, ordinances.
S*PERDR*G @S DSWD
2act&'
Petitioners are domestic corporations and proprietors operating drugstores in the
Philippines. Public respondents are ;.D, ;.8, ;I+E and ;SB;, which were tas:ed
to monitor the drugstores< compliance with the ,-panded Senior<s Citizen 'ct.
Petitioners assail the constitutionality of Sec. >&a) of the ,-panded Senior<s Citizen
'ct, on the ground that it constitutes deprivation of private property, since
compelling them to grant the discount will result in a loss of profit and capital,
because they impose a mar:3up of only "L to 12L on branded medicinesF and the
law failed to provide a ta- deduction scheme which will give them 7ust
compensation.
I&&ue'
Bhether or not the ,-panded Senior<s Citizen 'ct is unconstitutional.
?el'
1%
T!e +er1anent reuction in t!eir total re(enue& i& a force &u/&i)
corre&+oning to t!e taking of +ri(ate +ro+ert) for +u/lic u&e or /enefit.
T!i& con&titute& co1+en&a/le taking for w!ic! +etitioner& woul orinaril)
/eco1e entitle to a 4u&t co1+en&ation.
<u&t co1+en&ation i& efine a& t!e full an fair e,ui(alent of t!e +ro+ert)
taken fro1 it& owner /) t!e e0+ro+riator. T!e 1ea&ure i& not t!e takerP&
gain /ut t!e ownerP& lo&&. 6he word 7ust is used to intensify the meaning of the
word compensation, and to convey the idea that the e(uivalent to be rendered for
the property to be ta:en shall be real, substantial, full and ample.
A ta0 euction oe& not offer full rei1/ur&e1ent of t!e &enior citi9en
i&count.
A& &uc!. it woul not 1eet t!e efinition of 4u&t co1+en&ation.
Daving said that, this raises the (uestion of whether the State, in promoting the
health and welfare of a special group of citizens, can impose upon private
establishments the burden of partly subsidizing a government program.
6he Court believes so.
6he law grants a twenty percent discount to senior citizens for medical and dental
services, and diagnostic and laboratory feesF admission fees charged by theaters,
concert halls, circuses, carnivals, and other similar places of culture, leisure and
amusementF fares for domestic land, air and sea travelF utilization of services in
hotels and similar lodging establishments, restaurants and recreation centersF and
purchases of medicines for the e-clusive use or en7oyment of senior citizens. 's a
form of reimbursement, the law provides that business establishments e-tending
the twenty percent discount to senior citizens may claim the discount as a ta-
deduction.
T!e law i& a legiti1ate e0erci&e of +olice +ower w!ic!. &i1ilar to t!e
+ower of e1inent o1ain. !a& general welfare for it& o/4ect. Police power is
not capable of an e-act definition, but has been purposely veiled in general terms to
underscore its comprehensiveness to meet all e-igencies and provide enough room
for an efficient and fle-ible response to conditions and circumstances, thus assuring
the greatest benefits. 'ccordingly, it has been described as Gthe most essential,
insistent and the least limitable of powers, e-tending as it does to all the great
public needs.H It is GItJhe power vested in the legislature by the constitution to
ma:e, ordain, and establish all manner of wholesome and reasonable laws, statutes,
and ordinances, either with penalties or without, not repugnant to the constitution,
11
as they shall 7udge to be for the good and welfare of the commonwealth, and of the
sub7ects of the same.H
2or t!i& rea&on. w!en t!e conition& &o e1an a& eter1ine /) t!e
legi&lature. +ro+ert) rig!t& 1u&t /ow to t!e +ri1ac) of +olice +ower
/ecau&e +ro+ert) rig!t&. t!oug! &!eltere /) ue +roce&&. 1u&t )iel to
general welfare.
Police power as an attribute to promote the common good would be diluted
considerably if on the mere plea of petitioners that they will suffer loss of earnings
and capital, the (uestioned provision is invalidated. 0oreover, in the absence of
evidence demonstrating the alleged confiscatory effect of the provision in (uestion,
there is no basis for its nullification in view of the presumption of validity which
every law has in its favor.
6he Court is not oblivious of the retail side of the pharmaceutical industry and the
competitive pricing component of the business. Bhile the Constitution protects
property rights, petitioners must accept the realities of business and the State, in
the e-ercise of police power, can intervene in the operations of a business which
may result in an impairment of property rights in the process.
8oreo(er. t!e rig!t to +ro+ert) !a& a &ocial i1en&ion. W!ile Article IIII
of t!e Con&titution +ro(ie& t!e +rece+t for t!e +rotection of +ro+ert).
(ariou& law& an 4uri&+ruence. +articularl) on agrarian refor1 an t!e
regulation of contract& an +u/lic utilitie&. continuou&l) &er(e a& a
re1iner t!at t!e rig!t to +ro+ert) can /e relin,ui&!e u+on t!e
co11an of t!e State for t!e +ro1otion of +u/lic goo.
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
IIIIIIIIIIIIIIIIIIIIII
'. ;efinition, Scope S Casis
1. ;efinition Q ;escription
Police +ower i& t!e +ower of +ro1oting t!e +u/lic welfare /) re&training
an regulating t!e u&e of li/ert) an +ro+ert). &Freund, 6he Police Power
IChicago, 1#2>J).
1$
Police +ower i& t!e +ower of t!e State to +lace re&traint& on t!e +er&onal
freeo1 an +ro+ert) rig!t& of +er&on& for t!e +rotection of t!e +u/lic
&afet). !ealt!. an 1oral& or t!e +ro1otion of t!e +u/lic con(enience an
general +ro&+erit). 6he police power is sub7ect to limitations of the Constitution,
and especially to the re(uirement of due process. Police power is the e-ercise of the
sovereign right of a government to promote order, safety, security, health, morals
and general welfare within constitutional limits and is an essential attribute of
government &0arshall vs. Oansas City, 0o., /"" S.B.!d $11, $$/)
Police +ower !a& /een efine a& t!e F&tate aut!orit) to enact legi&lation
t!at 1a) interfere wit! +er&onal li/ert) or +ro+ert) in orer to +ro1ote
t!e general welfare.H 's defined, it consists of &1) an i1+o&ition of re&traint
u+on li/ert) or +ro+ert), &!) in orer to fo&ter t!e co11on goo. It is not
capable of an e-act definition but has been, purposely, veiled in general terms to
underscore its all3comprehensive embrace. &Sangalang vs. I'C, IE4 111%#, !"
'ugust 1#$#J)
!. Scope
Police +ower regulate& not onl) t!e +ro+ert) /ut. 1ore i1+ortantl). t!e
li/ert) of +ri(ate +er&on&. an (irtuall) all t!e +eo+le.
6he scope of police power, ever3e-panding to meet the e-igencies of the times,
even to anticipate the future where it could be done provides enough room for an
efficient and fle-ible response to conditions and circumstances thus assuring the
greatest benefits. &Sangalang vs. I'C, IE4 111%#, !" 'ugust 1#$#J)
/. Casis
6he 7ustification for police power is found in the ancient +atin ma-ims, Salu& +o+uli
e&t &u+re1a le0. an Sic utere tuo ut alienu1 non laea&, which call for the
subordination of individual benefit to the interests of the greater number.
Salu& +o+uli e&t &u+re1a le0. 6he welfare of the people is the supreme law.
&+ingo +umber Co. vs. Dayes, 6e-. Civ. 'pp. %> SB !d. $/", $/#)
Sic utere tuo ut alienu1 non laea&. &Common law ma-im meaning that) one
should use his own property in such a manner as not to in7ure that of another &1 Cl.
Comm. /2%. Chapman vs. Carnett, 1/1 Ind. 'pp. /2, 1%# .,. !d !1!, !1>).
It i& a +ower not e1anating fro1 or conferre /) t!e con&titution. /ut
in!erent in t!e &tate, plenary, suitably vague and far from precisely defined,
1#
rooted in the conception that man in organizing the state and imposing upon the
government limitations to safeguard constitutional rights did not intend thereby to
enable individual citizens or group of citizens to obstruct unreasonably the
enactment of such salutary measures to ensure communal peace, safety, good
order and welfare. &+ozano vs. 0artinez, 1>% SC4' /!/)
T!e +olice +ower of t!e State i& a +ower coe0ten&i(e wit! &elf7+rotection.
an it i& not ina+tl) ter1e t!e Slaw of o(erw!el1ing nece&&it).P It 1a) /e
&ai to /e t!at in!erent an +lenar) +ower in t!e State w!ic! ena/le& it to
+ro!i/it all t!ing& !urtful to t!e co1fort. &afet). an welfare of &ociet). It
finds no specific Constitutional grant for the plain reason that it does not owe its
origin to the Charter. 'long with the ta-ing power and eminent domain, it is inborn
in the very fact of statehood and sovereignty. It is a fundamental attribute of
government that has enabled it to perform the most vital functions of governance.
It is the plenary power of the State Gto govern its citizens.H &Sangalang vs. I'C, IE4
111%#, !" 'ugust 1#$#J)
C. Characteristics
Per(a&i(e an non7wai(a/le 7 6he police power is the pervasive and non3
waivable power and authority of the sovereign to
secure and promote all the important interests and
needs M or the public order M of the general
community. &6ablarin vs. 8udge Eutierrez, IE4
1$1%>, /1 8uly 1#$1J)
E&&ential. in&i&tent an illi1ita/le 7 6he police power of the state has been
described as the most essential, insistent and
illimitable of powers, which enables it to prohibit all
things hurtful to the comfort, safety and welfare of
society. &+ozano vs. 0artinez, IE4 +3%/>1#, 1$
;ecember 1#$%J)
D)na1ic 3 Police power is a dynamic force that enables the
state to meet the e-igencies of changing times.
6here are occasions when the police power of the
state may even override a constitutional guaranty,
such as that the constitutional provision on non3
impairment of contracts must yield to the police
power of the state. &+ozano vs. 0artinez, IE4 +3
%/>1#, 1$ ;ecember 1#$%J) Police power is
dynamic, not static, must move with the moving
$2
society it is supposed to regulate. .nce e-ercised,
it is not deemed e-hausted and may be e-ercised
repeatedly, as often as it is necessary for the
protection or the promotion of the public welfare.
Police +ower 1a) &o1eti1e& u&e t!e ta0ing +ower a& an i1+le1ent for
t!e attain1ent of a legiti1ate +olice o/4ecti(e.
C. Bho e-ercises said power=
On t!e legi&lati(e organ& of t!e go(ern1ent. w!et!er national or local.
primarily rest the e-ercise of the police power, which is the power to prescribe
regulations to promote the health, morals, peace, good order, safety and general
welfare of the people. In view of the re(uirements of due process, e(ual protection
and other applicable constitutional guaranties, however, the e-ercise of such police
power insofar as it may affect the life, liberty or property of any person is sub7ect to
7udicial in(uiry. Bhere such e-ercise of police power may be considered as either
capricious, whimsical, un7ust or unreasonable, a denial of due process or a violation
of any other applicable constitutional guaranty may call for correction by the courts.
&,rmita30alate Dotel S 0otel .perators v. City 0ayor, IE4 +3!>%#/, /1 8uly 1#%1J)
Police +ower i& loge +ri1aril) in t!e national legi&lature. B) (irtue of a
(ali elegation of legi&lati(e +ower. it 1a) al&o /e e0erci&e /) t!e
Pre&ient an a1ini&trati(e /oar& a& well a& t!e law1aking /oie& on
all 1unici+al le(el&. incluing t!e /aranga). Police power cannot be bargained
away through the medium of a contract or even a treaty.
Police power under the general welfare clause authorizes the municipal council to
enact such ordinances and ma:e such regulations, not repugnant to law, as may be
necessary to carry into effect and discharge the powers and duties conferred upon
it by law and such as shall seem necessary and proper to provide for the health and
safety, promote the prosperity, improve the morals, peace, good order, comfort,
and convenience of the municipality and the inhabitants thereof, and for the
protection of property therein. &*illanueva vs. Castaneda, IE4 +3%1/11, !1
September 1#$1J)
T!e e0erci&e of +olice +ower. t!e c!oice of 1ea&ure& or re1eie& if inee
action i& 1ae. an t!e a&certain1ent of fact& to w!ic! +olice +ower i& to
/e /a&e. lie& in t!e i&cretion of t!e legi&lati(e e+art1ent. o mandamus
is available to coerce the e-ercise of the police power. 6he only remedy against
legislative inaction is a resort to the bar of public opinion, a refusal of the electorate
to return to members of the legislature who have been remiss in the discharge of
$1
their duties. 6he remedy chosen by the legislature cannot be attac:ed on the
ground that it is not the best suggested solution, that it is unwise, impractical,
inefficacious, or even immoral. 6hese issues are political in nature, and cannot be
in(uired into by the legislature.
D. Te&t& of Police Power
Lawful &u/4ect 3 T!e intere&t& of t!e +u/lic generall). a& i&tingui&!e
fro1 t!o&e of a +articular cla&&. re,uire t!e e0erci&e of
t!e +olice +ower. 6he en7oyment of private rights, when within
the scope of police power, may be subordinated to the interests
of the greater number.
Lawful 1ean& 3 6he means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals. 6he lawful ob7ective must be pursued through a
lawful method. 6he means employed for the accomplishment of
the police ob7ective must pass to the test of reasonableness and
conform to the safeguards embodied in the Cill of 4ights for the
protection of private rights.
a. Rational Relation& Te&t A+ro+ert) rig!t&B
' mere reasonable or rational relation between the 1ean& e1+lo)e by the law
and it& o/4ect or +ur+o&e M that the law is neither arbitrary nor discriminatory
nor oppressive M would suffice to validate a law which restricts or impairs property
rights. &PC0,. vs. PC0, IE4 +3/11#", " 8une 1#1/J) otwithstanding the Gnew e(ual
protection approachH with its emphasis on Gsuspect classificationH and
Gfundamental rights and interests standard,H the Grational relation testH still retains
its validity. &Cautista v. 8uinio IE4 +3"2#2$, /1 8anuary 1#$>J)
/. Clear an +re&ent anger Te&t A!u1an rig!t&B
' constitutional or valid infringement of human rights re(uires a more stringent
criterion, namely e0i&tence of a gra(e an i11eiate anger of a
&u/&tanti(e e(il w!ic! t!e State !a& t!e rig!t to +re(ent. &PC0,. vs. PC0,
IE4 +3/11#", " 8une 1#1/J)
Moning an Regulator) Orinance&'
6est of a valid ordinance
'n ordinance must conform to the following substantive re(uirements5
$!
1. It must not contra(ene t!e con&titution or any statute,
!. It must not be unfair or o++re&&i(e,
/. It must not be +artial or i&cri1inator),
>. It must not prohibit but may regulate trae,
". It must be general an con&i&tent wit! +u/lic +olic), and
%. It must not be unrea&ona/le. &0agta7as v. Pryce Properties Corp. IE4
1112#1, !2 8uly 1##>J)
E8INENT DO8AIN
,minent domain is an inherent power of the State that enables it to forcibly ac(uire
private lands intended for public use upon payment of 7ust compensation to the
owner. .bviously, there is no need to e-propriate where the owner is willing to sell
under terms also acceptable to the purchaser, in which case an ordinary deed of
sale may be agreed upon by the parties. &oble v. City of 0anila, %1 Phil. 1) It is
only where the owner is unwilling to sell, or cannot accept the price or other
conditions offered by the vendee, that the power of eminent domain will come into
play to assert the paramount authority of the State over the interests of the
property owner. Private rights must then yield to the irresistible demands of the
public interest on the time3honored 7ustification, as in the case of the police power,
that the welfare of the people is the supreme law. &'ssociation of Small +andowners
in the Philippines Inc. vs. Secretary of 'grarian 4eform IE4 1$1>1, 1> 8uly 1#$#J)
T!e following e0erci&e t!e +ower of e0+ro+riation'
1. 6he Congress
!. 6he President of the Philippines
/. 6he various local legislative bodies
>. Certain public corporations
". Nuasi3public corporations &,-ample, (uasi3public corporation5 P,U')
,-propriation may be initiated by court action or by legislation. &4epublic v. ;e
Onecht, 1$! SC4' 1>! I1##2J). 6he power of eminent domain is lodged primarily in
the national legislature, but its e-ercise may validly delegated to other government
entities and even to (uasi3public corporations serving essential public needs or
operating public utilities. 6he utility of the proposed improvement, the e-tent of the
public necessity for its construction, the e-pediency of constructing it, the
suitableness of the location selected and the conse(uent necessity of ta:ing the
land selected for its site, are (uestions which are essentially political and which are
to be e-clusively determined by the legislature, and are usually not sub7ect to
7udicial review.
Con&titutional li1itation
Art. III. Sec. #
$/
Section #. Private property &!all not /e taken for +u/lic u&e without 7ust
compensation.
6he e-ercise of the right of eminent domain, whether directly by the State, or by its
authorized agents, is necessary in derogation of private rights, and the rule in that
case is that the authority must be strictly construed. o species of property is held
by individuals with greater tenacity, and none is guarded by the Constitution and
laws more sedulously, than the right to the freehold of inhabitants. W!en t!e
legi&lature interfere& wit! t!at rig!t an. for greater +u/lic +ur+o&e&.
a++ro+riate& t!e lan of an ini(iual wit!out !i& con&ent. t!e +lain
1eaning of t!e law &!oul not /e enlarge /) ou/tful inter+retation.
&Censley vs. 0ountainla:e Bater Co., 1/ Cal. /2%, and cases cited 1/ 'm. ;ec.,
"1%)
T!e +ower of e1inent o1ain oe& not e+en for it& e0i&tence on a
&+ecific grant in t!e con&titution. It i& in!erent in &o(ereignt) an e0i&t& in
a &o(ereign &tate wit!out an) recognition of it in t!e con&titution. 6he
provisions found in most of the state constitutions relating to the ta:ing of property
for the public use do not by implication grant the power to the government of the
state, but limit a power which would otherwise be without limit. &*isayan 4efining
Co. v. Camus I>2 Phil. ""2J). 6he constitutional restraints are public use and 7ust
compensation.
D. Di&tingui&!e fro1 e&truction ue to nece&&it)
T!e e&truction of t!e +ro+ert) oe& not co1e uner t!e rig!t of e1inent
o1ain. /ut uner t!e rig!t of nece&&it). of &elf7+re&er(ation. 6he right of
necessity arises under the laws of society or society itself. It is the right of self3
defense, of self3preservation, whether applied to persons or to property. It is a
private right vested in every individual, and with which the right of the state or
state necessity has nothing to do &'merican Print Bor:s vs. +awrence, !/ .8.+.
"#2). ;estruction from necessity may be validly underta:en even by private
individuals. Such is not allowed in the case of eminent domain. Further, destruction
from necessity cannot re(uire the conversion of the property ta:en to public use,
nor is there any need for the payment of compensation.
E. O/4ect& of E0+ro+riation
'nything that can come under the dominion of man is sub7ect to e-propriation. 6his
includes real and personal, tangible and intangible properties. E(en +ro+ert)
alrea) e(ote to +u/lic u&e i& &till &u/4ect to e0+ro+riation. +ro(ie
t!i& i& one irectl) /) t!e national legi&lature or uner a &+ecific grant of
aut!orit) to elegate. T!e onl) e0ce+tion& to t!i& rule are 1one) an
c!o&e& in action. ,-propriation of money is futile inasmuch as payment of 7ust
compensation is also money. ' chose in action is essentially con7ectural as to its
validity and its value.
$>
A c!o&e in action i& t!e rig!t of +roceeing in a court of law to +rocure
+a)1ent of &u1 of 1one). or rig!t to reco(er a +er&onal c!attel or a &u1
of 1one) /) action &Eregory vs. Colvin, !/" 'r:. 1221, /%/ S.B.!d "/#, ">2)F or
is the right to receive or recover a debt, demand, or damages on a cause of action
e- contractu or for a tort or omission of a duty &0oran vs. 'd:erson, 1%$ 6enn. /1!,
1# S.B.!d >>, >")
ormally, the power of eminent domain results in the ta:ing or appropriation of title
to, and possession of, the e-propriated propertyF but no cogent reason appears why
said power may not be availed of to impose only a burden upon the owner of
condemned property, without loss of title and possession. 4eal property may,
through e-propriation, be sub7ected to an easement of right of way.
Property sub7ect of e-propriation must be by its nature or condition wholesome, as
it is intended to be devoted to a public use.
W!ere E0+ro+riation Suit i& file
'n e-propriation suit is incapable of pecuniary estimation. 'ccordingly, it fall&
wit!in t!e 4uri&iction of t!e regional trial court&. regarle&& of t!e (alue
of t!e &u/4ect +ro+ert). &Carangay San 4o(ue v. Deirs of Pastor IE4 1/$$#%, !2
8une !222J)
Taking
;efinition and Scope
Co11on A +!)&ical i&+o&&e&&ion of t!e owner, as when he is ousted from
his land or relieved of his personal property, and is thus deprived of all
beneficial use and en7oyment of his property.
Legal 6o ta:e is to lay hold of, to gain or receive in possession, to seize, to deprive
one of the use or possession of, or to assume ownership &Clac:<s +aw
;ictionary, %th ,dition, 1>"/). T!ere i& taking of +ro+ert) w!en
go(ern1ent action irectl) interfere& wit! or &u/&tantiall)
i&tur/& t!e ownerP& u&e an en4o)1ent of t!e +ro+ert)
&Crothers vs. @S., C.'..r., "#> F.!d 1>2, 1>1). 6o constitute a Gta:ing,H
within constitutional limitation, it is not essential that there be physical
seizure or appropriation, and any actual or material interference with
private property rights constitutes a ta:ing &Coard of Com<rs of +a:e
County vs. 0entor +agoons Inc., Com.Pl., % .hio 0sc. 1!%, !1% .,.!d
%>/, %>%). 'lso, ta:ing of property is affected if application of zoning
law denies property owner of economically viable use of his land,
which can consist of preventing best use of land or e-tinguishing
fundamental attribute of ownership &*ari3Cuild Inc. vs. 4eno, ;.C.ev.,
"#% F. Supp. %1/, %1#).
T!e general rule at lea&t i& t!at w!ile +ro+ert) 1a) /e regulate to a
certain e0tent. if regulation goe& too far it will /e recogni9e a& a taking.
&Pennsylvania Coal Co. v. 0ahon, !%2 @S /#/)
$"
". Taking uner +olice +ower an +ower of e1inent o1ain i&tingui&!e
6a:ing under police power and ta:ing under the power of eminent domain,
however, should be distinguished. T!e +ower /eing e0erci&e wa& e1inent
o1ain w!en t!e +ro+ert) in(ol(e wa& w!ole&o1e an intene for a
+u/lic u&e. %roperty condemned under the police power is noious or intended for
a noious purpose, such as a building on the verge of collapse, which should be
demolished for the public safety, or obscene materials, which should be destroyed
in the interest of public morals. T!e confi&cation of &uc! +ro+ert) i& not
co1+en&a/le. unlike t!e taking of +ro+ert) uner t!e +ower of
e0+ro+riation. w!ic! re,uire& t!e +a)1ent of 4u&t co1+en&ation to t!e
owner. &City of Caguio v. 'B'S', 12% Phil. 1>>)
A. Taking uner +olice +ower
If an owner is deprived of his property outright under the State<s police power, the
property is generally not ta:en for public use /ut i& urgentl) an &u11aril)
e&tro)e in orer to +ro1ote t!e general welfare.
,very restriction upon the use of property imposed in the e-ercise of the police
power deprives the owner of some right theretofore en7oyed, and is, in that sense,
an abridgment by the State of rights in property without ma:ing compensation. But
re&triction i1+o&e to +rotect t!e +u/lic !ealt!. &afet) or 1oral& fro1
anger& t!reatene i& not a taking. T!e re&triction i& 1erel) t!e
+ro!i/ition of a no0iou& u&e. T!e +ro+ert) &o re&tricte re1ain& in t!e
+o&&e&&ion of it& owner. T!e &tate oe& not a++ro+riate it or 1ake an) u&e
of it. 6he state merely prevents the owner from ma:ing a use which interferes with
paramount rights of the public. Bhenever the use prohibited ceases to be no-ious
M as it may because of further changes in local or social conditions M the
restriction will have to be removed and the owner will again be free to en7oy his
property as heretofore.
B. Taking uner t!e +ower of e1inent o1ain
G6a:ingH under the power of eminent domain may be defined generally as entering
u+on +ri(ate +ro+ert) for more than a 1o1entar) +erio, and, under the
warrant or color of legal aut!orit), devoting it to a +u/lic u&e, or otherwise
informally a++ro+riating or in4uriou&l) affecting it in such a way as
substantially to ou&t t!e owner an e+ri(e !i1 of all /eneficial en7oyment
thereof. &Penn. vs. Carolina *irginia Coastal Corporation, "1 S, !d $11)
In the conte-t of the State<s inherent power of eminent domain, there is a Gta:ingH
when the owner is actually deprived or dispossessed of his propertyF w!en t!ere i&
a +ractical e&truction or a 1aterial i1+air1ent of t!e (alue of !i&
+ro+ert) or w!en !e i& e+ri(e of t!e orinar) u&e t!ereof. &@.S. v. Causby,
/$! @.S. !"%, cited in 0unicipality of +a Carlota v. 'B'S', 1! SC4' 1%>.) 6here is
a Gta:ingH in this sense when the e-propriator enters private property not only for a
momentary period but for a more permanent duration, for the purpose of devoting
the property to a public use in such a manner as to oust the owner and deprive him
$%
of all beneficial en7oyment thereof &4epublic v. *da. de Castelvi, "$ SC4' //%
I1#1>J). For ownership, after all, Gis nothing without the inherent rights of
possession, control and en7oyment. Bhere the owner is deprived of the ordinary and
beneficial use of his property or of its value by its being diverted to public use, there
is ta:ing within the Constitutional sense.H &0unicipality of +a Carlota v. 'B'S', 1!
SC4' 1%>)
6. Stage&
6he e-propriation of lands consists of two &tage&. T!e fir&t i& concerne wit!
t!e eter1ination of t!e aut!orit) of t!e +laintiff to e0erci&e t!e +ower of
e1inent o1ain an t!e +ro+riet) of it& e0erci&e in t!e conte0t of t!e
fact& in(ol(e in t!e &uit. It ends with an order, if not of dismissal of the action,
Gof condemnation declaring that the plaintiff has a lawful right to ta:e the property
sought to be condemned, for the public use or purpose described in the complaint,
upon the payment of 7ust compensation to be determined as of the date of the filing
of the complaint.H T!e &econ +!a&e of t!e e1inent o1ain action i&
concerne wit! t!e eter1ination /) t!e court of t!e 4u&t co1+en&ation
for t!e +ro+ert) &oug!t to /e taken.H 6his is done by the court with the
assistance of not more than three &/) commissioners. &0unicipality of Ci?an v.
Earcia, 1$2 SC4' "1%, "$/3"$> I1#$#J) It is only upon the completion of these two
stages that e-propriation is said to have been completed. 0oreover, it is only upon
payment of 7ust compensation that title over the property passes to the
government. &'ssociation of Small +andowners in the Philippines, Inc. v. Secretary
of 'grarian 4eform, 11" SC4' />/ I1#$#J). 6herefore, until the action for
e-propriation has been completed and terminated, ownership over the property
being e-propriated remains with the registered owner. Conse(uently, the latter can
e-ercise all rights pertaining to an owner, including the right to dispose of his
property, sub7ect to the power of the State ultimately to ac(uire it through
e-propriation.
4e;uisites
1. 6he e-propriator must enter a +ri(ate +ro+ert).
!. 6he entry must be for 1ore t!an a 1o1entar) +erio.
/. 6he entry must be uner warrant or color of legal aut!orit).
>. 6he property must be e(ote to +u/lic u&e or otherwise informally
appropriated or in7uriously affected.
". 6he utilization of the property for public use must be in such a way as to ou&t
t!e owner an e+ri(e !i1 of /eneficial en4o)1ent of t!e +ro+ert).
;eprivation of @se
1. In Eeneral
Ea&e1ent. if +er1anent an not 1erel) te1+orar). nor1all) woul /e t!e
e,ui(alent of a fee intere&t. It would be a definite e-ercise of complete dominion
and control over the surface of the land. &@nited States vs. Causby I/!$ @S !"%, !1
0ay 1#>%J)
$1
!. +ocal Eovernment @nits
An orinance w!ic! +er1anentl) &o re&trict& t!e u&e of +ro+ert) t!at it
cannot /e u&e for an) rea&ona/le +ur+o&e goe&. it i& +lain. /e)on
regulation an 1u&t /e recogni9e a& a taking of t!e +ro+ert). 6he only
substantial difference, in such case, between restriction and actual ta:ing, is that
the re&triction lea(e& t!e owner &u/4ect to t!e /uren of +a)1ent of
ta0ation. w!ile outrig!t confi&cation woul relie(e !i1 of t!at /uren.
&'rverne Cay Constr. Co. vs. 6hatcher &.P.) 111 '+4. 1112, 111%). ' regulation
which substantially deprives an owner of all beneficial use of his property is
confiscation and is a deprivation within the meaning of the 1>th 'mendment.
&Sundlum vs. Uoning Cd., 1>" 'tl. >"1F also ,aton vs. Sweeny, 111 , >1!F 6aylor
vs. 8ac:sonville, 1// So. 11>). Specifically, w!ile +ro+ert) 1a) /e regulate in
t!e intere&t of t!e general welfare &uc! a& to regar t!e /eautification of
neig!/or!oo& a& conuci(e to t!e co1fort an !a++ine&& of re&ient&,
and in its pursuit, the State may prohibit structures offensive to the sight, the State
may not, under the guise of police power, permanently divest owners of the
beneficial use of their property and practically confiscate them solely to preserve or
assure the aesthetic appearance of the community. &People vs. Fa7ardo IE4 +3
1!11!, !# 'ugust 1#"$J)
Uoning which admittedly limits property to a use which cannot reasonably be made
of it cannot be said to set aside such property to a use but constitutes the ta:ing of
such property without 7ust compensation. @se of property is an element of
ownership therein. 4egardless of the opinion of zealots that property may properly,
by zoning, be utterly destroyed without compensation, such principle finds no
support in the genius of our government nor in the principles of 7ustice as we :now
them. Such a doctrine shoc:s the sense of 7ustice. If it be of public benefit that
property remain open and unused, then certainly the public, and not the private
individuals, should bear the cost of reasonable compensation for such property
under the rules of law governing the condemnation of private property for public
use. &6ews vs. Boolhiser &1#//) /"! 111. !1!, 1$" .,. $!1)
Pu/lic u&e
.ver many years and in a multitude of cases the courts have vainly attempted to
define comprehensively the concept of a public use and to formulate a universal
test. 6hey have found here as elsewhere that to formulate anything ultimate, even
though it were possible, would, in an inevitably changing world, be unwise if not
futile. &0atter of ew Por: City Dousing 'uthority v. 0uller, 1 , !d 1"/)
Pu/lic *&e. a& traitionall) uner&too. 1ean& an) u&e irectl) a(aila/le
to t!e general +u/lic a& a 1atter of rig!t an not 1erel) of for/earance or
acco11oation. &8ustice Cruz, Constitutional +aw, !222 edition, 1>)
Public @se is Gthe constitutional and statutory basis for ta:ing property by eminent
domain. For condemnation purposes, Vpublic use< is one which confers some benefit
or advantage to the publicF it is not confined to actual use by public. It is measured
in terms of right of public to use proposed facilities for which condemnation is
$$
sought and, as long as public has right of use, whether e-ercised by one or many
members of public, a Vpublic advantage< or Vpublic benefit< accrues sufficient to
constitute a public use.H &0ontana Power Co. vs. Co:ma, 0ont. >"1 P.!d 1%#, 11!,
11/.)
Pu/lic u&e. in con&titutional +ro(i&ion& re&tricting t!e e0erci&e of t!e rig!t
to take +ri(ate +ro+ert) in (irtue of e1inent o1ain. 1ean& a u&e
concerning t!e w!ole co11unit) a& i&tingui&!e fro1 +articular
ini(iual&. But eac! an e(er) 1e1/er of &ociet) nee not /e e,uall)
intere&te in &uc! u&e. or /e +er&onall) an irectl) affecte /) it5 if t!e
o/4ect i& to &ati&f) a great +u/lic want or e0igenc). t!at i& &ufficient.
&4indge Co. vs. +os 'ngeles County, !%! @.S. 122, >/ S.Ct. %$#, %#!, %1 +.,d. 11$%).
6he term may be said to mean public usefulness, utility, or advantage, or what is
productive of general benefit. It may be limited to the inhabitants of a small or
restricted locality, but must be in common, and not for a particular individual. 6he
use must be a needful one for the public, which cannot be surrendered without
obvious general loss and inconvenience. ' Vpublic use< for which land may be ta:en
defies absolute definition for it changes with varying conditions of society, new
appliances in the sciences, changing conceptions of scope and functions of
government, and other differing circumstances brought about by an increase in
population and new modes of communication and transportation. &Oatz v. Crandon,
1"% Conn., "!1, !>" '.!d "1#,"$%.)
6he ta:ing to be valid must be for public use. 6here was a time when it was felt that
a literal meaning should be attached to such a re(uirement. W!ate(er +ro4ect i&
unertaken 1u&t /e for t!e +u/lic to en4o). a& in t!e ca&e of &treet& or
+ark&. Ot!erwi&e. e0+ro+riation i& not allowa/le. It i& not an) 1ore. A&
long a& t!e +ur+o&e of t!e taking i& +u/lic. t!en t!e +ower of e1inent
o1ain co1e& into +la). 6he constitution in at least two cases determines what
public use is. .ne is the e-propriation of lands to be subdivided into small lots for
resale at cost to individuals. 6he other is in the transfer, through the e-ercise of this
power, of utilities and other private enterprise to the government. It is accurate to
state then that at present whatever may be beneficially employed for the general
welfare satisfies the re(uirement of public use. &Fernando, 6he Constitution of the
Philippines, !nd ed., pp. "!/3"!>)
Genuine Nece&&it)
In t!e e0erci&e of e1inent o1ain. onl) a& 1uc! lan can /e taken a& i&
nece&&ar) for t!e legiti1ate +ur+o&e of t!e cone1nation. 6he term
GnecessaryH, in this connection, does not mean absolutely indispensable but
re(uires only a reasonable necessity of the ta:ing for the stated purpose, growth
and future needs of the enterprise. &0anila 4ailroad Co. v. 0itchel, "2 Phil $/!, $/13
$/$ I1#!1J).
6he +egislature may directly determine the necessity for appropriating private
property for a particular improvement for public use, and it may select the e-act
location of the improvement. In such a case, it is well3settled that the utility of the
proposed improvement, the e-istence of the public necessity for its construction,
$#
the e-pediency of constructing it, the suitableness of the location selected, are all
(uestions e-clusively for the legislature to determine, and the courts have no power
to interfere or to substitute their own views for those of the representatives of the
people. In t!e a/&ence of &o1e con&titutional or &tatutor) +ro(i&ion to t!e
contrar). t!e nece&&it) an e0+eienc) of e0erci&ing t!e rig!t of e1inent
o1ain are ,ue&tion& e&&entiall) +olitical an not 4uicial in t!eir
c!aracter. &City of 0anila v. Chinese Community of 0anila, >2 Phil /># I1#1#J)
<u&t Co1+en&ation
/efined
<u&t co1+en&ation 1ean& t!e (alue of t!e +ro+ert) at t!e ti1e of t!e
taking. It 1ean& a fair an full e,ui(alent for t!e lo&& &u&taine. 'll the
facts as to the condition of the property and its surroundings, its improvements and
capabilities, should be considered. &,-port Processing Uone 'uthority vs. ;ulay IE4
+3"#%2/, !# 'pril 1#$1J)
8ust compensation is defined as the full and fair e(uivalent of the property ta:en
from its owner by the e-propriator &0anila 4ailroad Co. v. *elas(ues, /! Phil. !$%).
It !a& /een re+eatel) &tre&&e /) t!i& Court t!at t!e 1ea&ure i& not t!e
takerP& gain /ut t!e ownerP& lo&&. &Province of 6ayabas v. Perez, %% Phil. >%1)
6he word G7ustH is used to intensify the meaning of the word GcompensationH to
convey the idea that the e(uivalent to be rendered for the property to be ta:en
shall be real, substantial, full, ample &City of 0anila v. ,strada, !" Phil. !2$).
<u&t co1+en&ation 1ean& not onl) t!e correct a1ount to /e +ai to t!e
owner of t!e lan /ut al&o t!e +a)1ent of t!e lan wit!in a rea&ona/le
ti1e fro1 it& taking. Bithout prompt payment, compensation cannot be
considered G7ustH for then the property owner is made to suffer the conse(uence of
being immediately deprived of his land while being made to wait for a decade or
more before actually receiving the amount necessary to cope with his loss. &,slaban
vs. *da. de .norio IE4 1>%2%!, !$ 8une !221J)
Deter1ination of <u&t Co1+en&ation
'. In Eeneral
T!e eter1ination of 4u&t co1+en&ation i& a function are&&e to t!e
court& of 4u&tice an 1a) not /e u&ur+e /) an) ot!er /ranc! or official of
t!e go(ern1ent. &,-port Processing Uone 'uthority vs. ;ulay IE4 +3"#%2/, !#
'pril 1#$1J)
@pon the rendition of the order of e-propriation, the court shall appoint not more
than three &/) competent and disinterested persons as commissioners to ascertain
and report to the court the 7ust compensation for the property sought to be ta:en.
6he order of appointment shall designate the time and place of the first session of
the hearing to be held by the commissioners and specify the time within which their
report shall be submitted to the court. &Section ", 4ule %1, 1##1 4ules of Civil
Procedure) 6he commissioners shall assess the conse(uential damages to the
#2
property not ta:en and deduct from such conse(uential damages the conse(uential
benefits to be derived by the owner from the public use or purpose of the property
ta:en, the operation of its franchise by the corporation or the carrying on of the
business of the corporation or person ta:ing the property. Cut in no case shall the
conse(uential benefits assessed e-ceed the conse(uential damages assessed, or
the owner be deprived of the actual value of his property so ta:en. &Section %, 4ule
%1, 1##1 4ules of Civil Procedure)
Still, according to section $ of 4ule %1, the court is not bound by the commissioners<
report. It may ma:e such order or render such 7udgment as shall secure to the
plaintiff the property essential to the e-ercise of his right of condemnation, and to
the defendant 7ust compensation for the property e-propriated. 6his Court may
substitute its own estimate of the value as gathered from the record &0anila
4ailroad Company v. *elas(uez, /! Phil. !$%).
B. Local Go(ern1ent *nit&
Section 1#, 4epublic 'ct 11%2. ,minent ;omain. R A local go(ern1ent unit 1a).
t!roug! it& c!ief e0ecuti(e an acting +ur&uant to an orinance. e0erci&e
t!e +ower of e1inent o1ain for +u/lic u&e. or +ur+o&e or welfare for t!e
/enefit of t!e +oor an t!e lanle&&. u+on +a)1ent of 4u&t co1+en&ation,
pursuant to the provisions of the Constitution and pertinent laws5 Provided,
however, 6hat the +ower of e1inent o1ain 1a) not /e e0erci&e unle&& a
(ali an efinite offer !a& /een +re(iou&l) 1ae to t!e owner. and &uc!
offer wa& not acce+te5 Provided, further, 6hat t!e local go(ern1ent unit
1a) i11eiatel) take +o&&e&&ion of the property u+on t!e filing of t!e
e0+ro+riation +roceeing& an u+on 1aking a e+o&it with the proper court
of at lea&t fifteen +ercent A">TB of the fair mar:et value of the property based
on the current ta- declaration of the property to be e-propriated5 Provided finally,
6hat, the a1ount to /e +ai for the e-propriated property &!all /e eter1ine
/) t!e +ro+er court. /a&e on t!e fair 1arket (alue at t!e ti1e of t!e
taking of t!e +ro+ert).
W!en Deter1ine
'. Bhen
W!ere t!e in&titution of an e0+ro+riation action +recee& t!e taking of t!e
+ro+ert) &u/4ect t!ereof. t!e 4u&t co1+en&ation i& fi0e a& of t!e ti1e of
t!e filing of t!e co1+laint. 6his is so provided by the 4ules of Court, the
assumption of possession by the e-propriator ordinarily being conditioned on its
deposits with the ational or Provincial 6reasurer of the value of the property as
provisionally ascertained by the court having 7urisdiction of the proceedings. T!ere
are in&tance&. !owe(er. w!ere t!e e0+ro+riating agenc) take& o(er t!e
+ro+ert) +rior to t!e e0+ro+riation &uit. In t!e&e in&tance&. t!e 4u&t
co1+en&ation &!all /e eter1ine a& of t!e ti1e of taking. not as of the
time of filing of the action of eminent domain. &'nsaldo vs. 6antuico IE4 "21>1, /
'ugust 1##2J)
#1
Bhen plaintiff ta:es possession before the institution of the condemnation
proceedings, the value should be fi-ed as of the time of the ta:ing of said
possession, not of filing of the complaint and the latter should be the basis for the
determination of the value, when the ta:ing of the property involved coincides with
or is subse(uent to, the commencement of the proceedings. Indeed, otherwise, the
provision of 4ule %#, Section /, directing that compensation Vbe determined as of
the date of the filing of the complaint< would never be operative. &4epublic v.
Philippine ational Can:, 1 SC4' #"1 I1#%1J)
C. Bhy
W!ere +ro+ert) i& taken a!ea of t!e filing of t!e cone1nation
+roceeing&. t!e (alue t!ereof 1a) /e en!ance /) t!e +u/lic +ur+o&e for
w!ic! it i& taken5 t!e entr) /) t!e +laintiff u+on t!e +ro+ert) 1a) !a(e
e+reciate it& (alue t!ere/)5 or. t!ere 1a) !a(e /een a natural increa&e
in t!e (alue of t!e +ro+ert) fro1 t!e ti1e t!e co1+laint i& file. ue to
general econo1ic conition&. 6he owner of private property should be
co1+en&ate onl) for w!at !e actuall) lo&e&5 it is not intended that his
compensation shall e-tend beyond his loss or in7ury. 'nd what he loses is only the
actual value of his property at the time it is ta:en. T!i& i& t!e onl) wa) t!at
co1+en&ation to /e +ai can /e trul) 4u&t5 i.e.. H4u&t not onl) to t!e
ini(iual w!o&e +ro+ert) i& taken.H F/ut to t!e +u/lic. w!ic! i& to +a) for
it.H &4epublic v. +ara, "2 ..E. "11$ I1#">J)
8anner of Pa)1ent
'. 0anner
1. 6raditional
'lthough it may be said that Fw!ere t!e State it&elf i& t!e e0+ro+riator. it i&
not nece&&ar) for it to 1ake a e+o&it u+on it& taking +o&&e&&ion of t!e
cone1ne +ro+ert). a& St!e co1+en&ation i& a +u/lic c!arge. t!e goo
fait! of t!e +u/lic i& +lege for it& +a)1ent. an all t!e re&ource& of
ta0ation 1a) /e e1+lo)e in rai&ing t!e a1ount.PH &+ewis, +aw of ,minent
;omain, /rd ,dition, pp. 11%%311%1)F the method of e-propriation adopted in
Philippine 7urisdiction is such as to afford absolute reassurance that no piece of land
can be finally and irrevocably ta:en from an unwilling owner until compensation is
paid. &*isayan 4efining Co. v. Camus and Paredes, >2 Phil. ""2) Further, the 4ules
provide that Gupon the filing of the complaint or at any time thereafter and after
due notice to the defendant, the plaintiff shall have the right to ta:e or enter upon
the possession of the real property involved if he deposits with the authorized
government depositary an amount e(uivalent to the assessed value of the property
for purposes of ta-ation to be held by such ban: sub7ect to the orders of the court.
Such deposit shall be in money, unless in lieu thereof the court authorizes the
deposit of a certificate of deposit of a government ban: of the 4epublic of the
Philippines payable on demand to the authorized government depositary. If
personal property is involved, its value shall be provisionally ascertained and the
#!
amount to be deposited shall be promptly fi-ed by the court. ---H &Section !, 4ule
%1, 1##1 4ules of Civil Procedure)
!. 4evolutionary
Section 1%&e) of the C'4P +aw provides t!at F*+on recei+t /) t!e lanowner of
t!e corre&+oning +a)1ent or. in ca&e of re4ection or no re&+on&e fro1
t!e lanowner. u+on t!e e+o&it wit! an acce&&i/le /ank e&ignate /)
t!e DAR of t!e co1+en&ation in ca&! or in LBP /on& in accorance wit!
t!i& Act. t!e DAR &!all take i11eiate +o&&e&&ion of t!e lan an &!all
re,ue&t t!e +ro+er Regi&ter of Dee& to i&&ue a Tran&fer Certificate of
Title ATCTB in t!e na1e of t!e Re+u/lic of t!e P!ili++ine&. 6he ;'4 shall
thereafter proceed with the redistribution of the land to the (ualified beneficiaries.H
&'ssociation of Small +andowners in the Philippines Inc. vs. Secretary of 'grarian
4eform IE4 1$1>1, 1> 8uly 1#$#J)
C. 0edium
1. 6raditional
6he fundamental rule in e-propriation matters is that the owner of the property
e-propriated is entitled to a 7ust compensation, which should be neither more nor
less, whenever it is possible to ma:e the assessment, than the money e(uivalent of
said property. <u&t co1+en&ation !a& alwa)& /een uner&too to /e t!e 4u&t
an co1+lete e,ui(alent of t!e lo&& w!ic! t!e owner of t!e t!ing
e0+ro+riate !a& to &uffer /) rea&on of t!e e0+ro+riation. &0anila 4ailroad
Co. v. *elas(uez, /! Phil. !$%)
8ust compensation means the e(uivalent for the value of the property at the time of
its ta:ing. 'nything beyond that is more, and anything short of that is less, than 7ust
compensation. It means a fair and full e(uivalent for the loss sustained, which is the
measure of the indemnity, not whatever gain would accrue to the e-propriating
entity. T!e 1arket (alue of t!e lan taken i& t!e 4u&t co1+en&ation to
w!ic! t!e owner of cone1ne +ro+ert) i& entitle. t!e 1arket (alue
/eing t!at &u1 of 1one) w!ic! a +er&on e&irou&. /ut not co1+elle to
/u). an an owner. willing. /ut not co1+elle to &ell. woul agree on a& a
+rice to /e gi(en an recei(e for &uc! +ro+ert). &8.0. 6uazon Co. v. +and
6enure 'dministration, /1 SC4' >1/)
T!e 1eiu1 of +a)1ent of co1+en&ation i& rea) 1one) or ca&!. 6he
condemnor cannot compel the owner to accept anything but money, nor can the
owner compel or re(uire the condemnor to pay him on any other basis than the
value of the property in money at the time and in the manner prescribed by the
Constitution and the statutes. Bhen the power of eminent domain is resorted to,
there must be a standard medium of payment, binding upon both parties, and the
law has fi-ed that standard as money in cash. &0andl v. City of Phoeni-, 1$ p !d
!1/.)
#/
Part ca&! an eferre +a)1ent& are not an cannot. in t!e nature of
t!ing&. /e regare a& a relia/le an con&tant &tanar of co1+en&ation.
&Sacremento Southern 4. Co. v. Deilbron, 1"% Cal. >2$, 12> pp. #1#, #$2.)
G8ust compensationH for property ta:en by condemnation means a fair e(uivalent in
money, which must be paid at least within a reasonable time after the ta:ing, an
it i& not wit!in t!e +ower of t!e Legi&lature to &u/&titute for &uc! +a)1ent
future o/ligation&. /on&. or ot!er (alua/le a(antage. &City of Baterbury v.
Platt Cros. S Co., "% ' $"%, 1% Conn, >/" citing Cutler v. 4avine 4oad Sewer Com<rs,
/# .8.+. %%"F Cloodgood v. 0ohaw: v. D.4.4. Co., .P. 1$ Bend. # /", /1 'm. ;ec.
/1/F Sanborn v. Delden, "1 Cal !%%F Curlington S C.4. Co. v. Schwei:art, 1> p. /!#,
12 Colo, 11$F !/ Bords and Phrases, pl. >%2.)
!. 4evolutionary
6he records of the Constitutional Commission do not provide any categorical
agreement among the members regarding the meaning to be given the concept of
7ust compensation as applied to the comprehensive agrarian reform program being
contemplated. 6here was the suggestion to Gfine tuneH the re(uirement to suit the
demands of the pro7ect even as it was also felt that they should Gleave it to
CongressH to determine how payment should be made to the landowner and
reimbursement re(uired from the farmer3beneficiaries. Such innovations as
Gprogressive compensationH and GState3subsidized compensationH were also
proposed. In the end, however, no special definition of the 7ust compensation for the
lands to be e-propriated was reached by the Commission. &4ecord of the
Constitutional Commission, *ol. !, pp. %>1, 12>F *ol. /, pp. 1%3!2, !>/3!>1.)
Trial wit! Co11i&&ioner&
In an e-propriation case where the principal issue is the determination of 7ust
compensation, a trial before the Commissioners is indispensable to allow the parties
to present evidence on the issue of 7ust compensation. 6rial with the aid of the
commissioners is a substantial right that may not be done away with capriciously or
for no reason at all. &0anila ,lectric Company &0,4'+C.) vs. Pineda IE4 "#1#1, 1/
February 1##!J)
Legal Intere&t for E0+ro+riation Ca&e&
Article 66G# of t!e Ci(il Coe. w!ic! +ro(ie& t!at FIf t!e o/ligation
con&i&t& in t!e +a)1ent of a &u1 of 1one). an t!e e/tor incur& a ela).
t!e ine1nit) for a1age&. t!ere /eing no &ti+ulation to t!e contrar).
&!all /e t!e +a)1ent of t!e intere&t agree u+on. an in t!e a/&ence of
&ti+ulation. t!e legal intere&t. w!ic! i& JT +er annu1.H Central Can: Circular
>1% does not apply as it only applies to loan or forbearance of money, goods or
credits and to 7udgments involving such loan or forbearance of money, goods or
credits. &ational Power Corporation vs. 'ngas IE4 %2!!"3!%, $ 0ay 1##!J)
#>
Writ of Po&&e&&ion
1. Issuance of writ of possession
A writ of e0ecution 1a) /e i&&ue /) a court u+on t!e filing /) t!e
go(ern1ent of a co1+laint for e0+ro+riation &ufficient in for1 an
&u/&tance an u+on e+o&it 1ae /) t!e go(ern1ent of t!e a1ount
e,ui(alent to t!e a&&e&&e (alue of t!e +ro+ert) &u/4ect to e0+ro+riation.
@pon compliance with these re(uirements, the issuance of the writ of possession
becomes ministerial. &Ciglang3awa v. Cacalla, E4 1/##!1 and 1/##/%, !! ovember
!222.)
It is imperative that /efore a writ of +o&&e&&ion i& i&&ue /) t!e Court in
e0+ro+riation +roceeing&, the following re(uisites must be met5
1. 6here must be a Co1+laint for e0+ro+riation sufficient inform and in
substanceF
2. ' +ro(i&ional eter1ination of 4u&t co1+en&ation for the properties
sought to be e-propriated must be made by the trial court on the basis of
7udicial &not legislative or e-ecutive) discretionF and
3. 6he e+o&it re,uire1ent uner Section 6. Rule J% 1u&t /e co1+lie
wit!. &Ignacio v. Euerrero IE4 +3>#2$$, !# 0ay 1#$1J)
!. 4emedy for party assailing validity of writ of possession
' petition for review could not have been resorted to inasmuch as the order of the
trial court granting a writ of possession was merely interlocutory from which no
appeal could be ta:en. 4ule >", T1 of the 1##1 4ules of Civil Procedure applies only
to final 7udgments or orders of the Court of 'ppeals, the Sandiganbayan, and the
4egional 6rial Court. A +etition for certiorari i& t!e &uita/le re1e) in (iew of
Rule J>. Q" w!ic! +ro(ie& FW!en an) tri/unal. /oar or officer e0erci&ing
4uicial or ,ua&i74uicial function& !a& acte wit!out or in e0ce&& of it& or
!i& 4uri&iction. or wit! gra(e a/u&e of i&cretion a1ounting to lack or
e0ce&& of 4uri&iction. an t!ere i& no a++eal. nor an) +lain. &+ee). an
ae,uate re1e) in t!e orinar) cour&e of law. a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with certainty and
praying that 7udgment be rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as law and 7ustice may
re(uire.H
#"
E0+ro+riation of *tilitie&. Lane E&tate& an 8unici+al Pro+ert)
Art. III. Sec. "$
Section 1$. 6he State may, in the interest of national welfare or defense.
e&ta/li&! an o+erate (ital inu&trie& an. u+on +a)1ent of
4u&t co1+en&ation. tran&fer to +u/lic owner&!i+ utilitie& an
ot!er +ri(ate enter+ri&e& to be operated by the Eovernment.
Art. IIII. Sec. ;
Section >. 6he State shall, by law, unertake an agrarian refor1 +rogra1
foune on t!e rig!t of far1er& an regular far1worker& w!o
are lanle&&. to own irectl) or collecti(el) t!e lan& t!e) till
or, in the case of other farmwor:ers, to receive a 7ust share of the
fruits thereof. 6o this end, the State shall encourage and underta:e the
7ust distribution of all agricultural lands, sub7ect to such priorities and
reasonable retention limits as the Congress may prescribe, ta:ing into
account ecological, developmental, or e(uity considerations, and
sub7ect to the payment of 7ust compensation. In determining retention
limits, the State shall respect the right of small landowners. 6he State
shall further provide incentives for voluntary land3sharing.
Art. IIII. Sec. #
Section #. 6he State shall, by law, and for the common good, underta:e, in
cooperation with the private sector, a continuing program of urban
land reform and housing which will ma:e available at affordable cost,
decent housing and basic services to under3privileged and homeless
citizens in urban centers and resettlement areas. It shall also promote
ade(uate employment opportunities to such citizens. In the
implementation of such program the State shall respect the rights of
small property owners.
Pro+ert) !el /) a 1unici+al cor+oration in it& +ri(ate ca+acit) i& not
&u/4ect to t!e unre&tricte control of t!e legi&lature. and the municipality
cannot be deprived of such property against its will, e-cept by the e-ercise of
eminent domain with payment of full compensation.H &0cNuillin 0unicipal
Corporation, !nd ,d., *ol. I, pp. %123%$1).
In its private capacity a municipal corporation is wholly different. 6he people of a
compact community usually re(uire certain conveniences which cannot be
#%
furnished without a franchise from the State and which are either unnecessary in
the rural districts, such as a system of sewers, or par:s and open spaces, or which
on account of the e-penses it would be financially impossible to supply e-cept
where the population is reasonably dense, such as water or gas. But in &o far a&
t!e 1unici+alit) i& t!u& aut!ori9e to e0erci&e t!e function& of a +ri(ate
cor+oration. it i& clot!e wit! t!e ca+acitie& of a +ri(ate cor+oration an
1a) clai1 it& rig!t& an i11unitie&. e(en a& again&t t!e &o(ereign. an i&
&u/4ect to t!e lia/ilitie& of &uc! a cor+oration. e(en a& again&t t!ir
+artie&. &1# 4.C.+. p. %#$)
DE CNEC?T @S BA*TISTA
6he plan to e-tend ,;S' to 4o-as Coulevard to be ultimately lin:ed to the Cavite
Coastal 4oad Pro7ect, originally called for the e-propriation of properties along
Cuneta 'venue in Pasay City. +ater on, however, the 0inistry of Public Dighways
decided to ma:e the proposed e-tension pass through Fernando 4ein and ;el Pan
Streets. Cecause of the protests of residents of the latter, the Commission on
Duman Settlements recommended the reversion to the original plan, but the
0inistry argued that the new route will save the government P! million. 6he
government filed e-propriation proceedings against the owners of Fernando 4ein
and ;el Pan streets, among whom was petitioner.
Deld5
6here is no (uestion as to the right of the 4epublic of the Philippines to ta:e private
property for public use upon the payment of 7ust compensation. Section !, 'rticle I*
of the Constitution of the Philippines provides that GPrivate property shall not be
ta:en for public use without 7ust compensation.H It i& recogni9e. !owe(er. t!at
t!e go(ern1ent 1a) not ca+riciou&l) or ar/itraril) c!oo&e w!at +ri(ate
+ro+ert) &!oul /e taken. ' landowner is covered by the mantle of protection
due process affords. It is a mandate of reason. It frowns on arbitrariness, it is the
antithesis of any governmental act that smac:s of whim or caprice. It negates state
power to act in an oppressive manner. It is, as had been stressed so often, the
embodiment of the sporting idea off air play. In that sense, it stands as a guaranty
of 7ustice. 6hat is the standard that must be met by any governmental agency in the
e-ercise of whatever competence is entrusted to it. 's was so emphatically stressed
by the present Chief 8ustice, 'cts of Congress, as well as those of the ,-ecutive, can
deny due process only under pain of nullity.
6he choice of Fernando 4ein and ;el Pan streets is arbitrary and should not receive
7udicial approval. 6he Duman Settlements Commission concluded that the cost
factor is so minimal that it can be disregarded in ma:ing a choice between the two
#1
lines. 6he factor of functionality strongly militates against the choice of Fernando
4ein and ;el Pan streets, while the factor of social and economic impact bears
grievously on the residents of Cuneta 'venue. W!ile t!e i&&ue woul &ee1 to
/oil own to a c!oice /etween +eo+le. on one !an. an +rogre&& an
e(elo+1ent. on t!e ot!er. it i& to /e re1e1/ere t!at +rogre&& an
e(elo+1ent are carrie out for t!e /enefit of t!e +eo+le.
EPMA @S D*LAD
6he San 'ntonio ;evelopment Corporation was the owner of a piece of land in +apu3
+apu City which the ,PU' e-propriated in 1#1#. 6he commissioners appointed by
the trial court recommended that the San 'ntonio ;evelopment Corp. be paid
P1".22 per s(uare meter. ,PU' filed a petition for certiorari, arguing that under P;
1"// the compensation should be the fair and current mar:et value declared by the
owner or the mar:et value determined by the assessor, whichever is lower.
D,+;5
T!e 1et!o of a&certaining 4u&t co1+en&ation uner PD ">33 con&titute&
i1+er1i&&i/le encroac!1ent on 4uicial +rerogati(e&. It tends to render the
Supreme Court inutile in a matter which under the Constitution is reserved to it for
final determination. 6he valuation in the decree may only serve as a guiding
principle or one of the factors in determining 7ust compensation but it may not
substitute the court<s own 7udgment as to what amount should be awarded and how
to arrive at such amount. 'lthough the court technically would still have the power
to determine the 7ust compensation for the property, following the decree, its tas:
would be relegated to simply stating the lower value of the property as declared
either by the owner or the assessor. <u&t co1+en&ation 1ean& t!e (alue of t!e
+ro+ert) at t!e ti1e of t!e taking. It 1ean& a fair an full e,ui(alent for
t!e lo&& &u&taine. 'll the facts as to the condition of the property and its
surroundings, its improvements and capabilities should be considered. In this case,
the ta- declarations used as basis for the 7ust compensation were made long before
the declaration of martial law when the land was much cheaper. 6o peg the value of
the lots on the basis of those documents which are outdated would be arbitrary and
confiscatory.
8ORENO @S 8ACTAN7CEB* AIRPORT
Deld5
#$
In Fery, which was cited in the recent case of 4eyes v. ational Dousing 'uthority,
we declared that the government ac(uires only such rights in e-propriated parcels
of land as may be allowed by the character of its title over the properties R
If lan i& e0+ro+riate for a +articular +ur+o&e. wit! t!e conition t!at
w!en t!at +ur+o&e i& ene or a/anone. t!e +ro+ert) &!all return to it&
for1er owner. t!en. of cour&e. w!en t!e +ur+o&e i& ter1inate or
a/anone t!e for1er owner reac,uire& t!e +ro+ert) &o e0+ro+riate. If -
- - land is e-propriated for a public street and the e-propriation is granted upon
condition that the city can only use it for a public street, it returns to the former
owner, unle&& t!ere i& &o1e &tatutor) +ro(i&ion to t!e contrar) - - - - If.
u+on t!e contrar). !owe(er. t!e ecree of e0+ro+riation gi(e& to t!e
entit) a fee &i1+le title. t!en. of cour&e. t!e lan /eco1e& t!e a/&olute
+ro+ert) of t!e e0+ro+riator. w!et!er it /e t!e State. a +ro(ince. or
1unici+alit). an in t!at ca&e t!e non7u&er oe& not !a(e t!e effect of
efeating t!e title ac,uire /) t!e e0+ro+riation +roceeing& - - - - Bhen
land has been ac,uire for +u/lic u&e in fee &i1+le. unconitionall). eit!er
/) t!e e0erci&e of e1inent o1ain or /) +urc!a&e. t!e for1er owner
retain& no rig!t& in t!e lan. an t!e +u/lic u&e 1a) /e a/anone. or t!e
lan 1a) /e e(ote to a ifferent u&e. wit!out an) i1+air1ent of t!e
e&tate or title ac,uire. or an) re(er&ion to t!e for1er owner - - - -
.ur stand on the amount of repurchase price remains unperturbed. W!en t!e
State recon(e)& lan. it &!oul not +rofit fro1 &uen a++reciation& in
lan (alue&. 'ny increase or decrease in mar:et value due to the proposed
improvement may not be considered in determining the mar:et value. 6hus,
reconveyance to the original owner shall be for whatever amount he was paid by
the government, plus legal interest, whether or not the consideration was based on
the land<s highest and best use when the sale to the State occurred.
TAIATION
'. ;efinition and ature
1. ;efinition
a. 6a-ation is5
the method by which enforce +ro+ortional contri/ution& are
e-acted.
the power by which the sovereign, through its lawma:ing body,
rai&e& re(enue to efra) t!e nece&&ar) e0+en&e& of
go(ern1ent.
##
a way of a++ortioning t!e co&t& of go(ern1ent among those
who in some measure are privileged to en7oy its benefits and must
bear its burden.
a FS)1/ioticH relation&!i+, whereby in e0c!ange for t!e
+rotection t!at t!e citi9en& get fro1 t!e go(ern1ent, ta-es
are paid.
b. 6a-es
6a-es are enforced proportional contributions from persons and property levied by
the lawma:ing body of the State by virtue of its sovereignty for the support of the
government and for public needs. &Cooley, 6a-ation, >th edition, Section 1)
Di&tinction wit! licen&e fee&. 6he term Gta-H applies M generally spea:ing M to
all :inds of e-actions which become public funds. 6he term is often loosely used to
include levies for revenue as well as levies for regulatory purposes. 6hus license
fees are commonly called ta-es. +egally spea:ing, however, licen&e fee i& a legal
conce+t ,uite i&tinct fro1 ta05 t!e for1er i& i1+o&e in t!e e0erci&e of
+olice +ower for +ur+o&e& of regulation. w!ile t!e latter i& i1+o&e uner
t!e ta0ing +ower for t!e +ur+o&e of rai&ing re(enue& &0acNuillin, 0unicipal
Corporations, *ol. #, /rd ,dition, p. !%).
Di&tinction wit! &+ecial a&&e&&1ent&. Bhile the word Gta-H in its broad
meaning, includes both general ta-es and special assessments, and in a general
sense a ta- is an assessment, and an assessment is a ta-, yet there is a recognized
distinction between them in that assessment is confined to local impositions upon
property for the payment of the cost of public improvements in its immediate
vicinity and levied with reference to special benefits to the property assessed.
6he differences between a special assessment and a ta- are that5
1. ' special assessment can /e le(ie onl) on lanF
!. ' special assessment cannot Aat lea&t in 1o&t &tate&B /e 1ae a
+er&onal lia/ilit) of the person assessedF
/. ' special assessment is /a&e w!oll) on /enefit&F and
>. ' special assessment is e0ce+tional /ot! a& to ti1e an localit). 6he
imposition of a charge on all property, real and personal, in a prescribed area,
is a ta- and not an assessment, although the purpose is to ma:e a local
improvement on a street or highway. ' charge imposed only on property
owners benefited is a special assessment rather than a ta- notwithstanding
the statute calls it a ta-. &'postolic Prefect of the 0ountain Province vs. the
6reasurer of Caguio City IE4 >1!"!, 1$ 'pril 1#>1JF citing Cooley)
!. 'ttributes Q Characteristics of ta-ation
' forced charge, imposition or contribution and as such it operates in invitum.
&4ochester vs. Closs, 11" P >!, !1 , 1#>, %1 +4' ISJ 'nn 1, Cas. 1") 6a-es are
not in the nature of contracts between the party and party but grow out of a duty
to, and are the positive acts of the government, to the ma:ing and enforcing of
which, the personal consent of individual ta-payers is not re(uired &4epublic vs.
0ambulao +umber IE4 +3111!", !$ February 1#%!J).
122
It i& a +ecuniar) /uren +a)a/le in 1one). /ut &uc! a ta0 i& not
nece&&aril) confine to t!o&e +a)a/le in 1one) &1 Cooley /).
It i& le(ie /) t!e legi&lati(e /o) of t!e State /ecau&e t!e ta0ing +ower i&
+ecuniar) an e0clu&i(el) legi&lati(e in c!aracter. &"1 'm. 8r. 11)
It is assessed in accordance with some reasonable rule of apportionment,
conformably with the constitutional mandate on progressivity of a ta-ing system.
&'rticle *I, Section !$I1J, 1#$1 Constitution).
It reac!e& e(en t!e citi9en a/roa an !i& inco1e earne fro1 &ource&
out&ie !i& State5 a& well a& all inco1e earne in t!e ta0ing State.
w!et!er /) citi9en& or alien&. an all i11o(a/le an tangi/le +er&onal
+ro+ertie& foun in it& territor). a& well a& tangi/le +er&onal +ro+ert)
owne /) +er&on& o1icile t!erein. are &u/4ect to it& ta0ing +ower
A8ustice Cruz, Constitutional +aw, !222 edition, $%)
' ta- is levied for a public purpose as ta-ation itself involves a burden to provide
revenue for public purposes of a general nature.
/. ature of ta-ing power
In!erent 6he power to ta-, an inherent prerogative, has to
be availed of to assure the performance of vital
state functions. It is the source of the bul: of public
funds. 6a-es being the lifeblood of the government,
their prompt and certain availability is of the
essence. &Sison v. 'ncheta IE4 +3"#>/1, !" 8uly
1#$>J)
?ig! +rerogati(e of &o(ereignt) 's the power of ta-ation is a high
prerogative of sovereignty, the relin(uishment is
never presumed and any reduction or diminution
thereof with respect to its mode or its rate, must be
strictly construed, and the same must be coached
in clear and unmista:able terms in order that it
may be applied. &$> C.8.S. pp. %"#3$22)
Legi&lati(e 6a-ing power is peculiarly and e-clusively
legislative in character and remains undiminished
in the legislative in character and remains
undiminished in the legislature in the absence of an
e-press surrender thereof, clear and e-plicit in its
terms. &"1 'm. 8ur. 1131/)
Con&titutionall) li1ite 6he power to ta- is an attribute of sovereignty. It is
the strongest of all the powers of government. For
all its plenitude, the power to ta- has restrictions.
6he Constitution sets forth such limits. 'dversely
affecting as it does property rights, both the due
process and e(ual protection clauses may properly
be invo:ed to invalidate in appropriate cases a
revenue measure. &Sison v. 'ncheta IE4 +3"#>/1,
!" 8uly 1#$>J)
121
C. Purpose
6a-es are the lifeblood of the government and so should be collected without
unnecessary hindrance. ;espite the natural reluctance to surrender part of one<s
hard3earned income to the ta-ing authorities, every person who is able to must
contribute his share in the running of the government. 6he government for its part,
is e-pected to respond in the form of tangible and intangible benefits intended to
improve the lives of the people and enhance their moral and material values. 6his
symbiotic relationship is the rationale of ta-ation and should dispel the erroneous
notion that it is an arbitrary method of e-action by those in the seat of power.
&Commissioner of Internal 4evenue v. 'lgue IE4 +3!$$#%, 11 February 1#$$J)
Re(enue5
6he purpose of ta-ation is to provide funds or property with which the State
promotes the general welfare and protection of its citizens. &"1 'm. 8ur. 1131/)
4aising of revenues is the principal ob7ect of ta-ation. &Cagatsing vs. 4amirez IE4 +3
>1%/1, 11 ;ecember 1#1%J)
Non7Re(enue'
Regulation5 6a-es may also be imposed for a regulatory purpose as
for e-ample, in the promotion, rehabilitation and
stabilization of industry which is affected with public
interest. &See +utz vs. 'raneta IE4 +31$"#, !! ;ecember
1#""J , and Calte- Philippines vs. Commission on 'udit
IE4 #!"$", $ 0ay 1##!J)
Pro1otion of general welfare' If ob7ective and methods ali:e are
constitutionally valid, no reason is seen why the state
may not levy ta-es to raise funds for their prosecution
and attainment. 6a-ation may be made to implement the
state<s police power. &+utz *. 'raneta, #$ Phil. 1>$ I1#""JF
citing Ereat 'tlantic S Pacific 6ea Co. v. Eros7ean, /21
@.S. >1!, $1 +. ,d. 11#/F @.S. v. Cutler, !#1 @.S. 1, $2 +.
,d. >11F 0<Culloch v. 0aryland, > Bheat, /1%, > +. ,d.
"1#. )
Reuction of &ocial ine,ualit)' 0ade possible through the progressive
system of ta-ation where the ob7ective is to prevent the
undue concentration of wealth in the hands of a few
individuals. &'ban, Cen7amin. +aw of Casic 6a-ation in the
Philippines, Second ,dition 1##>, page %).
Encourage econo1ic growt!' In the realm of ta- e-emptions and ta-
reliefs, the purpose of ta-ation &the power to ta- being
the power also not to ta-. M ,d.) is to grant incentives or
e-emptions in order to encourage investments and
thereby promote the country<s economic growth. &Ibid.)
Protectioni&1' In some important sectors of the economy, ta-es
sometimes provide protection to local industries li:e
protective tariffs and customs duties. &Ibid.)
12!
C. Sco+e AT!e +ower to ta0 i& t!e +ower to e&tro)B
P!ili++ine internal re(enue law& are not +olitical in nature an a& &uc!
were continue in force uring t!e +erio of ene1) occu+ation an in
effect were actuall) enforce /) t!e occu+ation go(ern1ent. 's a matter of
fact, income ta- returns were filed during that period and income ta- payment were
effected and considered valid and legal. Such ta- laws are deemed to be the laws of
the occupied territory and not of the occupying enemy. &Dilado vs. CI4 IE4. +3#>2$,
/1 .ctober 1#"%.J)
So +er(a&i(e i& t!e +ower of ta0ation t!at it reac!e& e(en t!e citi9en
a/roa an !i& inco1e earne fro1 &ource& out&ie !i& State. In other
cases, all income earned in the ta-ing State, whether by citizens or aliens, and all
immovable and tangible personal properties found in its territory, as well as tangible
personal property owned by persons domiciled therein, are sub7ect to its ta-ing
power &8ustice Cruz, Constitutional +aw, !222 edition, $%) 6ariff and customs duties
are ta-es constituting a significant portion of the public revenue which are the
lifeblood that enables the government to carry out functions it has been instituted
to perform. &Commissioner of Customs v. 0a:asiar IE4 1#/21, !# 'ugust 1#$#J)
Legi&lati(e ta0ing +ower or i&cretion e0ten& to t!e following'
Sub7ects and ob7ects of ta-
'mount and rate of ta-
Purpose for which ta-es are to be levied
'pportionment of the ta- & general, limited to a particular locality, or mi-ed)
Situs of ta-ation
0anner and mode of enforcement and collection
&'ban, Cen7amin. +aw of Casic 6a-ation in the Philippines, Second ,dition 1##>,
page $).
6he ta-ing authority can select the sub7ects of ta-ation &Eomez vs. Palomar &E4 +3
!/%>", !# .ctober 1#$$). T!e ta0ing +ower !a& t!e aut!orit) to 1ake
rea&ona/le an natural cla&&ification& for +ur+o&e& of ta0ation. Bhere the
differentiation conforms to the practical dictates of 7ustice and e(uity, it is not
discriminatory within the meaning of this clause and is therefore uniform. 6here is
(uite a similarity then to the standard of e(ual protection for all that is re(uired is
that the ta- applies e(ually to all persons, firms and corporations placed in similar
situation. Ta0+a)er& 1a) /e cla&&ifie into ifferent categorie&. It i& enoug!
t!at t!e cla&&ification 1u&t re&t u+on &u/&tantial i&tinction& t!at 1ake
real ifference&. &Sison v. 'ncheta IE4 +3"#>/1, !" 8uly 1#$>J)
6hus, a classification is reasonable where
12/
1. It is based on &u/&tantial i&tinction& which ma:e real differencesF
!. 6hese are ger1ane to t!e +ur+o&e of the lawF
/. 6he classification applies not onl) to +re&ent conition& /ut al&o to
future conition& which are substantially identical to those of the presentF
>. 6he classification applies only to t!o&e w!o /elong to t!e &a1e cla&&
&Felwa v. Salas IE4 +3!%"11, !# .ct 1#%%J).
Still, the classification, to be reasonable, should be in terms applicable to future
conditions as well. &.rmoc Sugar Company vs. 6reasurer of .rmoc City IE4 +3
!/1#>, 11 February 1#%$J)
6hat the power to ta- involves the power to destroyF that the power to destroy may
defeat and render useless the power to createF that there is a plain repugnance in
conferring on one government a power to control the constitutional measures of
another, which other, with respect to those very measures, is declared to be
supreme over that which e-erts the control, are propositions not to be denied. Cut
all inconsistencies are to be reconciled by the magic of the word confidence.
Ta0ation. it i& &ai. oe& not nece&&aril) an una(oia/l) e&tro). To carr)
it to t!e e0ce&& of e&truction. woul /e an a/u&e. to +re&u1e w!ic!.
woul /ani&! t!at confience w!ic! i& e&&ential to all go(ern1ent. &Chief
8ustice 0arshall, 0cCulloch vs. 0aryland, 11 @S /1% I1$1#J) In those days &the case
of 0cCullough vs. 0aryland I1$1#J M ,d.) it was not recognized as it is today that
most of the distinctions of the law are distinctions of degree. If the States had any
power it was assumed that they had all power, and that the necessary alternative
was to deny it altogether. Cut this Court which so often has defeated the attempt to
ta- in certain ways can defeat an attempt to discriminate or otherwise go too far
without wholly abolishing the power to ta-. T!e +ower to ta0 i& not t!e +ower
to e&tro) w!ile t!i& Court &it&. T!e +ower to fi0 rate& i& t!e +ower to
e&tro) if unli1ite. /ut t!i& Court w!ile it enea(or& to +re(ent
confi&cation oe& not +re(ent t!e fi0ing of rate&. &;issenting opinion of
8ustice Dolmes, Panhandle .il Co. vs. State of 0ississippi ,- 4el. Ono-, !11 @S !1$
I1#!$J). Con&truing t!e F+ower to ta0 i& t!e +ower to e&tro).H it 1erel)
e&cri/e& Fnot t!e +ur+o&e& for w!ic! t!e ta0 1a) /e u&e /ut t!e egree
of (igor wit! w!ic! t!e ta0ing +ower 1a) /e e1+lo)e in orer to rai&e
re(enue &1 Cooley 11#31$1).
D. W!o e0erci&e& t!e +owerN
1. In general
Ta0ing +ower i& +eculiarl) an e0clu&i(el) legi&lati(e in c!aracter an
re1ain& uni1ini&!e in t!e legi&lature in t!e a/&ence of an e0+re&&
&urrener t!ereof. clear an e0+licit in it& ter1&. &"1 'm. 8ur. 1131/) It is
inherent in the power to ta that a state be free to select the sub1ects of taation,
and it has been repeatedly held that Gine(ualities which result from a singling out of
one particular class for ta-ation, or e-emption infringe no constitutional limitationH
&Carmichael vs. Southern Coal S Co:e Co., /21 @. S. >#", $1 +. ,d. 1!>", citing
numerous authorities, at p. 1!"1).
12>
Still, ta- collection should be made in accordance with law as any arbitrariness will
negate the very reason for government itself. It i& a re,uire1ent in all
e1ocratic regi1e& t!at it /e e0erci&e rea&ona/l) an in accorance
wit! t!e +re&cri/e +roceure. It is therefore necessary to reconcile the
apparently conflicting interests of the authorities and the ta-payers so that the real
purpose of ta-ation, which is the promotion of the common good, may be achieved.
If it is not, then the ta-payer has a right to complain and the courts will then come
to his succor. For all the awesome power of the ta- collector, he may still be
stopped in his trac:s if the ta-payer can demonstrate that the law has not been
observed. &Commissioner of Internal 4evenue v. 'lgue IE4 +3!$$#%, 11 February
1#$$J)
!. +ocal Eovernment @nits
Pre(iou&l). a 1unici+al cor+oration !a& no in!erent +ower of ta0ation. To
enact a (ali orinance. t!e Cit) 1u&t fin in it& c!arter t!e +ower to o
&o. for &ai +ower cannot /e a&&u1e. A 1unici+al cor+oration. unlike a
&o(ereign &tate. i& clot!e wit! no in!erent +ower of ta0ation. Its charter
must plainly show an intent to confer that power or the corporation cannot assume
it. 'nd the power when granted is to be construed strictissimi 7uris. 'ny doubt or
ambiguity arising out of the term used must be resolved against the municipal
corporation. &Santos +umber Co. vs. City of Cebu, et al., 12! Phil., $12F See also
'rong vs. 4affi?an, #$ Phil., >!!). Now. irect aut!orit) !a& /een conferre to
local go(ern1ent unit& /) t!e "#$% Con&titution. &+ecificall) Section >.
Article I t!ereof. w!ic! +ro(ie& t!at FEac! local go(ern1ent unit &!all
!a(e t!e +ower to create it& own &ource& of re(enue& an to le() ta0e&.
fee& an c!arge& &u/4ect to &uc! guieline& an li1itation& a& t!e
Congre&& 1a) +ro(ie. con&i&tent wit! t!e /a&ic +olic) of local autono1).
Suc! ta0e&. fee&. an c!arge& &!all accrue e0clu&i(el) to t!e local
go(ern1ent&.H
,-cept as otherwise provided in the +ocal Eovernment Code &4' 11%2), the
province may levy only the ta-es, fees, and charges as provided in 'rticle I, Chapter
II, 6itle I, Coo: IIF such the 6a- on 6ransfer of 4eal Property .wnershipF 6a- on
Cusiness of Printing and PublicationF Franchise 6a-F 6a- on Sand, Eravel and .ther
Nuarry 4esourcesF Professional 6a-F 'musement 6a-F 'nnual Fi-ed 6a- For ,very
;elivery 6ruc: or *an of 0anufacturers or Producers, Bholesalers of, ;ealers, or
4etailers in, Certain Products &Section 1/>). Further, municipalities may levy ta-es,
fees, and charges not otherwise levied by provinces &Section 1>!). Furthermore, the
city, may levy the ta-es, fees, and charges which the province or municipality may
impose5 Provided, however, 6hat the ta-es, fees and charges levied and collected
by highly urbanized and independent component cities shall accrue to them and
distributed in accordance with the provisions of the +ocal Eovernment Code, and
Provided further that the rates of ta-es that the city may levy may e-ceed the
ma-imum rates allowed for the province or municipality by not more than "2L
e-cept the rates of professional and amusement ta-es &Section 1"1).
12"
Section "3G of t!e Local Go(ern1ent Coe +ro(ie& for funa1ental
+rinci+le& t!at &!all go(ern t!e e0erci&e of t!e ta0ing an ot!er re(enue7
rai&ing +ower& of local go(ern1ent unit&. t!at i&.
a) 6a-ation shall be unifor1 in eac! local go(ern1ent unitF
b) 6a-es, fees, charges and other impositions shall5
1. be e,uita/le an /a&e a& far a& +ractica/le on t!e ta0+a)erP&
a/ilit) to payF
!. be levied and collected onl) for +u/lic +ur+o&e&F
/. not be un7ust, e-cessive, oppressive, or confiscatoryF
>. not be contrar) to law. +u/lic +olic). national econo1ic +olic).
or in the re&traint of tradeF
c) 6he collection of local ta-es, fees, charges and other impositions &!all in no
ca&e /e let to an) +ri(ate +er&onF
d) 6he revenue collected pursuant to the provisions of the +ocal Eovernment
Code &!all inure &olel) to t!e /enefit of. an /e &u/4ect to t!e
i&+o&ition /). t!e local go(ern1ent unit le()ing t!e ta0, fee, charge
or other imposition unless otherwise specifically provided hereinF and,
e) ,ach local government unit shall, as far as practicable. e(ol(e a
+rogre&&i(e &)&te1 of ta0ation.
Art. @I Sec. 6$
Section 6$ 6he rule of ta0ation &!all /e unifor1 an e,uita/le. 6he
Congress shall evolve a progressive system of ta-ation.
6he Congress may, by law, aut!ori9e t!e Pre&ient to fi0 wit!in
&+ecifie li1it&. an &u/4ect to &uc! li1itation& an
re&triction& a& it 1a) i1+o&e. tariff rates, import and e-port
(uotas, tonnage and wharfage dues, and other duties or imposts within
the framewor: of the national development program of the
Eovernment.
Charitable institutions, churches and personages or convents
appurtenant thereto, mos(ues, non3profit cemeteries, and all lands,
buildings, and improvements, actuall). irectl). an e0clu&i(el)
u&e for religiou&. c!arita/le. or eucational +ur+o&e& &!all /e
e0e1+t fro1 ta0ation. Ae0clu&i(el) 1ean& +ri1aril) not
nece&&aril) &olel)B
No law granting an) ta0 e0e1+tion &!all /e +a&&e wit!out t!e
concurrence of a 1a4orit) of all the 0embers of the Congress.
Art. II@. Sec. ; A3B
Section ;
---
12%
'll revenues and assets of non3stoc:, non3profit educational institutions used
actually, directly, and e-clusively for educational purposes shall be e-empt from
ta-es and duties. @pon the dissolution or cessation of the corporate e-istence of
such institutions, their assets shall be disposed of in the manner provided by law.
Art. I. Sec. >
Section > ,ach local government unit shall have the power to create its own
sources of revenues and to levy ta-es, fees and charges sub7ect to
such guidelines and limitations as the Congress may provide,
consistent with the basic policy of local autonomy. Such ta-es, fees,
and charges shall accrue e-clusively to the local governments.
Ta0 E0e1+tion&
1. ature
Ta0 e0e1+tion& are eit!er con&titutional or &tatutor). E0e1+tion i&
grante religiou& an c!arita/le in&titution& /ecau&e t!e) gi(e
con&iera/le a&&i&tance to t!e State in t!e i1+ro(e1ent of t!e 1oralit) of
t!e +eo+le an t!e care of t!e inigent an t!e !anica++e. &8ustice Cruz,
Constitutional +aw, !222 ,dition, #!3#/) Statutory e-ceptions are granted in the
discretion of the legislature, but such law should be passed with the concurrence of
a ma7ority of all the 0embers of Congress. Bhere the ta-ation is granted
gratuitously. it 1a) /e (alil) re(oke at will. wit! or wit!out cau&e.
Dowever, if the e0e1+tion i& grante for (alua/le con&ieration it is ee1e
to +artake of t!e nature of a contract an t!e o/ligation t!ereof i&
+rotecte again&t i1+air1ent &Ibid., #>3#")
B) it& (er) nature. t!e law t!at e0e1+t& one fro1 ta0 1u&t /e clearl)
e0+re&&e /ecau&e t!e e0e1+tion cannot /e create /) i1+lication.
,-emption from ta-ation are highly disfavored in lawF and he who claims an
e-emption must be able to 7ustify his claim by the clearest grant of organic or
statute law. 'n e-emption from the common burden cannot be permitted to e-ist
upon vague implication. &'siatic Petroleum Co. vs. +lanes, ># Phil., >%%F See also
Douse vs. Posadas, "/ Phil., //$.)
T!e te&t of e0e1+tion fro1 ta0ation i& t!e u&e of t!e +ro+ert) for
+ur+o&e& 1entione in t!e Con&titution &'postolic Prefect of the 0ountain
Province vs. the 6reasurer of Caguio City IE4 >1!"!, 1$ 'pril 1#>1J). T!e +!ra&e
Fe0e1+t fro1 ta0ation.H a& e1+lo)e in t!e Con&titution &!oul not /e
inter+rete to 1ean e0e1+tion fro1 all kin& of ta0e&. 6he e-emption from
the payment of ta-es assessed on such properties enumerated in the Constitution
are property ta-es, as contra3distinguished from e-cise ta-es. ' donee<s gift ta- is
not a property ta- but an e-cise ta- imposed on the transfer of property by way of
gift inter vivos. Its assessment was not on the property themselves. It does not rest
upon general ownership, but an e-cise upon the use made of the properties, upon
the e-ercise of the privilege of receiving the properties. T!e i1+o&ition of &uc!
e0ci&e ta0 on +ro+ert) u&e for religiou& +ur+o&e& o not con&titute an
121
i1+air1ent of t!e Con&titution. &+ladoc v. Commissioner of Internal 4evenue
IE4 +31#!21, 1% 8une 1#%"J)
's to franchise grantees and other entities specifically granted e-emption by the
legislature, Gta- e-emption must be strictly construed and that the e-emption will
not be held to be conferred unless the terms under which it is granted clearly and
distinctly show that such was the intention of the parties.H &Philippine 'cetylene vs.
CI4 IE4 +31#121, 11 'ugust 1#%1J
!. Curden of Proof
T!e carinal rule in ta0ation i& t!at e0e1+tion& t!erefro1 are !ig!l)
i&fa(ore in law an !e w!o clai1& ta0 e0e1+tion 1u&t /e a/le to 4u&tif)
!i& clai1 or rig!t t!ereto /) t!e cleare&t grant of organic or &tatute law.
&Bonder 0echanical ,ngineering vs. C6' IE4 +3!!$2" S +3!1$"$, /2 8une 1#1"J)
6he burden is on the ta-payer to prove the validity of the claimed deduction. It i&
t!e uni(er&al rule t!at !e w!o clai1& an e0e1+tion fro1 !i& &!are of t!e
co11on /uren of ta0ation 1u&t 4u&tif) !i& clai1 /) &!owing t!at t!e
Legi&lature intene to e0e1+t !i1 /) wor& too +lain to /e 1i&taken.
&Statutory Construction by Francisco, citing Eovernment of Philippine Islands vs.
0onte de Piedad, !" Phil. >!.)
It is a-iomatic that when public property is involved, e-emption is the rule and
ta-ation, the e-ception. &SSS vs. Cacolod City IE4 +3/"1!%, !1 8uly 1#$!J)
Dou/le Ta0ation
T!ere i& ou/le ta0ation w!en aitional ta0e& are lai on'
1. the same sub7ect
!. by the &a1e ta0ing 4uri&iction
/. during the same ta-ing period
>. and for the same purpose. &Cooley on 6a-ation, *ol. I, >th ed., p. >$)
;ouble ta-ation becomes obno-ious only where the ta-payer is ta-ed twice for the
benefit of the same governmental entity &cf. 0anila vs. Interisland Eas Service, "!
.ff. Eaz. %"1#, 0anuf. +ife Ins. Co. vs. 0eer, $# Phil. /"1).
National (i&7a7(i& local
W!ere one ta0 i& i1+o&e /) t!e &tate an t!e ot!er i& i1+o&e /) t!e
cit). t!e argu1ent again&t ou/le ta0ation 1a) not /e in(oke. as there is
nothing inherently obno-ious in the re(uirement that license fees or ta-es be
e-acted with respect to the same occupation, calling or activity by both the state
and the political subdivisions thereof. &Punsalan v. 0unicipal Coard of 0anila IE4 +3
>$11, !% 0ay 1#">J)
Po&&i/l) /ot! local. Ta0 an licen&e fee
Bot! a licen&e fee an a ta0 1a) /e i1+o&e on t!e &a1e /u&ine&& or
occu+ation. or for &elling t!e &a1e article. t!i& not /eing in (iolation of
t!e rule again&t ou/le ta0ation &Compania Eeneral de 6abacos de Filipinas vs.
12$
0anila IE4 +31%%1#, !# 8une 1#%/JF citing Centley Eray ;ry Eoods Co., vs. City of
6ampa 1/1 Fla. %>1, 1$$ S.. 1"$F 0acNuillin, 0unicipal Corporations, *ol. #, /rd
,dition, p. $/).
National (i&7a7(i& anot!er countr)
Dou/le ta0ation /eco1e& o/no0iou& onl) w!ere t!e ta0+a)er i& ta0e
twice for t!e /enefit of t!e &a1e go(ern1ental entit) &cf. 0anila vs.
Interisland Eas Service, "! .ff. Eaz. %"1#, 0anuf. +ife Ins. Co. vs. 0eer, $# Phil.
/"1). W!ere t!e ta0+a)er& woul !a(e to +a) two ta0e& on t!e &a1e
inco1e Aone in t!e P!ili++ine& an one in t!e *nite State&. for e0a1+leB.
t!e P!ili++ine go(ern1ent onl) recei(e& t!e +rocee& of one ta0. 's
between the Philippines, where the income was earned and where the ta-payer is
domiciled, and the @nited States, where that income was not earned and where the
ta-payer did not reside, it is indisputable that 7ustice and e(uity demand that the
ta- on the income should accrue to the benefit of the Philippines. 'ny relief from the
alleged double ta-ation should come from the @nited States, and not from the
Philippines, since the former<s right to burden the ta-payer is solely predicated on
his citizenship, without contributing to the production of the wealth that is being
ta-ed. &CI4 vs. +ednic:y IE4 +31$1%#, +31$!$%, S +3!1>/>F /1 8uly 1#%>.J)
Licen&e 2ee&
6here are three :inds of licenses recognized by law5
1. +icenses for the regulation of u&eful occu+ation&F
!. +icenses for the regulation or restriction of non7u&eful occu+ation& or
enter+ri&e&F and
/. +icenses for re(enue onl). on3payment of a license fee for a business
ma:es the business illegal unli:e ta-.
6he amount of the fee or charge is properly considered in determining whether it is
a ta- or an e-ercise of the police power. 6he amount may be so large as to itself
show that the purpose was to raise revenue and not to regulate, but in regard to
this matter there is a mar:ed distinction between license fees imposed upon useful
and beneficial occupations which the sovereign wishes to regulate but not restrict,
and those which are inimical and dangerous to public health, morals or safety. In
the latter case the fee may be very large without necessarily being a ta-. &Cooley
on 6a-ation, *ol. I*, pp. /"1%311)
T!e +ower to regulate a& an e0erci&e of +olice +ower oe& not inclue t!e
+ower to i1+o&e fee& for re(enue +ur+o&e&. Fees for purely regulatory
purposes Gmay only be of sufficient amount to include the e-penses of issuing the
license and the cost of the necessary inspection or police surveillance, ta:ing into
account not only the e-pense of direct regulation but also incidental e-penses. &Cu
@n7ieng vs. Patstone, >! Phil. $1$) 6he regulatory fee Gmust be no more than
sufficient to cover the actual cost of inspection or e-amination as nearly as the
same can be estimated. If it were possible to prove in advance the e-act cost, that
would be the limit of the fee &0anila ,lectric Co. vs. 'uditor Eeneral, 1/ Phil. 1!#3
1/").
12#
TOLENTINO @S SECRETARD O2 2INANCE. &u+ra
II. D*E PROCESS AND EL*AL PROTECTION
;ue Process
Art. III. Sec. " o person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the e(ual
protection of the laws.
Art. III. Sec. "; A"B o person shall be held to answer for a criminal offense
without due process of law.
Definition. Nature an Sco+e
a. ;efinition Q Concept
T!e conce+t of ue +roce&& i& t!at it i& a law w!ic! !ear& /efore it
cone1n&. w!ic! +rocee& u+on in,uir). an rener& 4ug1ent onl) after
trial. &o t!at e(er) citi9en &!all !ol !i& life. li/ert). +ro+ert). an
i11unitie& uner t!e +rotection of t!e general rule& w!ic! go(ern
&ociet). &Durtado vs. People of State of California I112 @.S. "1%, / 0arch 1$$>J) It
is responsiveness to the supremacy of reason, obedience to the dictates of 7ustice.
&,rmita 0alate Dotel S 0otel .perators 'ssociation v. City of 0anila IE4 +3!>%#/,
/1 8uly 1#%1J)
o attempt was made to spell out the meaning of due process or to define the
concept with some degree of e-actitude. ;ue process continues to be dynamic and
resilient, adaptable to every situation calling for its application. 6he very elasticity
of the provision ma:es this possible and thus enlarges the rights of the individual to
his life, liberty or property. &8ustice Cruz, Constitutional +aw, !22 ,dition, #$3##)
G;ue process of lawH mean law in its regular course of administration, according to
prescribed forms, and in accordance with the general rules for the protection of
individual rights. &Durtado vs. California, citing 4owan v. State, /2 Bis. 1!#) ;ue
process, in any particular case, means such an e-ercise of the powers of the
government as the settled ma-ims of law permit and sanction under such
safeguards for the protection of individual rights as those ma-ims prescribe. &Forbes
vs. Chuoco 6iaco, 1% Phil. "/>, "1! I1#1$J)
;ue process is described as Gresponsiveness to the supremacy of reason, obedience
to the dictates of 7ustice .H&,rmita 0alate Dotel S 0otel .perators 'ssociation v.
City of 0anila IE4 +3!>%#/, /1 8uly 1#%1J) It has been identified as freedom from
arbitrariness. It is the embodiment of the sporting idea of fair play. &Fran:furter, 0r.
8ustice Dolmes and the Supreme Court &1#/$) pp. /!3//.)
b. ature
112
D)na1ic ;ue process continues to be dynamic and resilient, adaptable to
every situation calling for its application. 6he very elasticity of
the provision ma:es this possible and thus enlarges the rights of
the individual to his life, liberty or property. &8ustice Cruz,
Constitutional +aw, !22 ,dition, #$3##)
Wai(a/le T!e rig!t to /e !ear i& a& often wai(e a& it i& in(oke.
an (alil) &o. a& long a& t!e +art) i& gi(en an
o++ortunit) to /e !ear on !i& /e!alf. If he opts to be silent
where he has a right to spea:, he cannot later be heard to
complain that he was unduly silenced &Stronghold Insurance Co.
Inc. vs. Court of 'ppeals IE4 $$2"2,/2 8anuary 1##2J).
c. Scope
;ue process applies and protects all persons, without regard to any difference of
race, color or nationality. Artificial +er&on& are co(ere /) t!e +rotection /ut
onl) in&ofar a& t!eir +ro+ert) i& concerne &Smith Cell S Co. vs. atividad, >2
Phil. 1%/). It includes aliens and their means of livelihood &*illegas v. Diu Chiong
6sai Pao Do IE4 +3!#%>%, 12 ov 1#1$J). ,ven the State is entitled to due process
&@y vs. Eenato, "1 SC4' 1!/, People vs. Cocar, 1/$ SC4' 1%%).
8eaning of Life. Li/ert). an Pro+ert)
a. +ife
Life inclue& t!e rig!t of an ini(iual to !i& /o) in it& co1+letene&&. an
e0ten& to t!e u&e of Go7gi(en facultie& w!ic! 1ake life en4o)a/le &8ustice
0alcolm, Philippine Constitutional +aw, /$2F Cuc: vs. Cell, !1> @S !22).
6he constitutional protection of the right to life is not 7ust the protection of the right
to be alive or to the security of one<s limb against physical harm. T!e rig!t to life
i& al&o t!e rig!t to a goo life. &Fr. Cernas, 6he 1#$1 Constitution of the
4epublic of the Philippines5 ' commentary, 1##% ,dition, 12!).
b. +iberty
+iberty means the right to e-ist and the right to be free from arbitrary personal
restraint or servitude. It inclue& t!e rig!t of t!e citi9en to /e free to u&e
facilitie& in all lawful wa)& &4ubi, et. al. vs. Provincial Coard of 0indoro IE4
1>21$, 1 0arch 1#1#J)
c. Property
Pro+ert) 1ean& an)t!ing t!at can co1e uner t!e rig!t of owner&!i+ an
/e t!e &u/4ect of contract. It re+re&ent& 1ore t!an t!e t!ing& t!at a
+er&on own&5 it inclue& t!e rig!t to &ecure an i&+o&e of t!e1 &6onaco
vs. 6hompson, !%/ @.S. 1#1).
111
Protected property has been deemed to include vested rights as a perfect mining
claim, or a perfected homestead, or a final 7udgment. It al&o inclue& t!e rig!t to
work an t!e rig!t to earn a li(ing &Fr. Cernas, 6he 1#$1 Constitution of the
4epublic of the Philippines5 ' commentary, 1##% ,dition, 121). .ne<s employment,
profession, trade, or calling is protected property &Callanta vs. Carnation Philippines
Inc., 1>" SC4' !%$, !1# I!$ .ctober 1#$%J).
A licen&e i& not con&iere +rotecte +ro+ert). /ut i& ee1e a +ri(ilege
wit!rawn w!en +u/lic intere&t re,uire it& wit!rawal. Still, a privilege may
evolve into some form of property protected by the Constitution when a holder of
such privilege has been en7oying it for so long and has put in substantial investment
ma:ing the business the source of employment for thousands. .nce licenses are
issued, continued possession may become essential in the pursuit of a livelihood.
Suspension of issued licenses involve state action that ad7udicated important
interests of the licensees. &Cell vs. Curson, >2! @S "/", "/# I1#11J)
Pu/lic office i& not +ro+ert) /ut a +u/lic tru&t or agenc). 6he right to office,
however, is protected right. ;ue process may be relied upon by public officials to
protect the security of tenure which in the limited sense is analogous to property
&0orfe vs. 0utuc, IE4 +3!2/$1, /1 8anuary 1#%$J).
Su/&tanti(e Due Proce&&
Substantive due process re(uires t!e intrin&ic (aliit) of t!e law in interfering
with the rights of the person to his life, liberty or property. T!e in,uir) i& w!et!er
t!e law i& a +ro+er e0erci&e of legi&lati(e +ower.
4e(uisites5
6he 1ean& are rea&ona/le for t!e acco1+li&!1ent of t!e +ur+o&e of
t!e lawF and
6he law must be intene for t!e intere&t of t!e +u/lic rather than for
private interest.
Proceural Due Proce&&
6he 7ustice that procedural due process guarantees is the one Gwhich hears before
it condemns, which proceeds upon in(uiry and renders 7udgment only after trial.H
&;aniel Bebster, ;artmouth College vs. Boodward, > Bheaton "1$) T!e twin
re,uire1ent& of notice an !earing con&titute& t!e e&&ential ele1ent& of
ue +roce&& an neit!er of t!e&e ele1ent& can /e eli1inate wit!out
running afoul of t!e con&titutional guarant). &*inta 0aritime Co. Inc. vs. +4C,
!$% SC4' %"%)
4e(uisites5
6here must be an i1+artial tri/unal clot!e wit! 4uicial +ower to hear
and determine the matter before it.
6he court must have 4uri&iction o(er t!e +er&on of t!e efenant and
over the +ro+ert) w!ic! i& t!e &u/4ect 1atter of t!e +roceeing, if
any.
11!
6here must be o++ortunit) to /e !ear.
6he 4ug1ent 1u&t /e renere after trial and in accordance with law.
Pu/lication Re,uire1ent
T!e +!ra&e Funle&& it i& ot!erwi&e +ro(ieH refer& not to t!e nee of
+u/lication /ut to t!e re,uire1ent of "> a)&. T!e "> a)& can /e
lengt!ene or &!ortene /ut not to t!e +oint of allowing no +u/lication at
all. 6here can be no such thing as a law that is effective immediately, even if the
law is not penal in nature. 6he underlying reason for this rule is that due process,
which is a rule of fairness, re(uires that those who must obey a command must first
:now the command. Relate to t!e rule on +u/lication i& t!e rule on
(aguene&&. A law t!at i& utterl) (ague i& efecti(e /ecau&e it fail& to gi(e
notice of w!at it co11an&. &Fr. Cernas, 6he 1#$1 Constitution of the 4epublic
of the Philippines5 ' commentary, 1##% ,dition, 1!!). 's a rule, a &tatute or act
1a) /e &ai to /e (ague w!en it lack& co1+re!en&i/le &tanar& t!at 1en
Fof co11on intelligence 1u&t nece&&aril) gue&& at it& 1eaning an iffer
a& to it& a++lication &6ribe, 'merican Constitutional +aw 11$ &1#$1), citing
Connally vs. Eeneral Construction Co., !%# @S /$" I1#!%J). It i& re+ugnant to t!e
Con&titution in two re&+ect&' A"B it (iolate& ue +roce&& for failure to
accor +er&on&. e&+eciall) t!e +artie& targete /) it. fair notice of t!e
conuct to a(oi5 an A6B it lea(e& law enforcer& un/rile i&cretion in
carr)ing out it& +ro(i&ion& an /eco1e& an ar/itrar) fle0ing of t!e
Go(ern1ent 1u&cle. &People vs. azario, 1%" SC4' 1$%, 1#"31#%)
I1+artial Court or Tri/unal
A court affecte /) /ia& or +re4uice cannot /e e0+ecte to rener a fair
an i1+artial eci&ion. E(er) litigant i& entitle to t!e col neutralit) of an
i1+artial 4uge &Eutierrez vs. Santos IE4 +31"%!>, /2 0ay 1#%1J). 6here cannot
be e(ual 7ustice where a suitor approaches a court already committed to the other
party and with a 7udgment already waiting only to be formalized after the litigants
shall have undergone the charade of a formal hearing. 6he 7udge will reach his
conclusions only after all the evidence is in and all the arguments are filed, on the
basis of the established facts and the pertinent law &8avier vs. Commission on
,lections, 1>> SC4' 1#>).
Section 1, 4ule 1/1 of the 4evised 4ules of Court. ;is(ualification of 7udges. M No
4uge or 4uicial officer &!all &it in an) ca&e in w!ic! !e. or !i& wife or
c!il. i& +ecuniaril) intere&te a& !eir. legatee. creitor or ot!erwi&e. or in
w!ic! !e i& relate to eit!er +art) wit!in t!e &i0t! egree of
con&anguinit) or affinit). or to coun&el wit!in t!e fourt! egree, computed
according to the rules of the civil law, or in which he has been e-ecutor,
administrator, guardian, trustee or counsel, or in which he has been presided in any
inferior court when his ruling or decision is the sub7ect of review, without the written
consent of all parties in interest, signed by them and entered upon the record.
11/
A 4uge 1a). in t!e e0erci&e of !i& &oun i&cretion. i&,ualif) !i1&elf
fro1 &itting in a ca&e. for 4u&t or (ali rea&on& ot!er t!an t!o&e 1entione
a/o(e.
Pre4uicial Pu/licit)
Pervasive and pre7udicial publicity under certain circumstances can deprive an
accused of his due process right to fair trial. Dowever, pervasive publicity is not per
se pre7udicial to the right of an accused to fair trial. T!e 1ere e0+o&ure of
4uge& to +u/lication& an +u/licit) &tunt& oe& not +er &e fatall) infect
t!eir i1+artialit). To warrant a fining of +re4uicial +u/licit). t!ere 1u&t
/e allegation an +roof t!at t!e 4uge& !a(e /een unul) influence /)
t!e /arrage of +u/licit). &People v. Sanchez IE4 1!12/#3>", 1$ .ctober !221J)
Still, the Supreme Court reminds a trial 7udge in high profile criminal cases of hisQher
duty to control publicity pre7udicial to the fair administration of 7ustice. 6he ability to
dispense impartial 7ustice is an issue in every trial and in every criminal prosecution,
the 7udiciary always stands as a silent accused. 0ore than convicting the guilty and
ac(uitting the innocent, the business of the 7udiciary is to assure fulfillment of the
promise that 7ustice shall be done and is done, and that is the only way for the
7udiciary to get an ac(uittal from the bar of public opinion. &Bebb v. de +eon IE4
1!1!/>, !/ 'ugust 1##"J)
Notice an ?earing'
otice to a party is essential to enable it to adduce its own evidence and to meet
and refute the evidence submitted by the other party. A eci&ion renere
wit!out a !earing i& null an (oi a/ initio an 1a) /e attacke irectl) or
collaterall) &;avid vs. '(uilizan, #> SC4' 121). Due +roce&& i& not (iolate
w!ere a +er&on i& not !ear /ecau&e !e !a& c!o&en. for w!ate(er rea&on.
not to /e !ear. If he opts to be silent where he has a right to spea:, he cannot
later be heard to complain that he was unduly silenced &Stronghold Insurance Co.
Inc. vs. Court of 'ppeals IE4 $$2"2,/2 8anuary 1##2J).
E0ce+tion& to notice an !earing re,uire1ent&
Due +roce&& a& a con&titutional +rece+t oe& not. alwa)& an in all
&ituation&. re,uire trial7t)+e +roceeing&. 6he essence of due process is to be
found in the rea&ona/le o++ortunit) to /e !ear an to &u/1it an) e(ience
one 1a) !a(e in &u++ort of oneP& efen&e. G<6o be heard< does not only mean
verbal arguments in court. .ne may be heard also through pleadings. Bhere
opportunity to be head, either through oral arguments or pleadings, is accorded ,
there is no denial of procedural due process. &Ualdivar vs. Sandiganbayan, 1%%
SC4' /1%)
A&ie fro1 &tatute. t!e nece&&it) of notice an !earing in an
a1ini&trati(e +roceeing e+en& on t!e c!aracter of t!e +roceeing
an t!e circu1&tance& in(ol(e. In so far as generalization is possible in view of
the great variety of administrative proceedings, it may be stated as a general rule
that notice and hearing are not essential to the validity of administrative action
11>
where the administrative body acts in the e-ercise of e-ecutive, administrative, or
legislative functionsF /ut w!ere a +u/lic a1ini&trati(e /o) act& in a 4uicial
or ,ua&i74uicial 1atter. an it& act& are +articular an i11eiate rat!er
t!an general an +ro&+ecti(e. t!e +er&on w!o&e rig!t& or +ro+ert) 1a) /e
affecte /) t!e action i& entitle to notice an !earing &1/ C.8.S. Public
'dministrative Codies and Procedure, sec. 1/2, pages >"! and >"/F cited in
Philcomsat v. 'lcuaz IE4 $>$1$, 1$ ;ecember 1#$#J).
6he right to appeal is not essential to the right to a hearing. E0ce+t w!en
guarantee /) t!e con&titution. a++eal 1a) /e allowe or enie /) t!e
legi&lature in it& i&cretion&. Cut as long as the law allows him to appeal, denial
of that remedy is a denial of due process. T!e legi&lature cannot e+ri(e
an)one of t!e rig!t to a++eal& in
1. 'll cases in which the con&titutionalit) or (aliit) of any treaty,
international or e-ecutive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in (uestionF
!. 'll cases involving the legalit) of an) ta0, impost, assessment, or toll, or
any penalty imposed in relation theretoF
/. 'll cases in which the 4uri&iction of an) lower court is in issueF
>. 'll criminal cases in which the +enalt) i1+o&e i& reclu&ion +er+etua or
!ig!erF and
". 'll cases in which only an error or ,ue&tion of law i& in(ol(eF as
specified in 'rticle *III, Section " &!) of the 1#$1 Constitution.
A1ini&trati(e Due Proce&&
4e(uisites5
1. 6here must be a hearing, which includes the right to present one<s case and
submit evidence in support thereofF
!. 6he tribunal must consider the evidence presentedF
/. 6he decision must have something to support itselfF
>. 6he evidence must be substantialF
". 6he decision must be rendered on the evidence presented at the hearing or
at least contained in the record and disclosed to the partiesF
%. 6he tribunal or any of its 7udges must act on its or his own independent
consideration of the facts and the law of the controversy, and not simply
accept the views of a subordinate in arriving at a decisionF and
1. 6he board or body should, in all controversial (uestions, render its decision in
such a manner that the parties to the proceeding can :now the various issues
involved, and the reasons for the decision.
PB8 E8PLODEES @S PB8
Facts5
6he petitioner Philippine Clooming 0ills ,mployees .rganization &PC0,.) is a
legitimate labor union composed of the employees of the respondent Philippine
Clooming 0ills Co., Inc., and petitioners. Cen7amin Pagcu and 4odulfo 0unsod are
officers and members of the petitioner @nion. Petitioners claim that on 0arch 1,
11"
1#%#, they decided to stage a mass demonstration at 0alaca?ang on 0arch >,
1#%#, in protest against alleged abuses of the Pasig police. PC0,. thru Pagcu
confirmed the planned demonstration and stated that the demonstration or rally
cannot be cancelled because it has already been agreed upon in the meeting.
Pagcu e-plained further that the demonstration has nothing to do with the
Company because the union has no (uarrel or dispute with 0anagement. 6he
0anagement, thru 'tty. C.S. de +eon, Company personnel manager, informed
PC0,. that the demonstration is an inalienable right of the union guaranteed by
the Constitution but emphasized that any demonstration for that matter should not
unduly pre7udice the normal operation of the Company. Bor:ers who without
previous leave of absence approved by the Company, particularly , the officers
present who are the organizers of the demonstration, who shall fail to report for
wor: the following morning shall be dismissed, because such failure is a violation of
the e-isting CC' and, therefore, would be amounting to an illegal stri:e. Cecause
the petitioners and their members numbering about >22 proceeded with the
demonstration despite the pleas of the respondent Company that the first shift
wor:ers should not be re(uired to participate in the demonstration and that the
wor:ers in the second and third shifts should be utilized for the demonstration from
% '.0. to ! P.0. on 0arch >, 1#%#, filed a charge against petitioners and other
employees who composed the first shift, for a violation of 4epublic 'ct o.
$1"&Industrial Peace 'ct), and of the CC' providing for Ao Stri:e and o +oc:out.A
Petitioners were held guilty by CI4 for bargaining in bad faith, hence this appeal.
Issue5 Bhether or ot the petitioners right to freedom of speech and to peaceable
assemble violated.
Deld5
Pes. ' constitutional or valid infringement of human rights re(uires a more stringent
criterion, namely e-istence of a grave and immediate danger of a substantive evil
which the State has the right to prevent. 6his is not present in the case. It wa& to
t!e intere&t of !erein +ri(ate re&+onent fir1 to rall) to t!e efen&e of.
an take u+ t!e cugel& for. it& e1+lo)ee&. &o t!at t!e) can re+ort to
work free fro1 !ara&&1ent. (e0ation or +eril an a& con&e,uence +erfor1
1ore efficientl) t!eir re&+ecti(e ta&k& en!ance it& +roucti(it) a& well a&
+rofit&. ?erein re&+onent e1+lo)er i not e(en offer to intercee for it&
e1+lo)ee& wit! t!e local +olice. In see:ing sanctuary behind their freedom of
e-pression well as their right of assembly and of petition against alleged
persecution of local officialdom, the employees and laborers of herein private
respondent firm were fighting for their very survival, utilizing only the weapons
afforded them by the Constitution M the untrammelled en7oyment of their basic
human rights. 6he pretension of their employer that it would suffer loss or damage
by reason of the absence of its employees from % oAcloc: in the morning to ! oAcloc:
in the afternoon, is a plea for the preservation merely of their property rights. 6he
employeesA pathetic situation was a star: reality M abused, harassment and
persecuted as they believed they were by the peace officers of the municipality. 's
above intimated, the condition in which the employees found themselves vis3a3vis
the local police of Pasig, was a matter that vitally affected their right to individual
e-istence as well as that of their families. 0aterial loss can be repaired or
11%
ade(uately compensated. 6he debasement of the human being bro:en in morale
and brutalized in spirit3can never be fully evaluated in monetary terms. A&
!eretofore &tate. t!e +ri1ac) of !u1an rig!t& U freeo1 of e0+re&&ion.
of +eaceful a&&e1/l) an of +etition for rere&& of grie(ance& U o(er
+ro+ert) rig!t& !a& /een &u&taine. 6o regard the demonstration against police
officers, not against the employer, as evidence of bad faith in collective bargaining
and hence a violation of the collective bargaining agreement and a cause for the
dismissal from employment of the demonstrating employees, stretches unduly the
compass of the collective bargaining agreement, is 9a potent means of inhibiting
speech9 and therefore inflicts a moral as well as mortal wound on the constitutional
guarantees of free e-pression, of peaceful assembly and of petition. Circulation is
one of the aspects of freedom of e-pression. If demonstrators are reduced by one3
third, then by that much the circulation of the Issue raised by the demonstration is
diminished. 6he more the participants, the more persons can be apprised of the
purpose of the rally. 0oreover, the absence of one3third of their members will be
regarded as a substantial indication of disunity in their ran:s which will enervate
their position and abet continued alleged police persecution.
Banco E&+anol72ili+ino (&. Palanca
8@4IS;IC6I., D.B 'CN@I4,;5 8urisdiction over the property which is the
sub7ect of the litigation 1a) re&ult eit!er fro1 a &ei9ure of t!e +ro+ert)
uner legal +roce&&, whereby it is /roug!t into t!e actual cu&to) of
t!e law, or it may re&ult fro1 t!e in&titution of legal +roceeing&
wherein, under special provisions of law, the power of the court over the
property is recognized and made effective.
6he action to foreclo&e a 1ortgage i& &ai to /e a +roceeing ,ua&i
in re1, by which is e-pressed the idea that while it is not strictly spea:ing an
action in rem yet it parta:es of that nature and is substantially such.
;@, P4.C,SS I F.4,C+.S@4, P4.C,,;IES5 Pro+ert) i& alwa)&
a&&u1e to /e in t!e +o&&e&&ion of it& owner. in +er&on or /) agent5
and he may be safely held, under certain conditions, to be affected with
:nowledge that proceedings have been instituted for its condemnation and
sale.
F'C6S5
,ngracio Palanca 6an(uinyeng y +im(uingco mortgaged various parcels of real
property in 0anila to ,l Canco ,spanol3Filipino. 'fterwards, Engracio returne to
C!ina an t!ere !e ie on <anuar) 6#. "$"G wit!out returning again to
t!e P!ili++ine&. T!e 1ortgagor t!en in&titute foreclo&ure +roceeing /ut
&ince efenant i& a non7re&ient. it wa& nece&&ar) to gi(e notice /)
+u/lication. 6he Cler: of Court was also directed to send copy of the summons to
the defendant<s last :nown address, which is in 'moy, China. It is not shown
whether the Cler: complied with this re(uirement. evertheless, after publication in
a newspaper of the City of 0anila, the cause proceeded and 7udgment by default
was rendered. 6he decision was li:ewise published and afterwards sale by public
auction was held with the ban: as the highest bidder. .n 'ugust 1, 1#2$, this sale
111
was confirmed by the court. Dowever, about seven years after the confirmation of
this sale, a motion was made by *icente Palanca, as administrator of the estate of
the original defendant, wherein the applicant re(uested the court to set aside the
order of default and the 7udgment, and to vacate all the proceedings subse(uent
thereto. T!e /a&i& of t!i& a++lication wa& t!at t!e orer of efault an t!e
4ug1ent renere t!ereon were (oi /ecau&e t!e court !a ne(er
ac,uire 4uri&iction o(er t!e efenant or o(er t!e &u/4ect of t!e action.
ISS@,5
Bhether or not the lower court ac(uired 7urisdiction over the defendant and the
sub7ect matter of the action
Bhether or not due process of law was observed
4@+IE5
On <uri&iction
6he word G7urisdictionH is used in several different, though related, senses since it
may have reference &1) to t!e aut!orit) of t!e court to entertain a +articular
kin of action or to administer a particular :ind of relief, or it may refer to the
+ower of t!e court o(er t!e +artie&, or &!) over the +ro+ert) w!ic! i& t!e
&u/4ect to t!e litigation.
6he sovereign authority which organizes a court determines the nature and e-tent
of its powers in general and thus fi-es its competency or 7urisdiction with reference
to the actions which it may entertain and the relief it may grant.
?ow <uri&iction i& Ac,uire
<uri&iction o(er t!e +er&on i& ac,uire /) t!e (oluntar) a++earance of a
+art) in court an !i& &u/1i&&ion to it& aut!orit), or it is ac(uired by the
coerci(e +ower of legal +roce&& e-erted over the person.
<uri&iction o(er t!e +ro+ert) w!ic! i& t!e &u/4ect of t!e litigation 1a)
re&ult eit!er fro1 a &ei9ure of t!e +ro+ert) uner legal +roce&&, whereby it
is /roug!t into t!e actual cu&to) of t!e law, or it may re&ult fro1 t!e
in&titution of legal +roceeing& wherein, under special provisions of law, the
power of the court over the property is recognized and made effective. In the latter
case the property, though at all times within the potential power of the court, may
never be ta:en into actual custody at all. 'n illustration of the 7urisdiction ac(uired
by actual seizure is found in attachment proceedings, where the property is seized
at the beginning of the action, or some subse(uent stage of its progress, and held
to abide the final event of the litigation. 'n illustration of what we term potential
7urisdiction over the res, is found in the proceeding to register the title of land under
our system for the registration of land. Dere the court, without ta:ing actual
physical control over the property assumes, at the instance of some person claiming
to be owner, to e-ercise a 7urisdiction in rem over the property and to ad7udicate
the title in favor of the petitioner against all the world.
11$
In t!e ter1inolog) of A1erican law t!e action to foreclo&e a 1ortgage i&
&ai to /e a +roceeing ,ua&i in re1. /) w!ic! i& e0+re&&e t!e iea t!at
w!ile it i& not &trictl) &+eaking an action in re1 )et it +artake& of t!at
nature an i& &u/&tantiall) &uc!. 6he e-pression 9action in rem9 is, in its narrow
application, used only with reference to certain proceedings in courts of admiralty
wherein the property alone is treated as responsible for the claim or obligation upon
which the proceedings are based. T!e action ,ua&i re1 iffer& fro1 t!e true
action in re1 in t!e circu1&tance t!at in t!e for1er an ini(iual i& na1e
a& efenant. an t!e +ur+o&e of t!e +roceeing i& to &u/4ect !i& intere&t
t!erein to t!e o/ligation or lien /urening t!e +ro+ert). 'll proceedings
having for their sole ob7ect the sale or other disposition of the property of the
defendant, whether by attachment, foreclosure, or other form of remedy, are in a
general way thus designated. 6he 7udgment entered in these proceedings is
conclusive only between the parties.
---
It is true that in proceedings of this character, if the defendant for whom publication
is made appears, the action becomes as to him a personal action and is conducted
as such. 6his, however, does not affect the proposition that where the defendant
fails to appear the action is (uasi in remF and it should therefore be considered with
reference to the principles governing actions in rem.
.n ;ue Process
--- 's applied to a 7udicial proceeding, however, it may be laid down with certainty
that the re(uirement of due process is satisfied if the following conditions are
present, namelyF &1) 6here must be a court or tribunal clothed with 7udicial power to
hear and determine the matter before itF &!) 7urisdiction must be lawfully ac(uired
over the person of the defendant or over the property which is the sub7ect of the
proceedingF &/) the defendant must be given an opportunity to be heardF and &>)
7udgment must be rendered upon lawful hearing.
Passing at once to the re(uisite that the defendant shall have an opportunity to be
heard, we observe that in a foreclosure case some notification of the proceedings to
the nonresident owner, prescribing the time within which appearance must be
made, is everywhere recognized as essential. 6o answer this necessity the statutes
generally provide for publication, and usually in addition thereto, for the mailing of
notice to the defendant, if his residence is :nown. T!oug! co11onl) calle
con&tructi(e. or &u/&titute &er(ice of +roce&& in an) true &en&e. It i&
1erel) a 1ean& +ro(ie /) law w!ere/) t!e owner 1a) /e a1oni&!e
t!at !i& +ro+ert) i& t!e &u/4ect of 4uicial +roceeing& an t!at it i&
incu1/ent u+on !i1 to take &uc! &te+& a& !e &ee& fit to +rotect it.
It will be observed that this mode of notification does not involve any absolute
assurance that the absent owner shall thereby receive actual notice. 6he periodical
containing the publication may never in fact come to his hands, and the chances
that he should discover the notice may often be very slight. ,ven where notice is
sent by mail the probability of his receiving it, though much increased, is dependent
upon the correctness of the address to which it is forwarded as well as upon the
11#
regularity and security of the mail service. It will be noted, furthermore, that the
provision of our law relative to the mailing of notice does not absolutely re(uire the
mailing of notice unconditionally and in every event, but only in the case where the
defendantAs residence is :nown. In the light of all these facts, it is evident that
actual notice to the defendant in cases of this :ind is not, under the law, to be
considered absolutely necessary.
6he idea upon which the law proceeds in recognizing the efficacy of a means of
notification which may fall short of actual notice is apparently this5 Pro+ert) i&
alwa)& a&&u1e to /e in t!e +o&&e&&ion of it& owner. in +er&on or /)
agent5 an !e 1a) /e &afel) !el. uner certain conition&. to /e affecte
wit! knowlege t!at +roceeing& !a(e /een in&titute for it&
cone1nation an &ale.
;id the failure of the cler: to send notice to defendant<s last :nown address
constitute denial of due process=
6he observations which have 7ust been made lead to the conclusion that the failure
of the cler: to mail the notice, if in fact he did so fail in his duty, is not such an
irregularity, as amounts to a denial of due process of lawF and hence in our opinion
that irregularity, if proved. woul not a(oi t!e 4ug1ent in t!i& ca&e. Notice
wa& gi(en /) +u/lication in a new&+a+er an t!i& i& t!e onl) for1 of notice
w!ic! t!e law unconitionall) re,uire&. T!i& in our o+inion i& all t!at wa&
a/&olutel) nece&&ar) to &u&tain t!e +roceeing&.
It will be observed that in considering the effect of this irregularity, it ma:es a
difference whether it be viewed as a (uestion involving 7urisdiction or as a (uestion
involving due process of law. In the matter of 7urisdiction there can be no distinction
between the much and the little. 6he court either has 7urisdiction or it has notF and
if the re(uirement as to the mailing of notice should be considered as a step
antecedent to the ac(uiring of 7urisdiction, there could be no escape from the
conclusion that the failure to ta:e that step was fatal to the validity of the
7udgment. In the application of the idea of due process of law, on the other hand, it
is clearly unnecessary to be so rigorous. 6he 7urisdiction being once established, all
that due process of law thereafter re(uires is an opportunity for the defendant to be
heardF and as publication was duly made in the newspaper, it would seem highly
unreasonable to hold that failure to mail the notice was fatal. Be thin: that in
applying the re(uirement of due process of law, it is permissible to reflect upon the
purposes of the provision which is supposed to have been violated and the principle
underlying the e-ercise of 7udicial power in these proceedings. 8udge in the light of
these conceptions, we thin: that the provision of 'ct of Congress declaring that no
person shall be deprived of his property without due process of law has not been
infringed.
Ang Ti/a) (. CIR
Facts5
1!2
'ng 6ibay, has filed an opposition both to the motion for reconsideration of the CI4
and to the motion for new trial of the ational +abor @nion.
6he Supreme Court found it not necessary to pass upon the motion for
reconsideration of the Solicitor3Eeneral, as it found no substantial evidence to
indicate that the e-clusion of the $# laborers here was due to their union affiliation
or activity. 6he Court granted the motion for a new trial and the entire record of this
case shall be remanded to the CI4, with instruction that it reopen the case, receive
all such evidence as may be relevant, and otherwise proceed in accordance with the
re(uirements set forth.
". T!e Court of Inu&trial Relation&5 De+arture fro1 rigi conce+t of
&e+aration of +ower&
6he Court of Industrial 4elations is a special court whose functions are specifically
stated in the law of its creation &C' 12/). It is more an administrative board than a
part of the integrated 7udicial system of the nation. It is not intended to be a mere
receptive organ of the Eovernment. @nli:e a court of 7ustice which is essentially
passive, acting only when its 7urisdiction is invo:ed and deciding only cases that are
presented to it by the parties litigant, the function of the Court of Industrial
4elations, as will appear from perusal of its organic law, is more active, affirmative
and dynamic. It not only e-ercises 7udicial or (uasi37udicial functions in the
determination of disputes between employers and employees but its functions are
far more comprehensive and e-tensive. It has 7urisdiction over the entire
Philippines, to consider, investigate, decide, and settle any (uestion, matter
controversy or dispute arising between, andQor affecting, employers and employees
or laborers, and landlords and tenants or farm3laborers, and regulate the relations
between them, sub7ect to, and in accordance with, the provisions of C' 12/ &section
1). It shall ta:e cognizance for purposes of prevention, arbitration, decision and
settlement, of any industrial or agricultural dispute causing or li:ely to cause a
stri:e or loc:out, arising from differences as regards wage shares or compensation,
hours of labor or conditions of tenancy or employment, between employers and
employees or laborers and between landlords and tenants or farm3laborers,
provided that the number of employees, laborers or tenants or farm3laborers
involved e-ceeds thirty, and such industrial or agricultural dispute is submitted to
the Court by the Secretary of +abor or by any or both of the parties to the
controversy and certified by the Secretary of +abor as e-isting and proper to be
dealt with by the Court for the sa:e of public interest. &Section ', ibid.) It shall,
before hearing the dispute and in the course of such hearing, endeavor to reconcile
the parties and induce them to settle the dispute by amicable agreement.
&Paragraph !, section >, ibid.) Bhen directed by the President of the Philippines, it
shall investigate and study all pertinent facts related to the industry concerned or to
the industries established in a designated locality, with a view to determining the
necessity and fairness of fi-ing and adopting for such industry or locality a minimum
wage or share of laborers or tenants, or a ma-imum GcanonH or rental to be paid by
the Gin(uilinosH or tenants or lessees to landowners. &Section ", ibid.) In fine, it may
appeal to voluntary arbitration in the settlement of industrial disputesF may employ
mediation or conciliation for that purpose, or recur to the more effective system of
official investigation and compulsory arbitration in order to determine specific
1!1
controversies between labor and capital in industry and in agriculture. 6here is in
reality here a mingling of e-ecutive and 7udicial functions, which is a departure from
the rigid doctrine of the separation of governmental powers.
6. T!e CIR free fro1 rigiit) of certain +roceure re,uire1ent&. /ut not
free to ignore or i&regar funa1ental an e&&ential re,uire1ent& of ue
+roce&& in(ol(ing +roceeing& of a1ini&trati(e c!aracter
6he CI4 is not narrowly constrained by technical rules of procedure, and the 'ct
re(uires it to Fact accoring to 4u&tice an e,uit) an &u/&tantial 1erit& of
t!e ca&e. wit!out regar to tec!nicalitie& or legal for1& an &!all not /e
/oun /) an) tec!nical rule& of legal e(ience /ut 1a) infor1 it& 1in in
&uc! 1anner a& it 1a) ee1 4u&t an e,uita/le.H &Section !2, C' 12/.) It shall
not be restricted to the specific relief claimed or demands made by the parties to
the industrial or agricultural dispute, but may include in the award, order or decision
any matter or determination which may be deemed necessary or e-pedient for the
purpose of settling the dispute or of preventing further industrial or agricultural
disputes. &Section 1/) 'nd in the light of this legislative policy, appeals to this Court
have been especially regulated by the rules recently promulgated by this Court to
carry into effect the avowed legislative purpose. T!e fact. !owe(er. t!at t!e CIR
1a) /e &ai to /e free fro1 t!e rigiit) of certain +roceural re,uire1ent&
oe& not 1ean t!at it can. in 4u&ticia/le ca&e& co1ing /efore it. entirel)
ignore or i&regar t!e funa1ental an e&&ential re,uire1ent& of ue
Proce&& in trial& an in(e&tigation& of an a1ini&trati(e c!aracter.
3. Carinal +ri1ar) rig!t& re&+ecte in a1ini&trati(e +roceeing&5
Guieline&
a. Rig!t to a !earing which includes the right of the party interested or
affected to present his own case and submit evidence in support thereof. 6he
liberty and property of the citizen shall be protected by the rudimentary
re(uirements of fair play.
b. T!e tri/unal 1u&t con&ier t!e e(ience +re&ente, after t the party is
given an opportunity to present his case and to adduce evidence tending to
establish the rights which he asserts. 6he right to adduce evidence, without
the corresponding duty on the part of the board to consider it, is vain. Such
right is conspicuously futile if the person or persons to whom the evidence is
presented can thrust it aside without notice or consideration.
c. Bile the duty to deliberate does not impose the obligation to decide right, it
does imply a necessity which cannot be disregarded, namely, that of having
&o1et!ing to &u++ort it& eci&ion. A eci&ion wit! a/&olutel) not!ing
to &u++ort it i& a nullit). a +lace w!en irectl) attac!e. 6his principle
emanates from the more fundamental principle that the genius of
constitutional government is contrary to the vesting of unlimited power
anywhere. +aw is both a grant and a limitation upon power.
d. ot only must there be some evidence to support a finding or conclusion but
the e(ience 1u&t /e F&u/&tantial.H Substantial evidence is more than a
mere scintilla. It means such relevant evidence as a reasonable mind might
accept as ade(uate to support a conclusion.H
1!!
6he statute provides that Vthe rules of evidence prevailing in courts of law
and e(uity shall not be controlling.< 6he obvious purpose of this and similar
provisions is to free administrative boards from the compulsion of technical
rules so that the mere admission of matter which would be deemed
incompetent in 7udicial proceedings would not invalidate the administrative
order. Cut this assurance of a desirable fle-ibility in administrative procedure
does not go so far as to 7ustify orders without a basis in evidence having
rational probative force. 0ere uncorroborated hearsay or rumor does not
constitute substantial evidence.
e. 6he eci&ion 1u&t /e renere on t!e e(ience +re&ente at t!e
!earing. or at lea&t containe in t!e recor an i&clo&e to t!e
+artie& affecte. .nly by confining the administrative tribunal to the
evidence disclosed to the parties, can the latter be protected in their right to
:now and meet the case against them. It should not, however, detract from
their duty actively to see that the law is enforced, and for that purpose, to
use the authorized legal methods of securing evidence and informing itself of
facts material and relevant to the controversy. Coards of in(uiry may be
appointed for the purpose of investigating and determining the facts in any
given case, but their report and decision are only advisory. &Section #, C'
12/.) 6he CI4 may refer any industrial or agricultural dispute of any matter
under its consideration or advisement to a local board of in(uiry, a provincial
fiscal, a 7ustice of the peace or any public official in any part of the Philippines
for investigation, report and recommendation, and may delegate to such
board or public official such powers and functions as the CI4 may deem
necessary, but such delegation shall not affect the e-ercise of the Court itself
of any of its powers &Section 12)
f. 6he CI4 or any of its 7udges, therefore, 1u&t act on it& or !i& own
ine+enent con&ieration of t!e law an fact& of t!e contro(er&).
an not &i1+l) acce+t t!e (iew& of a &u/orinate in arri(ing at a
eci&ion. It may be that the volume of wor: is such that it is literally
impossible for the titular heads of the CI4 personally to decide all
controversies coming before them. 6here is no statutory authority to
authorize e-aminers or other subordinates to render final decision, with right
to appeal to board or commission, to solve the difficulty.
g. 6he CI4 should, in all controversial (uestions, rener it& eci&ion in &uc! a
1anner t!at t!e +artie& to t!e +roceeing can know t!e (ariou&
i&&ue& in(ol(e, and the reasons for the decisions rendered. 6he
performance of this duty is inseparable from the authority conferred upon it.
;. New trial grante uner circu1&tance&
6he interest of 7ustice would be better served if the movant is given opportunity to
present at the hearing the documents referred to in his motion and such other
evidence as may be relevant to the main issue involved. 6he legislation which
created the Court of Industrial 4elations and under which it acts is new. 6he failure
to grasp the fundamental issue involved is not entirely attributable to the parties
adversely affected by the result.
PEOPLE @S CADAT
1!/
Facts5
FLaw +ro!i/it& an) 1e1/er of a non7C!ri&tian tri/e to /u). recei(e. !a(e
in !i& +o&&e&&ion. or rink. an) into0icating li,uor& of an) kin.H 6he law,
'ct o. 1%/#, e-empts only the so3called native wines or li(uors which the
members of such tribes have been accustomed to ta:e.
Issue5
Bhether or ot the law enie& e,ual +rotection to one prosecuted and
sentenced for violation of said law.
Deld5
o. It &ati&fie& t!e re,uire1ent& of a (ali cla&&ification. one of w!ic! i&
t!at t!e cla&&ification uner t!e law 1u&t re&t on real or &u/&tantial
i&tinction&.
6he distinction is reasonable. 6he classification between the members of the non3
Christian and the members of the Christian tribes is not based upon accident of
birth or parentage but upon the degree of civilization and culture. 6he term Vnon3
Christian tribes< refers to a geographical area and more directly to natives of the
Philippines of a low grade civilization usually living in tribal relationship apart from
settled communities. 6he distinction is reasonable for the 'ct was intended to meet
the peculiar conditions e-isting in the non3 Christian tribesH
T!e +ro!i/ition i& ger1ane to t!e +ur+o&e& of t!e law. It i& e&igne to
in&ure +eace an orer in an a1ong t!e non7 C!ri&tian tri/e& !a& often
re&ulte in lawle&&ne&& an cri1e t!ere/) !a1+ering t!e effort& of t!e
go(ern1ent to rai&e t!eir &tanar& of life an ci(ili9ation. 6his law is not
limited in its application to conditions e-isting at the time of the enactment. It is
intended to apply for all times as long as those conditions e-ist. T!e Act a++lie&
e,uall) to all 1e1/er& of t!e cla&&. 6hat it may be unfair in its operation
against a certain number of non3 Christians by reason of their degree of culture is
not an argument against the e(uality of its operation nor affect the reasonableness
of the classification thus established.
INTERNATIONAL SC?OOL @S L*IS*8BING
4eceiving salaries less than their counterparts hired abroad, the local3hires of
private respondent School, mostly Filipinos, cry discrimination.
1!>
6he School grants foreign3hires certain benefits not accorded local3hires. 6hese
include housing, transportation, shipping costs, ta-es, and home leave travel
allowance. Foreign3hires are also paid a salary rate twenty3five percent &!"L) more
than local3hires. 6he School 7ustifies the difference on two 9significant economic
disadvantages9 foreign3hires have to endure, namely5 &a) the 9dislocation factor9
and &b) limited tenure.
Deld5
6hat public policy abhors ine(uality and discrimination is beyond contention. .ur
Constitution and laws reflect the policy against these evils. 6he Constitution in the
'rticle on Social 8ustice and Duman 4ights e-horts Congress to -gi(e !ig!e&t
+riorit) to t!e enact1ent of 1ea&ure& t!at +rotect an en!ance t!e rig!t
of all +eo+le to !u1an ignit). reuce &ocial. econo1ic. an +olitical
ine,ualitie&.-
International law. w!ic! &+ring& fro1 general +rinci+le& of law. likewi&e
+ro&cri/e& i&cri1ination. Eeneral principles of law include principles of e(uity,
i.e., the general principles of fairness and 7ustice, based on the test of what is
reasonable. 6he @niversal ;eclaration of Duman 4ights, the International Covenant
on ,conomic, Social, and Cultural 4ights, the International Convention on the
,limination of 'll Forms of 4acial ;iscrimination, the Convention against
;iscrimination in ,ducation, the Convention &o. 111) Concerning ;iscrimination in
4espect of ,mployment and .ccupation 3 all e1/o) t!e general +rinci+le
again&t i&cri1ination. t!e (er) antit!e&i& of fairne&& an 4u&tice. T!e
P!ili++ine&. t!roug! it& Con&titution. !a& incor+orate t!i& +rinci+le a&
+art of it& national law&.
T!e Con&titution &+ecificall) +ro(ie& t!at la/or i& entitle to -!u1ane
conition& of work.- 6hese conditions are not restricted to the physical wor:place
3 the factory, the office or the field 3 /ut inclue a& well t!e 1anner /) w!ic!
e1+lo)er& treat t!eir e1+lo)ee&.
T!e Con&titution al&o irect& t!e State to +ro1ote -e,ualit) of
e1+lo)1ent o++ortunitie& for all.- Similarly, the +abor Code provides that the
State shall -en&ure e,ual work o++ortunitie& regarle&& of &e0. race or
cree.- It would be an affront to both the spirit and letter of these provisions if the
State, in spite of its primordial obligation to promote and ensure e(ual employment
opportunities, closes its eyes to une(ual and discriminatory terms and conditions of
employment.
T!e foregoing +ro(i&ion& i1+regna/l) in&titutionali9e in t!i& 4uri&iction
t!e long !onore legal trui&1 of -e,ual +a) for e,ual work.- Per&on& w!o
work wit! &u/&tantiall) e,ual ,ualification&. &kill. effort an re&+on&i/ilit).
uner &i1ilar conition&. &!oul /e +ai &i1ilar &alarie&. 6his rule applies to
the School, its 9international character9 notwithstanding.
6he School contends that petitioner has not adduced evidence that local3hires
perform wor: e(ual to that of foreign3hires. 6he Court finds this argument a little
1!"
cavalier. If an e1+lo)er accor& e1+lo)ee& t!e &a1e +o&ition an rank. t!e
+re&u1+tion i& t!at t!e&e e1+lo)ee& +erfor1 e,ual work. 6his presumption
is borne by logic and human e-perience. If t!e e1+lo)er +a)& one e1+lo)ee
le&& t!an t!e re&t. it i& not for t!at e1+lo)ee to e0+lain w!) !e recei(e&
le&& or w!) t!e ot!er& recei(e 1ore. 6hat would be adding insult to in7ury. 6he
employer has discriminated against that employeeF it is for the employer to e-plain
why the employee is treated unfairly.
III. REL*IRE8ENTS O2 2AIR PROCED*RE
'rrest, Searches and Seizures
' search warrant is an orer in writing issued in the na1e of t!e Peo+le of t!e
P!ili++ine&, signed by a 4uge and irecte to a +eace officer, commanding
him to &earc! for +er&onal +ro+ert) described therein and /ring it /efore t!e
court. & Section 1, 4ule 1!%, 4evised 4ules of Court)
It is undisputed that only 7udges have the power to issue search warrants. &Salazar
vs. 'chacoso, 1$/ SC4' 1>" I1##2J) 6his function is e-clusively 7udicial. Inherent in
the courts< power to issue search warrants is the power to (uash warrants already
issued. In this connection, the Supreme Court has ruled that the motion to (uash
should be filed in the court that issued the warrant unless a criminal case has
already been instituted in another court, in which case, the motion should be filed
with the latter. &People vs. Court of 'ppeals, !#1 SC4' >22 I1##$J).
Cecause of the fundamental public interest in implementing the criminal law, the
search warrant, a heretofore effective and constitutionally acceptable enforcement
tool, should not be suppressed on the basis of surmise and without solid evidence
supporting the change. 2or/iing t!e warrant an in&i&ting on t!e
&u/+oena in&tea w!en t!e cu&toian of t!e o/4ect of t!e &earc! i& not
t!en &u&+ecte of cri1e. in(ol(e& &eriou& !a9ar& to cri1inal
in(e&tigation. &Uurcher vs. Stanford ;aily I>/% @S ">1, /1 0ay 1#1$J)
W!at con&titute& a rea&ona/le or e(en an unrea&ona/le &earc! in an)
+articular ca&e i& +urel) a 4uicial ,ue&tion. eter1ina/le fro1 a
con&ieration of t!e circu1&tance& in(ol(e. &*almonte v. ;e *illa, 11$ SC4'
!11, !1% I1#$#J)
6he house of every one is to him as his castle and fortress, as well for his defence
against in7ury and violence, as for his repose. &Semayne<s Case, 11 ,ng. 4ep. 1#>, "
Co. 4ep. #1a, #1b, 1#" IO. C.J) 6he overriding respect for the sanctity of the home
that has been embedded in our traditions since the origins of the 4epublicH meant
that a/&ent a warrant or e0igent circu1&tance&. +olice coul not enter a
!o1e to 1ake an arre&t. An arre&t warrant foune on +ro/a/le cau&e
i1+licitl) carrie& wit! it t!e li1ite aut!orit) to enter a welling in w!ic!
t!e &u&+ect li(e& w!en t!ere i& rea&on to /elie(e t!e &u&+ect i& wit!in.
&Payton v. ew Por: , >>" @. S. "1/, %2/3%2> &1#$2J)
To W!o1 Directe
1!%
T!e con&titutional +ro&cri+tion again&t unlawful &earc!e& an &ei9ure&
a++lie& a& a re&traint irecte onl) again&t t!e go(ern1ent an it&
agencie& ta&ke wit! t!e enforce1ent of t!e law. 6hus, it could only be
invo:ed against the State to whom the restraint against arbitrary and unreasonable
e-ercise of power is imposed. 6he modifications introduced in the 1#$1 Constitution
&4,5 Sec. !, 'rt. IIIF in relation to the phraseology of the 1#/" Constitution) relate to
the issuance of either a search warrant or warrant of arrest vis3a3vis the
responsibility of the 7udge in the issuance thereof. 6he modifications introduced
deviate in no manner as to whom the restriction or inhibition against unreasonable
search and seizure is directed against. 6he restraint stayed with the State and did
not shift to anyone else. &People vs. 'ndre 0arti IE4 $1"%1, 1$ 8anuary 1##1J)
W!o 8a) In(oke t!e Rig!tN
a. In general
'lleged violations against unreasonable search and seizure may only be invo:ed
against the State by an individual un7ustly traduced by the e-ercise of sovereign
authority. &People vs. 'ndre 0arti IE4 $1"%1, 1$ 8anuary 1##1J)
6he legality of a seizure can be conte&te onl) /) t!e +art) w!o&e rig!t& !a(e
/een i1+aire t!ere/), and that the ob7ection to an unlawful search and seizure
is +urel) +er&onal an cannot /e a(aile of /) t!ir +artie&. &Stonehill, et al.
vs. ;io:no, et al. IE4 +31#""2, 1# 8une 1#%1J)
/. Cor+oration&
'lthough, an officer of a corporation which is charged with a violation of a statute of
the state of its creation, or of an act of Congress passed in the e-ercise of its
constitutional powers, cannot refuse to produce the boo:s and papers of such
corporation, a corporation is entitled to immunity, under the >th 'mendment,
against unreasonable searches and seizures. ' corporation is, after all, but an
association of individuals under an assumed name and with a distinct legal entity.
In organi9ing it&elf a& a collecti(e /o) it wai(e& no con&titutional
i11unitie& a++ro+riate to &uc! /o). It& +ro+ert) cannot /e taken wit!out
co1+en&ation. It can only be proceeded against by due process of law, and is
protected, under the 1>th 'mendment, against unlawful discrimination. &Dale v.
Den:el, !21 @.S. >/, "2 +. ed. %"!.)
Cri1e &!oul e0i&t fir&t. In t!e i&&uance of &earc! warrant&. t!e Rule& of
Court re,uire& a fining of +ro/a/le cau&e in connection wit! one &+ecific
offen&e to /e eter1ine +er&onall) /) t!e 4uge after e0a1ination of t!e
co1+lainant an t!e witne&&e& he may produce, and particularly describing the
place to be searched and the things to be seized. Dence, since there is no crime to
spea: of, the search warrant does not even begin to fulfill these stringent
re(uirements and is therefore defective on its face. &Solid 6riangle Sales Corp. vs.
Sitchon IE4 1>>/2#, !/ ovember !221J)
1!1
Conition& for a (ali warrant
aB E0i&tence of Pro/a/le Cau&e
1. Probable cause defined, construed
Pro/a/le cau&e for a &earc! i& efine a& &uc! fact& an circu1&tance&
w!ic! woul lea a rea&ona/l) i&creet an +ruent 1an to /elie(e t!at
an offen&e !a& /een co11itte an t!at t!e ite1A&B. articleA&B or o/4ectA&B
&oug!t in connection wit! &ai offen&e or &u/4ect to &ei9ure an
e&truction /) law i& in t!e +lace to /e &earc!e. &People vs. 'ruta, !$$ SC4'
!%! I1##$JF Curgos v. Chief of Staff, 'FP IE4 %>!%1, !% ;ecember 1#$>J) In the
determination of probable cause, the court must necessarily resolve whether or not
an offense e-ists to 7ustify the issuance or (uashal of the search warrant. &Solid
6riangle Sales Corp. vs. Sitchon IE4 1>>/2#, !/ ovember !221J)
!. Probable cause in issuance of warrants distinguished from probable cause in
preliminary investigation
Bhile the power to issue search warrants upon showing probable cause is a function
which is e-clusively 7udicial, Ft!e eter1ination of +ro/a/le cau&e uring a
+reli1inar) in(e&tigation !a& /een e&cri/e a& an e0ecuti(e function.H
&People vs. Court of 'ppeals, !#1 SC4' >22 I1##$J) 6he proceedings for the
issuanceQ(uashal of a search warrant before a court on the one hand, and the
preliminary investigation before an authorized officer on the other, are
+roceeing& entirel) ine+enent of eac! ot!er. .ne is not bound by the
other<s finding as regards the e-istence of a crime. 6he purpose of each proceeding
differs from the other. T!e fir&t i& to eter1ine w!et!er a warrant &!oul
i&&ue or /e ,ua&!e. an t!e &econ. w!et!er an infor1ation &!oul /e
file in court. &Solid 6riangle Sales Corp. vs. Sitchon IE4 1>>/2#, !/ ovember
!221J)
/. 4eliable information as basis for probable cause
otwithstanding tips from confidential informants and regardless of the fact that the
search yielded contraband, the mere act of loo:ing from side to side while holding
one<s abdomen, or of standing on a corner with one<s eyes moving very fast, loo:ing
at every person who came near, does not 7ustify a warrantless arrest under said
Section " &a). either does putting something in one<s poc:et, handing over one<s
baggage, riding a motorcycle, nor does holding a bag on board a trisi:ad sanction
State intrusion. 6he same rule applies to crossing the street per se. Personal
:nowledge was also re(uired in the case of People v. ;oria. 4ecently, in People v.
Cinad Sy Chua, the Court declared invalid the arrest of the accused, who was
wal:ing towards a hotel clutching a sealed Uest3. 7uice bo-. 2or t!e e0ce+tion in
Section > AaB. Rule ""3 to a++l). t!e Court rule. two ele1ent& 1u&t
concur' A"B t!e +er&on to /e arre&te 1u&t e0ecute an o(ert act inicating
!e !a& 4u&t co11itte. i& actuall) co11itting. or i& atte1+ting to co11it
a cri1e5 an A6B &uc! o(ert act i& one in t!e +re&ence or wit!in t!e (iew
of t!e arre&ting officer. Relia/le infor1ation alone i& in&ufficient. In the
1!$
following cases, the search was held to be incidental to a lawful arrest because of
GsuspiciousH circumstances5 People v. 6angliben &accused was Gacting
suspiciouslyH), People v. 0almstedt &a bulge on the accused<s waist), and People v.
de Euzman &li:ewise a bulge on the waist of the accused, who was wearing tight3
fitting clothes). 6here is, however, another set of 7urisprudence that deems Greliable
informationH sufficient to 7ustify a search incident to a warrantless arrest under
Section " &a), 4ule 11/, thus deviating from Curgos. 6o this class of cases belong
People v. 0aspil, 8r., People v. Cagista, People v. Calingan, People v. +ising, People
v. 0ontilla, People v. *aldez, and People v. Eonzales. In t!e&e ca&e&. t!e
arre&ting aut!oritie& were acting on infor1ation regaring an offen&e /ut
t!ere were no o(ert act& or &u&+iciou& circu1&tance& t!at woul inicate
t!at t!e accu&e !a& co11itte. i& actuall) co11itting. or i& atte1+ting
to co11it t!e &a1e. Significantl). t!e&e ca&e&. e0ce+t t!e la&t two. co1e
uner &o1e ot!er e0ce+tion to t!e rule again&t warrantle&& &earc!e&.
6hus, 0aspil, 8r. involved a chec:point search, Calingan was a search of a moving
vehicle, Cagista was both, and +ising and 0ontilla were consented searches.
evertheless, the great ma7ority of cases conforms to the rule in Curgos, which, in
turn, more faithfully adheres to the letter of Section "&a), 4ule 11/. ote the phrase
Gin his presenceH therein, connoting personal :nowledge on the part of the arresting
officer. &People vs. 6udtud IE4 1>>2/1, !% September !22/J)
In fine. +ro/a/le cau&e e0i&t& in t!e following in&tance&5 &a) where the
distinctive odor of mari7uana emanated from the plastic bag carried by the accusedF
&People v. Claudio, 1%2 SC4' %>% I1#$$J) &b) where an informer positively identified
the accused who was observed to be acting suspiciouslyF &People v. 6angliben, 1$>
SC4' !!2 I1##2J) &c) where the accused who were riding a 7eepney were stopped
and searched by policemen who had earlier received confidential reports that said
accused would transport a (uantity of mari7uanaF &People v. 0aspil, 8r., 1$$ SC4'
1"1 I1##2J) &d) where arcom agents had received information that a Caucasian
coming from Sagada, 0ountain Province had in his possession prohibited drugs and
when the arcom agents confronted the accused Caucasian because of a
conspicuous bulge in his waistline, he failed to present his passport and other
identification papers when re(uested to do soF &People v. 0almsteadt, 1#$ SC4'
>21 I1##1J) &f) where the moving vehicle was stopped and searched on the basis of
intelligence information and clandestine reports by a deep penetration agent or spy
M one who participated in the drug smuggling activities of the syndicate to which
the accused belong M that said accused were bringing prohibited drugs into the
countryF &People v. +o Do Bing, 1#/ SC4' 1!! I1##1J) &g) where the arresting
officers had received a confidential information that the accused, whose identity as
a drug distributor was established in a previous test3buy operation, would be
boarding 0* ;ona *irginia and probably carrying shabu with himF &People v.
Saycon, !/% SC4' /!" I1##>J) &h) where police officers received an information
that the accused, who was carrying a suspicious3loo:ing gray luggage bag, would
transport mari7uana in a bag to 0anilaF &People v. Calingan, !>1 SC4' !11 I1##"J)
and &i) where the appearance of the accused and the color of the bag he was
carrying fitted the description given by a civilian asset. &People v. *aldez, /2> SC4'
1>2 I1###J)
/B Per&onal eter1ination /) 4uge
1!#
In Eeneral
Personal e-amination by the 7udge of the complainant and his witnesses is
necessary to enable him to determine the e-istence or non3e-istence of a probable
cause, pursuant to 'rticle III, Section !, 'rticle III of the 1#$1 constitution , and
Section >, 4ule 1!% of the 4evised 4ules of Court, both of which +ro!i/it t!e
i&&uance of warrant& e0ce+t Fu+on +ro/a/le cau&e.H T!e eter1ination of
w!et!er or not a +ro/a/le cau&e e0i&t& call& for t!e e0erci&e of 4ug1ent
after a 4uicial a++rai&al of fact& an &!oul not /e allowe to /e
elegate in the absence of any rule to the contrary. &Cache S Co. &Phil.) Inc. vs.
4uiz IE4 +3/!>2#, !1 February 1#11JF Codal references modified to suit present
Constitution and 4ules of Court)
cB E0a1ination of witne&&e&
6he implementing rule in the 4evised 4ules of Court, Section ", 4ule 1!%, is more
emphatic and candid, for it re(uires the 7udge, before issuing a search warrant, to
F+er&onall) e0a1ine on oat! or affir1ation t!e co1+lainant an an)
witne&&e& !e 1a) +rouce.H 8ere affia(it& of t!e co1+lainant an !i&
witne&&e& are t!u& not &ufficient. 6he e-amining 8udge has to ta:e depositions
in writing of the complainant and the witnesses he may produce and attach them to
the record. &4oan v. Eonzales, E4 11>12, !" ovember 1#$%, 1>" SC4' %#>)
+istening to the stenographer<s readings of her notes, to a few words of warning
against the commission of per7ury, and administering the oath to the complainant
and his witnessF cannot be consider a personal e-amination. 6he reading of the
stenographic notes to the 8udge did not constitute sufficient compliance with the
constitutional mandate and the ruleF for by that manner the 8udge did not have the
opportunity to observe the demeanor of the complainant and his witness, and to
propound initial and follow3up (uestions which the 7udicial mind, on account of its
training, was in the best position to conceive. 6hese were important in arriving at a
sound inference on the all3important (uestion of whether or not there was probable
cause. &Cache S Co. &Phil.) Inc. vs. 4uiz IE4 +3/!>2#, !1 February 1#11J)
Sufficienc) of e+o&ition or affia(it
6he true test of sufficiency of a deposition or affidavit to warrant issuance of a
search warrant is whether it has been drawn in a manner that per7ury could be
charged thereon and the affiant be held liable for damage caused. 6he oath
re(uired must refer to the truth of the facts within the personal :nowledge of the
applicant for search warrant, andQor his witnesses, not of the facts merely reported
by a person whom one considers to be reliable. 6he oath re(uired must refer to the
truth of the facts within the personal :nowledge of the petitioner or his witnesses,
because the purpose thereof is to convince the committing magistrate, not the
individual ma:ing the affidavit and see:ing the issuance of the warrant, of the
e-istence of probable cause. &'lvarez vs. Court of First Instance of 6ayabas IE4
>"/"$, !# 8anuary 1#/1J)
1/2
B Particularit) of e&cri+tion
Purpose A &earc! warrant &!oul +articularl) e&cri/e t!e +lace to /e
&earc!e an t!e t!ing& to /e &ei9e. 6he evident purpose and
intent of this re(uirement is to limit the things to be seized to those,
and only those, particularly described in the search warrant M to leave
the officers of the law with no discretion regarding what articles they
shall seize, to the end that Gunreasonable searches and seizuresH may
not be made, M that abuses may not be committed. &@y Oheytin, et al.
vs. *illareal, etc., et al., >! Phil. $$%, $#%)
". De&cri+tion of Place
6he rule is that a description of the place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and identify the place
intended to be searched. &Prudente vs. ;ayrit IE4 $!$12, 1> ;ecember 1#$#J)
6. De&cri+tion of ite1& to /e &ei9e
Bhile it is true that the property to be seized under a warrant must be particularly
described therein and no other property can be ta:en thereunder, )et t!e
e&cri+tion i& re,uire to /e &+ecific onl) in &o far a& t!e circu1&tance&
will orinaril) allow. &In People v. 4ubio, "1 Phil. /$>, /$# I1#/!J) Bhere by the
nature of the goods to be seized, their description must be rather general, it is not
re(uired that a technical description be given, as this would mean that no warrant
could issue. 's a corollary, however, we could not logically conclude that where the
description of those goods to be seized have been e-pressed technically, all others
of a similar nature but not bearing the e-act technical descriptions could not be
lawfully sub7ect to seizure. .therwise, the reasonable purpose of the warrant issued
would be defeated by mere technicalities. &Pousef 'l3Ehoul vs. Court of 'ppeals IE4
1!%$"#, > September !221J)
Te&t& ' search warrant may be said to particularly describe the things to be seized
when the description therein is a& &+ecific a& t!e circu1&tance& will
orinaril) allow &People vs. 4ubioF "1 Phil. /$>)F or when the description
e0+re&&e& a conclu&ion of fact M not of law M by which the warrant
officer may be guided in ma:ing the search and seizure &idem., dissent of
'bad Santos, 8.,)F or when the things described are li1ite to t!o&e w!ic!
/ear irect relation to t!e offen&e for which the warrant is being issued
&Sec. /, 4ule 1!%, 4evised 4ules of Court).
.ne of the tests to determine the particularity in the description of ob7ects to be
seized under a search warrant is when the t!ing& e&cri/e are li1ite to
t!o&e w!ic! /ear irect relation to t!e offen&e for w!ic! t!e warrant i&
/eing i&&ue. &Cache and Co. IPhil.J, Inc. v. 4uiz, /1 SC4' $!/, $/" I1#11J)
6his interdiction against warrantless searches and seizures, however, is not
absolute and such warrantless searches and seizures have long been deemed
permissible by 7urisprudence in instances of5
1/1
1. Search of moving vehicles,
!. Seizure in plain view,
/. Customs searches,
>. Baiver or consent searches,
". Stop and fris: situations &6erry search), and
%. Search incidental to a lawful arrest.
6he last includes a valid warrantless search and seizure pursuant to an e(ually valid
warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected
with a valid warrant of arrest, t!e Rule& of Court recogni9e +er1i&&i/le
warrantle&& arre&t&. to wit' A"B arre&t& in flagrante elicto. A6B arre&t&
effecte in !ot +ur&uit. an A3B arre&t& of e&ca+e +ri&oner&. &People vs.
Chua Do San IE4 1!$!!!, 11 8une 1###J)
@ali Wai(er
T!e con&titutional i11unit) fro1 unrea&ona/le &earc!e& an &ei9ure&.
/eing a +er&onal one cannot !e wai(e /) an)one e0ce+t t!e +er&on
w!o&e rig!t& are in(ae or one w!o i& e0+re&&l) aut!ori9e to o &o in
!i& or !er /e!alf &;e Earcia v. +ocsin, %" Phil. %$# %#"). 6he consent 1u&t /e
(oluntar) in order to validate an otherwise illegal detention and search, i.e., the
consent is une,ui(ocal. &+ecific. an intelligentl) gi(en. unconta1inate /)
an) ure&& or coercion. &%$ 'm 8ur !d Searches and Seizures, T1/".) Dence,
consent to a search is not to be lightly inferred, but must be shown by clear and
convincing evidence. &%$ 'm 8ur !d Searches and Seizures, T1/%.)
6he Supreme Court is not unmindful of cases upholding the validity of consented
warrantless searches and seizure. Cut in these cases, the police officers< re(uest to
search personnel effects was orally articulated to the accused and in such language
that left no room for doubt that the latter fully understood what was re(uested. In
some instance, the accused even verbally replied to the re(uest demonstrating that
he also understood the nature and conse(uences of such re(uest. &People vs. Chua
Do San, /2$ SC4' >/! I1###J)
6he (uestion whether a consent to a search was in fact voluntary is a (uestion of
fact to be determined from the totality of all the circumstances. &Schnec:loth vs.
Custamonte, >1! @.S. !1$) In case of consented searches or waiver of the
constitutional guarantee against obtrusive searches. it i& funa1ental t!at to
con&titute a wai(er of a con&titutional rig!t. it 1u&t fir&t a++ear. fir&t. t!at
t!e rig!t e0i&t&5 &econl). t!at t!e +er&on in(ol(e !a knowlege. actual
or con&tructi(e. of t!e e0i&tence of &uc! a rig!t5 an la&tl). t!at &ai
+er&on !a an actual intention to relin,ui&! t!e rig!t. & People v. Curgos,
1>> SC4' 1, 1% I1#$%JF citing Pasion *da. de Earcia v. +ocsin, %" Phil %$# I1#/$JF
%1 C. 8., !##)
4elevant to this determination are the following characteristics of the person giving
consent and the environment in which consent is given5 &1) the age of the
defendantF &!) whether he was in a public or secluded locationF &/) whether he
1/!
ob7ected to the search or passively loo:ed onF &>) the education and intelligence of
the defendantF &") the presence of coercive police proceduresF &%) the defendant<s
belief that no incriminating evidence will be foundF &1) the nature of the police
(uestioningF &$) the environment in which the (uestioning too: placeF and &#) the
possibly vulnerable sub7ective state of the person consenting. It is the State which
has the burden of proving, by clear and positive testimony, that the necessary
consent was obtained and that it was freely and voluntarily given. &@nited States vs.
6illman, #%/ F. !d 1/1F Florida vs. 4oyer, >%2 @.S. >#1F @nited States vs.
0endenhall, >>% @.S. ">>.)
I1+lie ac,uie&cence to t!e &earc!. if t!ere wa& an). coul not !a(e /een
1ore t!an 1ere +a&&i(e confor1it) gi(en uner inti1iating or coerci(e
circu1&tance& an i& t!u& con&iere no con&ent at all wit!in t!e +ur(iew
of t!e con&titutional guarantee. APeople v. ,ncinada, !$2 SC4' 1!, #1 I1##1JF
citing 'niog v. Commission on ,lections, !/1 SC4' >!>, >/%3>/1 I1##>J) In any
event, the failure to resist or ob7ect to the e-ecution of the warrant does not
constitute an implied waiver of constitutional right. It is, as 8udge Cooley observes,
but a &u/1i&&ion to t!e aut!orit) of t!e law. &Const. +im., $th ed., *ol. I, I,
%/2.) 's the constitutional guaranty is not dependent upon any affirmative act of
the citizen, the courts do not place the citizen in the position of either contesting an
officer<s authority by force, or waiving his constitutional rightsF but instead they
hold that a peaceful submission to a search or seizure is not a consent or an
invitation thereto, but is merely a demonstration of regard for the supremacy of the
law. &"% C. 8., pp. 11$2, 11$1.)
A &earc! incient to a lawful arre&t i& li1ite to t!e +er&on of t!e one
arre&te an t!e +re1i&e& wit!in !i& i11eiate control. T!e rationale for
+er1itting &uc! a &earc! i& to +re(ent t!e +er&on arre&te fro1 o/taining
a wea+on to co11it (iolence. or to reac! for incri1inator) e(ience an
e&tro) it.
It is entirely reasonable for the arresting officer to search for and seize any evidence
on the arrestee<s person in order to prevent its concealment or destruction. 'nd the
area into which an arrestee might reach in order to grab a weapon or evidentiary
items must, of course, be governed by a li:e rule. ' gun on a table or in a drawer in
front of one who is arrested can be as dangerous to the arresting officer as one
concealed in the clothing of the person arrested. T!ere i& a1+le 4u&tification.
t!erefore. for a &earc! of t!e arre&teeP& +er&on an t!e area Swit!in !i&
i11eiate controlP U con&truing t!at +!ra&e to 1ean t!e area fro1 wit!in
w!ic! !e 1ig!t gain +o&&e&&ion of a wea+on or e&tructi/le e(ience.
T!ere i& no co1+ara/le 4u&tification. !owe(er. for routinel) &earc!ing an)
roo1 ot!er t!an t!at in w!ic! an arre&t occur& U or. for t!at 1atter. for
&earc!ing t!roug! all t!e e&k rawer& or ot!er clo&e or conceale area&
in t!at roo1 it&elf. &Chimel v. CaliforniaF !/ +. ,d. !d %$", !/ 8une 1#%#)
Plain (iew octrine
1. ,lements
1//
*ner t!e F+lain (iew octrine.H unlawful o/4ect& wit!in t!e F+lain (iewH
of an officer w!o !a& t!e rig!t to /e in t!e +o&ition to !a(e t!at (iew are
&u/4ect to &ei9ure an 1a) /e +re&ente in e(ience. &People v. 0usa) For
this doctrine to apply, there must be5
a. Prior 7ustificationF
b. Inadvertent discovery of the evidenceF and
c. Immediate apparent illegality of the evidence before the police.
&People v. 0usa)
6he elements of plain3view are5
a. ' prior valid intrusion based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official dutiesF
b. 6he evidence was inadvertently discovered by the police who have the right
to be where they areF
c. 6he evidence must be immediately apparentF
d. GPlain viewH 7ustified mere seizure of evidence without further search. &People
v. Colasa, /1$ Phil. 121/, 121$3121# I1###J)
!. Bhen ob7ect is in plain view
6he law enforcement officer must lawfully 1ake an initial intru&ion or +ro+erl)
/e in a +o&ition fro1 w!ic! !e can +articularl) (iew t!e area. &Darris v.
@nited States, supra) In the course of such lawful intrusion, he came inadvertently
across a piece of evidence incriminating the accused. &Coolidge v. ew Dampshire,
supra). T!e o/4ect 1u&t /e o+en to e)e an !an an it& i&co(er)
ina(ertent. &4oan v. Eonzales, 1>" SC4' %$1, %#1 I1#$%J) It is clear that an
ob7ect is in plain view if the ob7ect itself is +lainl) e0+o&e to &ig!t. 6he difficulty
arises when the ob7ect is inside a closed container. W!ere t!e o/4ect &ei9e wa&
in&ie a clo&e +ackage. t!e o/4ect it&elf i& not in +lain (iew an t!erefore
cannot /e &ei9e wit!out a warrant. Dowever, if t!e +ackage +roclai1& it&
content&. w!et!er /) it& i&tincti(e configuration. it& tran&+arenc). or if
it& content& are o/(iou& to an o/&er(er. t!en t!e content& are in +lain
(iew an 1a) /e &ei9e. In other words, if the pac:age is such that an
e-perienced observer could infer from its appearance that it contains the prohibited
article, then the article is deemed in plain view. &4obbins v. California, >"/ @.S. >!2,
%# +. ,d. !d 1>>, 1"1 I1#$1J) It must be immediately apparent to the police that the
items that they observe may be evidence of a crime, contraband or otherwise
sub7ect to seizure. &People v. 0usa IE4 #%111, !1 8anuary 1##/J)
/. Plain3view ob7ects as evidence
6he warrantless search and seizure, as an incident to a suspect<s lawful arrest, may
e-tend beyond the person of the one arrested to include the premises or
surroundings under his immediate control. .b7ects in the Gplain viewH of an officer
who has the right to be in the position to have that view are sub7ect to seizure and
may be presented as evidence. Bhen the discovery of the evidence did not
constitute a search, but where the officer merely saw what was placed before him in
full view, the warrantless seizure of the ob7ect was legal on the basis of the Gplain
viewH doctrine and upheld the admissibility of said evidence. &People v. 0usa IE4
1/>
#%111, !1 8anuary 1##/J) 0erely to observe and loo: at that which is in plain sight
is not a search. Daving observed that which is open, where no trespass has been
committed in aid thereof, is not search &Chadwic: v. State, >!# SB!d 1/"). Bhere
the contraband articles are identified without a trespass on the part of the arresting
officer, there is not the search that is prohibited by the constitution &@S v. +ee !1>
@S ""#, 11 +.,d. 1!2! I1#!1JF Oer v. State of California /1> @S !/, 12 +.,d.!d. 1!%
I1#%/JF 0oore v. State, >!# SB!d 1!! I1#%$J).
>. +imitations to plain3view
T!e F+lain (iewH octrine 1a) not /e u&e to launc! un/rile &earc!e&
an ini&cri1inate &ei9ure& nor to e0ten a general e0+lorator) &earc!
1ae &olel) to fin e(ience of efenantP& guilt. 6he Gplain viewH doctrine is
usually applied w!ere a +olice officer i& not &earc!ing for e(ience again&t
t!e accu&e. /ut nonet!ele&& ina(ertentl) co1e& acro&& an incri1inating
o/4ect. Bhat the Vplain view< cases have in common is that the police officer in
each of them had a prior 7ustification for an intrusion in the course of which he came
inadvertently across a piece of evidence incriminating the accused. T!e octrine
&er(e& to &u++le1ent t!e +rior 4u&tification U w!et!er it /e a warrant for
anot!er o/4ect. !ot +ur&uit. &earc! incient to lawful arre&t. or &o1e ot!er
legiti1ate rea&on for /eing +re&ent unconnecte wit! a &earc! irecte
again&t t!e accu&e U an +er1it& t!e warrantle&& &ei9ure. .f course, the
e-tension of the original 7ustification is legitimate only where it is immediately
apparent to the police that they have evidence before themF the Vplain view<
doctrine may not be used to e-tend a general e-ploratory search from one ob7ect to
another until something incriminating at last emerges. T!e F+lain (iewH octrine
neit!er 4u&tif) t!e &ei9ure of t!e o/4ect w!ere t!e incri1inating nature of
t!e o/4ect i& not a++arent fro1 t!e F+lain (iewH of t!e o/4ect. &People v.
0usa IE4 #%111, !1 8anuary 1##/J)
.nce the valid portion of the search warrant has been e-ecuted, the Gplain view
doctrineH can no longer provide any basis for admitting the other items
subse(uently found. 's has been e-plained that GBhat the Vplain view< cases have
in common is that the police officer in each of them had a prior 7ustification for an
intrusion in the course of which he came inadvertently across a piece of evidence
incriminating the accused. 6he doctrine serves to supplement the prior 7ustification
Rwhether it be a warrant for another ob7ect, hot pursuit, search incident to lawful
arrest, or some other legitimate reason for being present unconnected with a
search directed against the accused M and permits the warrantless seizure. .f
course, the e-tension of the original 7ustification is legitimate only where it is
immediately apparent to the police that they have evidence before themF the Vplain
view< doctrine may not be used to e-tend a general e-ploratory search from one
ob7ect to another until something incriminating at last emerges.H &People vs.
Salanguit IE4 1//!">3"", 1# 'pril !221J citing Coolidge v. ew Dampshire, >2/ @.S.
>//,!# +. ,d. !d "%> I1#11J)
FSto+ an fri&kH
1/"
W!ere a +olice officer o/&er(e& unu&ual conuct w!ic! lea& !i1
rea&ona/l) to conclue in lig!t of !i& e0+erience t!at cri1inal acti(it) 1a)
/e afoot an t!at t!e +er&on& wit! w!o1 !e i& ealing 1a) /e ar1e an
+re&entl) angerou&. w!ere in t!e cour&e of in(e&tigating t!i& /e!a(ior !e
ientifie& !i1&elf a& a +olice1an an 1ake& rea&ona/le in,uirie&. and
where nothing in the initial stages of the encounter serves to dispel his reasonable
fear for his own or others< safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be used to assault him.
Such a search is a reasonable search under the Fourth 'mendment, and any
weapons seized may properly be introduced in evidence against the person from
whom they were ta:en. &6erry vs. .hio I/#! @S 1, 12 8une 1#%$J)
Bhile probable cause is not re(uired to conduct a Gstop and fris:,H it ne(ert!ele&&
!ol& t!at 1ere &u&+icion or a !unc! will not (aliate a F&to+ an fri&k.H A
genuine rea&on 1u&t e0i&t. in lig!t of t!e +olice officerP& e0+erience an
&urrouning conition&. to warrant t!e /elief t!at t!e +er&on etaine !a&
wea+on& conceale a/out !i1. Finally, a Gstop3and3fris:H serves a two3fold
interest5 A"B t!e general intere&t of effecti(e cri1e +re(ention an
etection, which underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without probable causeF
and A6B t!e 1ore +re&&ing intere&t of &afet) an &elf7+re&er(ation w!ic!
+er1it t!e +olice officer to take &te+& to a&&ure !i1&elf t!at t!e +er&on
wit! w!o1 !e eal& i& not ar1e wit! a eal) wea+on that could
une-pectedly and fatally be used against the police officer. &0alacat vs. Court of
'ppeals IE4 1!/"#", 1! ;ecember 1##1J)
SEARC? O2 8O@ING @E?ICLES
Peace officers may lawfully conduct searches of moving vehicles M automobiles,
truc:s, etc. M without need of a warrant, it not being practicable to secure a 7udicial
warrant before searching a vehicle, since such vehicle can be (uic:ly moved out of
the locality or 7urisdiction in which the warrant may be sought. &People v. Carros IE4
#2%>2, !# 0arch 1##>J)
8anner of &earc!
In carrying out warrantless searches of moving vehicles, however, peace officers
are limited to routine chec:s, that is, the vehicles are neither really searched nor
their occupants sub7ected to physical or body searches, t!e e0a1ination of t!e
(e!icle& /eing li1ite to (i&ual in&+ection. &People v. Carros) Bhen, however,
a (e!icle i& &to++e an &u/4ecte to an e0ten&i(e &earc!, such a
warrantless search woul /e con&titutionall) +er1i&&i/le onl) if t!e officer&
conucting t!e &earc! !a(e rea&ona/le or +ro/a/le cau&e to /elie(e.
/efore t!e &earc!. t!at eit!er t!e 1otori&t i& a law7offener or t!e
content& or cargo of t!e (e!icle are or !a(e /een in&tru1ent& or t!e
&u/4ect 1atter or t!e +rocee& of &o1e cri1inal offen&e. &People v. CagistaF
*almonte v. de *illa).
1/%
One &uc! for1 of &earc! of 1o(ing (e!icle& i& t!e F&to+7an7&earc!H
wit!out warrant at 1ilitar) or +olice c!eck+oint& w!ic! !a& /een eclare
to /e not illegal +er &e &People vs. ,-alaF *almonte vs. de *illa), for as long as it
is warrante /) t!e e0igencie& of +u/lic orer an conucte in a wa)
lea&t intru&i(e to 1otori&t& &People vs. ,sca?o). ' chec:point may either be a
mere routine inspection or it may involve an e-tensive search. 4outine inspections
are not regarded as violative of an individual<s right against unreasonable search.
T!e &earc! w!ic! i& nor1all) +er1i&&i/le in t!i& in&tance i& li1ite to t!e
following in&tance&'
1. Bhere the officer merely draws aside the curtain of a vacant vehicle which is
par:ed on the public fair groundsF
!. Simply loo:s into a vehicleF
/. Flashes a light therein without opening the car<s doorsF
>. Bhere the occupants are not sub7ected to a physical or body searchF
". Bhere the inspection of the vehicles is limited to a visual search or visual
inspectionF and
%. Bhere the routine chec: is conducted in a fi-ed area.
E1ergenc) circu1&tance&
A& t!ere wa& general c!ao& an i&orer at t!at ti1e W IthatJ the courts in
the surrounding areas were obviously closed and, for that matter, the building and
houses therein were deserted W Iand thatJ the military operatives W had
reasonable ground to believe that a crime was being committed, the case falls
under one of the e-ceptions to the prohibition against a warrantless search. &People
vs. de Eracia)
Arre&t& wit! warrant
a. Probable cause defined
Pro/a/le cau&e 1ean& an actual /elief or rea&ona/le groun& of &u&+icion.
T!e groun& of &u&+icion are rea&ona/le w!en. in t!e a/&ence of actual
/elief of t!e arre&ting officer&. t!e &u&+icion t!at t!e +er&on to /e
arre&te i& +ro/a/l) guilt) of co11itting t!e offen&e. i& /a&e on actual
fact&, i.e., supported by circumstances sufficiently strong in themselves to create
the probable cause of guilt of the person to be arrested. ' reasonable suspicion
therefore must be founded on probable cause, coupled with good faith on the part
of the peace officers ma:ing the arrest. 6hus, the term probable cause had been
understood to mean a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man<s belief that the person
accused is guilty of the offense with which he is charged.
b. Probable cause distinguished from prima facie evidence
6he confusing concepts of Gprima facie evidenceH and Gprobable causeH were
clarified and set aright by the 1#$" amendment of the 4ules of Court which
provides in 4ule 11! thereof that the (uantum of evidence re(uired in preliminary
1/1
investigation is such evidence as suffices to Gengender as well founded beliefH as to
the fact of the commission of the crime and the respondent<s probable guilt thereof.
It has the same meaning as the related phraseology used in other parts of the same
4ule, that is, that the investigating fiscal Gfinds cause to hold the respondent for
trial,H or where Ga probable cause e-ists.H It should, therefore, be in that sense,
wherein the right to effect a warrantless arrest should be considered as legally
authorized.
c. 4eliable information as basis for probable cause
6he long3standing rule in this 7urisdiction, applied with a great degree of
consistency, is that Greliable informationH alone is not sufficient to 7ustify a
warrantless arrest under Section " &a), 4ule 11/. 6he rule re(uires, in addition, that
the accused perform some overt act that would indicate that he Ghas committed, is
actually committing, or is attempting to commit an offense.H
d. Personal determination by 7udge
6he determination of probable cause by the prosecutor is for a purpose different
from that which is to be made by the 7udge. W!et!er t!ere i& rea&ona/le
groun to /elie(e t!at t!e accu&e i& guilt) of t!e offen&e c!arge an
&!oul /e !el for trial i& w!at t!e +ro&ecutor +a&&e& u+on. T!e 4uge. on
t!e ot!er !an. eter1ine& w!et!er a warrant of arre&t &!oul /e i&&ue
again&t t!e accu&e. i.e.. w!et!er t!ere i& a nece&&it) for +lacing !i1
uner i11eiate cu&to) in orer not to fru&trate t!e en& of 4u&tice.
6hus, even if both should base their findings on one and the same proceeding or
evidence, there should be no confusion as to their distinct ob7ectives.
Since their ob7ectives are different, t!e 4uge cannot rel) &olel) on t!e re+ort
of t!e +ro&ecutor in fining +ro/a/le cau&e to 4u&tif) t!e i&&uance of a
warrant of arre&t. O/(iou&l) an uner&tana/l). t!e content& of t!e
+ro&ecutorP& re+ort will &u++ort !i& own conclu&ion t!at t!ere i& rea&on to
c!arge t!e accu&e for an offen&e an !ol !i1 for trial. ?owe(er. t!e
4uge 1u&t ecie ine+enentl). Dence, he must have supporting evidence,
other than the prosecutor<s bare report, upon which to legally sustain his own
findings on the e-istence &or none-istence) of probable cause to issue an arrest
order. T!i& re&+on&i/ilit) of eter1ining +er&onall) an ine+enentl) t!e
e0i&tence or none0i&tence of +ro/a/le cau&e i& loge in !i1 /) no le&&
t!an t!e 1o&t /a&ic law of t!e lan. Parenthetically, the prosecutor could ease
the burden of the 7udge and speed up the litigation process by forwarding to the
latter not only the information and his bare resolution finding probable cause, but
also so much of the records and the evidence on hand as to enable the Dis Donor to
ma:e his personal and separate 7udicial finding on whether to issue a warrant of
arrest.
La&tl). it i& not re,uire t!at t!e co1+lete or entire recor& of t!e ca&e
uring t!e +reli1inar) in(e&tigation /e &u/1itte to an e0a1ine /) t!e
4uge. Be do not intend to unduly burden trial courts by obliging them to e-amine
the complete records of every case all the time simply for the purpose of ordering
1/$
the arrest of an accused. W!at i& re,uire. rat!er. i& t!at t!e 4uge 1u&t
!a(e &ufficient &u++orting ocu1ent& A&uc! a& t!e co1+laint. affia(it&.
counter7affia(it&. &worn &tate1ent& of witne&&e& or tran&cri+t of
&tenogra+!ic note&. if an)B u+on w!ic! to 1ake !i& ine+enent 4ug1ent
or. at t!e (er) lea&t. u+on w!ic! to (erif) t!e fining& of t!e +ro&ecutor a&
to t!e e0i&tence of +ro/a/le cau&e. 6he point is5 he cannot rel) &olel) an
entirel) on t!e +ro&ecutorP& reco11enation. a& Re&+onent Court i in
t!i& ca&e. 'lthough the prosecutor en7oys the legal presumption of regularity in the
performance of his official duties and functions, which in turn gives his report the
presumption of accuracy, the Constitution, we repeat, commands the 7udge to
personally determine probable cause in the issuance of warrants of arrest. 6his
Court has consistently held that a 7udge fails in his bounden duty if he relies merely
on the certification or the report of the investigating officer.H &Do vs. People, !$2
SC4' /%")
T!e ,ue&tion w!et!er F+ro/a/le cau&eH e0i&t& or not 1u&t e+en u+on
t!e 4ug1ent an i&cretion of t!e 4uge or 1agi&trate i&&uing t!e
warrant. It oe& not 1ean t!at +articular fact& 1u&t e0i&t in eac!
+articular ca&e. It &i1+l) 1ean& t!at &ufficient fact& 1u&t /e +re&ente to
t!e 4uge or 1agi&trate i&&uing t!e warrant to con(ince !i1. not t!at t!e
+articular +er&on !a& co11itte t!e cri1e. /ut t!at t!ere i& +ro/a/le
cau&e for /elie(ing t!at t!e +er&on w!o&e arre&t i& &oug!t co11itte t!e
cri1e c!arge. o rule can be laid down which will govern the discretion of the
court in this matter. If he decides, upon the proof presented, that probable cause
e-ists, no ob7ection can be made upon constitutional grounds against the issuance
of the warrant. Dis conclusion as to whether Gprobable causeH e-isted or not is final
and conclusive. If he is satisfied that Gprobable causeH e-ists from the facts stated
in the complaint, made upon the investigation by the prosecuting attorney, then his
conclusion is sufficient upon which to issue the warrant for arrest. De may, however,
if he is not satisfied, call such witnesses as he may deem necessary before issuing
the warrant. 6he issuance of the warrant of arrest is prima facie evidence that, in
his 7udgment at least, there e-isted Gprobable causeH for believing that the person
against whom the warrant is issued is guilty of the crime charged. 6here is no law
which prohibits him from reaching the conclusion that Gprobable causeH e-ists from
the statement of the prosecuting attorney alone, or any other person whose
statement or affidavit is entitled to credit in the opinion of the 7udge or magistrate.
Section ". 'rrest without warrantF when lawful. M ' peace officer or a private
person may, without a warrant, arrest a person5
1. Bhen, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offenseF
!. Bhen an offense has 7ust been committed and he has probable cause to
believe based on personal :nowledge of facts or circumstances that the
person to be arrested has committed itF and
/. Bhen the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final 7udgment or is temporarily
confined while his case is pending, or has escaped while being transferred
from one confinement to another.
1/#
Re/ellion a& Continuing Offen&e
6he arrest of persons involved in the rebellion whether as its fighting armed
elements, or for committing non3violent acts but in furtherance of the rebellion, is
1ore an act of ca+turing t!e1 in t!e cour&e of an ar1e conflict. to ,uell
t!e re/ellion. t!an for t!e +ur+o&e of i11eiatel) +ro&ecuting t!e1 in
court for a &tatutor) offen&e. 6he arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which re(uires the determination by a
7udge of the e-istence of probable cause before the issuance of a 7udicial warrant of
arrest and the granting of bail if the offense is bailable. O/(iou&l) t!e a/&ence of
a 4uicial warrant i& no legal i1+ei1ent to arre&ting or ca+turing +er&on&
co11itting o(ert act& of (iolence again&t go(ern1ent force&. or an) ot!er
1iler act& /ut reall) in +ur&uance of t!e re/elliou& 1o(e1ent. 6he arrest
or capture is thus i1+elle /) t!e e0igencie& of t!e &ituation t!at in(ol(e&
t!e (er) &ur(i(al of &ociet) an it& go(ern1ent an ul) con&titute
aut!oritie&. If :illing and other acts of violence against the rebels find 7ustification
in the e-igencies of armed hostilities which &are) of the essence of waging a
rebellion or insurrection, most assuredly so in case of invasion, merely seizing their
persons and detaining them while any of these contingencies continues cannot be
less 7ustified. &@mil vs. 4amos IE4 $1"%1, # 8uly 1##2J)
Co11itte in t!e Pre&ence of Police Officer&
'n offense is committed in the presence or within the view of an officer, within the
meaning of the rule authorizing an arrest without a warrant, w!en t!e officer
&ee& t!e offen&e. alt!oug! at a i&tance. or !ear& t!e i&tur/ance&
create t!ere/) an +rocee& at once to t!e &cene t!ereof. &People vs.
Sucro IE4 #/!/#, 1$ 0arch 1##1J)
Per&onal Cnowlege of t!e Offen&e
In cases of in flagrante delicto arrests, a peace officer or a private person may
without a warrant, arrest a person, when, in his presence, the person to be arrested
has committed, is actually committing, or is attempting to commit an offense. 6he
arresting officer, therefore, 1u&t !a(e +er&onal knowlege of &uc! fact or a&
recent ca&e law a(ert& to. +er&onal knowlege of fact& or circu1&tance&
con(incingl) inicati(e or con&tituti(e of +ro/a/le cau&e. &People vs. Chua
Do San IE4 1!$!!!, 11 8une 1###J)
Ti1e of Arre&t
1. Dot Pursuit
Paragraph &b) of Section " is otherwise :nown as the doctrine of Ghot pursuitH
arrests. 6his doctrine is based on the rule that an arrest can be made without
warrant when an offense has 7ust been committed and the arresting officer has
probable cause to believe based on personal :nowledge of facts or circumstances
that a crime has 7ust been committed. It i& not nece&&ar) t!at t!e arre&ting
officer& !a(e irect knowlege of t!e cri1e. But t!e) 1u&t !a(e irect
1>2
knowlege or (iew of t!e cri1e rig!t after it& co11i&&ion. &People vs. ;oria,
/21 SC4' %%$)
!. GDas 7ust been committedH
It is not sufficient that a crime was indeed committed but it is re(uired that the said
crime has 7ust been committed. T!e +ro0i1it) of ti1e of co11i&&ion of t!e
cri1e 1u&t /e clo&e to t!e ti1e of t!e arre&t. Ot!erwi&e. t!e arre&t i&
illegal. &Pineda, ,rnesto +., 6he 4evised 4ules on Criminal Procedure, !22/ ,dition,
1%1.)
8arke 8one)
6he discovery of the mar:ed money on Ia personJ did not mean he was caught Iin
fragrante delictoJ. 6he mar:ed money was not prohibited per se. ,ven if it were,
that fact alone would not retroactively validate the warrantless search and seizure.
&People vs. ,nrile IE4 1>1$#, !% 0ay 1##/J)
Lack of *rgenc)
'pplications made during wee:ends and holidays. 6he Supreme Court<s Circular 1#,
dated 1> 'ugust 1#$1, which reads G/. 'pplications filed after office hours, during
Saturdays, Sundays and holidays shall li:ewise be ta:en cognizance of and acted
upon by any 7udge of the court having 7urisdiction of the place to be searched, but
in such cases the applicant shall certify and state the facts under oath, to the
satisfaction of the 7udge, that the issuance is urgentH merely provides for a
guideline, departure from which would not necessarily affect the validity of an
otherwise valid search warrant. &Prudente vs. ;ayrit IE4 $!$12, 1> ;ecember
1#$#J)
Effect of Entr) of Plea
Cy pleading Gnot guiltyH at their arraignment, the accused submitted to the
7urisdiction of the trial court, thereby curing any defect in their arrest, for the
legality of an arrest affects only the 7urisdiction of the court over their persons.
&People vs. Plana IE4 1!$!$", !1 ovember !221J)
@aliit) of Con(iction
T!e illegal arre&t of an accu&e i& not &ufficient cau&e for &etting a&ie a
(ali 4ug1ent renere u+on a &ufficient co1+laint after trial free fro1
error. &People vs. ;e Euzman, !!> SC4' #/, 122 I1##/J). 6he warrantless arrest,
even if illegal, cannot rener (oi all ot!er +roceeing& incluing t!o&e
leaing to t!e con(iction of t!e a++ellant& an !i& co7accu&e. nor can t!e
&tate /e e+ri(e of it& rig!t to con(ict t!e guilt) when all the facts on record
point to their culpability. &People vs. 0anlulu, !/1 SC4' 121, 112 I1##>JF People vs.
;e Euia, !!1 SC4' %1>, %!% I1##/J)
1>1
Art. III. Sec. 6 6he right of the people to be secure in their persons, houses,
papers, and effect& again&t unrea&ona/le &earc!e& an &ei9ure&
of whatever nature and for any purpose shall be inviolable, and no
&earc! warrant or warrant of arre&t &!all i&&ue e0ce+t u+on
+ro/a/le cau&e to be determined +er&onall) /) t!e 4uge after
e-amination uner oat! or affir1ation of t!e co1+lainant and
the witnesses he may produce, and particularly e&cri/ing t!e +lace
to /e &earc!e an t!e +er&on& or t!ing& to /e &ei9e.
@AL8ONTE @S DE @ILLA
2act&'
.n 1Q!2Q$1, the C4;C was activated wQ the mission of conducting security
operations wQin its area or responsibility and peripheral areas, for the purpose of
establishing an effective territorial defense, maintaining peace and order, and
providing an atmosphere conducive to the social, economic and political devAAt of
the C4. 's part of its duty to maintain peace and order, the C4;C installed
chec:points in various parts of *alenzuela and 00. Petitioner& a(er t!at.
/ecau&e of t!e in&titution of &ai c!eck+oint&. t!e @alen9uela re&ient&
are worrie of /eing !ara&&e an of t!eir &afet) /eing +lace at t!e
ar/itrar). ca+riciou& an w!i1&ical i&+o&ition of t!e 1ilitar) 1anning t!e
c!eck+oint&. con&iering t!at t!eir car& an (e!icle& are /eing &u/4ecte
to regular &earc!e& an c!eck7u+&. e&+eciall) at nig!t or at awn. wOo a
Searc! Warrant anO or court orer. 6heir alleged fear for their safety increased
when Cen7amin Parpon, was gunned down allegedly in cold blood by members of
the C4;C for ignoring andQ or continuing to speed off inspite of warning shots fired
in the air.
D,+;5
Con&titutional Rig!t again&t unrea&ona/le &earc!e& an &ei9ure& i& a
+er&onal rig!t
PetitionerP& concern for t!eir &afet) an a++re!en&ion at /eing !ara&&e
/) t!e 1ilitar) 1anning t!e c!eck+oint& are not &ufficient groun& to
eclare t!e c!eck+oint& +er &e. illegal. No +roof !a& /een +re&ente
/efore t!e Court to &!ow t!at. in t!e cour&e of t!eir routine c!eck&. t!e
1ilitar). inee. co11itte &+ecific (iolation& of +etitioner&= rig!t&
again&t unlawful &earc! an &ei9ure. 6he constitutional right against
unreasonable searches and seizures is a personal right invocable only by t!o&e
w!o&e rig!t& !a(e /een infringe. or t!reatene to /e infringe. ot all
searches and seizures are prohibited. 6hose wQc are reasonable are not forbidden.
6he setting up of the (uestioned chec:points may be considered as a security
measure to enable the C4;C to pursue its mission of establishing effective
territorial defense and maintaining peace and order for the benefit of the public.
Chec:points may not also be regarded as measures to thwart plots to destabilize
the government, in the interest of public security.
Self7+re&er(ation of t!e State i& +ara1ount o(er ini(iual rig!t&
1>!
Between t!e in!erent rig!t of t!e &tate to +rotect it& e0i&tence an
+ro1ote +u/lic welfare an an ini(iualP& rig!t again&t a warrantle&&
&earc! wOc i&. !owe(er. rea&ona/l) conucte. t!e for1er &!oul +re(ail.
6rue, the manning of chec:points by the military is susceptible of abuse by the
military in the same manner that all governmental power is susceptible of abuse.
But. at t!e co&t of occa&ional incon(enience. i&co1fort an e(en
irritation to t!e citi9en. t!e c!eck+oint& uring t!e&e a/nor1al ti1e&.
w!en conucte wOin rea&ona/le li1it&. are +art of t!e +rice we +a) for an
orerl) &ociet) an a +eaceful co11unit).
Per&onal E0a1ination A/) t!e 4ugeB
SOLI@EN @S 8ACASIAR
Warrant +er&onall) eter1ine /) t!e 4uge
W!at t!e Con&titution uner&core& i& t!e e0clu&i(e an +er&onal
re&+on&i/ilit) of t!e i&&uing 4uge to &ati&f) !i1&elf of t!e e0i&tence of
+ro/a/le cau&e. In satisfying himself of the e-istence of probable cause for the
issuance of a warrant of arrest, t!e 4uge i& not re,uire to +er&onall)
e0a1ine t!e co1+lainant an !i& witne&&e&. Following established doctrine
and procedure, he shall5 A"B +er&onall) e(aluate t!e re+ort an t!e
&u++orting ocu1ent& &u/1itte /) t!e fi&cal regaring t!e e0i&tence of
+ro/a/le cau&e an. on t!e /a&i& t!ereof. i&&ue a warrant of arre&t5 or A6B
if on t!e /a&i& t!ereof !e fin& no +ro/a/le cau&e. !e 1a) i&regar t!e
fi&cal=& re+ort an re,uire t!e &u/1i&&ion of &u++orting affia(it& of
witne&&e& to aid him in arriving at a conclusion as to the e-istence of probable
cause.
Sound policy dictates this procedure, ot!erwi&e 4uge& woul /e unul) laen
wit! t!e +reli1inar) e0a1ination an in(e&tigation of cri1inal co1+laint&
instead of concentrating on hearing and deciding cases filed before their courts.
Pre&ientP& i11unit) fro1 &uit
6he rationale for the grant to the President of the privilege of immunity from suit is
to a&&ure t!e e0erci&e of Pre&iential utie& an function& free fro1 an)
!inrance or i&traction, considering that being the Chief ,-ecutive of the
Eovernment is a 7ob that, aside from re(uiring all of the office holderAs time, also
demands undivided attention.
Cut this privilege of immunity from suit, pertains to the President by virtue of the
office and 1a) /e in(oke onl) /) t!e !oler of t!e office5 not /) an) ot!er
+er&on in t!e Pre&ient=& /e!alf. 6hus, an accu&e in a cri1inal ca&e in
w!ic! t!e Pre&ient i& co1+lainant cannot rai&e t!e +re&iential +ri(ilege
a& a efen&e to prevent the case from proceeding against such accused.
0oreover, there is nothing in our laws that would prevent the President from
waiving the privilege. 6hus, if so minded the President may shed the protection
afforded by the privilege and submit to the courtAs 7urisdiction. 6he choice of
1>/
whether to e-ercise the privilege or to waive it is solely the PresidentAs prerogative.
It is a decision that cannot be assumed and imposed by any other person.
Allowa/le warrantle&& Searc!e&
PEOPLE @S GERENTE
'ccused conspired with two others to :ill the victim. Dours later, the police received
a report of such matter. 4ight away, Patrolman @rrutia, together with Police
Corporal 4omeo +ima and Patrolman 'le- @mali, proceeded to Paseo de Clas where
the mauling incident too: place. 6here they found a piece of wood with blood stains,
a hollow bloc: and two roaches of mari7uana. 6hey were informed by the
prosecution witness, ,dna ,dwina 4eyes, that she saw the :illing and she pointed to
Eabriel Eerente as one of the three men who :illed Clarito.
6he policemen proceeded to the house of the appellant who was then sleeping.
6hey told him to come out of the house and they introduced themselves as
policemen. Patrolman @rrutia fris:ed appellant and found a coin purse in his poc:et
which contained dried leaves wrapped in cigarette foil. 6he dried leaves were sent
to the ational Cureau of Investigation for e-amination. 6he Forensic Chemist found
them to be mari7uana.
Issue5 B. the arrest and subse(uent search and seizure was valid.
Deld5
ARREST WIT?O*T WARRANT IS LAW2*L W?EN ARRESTING O22ICER ?AS
PERSONAL CNOWLEDGE T?AT T?E PERSON TO BE ARRESTED ?AS
CO88ITTED T?E CRI8E
Paragra+!& AaB an A/B. Section >. Rule ""3 of t!e Re(i&e Rule& of Court
+ro(ie'
S,C6I. ". 'rrest without warrantF when lawful. M ' peace officer or a private
person may, without a warrant, arrest a person5
a. Bhen, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense
b. Bhen an offen&e !a& in fact 4u&t /een co11itte, and he has +er&onal
knowlege of fact& indicating that the person to be arrested has committed
itF
6he policemen arrested Eerente only some three &/) hours after Eerente and his
companions had :illed Clace. 6hey saw Clace dead in the hospital and when they
inspected the scene of the crime, they found the instruments of death5 a piece of
wood and a concrete hollow bloc: which the :illers had used to bludgeon him to
death. 6he eye3witness, ,dna ,dwina 4eyes, reported the happening to the
policemen and pinpointed her neighbor, Eerente, as one of the :illers. *ner
t!o&e circu1&tance&. &ince t!e +olice1en !a +er&onal knowlege of t!e
(iolent eat! of Blace an of fact& inicating t!at Gerente an two ot!er&
1>>
!a kille !i1. t!e) coul lawfull) arre&t Gerente wit!out a warrant. If
t!e) !a +o&t+one !i& arre&t until t!e) coul o/tain a warrant. !e woul
!a(e fle t!e law a& !i& two co1+anion& i.
In *1il (&. Ra1o&. "$% SCRA 3"". t!e arre&t of t!e accu&e wit!out a
warrant wa& effecte one A"B a) after !e !a &!ot to eat! two Ca+co1
&olier&. 6he arrest was held lawful by this Court upon the rationale stated by us in
People vs. 0alasugui, %/ Phil. !!1, !!$, thus5
-To !ol t!at no cri1inal can. in an) ca&e. /e arre&te an &earc!e for
t!e e(ience an token& of !i& cri1e wit!out a warrant. woul /e to lea(e
&ociet). to a large e0tent. at t!e 1erc) of t!e &!rewe&t. t!e 1o&t e0+ert.
an t!e 1o&t e+ra(e of cri1inal&. facilitating t!eir e&ca+e in 1an)
in&tance&.-
SEARC? AND SEIM*RE IS @ALID E@EN WIT?O*T A WARRANT W?EN 8ADE
AS AN INCIDENT TO LAW2*L ARREST
6he search conducted on EerenteAs person was li:ewise lawful because it was made
as an incident to a valid arrest. 6his is in accordance with Section 1!, 4ule 1!% of
the 4evised 4ules of Court which provides5
SECTION "6. Search incident to lawful arrest. M ' person lawfull) arre&te 1a)
/e &earc!e for angerou& wea+on& or an)t!ing w!ic! 1a) /e u&e a&
+roof of t!e co11i&&ion of an offen&e. without a search warrant.
T!e fri&k an &earc! of a++ellant=& +er&on u+on !i& arre&t wa& a
+er1i&&i/le +recautionar) 1ea&ure of arre&ting officer& to +rotect
t!e1&el(e&. for t!e +er&on w!o i& a/out to /e arre&te 1a) /e ar1e an
1ig!t attack t!e1 unle&& !e i& fir&t i&ar1e. In 'dams vs. Billiams, >1 @.S.
1>/, cited in 8ustice Isagani '. CruzAs Constitutional +aw, 1##1 ,dition, p. 1"2, it was
ruled that 9the individual being arrested may be fris:ed for concealed weapons that
may be used against the arresting officer and all unlawful articles found in his
person, or within his immediate control may be seized.9
Cu&toial In(e&tigation& ASection "6B
Section 1!.
1. 'ny person under investigation for the commission of an
offense shall have the rig!t to /e infor1e of !i& rig!t to
re1ain &ilent and to have competent and independent
coun&el preferably of his own choice. If the person cannot
affor the services of counsel, he must be provided with one.
6hese rights cannot /e wai(e e-cept in writing and in the
presence of counsel.
!. No torture. force. (iolence. t!reat. inti1iation. or
an) ot!er 1ean& which vitiate the free will shall be used
1>"
against him. Secret detention places, solitary, incommunicado,
or other similar forms of detention are prohibited.
/. An) confe&&ion or a1i&&ion o/taine in (iolation of
this or Section 11 hereof shall be ina1i&&i/le in e(ience
against him.
>. 6he law &!all +ro(ie for +enal an ci(il &anction&
for (iolation& of t!i& &ection as well as compensation to the
rehabilitation of victims of torture or similar practices, and their
families.
2ro1 8irana to Baca1ante
3 6o put the accused on e(ual footing with the State
9in custody9 3 includes e+ri(ation or 1ere re&triction on +!)&ical li/ert)
Cu&toial In(e&tigation R investigation conucte /) law enforcer
immediately after arrest
T!e 2ruit of t!e Poi&onou& Tree Doctrine R all e(ience At!e fruitB eri(e
fro1 an illegal &earc! At!e +oi&onou& treeB 1u&t /e &u++re&&e, whether it
was obtained directly through the illegal search itself, or indirectly using information
obtained in the illegal search
GCut ForH 6est R or taint doctrineF t!e e(ience woul not !a(e co1e to lig!t
/ut for t!e illegal action of t!e +olice
W?EN C*STODIAL IN@ESTIGATION BEGINS'
Re&tricti(e @iew 3 limited to in3custody interrogations as when the accused
has been arrested and brought to the custody of the police for
(uestioning
E0+ane @iew R contemplates two situations5 &1) general in,uir) a& to
ientification, circumstances of a crime without focus on any
particular suspectF and &!) &u&+icion i& focu&e on a
+articular +er&on and ,ue&tion& are a&ke fro1 !i1 to
elicit admissions or information
XX@nder the e-panded view, general in(uiry as to identification, li:e in a police line3
up, is not considered part of Gcustodial investigationH hence the accused may be
identified by a witness in a police line3up even if made not in the presence of
counsel
NOT PART O2 C*STODIAL IN@ESTIGATION'
Police line7u+, or during process of identification
S+ontaneou& &tate1ent not elicite t!roug! ,ue&tioning, but given in an
ordinary manner &spur3of3the3moment statements) R res gestae
1>%
@olunteere &tate1ent&
E0tra4uicial a1i&&ion to the prosecutor or a private person
In(e&tigation 1ae /) a citi9en or +ri(ate &ecurit) officer
8irana Doctrine5 4ights @nder Custodial Investigation
8irana (&. Ari9ona. "J L. E 6 J#;
.ur holding will be spelled out with some specificity in the pages which follow, but,
briefly stated, it is this5 the prosecution may not use statements, whether
e-culpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self3incrimination. B) cu&toial in(e&tigation. we 1ean
,ue&tioning initiate /) law enforce1ent officer& after a +er&on !a& /een
taken into cu&to) or ot!erwi&e e+ri(e of !i& freeo1 of action in an)
&ignificant wa). 's for the procedural safeguards to be employed, unless other
fully effective means are devised to inform accused persons of their right of silence
and to assure a continuous opportunity to e-ercise it, the following measures are
re(uired5 Prior to any (uestioning, the person must be warned that he has the right
to remain silent, that any statement he does ma:e may be used as evidence
against him, and that he has a right to the presence of an attorney, either retained
or appointed. 6he defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, :nowingly and intelligently. If, however, he indicates in
any manner and at any stage of the process that he wishes to consult with an
attorney before spea:ing, there can be no (uestioning. +i:ewise, if the individual is
alone and indicates in any manner that he does not wish to be interrogated, the
police may not (uestion him. 6he mere fact that he may have answered some
(uestions or volunteered some statements on his own does not deprive him of the
right to refrain from answering any further in(uiries until he has consulted with an
attorney and thereafter consents to be (uestioned.
K----------------------------------------------------------------------
---------------------------
L' COA auitor in(e&tigate certain ano1alie& in t!e account& of a
go(ern1ent agenc). ?e ,ue&tione I. a +u/lic e1+lo)ee t!erein. wit!out
/enefit of coun&el. Are IP& &tate1ent& a1i&&i/leN
'5 Pes. ' C.' auditor is not a law enforcer.
L' 8iguel. an A2P 1a4or. arre&te B an ,ue&tione !i1 wit!out /enefit of
coun&el. A1i&&i/leN
'5 Pes. 'n 'FP member is not a law enforcer.
L' ?. a +olice officer. an !u&/an of W. &aw t!e latter c!eating on !i1
wit! !er +ara1our. T!e +ara1our wa& a/le to e&ca+e w!ile W wa&
etaine /) ? an t!en ,ue&tione. Later. ? file a ca&e for aulter)
again&t W an u&e !er &tate1ent a& e(ience. A1i&&i/leN
1>1
'5 Pes. ,ven if D is a police officer, the time when he (uestioned B, his wife, he was
not acting in his official capacity as a police officer but in his personal capacity as
her husband.
L' I. t!e accu&e in a ca&e for ra+e. wa& a&ke to +ro(ie t!e +olice
in(e&tigating tea1 wit! &a1+le& of !i& DNA. ?e i &o wit!out a&&i&tance
of coun&el. A1i&&i/leN
'5 Pes. 6he act of providing samples for identification is a mere mechanical act, not
covered by the right against self3incrimination.
L' If in t!e a/o(e ca&e. I wa& al&o 1ae to &ign /ooking &!eet& an +olice
re+ort&. al&o wit!out coun&el. A1i&&i/leN
'5 o. Dandwriting is not a mere mechanical act.
K----------------------------------------------------------------------
---------------------------
RIG?T TO RE8AIN SILENT
4efers not only to testimonial confessions but also to acts
Cut does not apply to acts that are merely mechanical &does not re(uire use of
intelligence) or to general (uestions
8EC?ANICAL ACTS'
Paraffin test
;' test
,-amination of physical body
Fingerprinting
Ceing as:ed to step on a footprint to compare foot size
NOT 8EC?ANICAL'
Dandwriting
Initials on mar:ed money
Signing of inventory receipts in search warrant &see People vs. Eo)
4eenactment
PEOPLE @S GALIT
3 't the time the person is arrested, it shall be the duty of the arresting officer
to inform him of the reason for the arrrest and he must be shown the warrant
of arrest, if anyF he shall be informed of his constitutional rights to remain
silent and to counsel, and that any statement he might ma:e could be used
against him. 6he person arrested shall have the right to communicate with
his lawyer, a relative, or anyone he chooses by the most e-pedient means 3
by telephone if possible 3 or by letter or messenger. It shall be the
responsibility of the arresting officer to see to it that this is accomplished. o
custodial investigation shall be conducted unless it be in the presence of
counsel engaged by the person arrested, by any person on his behalf, or
appointed by the court upon petition either of the detainee himself or by
anyone on his behalf. 6he right to counsel may be waived but the wiaver
shall not be valid unless made with the assistance of counsel. 'ny statement
1>$
obtained in violation of the procedure herein laid down, whether e-culpatory
or inculpatory, in whole or in part, shall be inadmissible in evidence.9
PEOPLE @S ENDINO
'ccused murdered ;ennis '(uino. Bas later apprehended. 'ccused then later
confessed in 6* Patrol.
?el'
'propos the court a (uo<s admission of accused3appellant<s videotaped confession,
we find such admission proper. 6he interview was recorded on video and it showed
accused3appellant unburdening his guilt willingly, openly and publicly in the
presence of newsmen. Suc! confe&&ion oe& not for1 +art of cu&toial
in(e&tigation a& it wa& not gi(en to +olice officer& /ut to 1eia 1en in an
atte1+t to elicit &)1+at!) an forgi(ene&& fro1 t!e +u/lic. Cesides, if he
had indeed been forced into confessing, he could have easily sought succor from
the newsmen who, in all li:elihood, would have been sympathetic with him. 's the
trial court stated in its ;ecision5
Furthermore, accused, in his T: interview, freely admitted that he had stabbed
/ennis (;uino, and that "dward "ndino had shot him ((;uino). There is no
showin% that the inter!iew of accused was coerced or a%ainst his will.
(ence, there is basis to accept the truth of his statements therein.
Be agree. Dowever, because of the inherent danger in the use of television as a
medium for admitting one<s guilt, and the recurrence of this phenomenon in several
cases, it i& +ruent t!at trial court& are re1ine t!at e0tre1e caution
1u&t /e taken in furt!er a1itting &i1ilar confe&&ion&. For in all probability,
the police, with the connivance of unscrupulous media practitioners, may attempt to
legitimize coerced e-tra7udicial confessions and place them beyond the
e-clusionary rule by having an accused admit an offense on television. Such a
situation would be detrimental to the guaranteed rights of the accused and thus
imperil our criminal 7ustice system.
PEOPLE @S 8A?INAD
'ccused +arry 0ahinay during the custodial investigation and after having been
informed of his constitutional rights with the assistance of 'tty. 4estituto *iernes of
the Public 'ttorney<s .ffice voluntarily gave his statement admitting the
commission of the crime. Said confession of accused +arry 0ahinay given with the
assistance of 'tty. 4estituto *iernes is believed to have been freely and voluntarily
given. 6hat accused did not complain to the proper authorities of any maltreatment
on his person &People vs. delos Santos +3//#$ 0ay !#, 1#$>F 1"2 SC4' /11). De did
not even inform the In(uest Prosecutor when he swore to the truth of his statement
on 8uly $, 1##" that he was forced, coerced or was promised of reward or leniency.
6hat his confession abound with details :nown only to him. 6he Court noted that a
lawyer from the Public 'ttorney<s .ffice, 'tty. 4estituto *iernes and as testified by
said 'tty. *iernes, he informed and e-plained to the accused his constitutional
1>#
rights and was present all throughout the giving of the testimony. 6hat he signed
the statement given by the accused. +awyer from the Public 'ttorney<s .ffice is
e-pected to be watchful and vigilant to notice any irregularity in the manner of the
investigation and the physical conditions of the accused. 6he post mortem findings
shows that the cause of death 'sphy-ia by manual strangulationF 6raumatic Dead
in7ury Contributory substantiate. Consistent with the testimony of the accused that
he pushed the victim and the latter<s head hit the table and the victim lost
consciousness.
'ccused pleaded not guilty but was proven guilty on account of his e-tra7udicial
confessionF
Issue5
Bas the confession valid and admissible in court=
Deld5
Confe&&ion i& !el to /e true a/&ent an) factor& affecting t!e (aliit) of it&
ac,ui&ition
6here being no evidence presented to show that said confession were obtained as a
result of violence, torture, maltreatment, intimidation, threat or promise of reward
or leniency nor that the investigating officer could have been motivated to concoct
the facts narrated in said affidavitF the confession of the accused is held to be true,
correct and freely or voluntarily given.
A++ellantP& efen&e i& !ig!l) i1+ro/a/le5 in t!e wor& of @ice7C!ancellor
@an 2leet of New <er&e)'
G,vidence to be believed must not only proceed from the mouth of a credible
witness, /ut 1u&t /e crei/le in it&elf7 &uc! a& t!e co11on e0+erience an
o/&er(ation of 1ankin can a++ro(e a& +ro/a/le uner t!e circu1&tance&.
Be have no test of the truth of human testimony, e-cept its conformity to our
:nowledge, observation and e-perience. Bhatever is repugnant to these belongs to
the miraculous, and is outside of 7udicial cognizance.H
Proceure. guieline& an utie& w!ic! a law enforce1ent officer 1u&t
o/&er(e at t!e ti1e of 1aking an arre&t an again at an uring t!e ti1e
of t!e cu&toial interrogation in accorance wit! t!e Con&titution.
4uri&+ruence an Re+u/lic Act No. %;3$5
1. 6he person arrested, detained, invited or under custodial investigation must
be infor1e in a language known to an uner&too by him of the reason
for the arrest and he must be shown the warrant of arrest, if anyF ,very other
warnings, information or communication must be in a language :nown to and
understood by said personF
!. De must be warned that he has a rig!t to re1ain &ilent and that any
statement he ma:es may be used as evidence against himF
1"2
/. De must be informed that he has the right to be assisted at all times and
have the presence of an ine+enent an co1+etent law)er, preferably of
his own choiceF
>. De must be informed that if he has no law)er or cannot affor t!e
&er(ice& of a law)er. one will /e +ro(ie for !i1F and that a lawyer may
also be engaged by any person in his behalf, or may be appointed by the court
upon petition of the person arrested or one acting in his behalfF
". 6hat whether or not the person arrested has a lawyer, he must be informed
that no cu&toial in(e&tigation in an) for1 shall be conducted e0ce+t in
t!e +re&ence of !i& coun&el or after a valid waiver has been madeF
%. 6he person arrested must be informed that, at any time, he has the rig!t to
co11unicate or confer /) t!e 1o&t e0+eient 1ean& E tele+!one.
raio. letter or 1e&&enger E wit! !i& law)er &either retained or appointed),
any member of his immediate family, or any medical doctor, priest or minister
chosen by him or by any one from his immediate family or by his counsel, or be
visited byQconfer with duly accredited national or international non3government
organization. It &!all /e t!e re&+on&i/ilit) of t!e officer to en&ure t!at
t!i& i& acco1+li&!e5
1. De must be informed that he has the rig!t to wai(e an) of &ai rig!t&
+ro(ie it i& 1ae (oluntaril). knowingl) an intelligentl) an en&ure
t!at !e uner&too t!e &a1e5
$. In addition, if the person arrested wai(e& !i& rig!t to a law)er, he must be
informed t!at it 1u&t /e one in writing AND in t!e +re&ence of coun&el,
otherwise, he must be warned that the waiver is void even if he insist on his
waiver and chooses to spea:F
#. 6hat the person arrested must be informed that he may indicate in any
manner at an) ti1e or &tage of t!e +roce&& that !e oe& not wi&! to /e
,ue&tione with warning that once he ma:es such indication, the +olice 1a)
not interrogate !i1 if the same had not yet commenced, or the interrogation
must ceased if it has already begunF
12.6he person arrested must be informed that his initial wai(er of !i& rig!t to
re1ain &ilent. the right to counsel or any of his rights oe& not /ar !i1 fro1
in(oking it at an) ti1e uring t!e +roce&&, regardless of whether he may
have answered some (uestions or volunteered some statementsF
11.De must also be informed that an) &tate1ent or e(ience, as the case
may be, o/taine in (iolation of any of the foregoing, whether incul+ator) or
e0cul+ator), in whole or in part, shall be ina1i&&i/le in e(ience.
PEOPLE @S BASAD
1"1
'n accusedAs right to be informed of the right to remain silent and to counsel
9contemplates the tran&1i&&ion of 1eaningful infor1ation rather than 7ust the
ceremonial and perfunctory recitation of an abstract constitutional principle.H
PEOPLE @S BACA8ANTE
Patrolman Salvador Frade7as of the BP; Domicide Station, testified that he was the
one who was present when accused e-ecuted his e-tra7udicial confession. Frade7as
stated that 'tty. Eilbert Uulueta was re(uested to act as counsel for accused during
the custodial investigation. It is to be noted however that Frade7as admitted that
while accused was undergoing investigation and answering the (uestions
propounded to him, 'tty. Uulueta would 9come and go9 and that 'tty. Uulueta was
not at all times within hearing distance of accused but was merely 9within the
premises9. 'tty. Eilbert Uulueta himself admitted that he could not remember
having informed accused of the constitutional presumption of his innocence.
Deld5
T!e ter1 -effecti(e an (igilant coun&el- nece&&aril) an logicall) re,uire&
t!at t!e law)er /e +re&ent an a/le to a(i&e an a&&i&t !i& client fro1
t!e ti1e t!e confe&&ant an&wer& t!e fir&t ,ue&tion a&ke /) t!e
in(e&tigating officer until t!e &igning of t!e e0tra4uicial confe&&ion.
0oreover, the lawyer should ascertain that the confession is made voluntarily and
that the person under investigation fully understands the nature and conse(uence
of his e-tra7udicial confession in relation to his constitutional rights. ' contrary rule
would undoubtedly be antagonistic to the constitutional rights to remain silent, to
counsel and to be presumed innocent.
RIG?T TO INDEPENDENT AND CO8PETENT CO*NSEL
3 'bsolute, even if accused himself is a lawyer
GIndependentH 3 counsel is not hampered with any conflicts of interest
GCompetentH 3 counsel who is vigilant in protecting the rights of accused
'ccused must be appraised of his rights under custodial investigation
.6' C,,5
6he right to counsel attaches upon investigation, that is. w!en t!e
in(e&tigation officer &tart& to a&k ,ue&tion to elicit infor1ation or
confe&&ion or a1i&&ion. In case of waiver of rights, the same must be done
in writing and in the presence of counsel.
A legal officer of a cit) cannot ,ualif) a& Fine+enentH coun&el. 's to
who has burden of proving the voluntariness of the confession and that the
constitutional safeguards have been complied with, the prosecution has the
burden of proof.
If a1i&&ion i& 1ae /efore a +ri(ate +er&on. t!en it i& a1i&&i/le e(en
if one wit!out a&&i&tance of coun&el.
Baiver5
1"!
PEOPLE @S PA8ON
'ccused was charged with murderF he e-ecuted an e-tra7udicial confession which
he later retracted during the trial on the ground that he was not given a counsel of
his own choiceF the trial court upheld the voluntariness of the e-tra7udicial
confessionF
Issue5
Bas the e-tra7udicial confession valid=
Deld5
E0tra4uicial a1i&&ion i& &u&taine a/&ent an) +roof of irregularitie& in
it& +rocure1ent
6he Court upheld the admissibility of his e-tra7udicial Confession. ' confession
constitutes an evidence of high order since it is supported by the strong
presumption that no person of normal mind would deliberately and :nowingly
confess to a crime unless prompted by truth and his conscience. 6his presumption
of spontaneity and voluntariness stands unless the defense proves otherwise. '
confession is admissible until the accused successfully proves that it was given as a
result of violence, intimidation, threat, or promise of reward of leniency. In People
vs. Nui7ano, the Court dismissed the plea that the trial court erred in admitting the
accusedAs allegedly involuntary e-tra7udicial confession, and which held5
Finally, the alleged use of force and intimidation has not been substantiated by
evidence other than the statements of the appellants. 's has been pointed out,
such allegation is another naive attempt of appellants to bac:trac: from their prior
voluntary admission of guilt. . . . .
In the case at bar, Fortunato Pamon had several chances to deny the voluntariness
of his Confession. First, when he and 'tty. 4ubencio +igorio conferredF second, when
he subscribed the Confession before 8udge *icente 'seniero on 0arch !2, 1#$1F and
third, when he was before the investigating officer on 0arch !/, 1#$1. In the last
instance, instead of repudiating his Confession, he reaffirmed it.
W!ere coun&el i& +ro(ie for /) in(e&tigator&. t!e confe&&ion taken in
t!e +re&ence of &uc! coun&el i& ina1i&&i/le e0ce+t w!ere t!ere i&
confor1it) wit! t!e coun&el +ro(ie /) t!e in(e&tigator& an t!e
confe&&ant. t!e latter=& confe&&ion i& con&iere a& (ali an /ining u+on
!i1.
6he evidence presented by the prosecution has ade(uately established that 'tty.
4ubencio +igorio was present when the confession was made and subscribed to. Cut
Fortunato Pamon claimed that 'tty. 4ubencio +igorio was not a counsel of his
choice.
1"/
Be are well aware of the constitutional mandate that the counsel present must not
be 7ust any counsel, but one who has been chosen by the accused. In a recent case,
we affirmed the rule that 9. . . no in7cu&to) in(e&tigation &!all /e conucte
unle&& it /e in t!e +re&ence of coun&el engage /) t!e +er&on arre&te. /)
an) +er&on in !i& /e!alf or a++ointe /) t!e court u+on +etition eit!er of
t!e etainee !i1&elf or /) &o1eone in !i& /e!alf-. 6hus, Be already had
occasion to rule that where counsel is provided for by investigators, the confession
ta:en in the presence of such counsel is inadmissible as evidence because it fails to
satisfy the constitutional guarantee. But t!i& octrine recogni9e& certain
e0ce+tion&. W!ere t!e coun&el !a& /een a++ointe /) t!e in(e&tigator&
wit! t!e confor1it) of t!e confe&&ant. t!e latter=& confe&&ion i&
con&iere a& (ali an /ining u+on !i1. 6he decision in People vs. 'lvarez is
also relevant to the case at bar. Be said therein that -w!ile it 1a) /e t!at a
law)er wa& +ro(ie /) t!e +olice. Al(are9 ne(er &ignifie to !a(e a
law)er of !i& c!oice.- 6hus, the trial courtAs findings that Fortunato Pamon was
assisted by a counsel of his choice is hereby sustained.
Rig!t to Bail
Art. III. Section "3 'll persons, e0ce+t t!o&e c!arge wit! offen&e&
+uni&!a/le /) reclu&ion +er+etua w!en e(ience of guilt
i& &trong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by
law. T!e rig!t to /ail &!all not /e i1+aire e(en w!en t!e
+ri(ilege of t!e writ of !a/ea& cor+u& i& &u&+ene.
,-cessive bail shall not be re(uired.
Rig!t& uring trial
Art. III. Section ";
1. o person shall be held to answer for a criminal offense
wit!out ue +roce&& of law.
!. In all criminal prosecutions, the accused shall be
+re&u1e innocent until t!e contrar) i& +ro(e. and
shall en7oy the rig!t to /e !ear /) !i1&elf and counsel, to
be infor1e of t!e nature an cau&e of t!e accu&ation
against him, to have a &+ee). i1+artial. an +u/lic trial,
to 1eet t!e witne&&e& face to face, and to have
co1+ul&or) +roce&& to &ecure t!e attenance of
witnesses and the +rouction of e(ience in !i& /e!alf.
Dowever, after arraignment, trial 1a) +rocee
notwit!&taning t!e a/&ence of t!e accu&e5 Provided,
that he has been ul) notifie and his failure to appear is
un7ustifiable.
1">
N*NEM @S SANDIGANBADAN ACo C!iong (. Cuaern, the general guarantees of
the Cill of 4ights, included among which are the due process of law and e(ual
protection clauses must 9give way to IaJ specific provisionB
ISS@,5
Presidential ;ecree o. 1>$%, as amended, creating the Sandiganbayan is violative
of the due process, e(ual protection, and e- post facto clauses of the Constitution.
D,+;5
In categorical and e-plicit language, t!e Con&titution +ro(ie for /ut i
not create a &+ecial Court, the Sandiganbayan with 97urisdiction over criminal
and civil cases involving graft and corrupt practices and such other offenses
committed by public officers and employees, including those in government3
owned or controlled corporations, in relation to their office as may be
determined by law.9
6o assure that the general welfare be promoted, which is the end of law, a
regulatory measure may cut into the rights to liberty and property. 6hose
adversely affected may under such circumstances invo:e the e(ual protection
clause only if they can show that the governmental act assailed, far from being
inspired by the attainment of the common weal was prompted by the spirit of
hostility, or at the very least, discrimination that finds no support in reason.H
Classification is thus not ruled out, it being sufficient to (uote from the 6uason
decision anew 9that the law& o+erate e,uall) an unifor1l) on all +er&on&
uner &i1ilar circu1&tance& or t!at all +er&on& 1u&t /e treate in t!e
&a1e 1anner. t!e conition& not /eing ifferent. /ot! in t!e +ri(ilege&
conferre an t!e lia/ilitie& i1+o&e. Favoritism and undue preference
cannot be allowed. For the principle is that e(ual protection and security shall be
given to every person under circumstances which, if not Identical, are analogous.
If law be loo:ed upon in terms of burden or charges, those that fall within a class
should be treated in the same fashion, whatever restrictions cast on some in the
group e(ually binding on the rest.9
In People v. *era, Classification to be valid, 1u&t /e /a&e on &u/&tantial
i&tinction& w!ic! 1ake real ifference&5 it 1u&t /e ger1ane to t!e
+ur+o&e& of t!e law5 it 1u&t not /e li1ite to e0i&ting conition& onl).
an 1u&t a++l) e,uall) to eac! 1e1/er of t!e cla&&.
It follows that those who may thereafter be tried by such court ought to have
been aware a& far /ack a& <anuar) "%. "#%3. w!en t!e +re&ent
Con&titution ca1e into force. t!at a ifferent +roceure for t!e accu&e
t!erein. w!et!er a +ri(ate citi9en a& +etitioner i& or a +u/lic official. i&
not nece&&aril) offen&i(e to t!e e,ual +rotection clau&e of t!e
Con&titution. Petitioner, moreover, cannot be unaware of the ruling of this
Court in Co C!iong (. Cuaerno. a "#;# eci&ion, that the general
guarantee& of t!e Bill of Rig!t&. inclue a1ong w!ic! are t!e ue
+roce&& of law an e,ual +rotection clau&e& 1u&t -gi(e wa) to VaW
&+ecific +ro(i&ion. - in that decision, one reserving to 9Filipino citizens of the
operation of public services or utilities.9 6he scope of such a principle is not to be
constricted. It is certainly broad enough to cover the instant situation.
1""
6he Oay *illegas Oami decision promulgated in 1#12, cited by petitioner,
supplies the most recent and binding pronouncement on the matter&on e- post
facto). 6o (uote from the ponencia of 8ustice 0a:asiar' -An e0 +o&t facto law
i& one w!ic!'
1. ma:es criminal an act done before the passage of the law and which
was innocent when done, and punishes such an actF
!. aggravates a crime, or ma:es it greater than it was, when committedF
/. changes the punishment and inflicts a greater punishment than the
law anne-ed to the crime when committedF
>. alters the legal rules of evidences, and authorizes conviction upon less
or different testimony . than the law re(uired at the time of the
commission to regulate civil rights and remedies only, in effect
imposes penalty or deprivation of a right for something which when
done was lawful, and
". deprives a person accused of a crime of some lawful protection to
which he has become entitled, such as the protection of a former
conviction or ac(uittal, or a proclamation of amnesty.9
8ARL*EM @S CO8ELEC
Please chec:Wtoo many 0ar(uez cases, each doesn<t ma:e any senseW
Rig!t to /e !ear
PEOPLE @S AGBADANI APRE7ARRAIGN8ENT G*IDELINESB
Issue5
Bhether or not, at the time appellant was arraigned, the trial court informed him of
his right to be assisted by an attorney, under section / of 4ule 11! of the 4ules of
Court.
Deld5
Since a++ellant !a& 1i&era/l) faile to &!ow t!at !e wa& not infor1e of
!i& rig!t to coun&el. t!e +re&u1+tion& t!at t!e law !a& /een o/e)e an
official ut) !a& /een regularl) +erfor1e /) t!e trial court &tan&. In
other words, the trial court is presumed to have complied with its four7fol utie&
uner Section JV36W of Rule ""J of t!e Rule& of Court. namely,
1. to inform the accused that he has the right to have his own
counsel before being arraignedF
!. after giving such information, to as: accused whether he
desires the aid of counselF
/. if he so desires to procure the services of counsel, the court
must grant him reasonable time to do soF and
>. if he so desires to have counsel but is unable to employ one,
the court must assign counsel de oficio to defend him.
1"%
It i& &ettle t!at t!e failure of t!e recor to i&clo&e affir1ati(el) t!at t!e
trial 4uge a(i&e t!e accu&e of !i& rig!t to coun&el i& not &ufficient
groun to re(er&e con(iction. The reason being that the trial court must be
presumed to have complied with the procedure prescribed by law for the hearing
and trial of cases, and that such a presumption can only be overcome by an
affirmative showing to the contrary. 6hus it has been held that unless the contrary
appears in the record, or that it is positively proved that the trial court failed to
inform the accused of his right to counsel, it will be presumed that the accused was
informed by the court of such right.
In @nited States v. +abial, in the sense that unless the contrary appears in the
records, it will be presumed that the defendant was informed by the court of his
right to counsel. GXXX
6he cases of People v. ;omenden and People v. Cachero cited by appellant are
inapplicable. In both casis the trial courts there clearly failed to inform the accused
of their right to counsel nor appoint de oficio counsel during the arraignment.
evertheless, we ta:e this opportunity to admonish trial courts to ensure that their
compliance with their pre3arraignment duties to inform the accused of his right to
counsel, to as: him if he desires to have one, and to inform him that, unless he is
allowed to defend himself in person or he has counsel of his choice, a de oficio
counsel will be appointed for him, must appear on record.
6urning to the alleged violation of appellant<s right to the !3day period to prepare
for trial, Section # of 4ule 11% of the 4ules of Court reads5
Sec. #. Ti1e to +re+are for trial. 77 After a +lea of not guilt). t!e
accu&e i& entitle to two A6B a)& to +re+are for trial unle&& t!e court for
goo cau&e grant& !i1 furt!er ti1e.
It 1u&t /e +ointe out t!at t!e rig!t 1u&t /e e0+re&&l) e1ane. Onl)
w!en &o e1ane oe& enial t!ereof con&titute re(er&i/le error an a
groun for new trial. Further, such right may be waived, e-pressly or impliedly.
I>/J In the instant case, appellant did not as: for time to prepare for trial, hence, he
effectively waived such right.
Rig!t to S+ee) Di&+o&ition
Art. III. Section "J. 'll persons shall have the right to a &+ee) i&+o&ition
of their cases before all 7udicial, (uasi37udicial, or administrative
bodies.
Pri(ilege again&t Self7Incri1ination
Art. III. Section "% o person shall be compelled to be a witness against
himself.
BILL O2 ATTAINDER
1"1
Art. III. Section 66 o e- post facto law or bill of attainder shall be enacted.
K----------------------------------------------------------------------
---------------------------
RIG?T TO BE ?EARD
4ight to be present at the trial
'ccused has an absolute right to be personally present during the entire
proceedings from arraignment to sentence, if he so desires
+imited only to trial court proceedings and only to the actual trial therein, not to
appellate proceedings or proceedings subse(uent to the entry of final 7udgment,
loo:ing only to the e-ecution of the sentence
GENERAL R*LE' Accu&e 1a) wai(e !i& rig!t to /e +re&ent uring trial
,KC,P6I.S5 &Presence of 'ccused is 0andatory)
Arraign1ent an +lea E +re&ence of law)er i& al&o ini&+en&a/le
during trial, for identification
during the promulgation of sentence, unless for a light offense wherein the
accused may appear by counsel or a representative
NOTA BENE'
If the 7udgment is one of ac,uittal, the accused nee not /e +re&ent.
If the 7udgment is con(iction /ut for a lig!t offen&e, the accused nee
not /e +re&ent.
If the 7udgment is con(iction an t!e offen&e i& gra(e, the +re&ence of
the accused is 1anator).
If trial in a/&entia and 7udgment is rendered, it will be +ro1ulgate e(en
wit!out +re&ence of accu&e but he will be furnished with copies sent to
his last :nown address.
If a++eal. +re&ence of t!e accu&e i& not nece&&ar). It is the duty of the
appellate court to appoint counsel, whose presence is indispensable.
Rig!t to coun&el
if the accused appears without an attorney, he must be informed by the court
of such right before being arraigned, and must be as:ed if he desires to have
the aid of counsel
if he can<t afford one, a counsel de officio shall be appointed for him
the indispensable aid of counsel continues even at the stage of appeal
1"$
not waivable
the right to be represented by counsel is 'CS.+@6,, but the option of the
accused to hire one of his own choice is +I0I6,;
Rig!t to an i1+artial 4uge
a 7udge who had conducted the preliminary investigation and made a finding of
probable cause is not dis(ualified from trying the case, in the absence of
evidence of partiality
Rig!t of confrontation
'vailable only during trial, not during preliminary investigation
4,'S.5 so defendant may ma:e ob7ection to the witness or so witness may
identify him
Rig!t to cro&&7e0a1ine
if the defense counsel deferred cross3e-amination of the prosecution witness and
then this witness dies, accused cannot anymore as: the witness< direct e-amination
to be e-punged from the records since the denial of the right to confrontation is
through no fault of plaintiff
,KC,P6I.S5
;ying ;eclaration
6rial in absentia 3 4,N@ISI6,S5 A"B accu&e !a& /een arraigne5 A6B accu&e
!a& /een ul) notifie of t!e ate of trial5 A3B failure of t!e accu&e to
a++ear i& un4u&tifie
;epositions 3 witness is dead, insane or otherwise cannot be found, with due
diligence, in the Philippines
Rig!t to co1+ul&or) +roce&&e&
6 CINDS O2 S*BPOENA'
'd testificandum 3 to compel a witness to attend and testify
;uces 6ecum 3 to compel a person having under his control
documents or papers
relevant to the case to bring such items to court during
trial
RIG?T TO BE IN2OR8ED O2 T?E NAT*RE AND CA*SE O2 ACC*SATION
1"#
presence of accused is indispensable during arraignment and promulgation of
7udgment of conviction
after arraignment, only formal amendments to the Information may be granted
by court
not waivable
description, not designation of the offense, controls
all the attending aggravating and (ualifying circumstances must be alleged in
the Information and proved during trialF ,KC,P65 for purposes of proving moral
damages only, then it is allowed to be proved even if not alleged
RIG?T TO SPEEDD. I8PARTIAL AND P*BLIC TRIAL
3 available in every criminal prosecution
GSpeedyH 3 there is no fi-ed criterion in our statues to determine with precision the
time for speedy trial. 's soon as after indictment as the prosecution
can with reasonable diligence prepare for it. It means a trial free from
ve-atious, capricious, and oppressive delays. Cut 7ustice and fairness,
not speed, are the ob7ectives
.6' C,,5 If the accused is ac(uitted on ground of denial of his right to speedy
trial, it is a 7udgment on the merits and therefore, first 7eopardy
attaches.
GImpartialH 3 cold neutrality of an impartial 7udgeF absence of bias or pre7udice
GPublicH 3 open to the free observation of all
3 ,KC,P65 evidence to be adduced at the trial is of such character as to be offensive
to decency and public morals
SECTION "%
Rig!t Again&t Self7Incri1ination
-ec. <=* $o person shall be compelled to be a witness against himself.
'vailable both before or during criminal prosecution
'ccused is competent to testify in his behalf, but he is entitled to the right not to
testify as a witness against himself. De cannot be compelled to incriminate
himselfF that is, to say or do anything that can be used against himself
'ccused can invo:e this right from the beginningF however in case of witness, he
can invo:e this right only when the (uestions start to become incriminating
RATIONALE5
Public policy
1%2
Dumanity
E,,4'+ 4@+,5 T!e accu&e cannot /e co1+elle to te&tif) again&t !i& co7
accu&e uner t!e t!eor) t!at t!e Fact of one i& t!e act of all.H
EICEPTIONS'
If he is discharged as a &tate witne&&
'fter he is con(icte or ac,uitte
Cy trying him &e+aratel) in&tea of 4ointl) with his other co3accused
I@. S*BSTANTI@E RIG?TS *NDER D*E PROCESS
Privilege of Brit of Dabeas Corpus
Section "> 6he privilege of the writ of habeas corpus shall not be suspended
e-cept in cases of invasion or rebellion, when the public safety
re(uires it.
RIG?TS O2 AN ACC*SED
Before Cri1inal Pro&ecution' A/efore arraign1entB
1. 4ight to due process &Sec. 1>&1))
!. Custodial rights &Sec. 1!)
/. 4ight to be informed of his rights
>. 4ight to remain silent
". 4ight to counsel
%. 4ight to bail &Sec. 1/)
1. 4ight to speedy disposition of his case &Sec. 1%)
$. 4ight of free access to the courts
During Cri1inal Pro&ecution' Aafter arraign1ent u+ to +ro1ulgation of
4ug1entB
1. 4ight to presumption of innocence &Sec. 1>&!))
!. 4ight to be heard by himself and counsel &Sec. 1>&!))
/. 4ight to be informed of the nature and cause of accusation against him &Sec.
1>&!))
>. 4ight to have speedy, impartial and public trial &Sec. 1>&!))
". 4ight to confrontation &Sec. 1>&!))
%. 4ight to have compulsory process to secure attendance of witnesses and
production of evidence on his behalf &Sec. 1>&!))
1. 4ight against self3incrimination &Sec. 11)
$. 4ight against double 7eopardy &Sec. !1)
#. #.4ight against e-3post facto law and bill of attainder &Sec. !!)
After Con(iction'
4ight against e-cessive fines and cruel, degrading or inhuman punishment
&Sec. 1#)
1%1
8eno9a (&. C2I. G.R. No. L73>J"67";. <une 6%. "#%3
?a/ea& Cor+u&' W!en it i& a(aila/le
?a/ea& cor+u& coul /e in(oke /) +etitioner if !e were a/le to &!ow t!e
illegalit) of !i& etention. 6here is aptness and accuracy in the characterization
of the writ of habeas corpus as the writ of liberty. 4ightfully it is latitudinarian in
scope. It is wide3ranging and all3embracing in its reach. It can dig deep into the
facts to assure that there be no toleration of illegal restraint. ;etention must be for
a cause recognized by law. T!e writ i1+o&e& on t!e 4uiciar) t!e gra(e
re&+on&i/ilit) of a&certaining w!et!er a e+ri(ation of +!)&ical freeo1 i&
warrante. T!i& it !a& to i&c!arge wit!out lo&& of ti1e. T!e +art) w!o i&
kee+ing a +er&on in cu&to) !a& to +rouce !i1 in court a& &oon a&
+o&&i/le. Bhat is more, he must 7ustify the action ta:en. .nly if it can be
demonstrated that there has been no violation of oneAs right to liberty will he be
absolved from responsibility. @nless there be such a showing, the confinement must
thereby cease.
Re1e) of ?a/ea& Cor+u& not a(aila/le w!en t!ere i& Warrant of Arre&t
6he above formulation of what is settled law finds no application to the present
situation. Petitioner=& e+ri(ation of li/ert) i& in accorance wit! a warrant
of arre&t +ro+erl) i&&ue after a eter1ination /) t!e 4uge in co1+liance
wit! t!e con&titutional +ro(i&ion re,uiring t!e e0a1ination uner oat! or
affir1ation of t!e co1+lainant an t!e witne&&e& +rouce. o allegation to
the contrary may be entertained. It cannot be denied that petitionerAs co3accused,
elso @nal, Dermogenes +umanglas and +eopoldo 6rinidad, had previously come to
this court to challenge the filing of one information where there were three victims.
'ccordingly, this Court, in @nal v. People, re(uired three separate amended
informations. 6here was no (uestion, however, as to the legality of the warrants of
arrest previously issued, not only in the case of the parties in such petition, but
li:ewise of petitioner. Dabeas corpus, under the circumstances, would not therefore
lie.9
Bail. conce+t. rationale
,ven if it be granted that petitioner may not be released on a habeas corpus
proceeding, is he, however, entitled to bail= Precisely that is the remedy by which,
notwithstanding the absence of any flaw in oneAs confinement, provisional liberty
may still be had. Such a remedy, as a matter of fact, was granted him in accordance
with an order of the municipal court of 0ulanay. 6hereafter, however, the bail was
revo:ed by the Court of First Instance in the order now challenged. Such actuation
he would now condemn as a grave abuse of discretion. In the landmar: decision of
Chief 8ustice Concepcion, Peo+le (. ?ernane9. t!e rig!t to /ail wa& rig!tfull)
&tre&&e a& an a&+ect of t!e +rotection accore ini(iual freeo1
w!ic!. in !i& elo,uent language.- i& too /a&ic. too tran&cenental an (ital
in a re+u/lican &tate. like our&. ....- 6o be more matter of fact about it, there is
this e-cerpt from de la Camara v. ,nage -Before con(iction. e(er) +er&on i&
/aila/le e0ce+t if c!arge wit! ca+ital offen&e w!en t!e e(ience of guilt
1%!
i& &trong. Suc! a rig!t flow& fro1 t!e +re&u1+tion of innocence in fa(or of
e(er) accu&e w!o &!oul not /e &u/4ecte to t!e lo&& of freeo1 a&
t!ereafter !e woul /e entitle to ac,uittal. unle&& !i& guilt /e +ro(e
/e)on rea&ona/le ou/t. 6hereby a regime of liberty is honored in the
observance and not in the breach. It is not beyond the realm of probability,
however, that a person charged with a crime, especially so where his defense is
wea:, would 7ust simply ma:e himself scarce and thus frustrate the hearing of his
case. ' bail is intended as a guarantee that such an intent would be thwarted. It is,
in the language of Cooley, a mode short of confinement which would, with
reasonable certainty, insure the attendance of the accused for the subse(uent trial.
or is there anything unreasonable in denying this right to one charged with a
capital offense when evidence of guilt is strong, as the li:elihood is, rather than
await the outcome of the proceeding against him with a death sentence, an ever3
present threat, temptation to flee the 7urisdiction would be too great to be resisted.9
Can /ail /e cancelle wit!out (iolating t!e rig!t to /ailN
6he precise (uestion however, is whether once the provisional liberty has been thus
obtained, it could be terminated by the cancellation of the bail. In the answer filed
on behalf of respondent Court, Solicitor Eeneral ,stelito 0endoza did stress the
absence of authority on the part of special counselor 'ntonio 4. 4obles who was not
authorized to intervene in this case on behalf of the state but did so, his failure to
ob7ect being the basis of the bail granted by the municipal court of 0ulanay,
Nuezon. Such an allegation was denied by petitioner. Be are not called upon to rule
definitely on this aspect as independently thereof, there are two other basic
ob7ections. .ne was that petitioner, when the bail was granted, was still at large.
6he municipal court, therefore, could not have granted bail in accordance with our
ruling in Feliciano v. Pasicolan. 6hus5 9A6he constitutional mandate that all persons
shall before conviction be bailable e-cept those charged with capital offenses when
evidence of guilt is strong, is &u/4ect to t!e li1itation t!at t!e +er&on
a++l)ing for /ail &!oul /e in cu&to) of t!e law. or ot!erwi&e e+ri(e of
!i& li/ert). 6he purpose of bail is to secure oneAs release and it would be
incongruous as to grant bail to one who is free.A9 Secondly, and what is worse, the
prosecution was never given a chance to present its evidence. 6he authoritative
doctrine in People v. San ;iego is thus s(uarely in point5 9Bhether the motion for
bail of a defendant who is in custody for a capital offense be resolved in summary
proceeding or in the course of a regular trial, the prosecution must be given an
opportunity to present, within a reasonable time, all the evidence that it may desire
to introduce before the Court should resolve the motion for bail. If, as in the criminal
case involved in the instant special civil action, the prosecution should be denied
such an opportunity, there would be a violation of procedural due process, and
order of the Court granting bail should be considered void.9
PRES*8PTION O2 INNOCENCE
Curden of proof lies on his accusers to prove him guilty
E,ui+onerance of E(ience AE,ui+oi&e DoctrineB R when preponderance of
evidence is at e(uipoise, court will find for the defendantF w!en t!e &cale &tan
1%/
at an e,ui+oi&e an t!ere i& not!ing in e(ience to incline it eit!er wa).
t!e court &!all rule again&t t!e +art) w!o !a& t!e /uren of +roof
Proof /e)on rea&ona/le ou/t R not to be e(uated with absolute certaintyF
1oral certaint). or t!at egree of +roof w!ic! +rouce& con(iction in an
un+re4uice 1in
Prosecution has Curden of Proof
ACTS W?IC? CANNOT BE CRI8INALIMED
Section "G o law impairing the obligation of contracts shall be passed.
Section 6G o person shall be imprisoned for debt or non3payment of a poll
ta-.
SECTION 66
No E0 Po&t 2acto Law or Bill of Attainer
Sec. !!5 o e- post facto law or bill of attainder shall be enacted.
E0 +o&t facto law R one that +uni&!e& an act w!ic! wa& not +uni&!a/le
w!en co11itteF or aggravates a crime or ma:es it greater
than when committedF or changes the laws on evidence so that
lesser evidence is needed for conviction than when the act was
done
Bill of Attainer R a law which inflict& +uni&!1ent wit!out /enefit of
4uicial trial
ELE8ENTS O2 EI POST 2ACTO LAW'
Penal
4etroactive
;isadvantageous to the accused
0ust ta:e from the accused any right that was regarded, at the time of the
adoption of the constitution as vital for the protection of life and liberty and
which he en7oyed at the time of the commission of the offense charged
against him
ELE8ENTS O2 BILL O2 ATTAINDER'
6here is a law
6he law imposes a penal burden on a specified individual or an easily
ascertainable members of a group
6he penal burden is imposed directly by the law without 7udicial trial
1%>
W?IC? P*NIS?8ENTS CO*LD NOT BE I8POSED
Section 1$
1. o person shall be detained solely by reason of his political beliefs and
aspirations.
6. No in(oluntar) &er(itue in an) for1 &!all e0i&t e0ce+t a& a
+uni&!1ent for a cri1e w!ereof t!e +art) &!all !a(e /een ul)
con(icte.
Section 1#
1. ,-cessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted. either shall death penalty be imposed,
unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it. 'ny death penalty already imposed shall be
reduced to reclusion perpetua.
!. 6he employment of physical, psychological, or degrading
punishment against any prisoner or detainee or the use of substandard
or inade(uate penal facilities under subhuman conditions shall be dealt
with by law.
DO*BLE <EOPARDD
SECTION 6"
Rig!t Again&t Dou/le <eo+ar)
Sec. !15 o person shall be twice put in 7eopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or
ac(uittal under either shall constitute a bar to another prosecution for
the same act.
Dou/le <eo+ar) E two +eril& or anger& of /eing trie an +uni&!e
! OI;S5
". Sa1e Offen&e A2ir&t &entence of Sec. 6"B
REL*ISITES'
First 7eopardy
' valid complaint and information
' court of competent 7urisdiction
'rraignment and valid plea
First 7eopardy has been terminated
Second 7eopardy for the same offense R includes an attempt or frustration of
the same offense or it necessarily includes or is necessarily included in the
other
1%"
G6erminatedH R eit!er /) con(iction. ac,uittal or i&1i&&al u+on t!e 1erit
wit!out con&ent of t!e accu&e
CON@ICTION5 a 7udgment declaring the accused guilty of the offense
charged and imposing upon him the penalty provided by lawF accused may
appeal and this is not double 7eopardy
ACL*ITTAL' a termination of the case based upon the merits of the issueF
prosecution cannot appeal anymore
DIS8ISSAL' a termination of the case other than upon the merits thereofF
first 7eopardy only attaches if dismissal without consent of accused
NOTA BENE'
Consent means approval, ac(uiescence, conformity, agreement, etc. 8ere
&ilence of t!e accu&e &!oul not /e con&true a& con&ent.
,ven if the motion to dismiss was filed by the accused, the i&1i&&al i&
e,ui(alent to ac,uittal if it i& groune on A"B in&ufficienc) of
e(ience Ae1urrer to e(ience after +ro&ecution !a& re&te it&
ca&eB5 A6B enial of t!e rig!t to &+ee) trial
Su+er(ening 2act& R when the second offense was not in e-istence when
the first offense was charged and tried, then another information may be filed
or the present information may be amended &substantial)
6. Act Puni&!e /) a Law an Orinance ASecon &entence of Sec. 6"B
this will only apply if the accused has been either convicted or ac(uitted
if the case was only dismissed not upon the merits, the prosecution may re3
file
A22IR8ATI@E RIG?TS
Section 11 Free access to the courts and (uasi37udicial bodies and ade(uate legal
assistance shall not be denied to any person by reason of poverty.
Section 1!
1. 'ny person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he must be provided
with one. 6hese rights cannot be waived e-cept in writing and in the
presence of counsel.
!. o torture, force, violence, threat, intimidation, or any other means
which vitiate the free will shall be used against him. Secret detention
places, solitary, incommunicado, or other similar forms of detention
are prohibited.
/. 'ny confession or admission obtained in violation of this or Section 11
hereof shall be inadmissible in evidence against him.
1%%
;. T!e law &!all +ro(ie for +enal an ci(il &anction& for
(iolation& of t!i& &ection a& well a& co1+en&ation to t!e
re!a/ilitation of (icti1& of torture or &i1ilar +ractice&. an
t!eir fa1ilie&.
2REEDO8 O2 EIPRESSION ASEC. ;B
Section > o law shall be passed abridging the freedom of speech, of e-pression,
or of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances.
%rior 4estraint, -ubse;uent %unishment
OPBRIEN TEST
' Eovernment regulation is sufficiently 7ustified5
1. If it is wit!in t!e con&titutional +ower of the Eovernment
!. If it furthers an i1+ortant or &u/&tantial Go(ern1ent intere&t
/. If the Eovernmental interest i& unrelate to t!e &u++re&&ion of free
e0+re&&ion
>. If the inciental re&triction in the freedom of e-pression is no greater
t!an i& e&&ential to the furtherance of that interestF
@nder this test, even if a law furthers an important or substantial
governmental interest, it should be invalidated if such governmental interest is
9not unrelated to the ,-pression of free e-pression.9
0oreover, even if the purpose is unrelated to the suppression of free speech,
the law should nevertheless be invalidated if the restriction on freedom of
e-pression is greater than is necessary to achieve the governmental purpose in
(uestion.
SWS @S CO8ELEC
Petitioners brought this action for prohibition to en7oin the Commission on ,lections
from enforcing T".> of 4'. o.#22% &Fair ,lection 'ct), which provides5
Surveys affecting national candidates shall not be published fifteen &1") days before
an election and surveys affecting local candidates shall not be published seven &1)
days be3 fore an election.
Deld5
T".> of 4.'. o. #22% constitutes an unconstitutional abridgment of freedom of
speech, e-pression, and the press.
Sec. >.; fail& to 1eet criterion V3W of t!e O =Brien te&t /ecau&e t!e cau&al
connection of e0+re&&ion to t!e a&&erte go(ern1ental intere&t 1ake&
1%1
&uc! intere&t -not relate to t!e &u++re&&ion of free e0+re&&ion.- Cy
prohibiting the publication of election survey results because of the possibility that
such publication might undermine the integrity of the election, T".> actually
suppresses a whole class of e-pression, while allowing the e-pression of opinion
concerning the same sub7ect matter by newspaper columnists, radio and 6*
commentators, armchair theorists, and other opinion ta:ers. In effect, T".> shows a
bias for a particular sub7ect matter, if not viewpoint, by referring personal opinion to
statistical results. 6he constitutional guarantee of freedom of e-pression means that
9the government has no power to restrict e-pression because of its message, its
ideas, its sub7ect matter, or its content.9
6he inhibition of speech should be upheld only if the e-pression falls within one of
the few unprotected categories dealt with in Chaplins:y v. ew Dampshire,
--WT!e&e inclue t!e lew an o/&cene. t!e +rofane. t!e li/elou&. an t!e
in&ulting or =fig!ting= wor& 7 t!o&e w!ic! /) t!eir (er) utterance inflict
in4ur) or ten to incite an i11eiate /reac! of t!e +eace. ISJuch utterances
are no essential part of any e-position of ideas, and are of such slight social value
as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and moralityW--
6hus, contrary to the claim of the Solicitor Eeneral, the prohibition imposed by T".>
cannot be 7ustified on the ground that it is only for a limited period and is only
incidental. T!e +ro!i/ition 1a) /e for a li1ite ti1e. /ut t!e curtail1ent of
t!e rig!t of e0+re&&ion i& irect. a/&olute. an &u/&tantial. It constitutes a
total suppression of a category of speech and is not made less so because it is only
for a period of fifteen &1") days immediately before a national election and seven
&1) days immediately before a local election. ..
,ven if the governmental interest sought to be promoted is unrelated to the
suppression of speech and the resulting restriction of free e-pression is only
incidental, T".> nonetheless fails to meet criterion I>J of the . ACrien test, namely,
that t!e re&triction /e not greater t!an i& nece&&ar) to furt!er t!e
go(ern1ental intere&t. 's already stated, T".> aims at the prevention of last3
minute pressure on voters, the creation of bandwagon effect, 97un:ing9 of wea: or
9losing9 candidates, and resort to the form of election cheating called 9dagdag3
bawas.9 Praiseworthy as these aims of the regulation might be, they cannot be
attained at the sacrifice of the fundamental right of e-pression, when such aim can
be more narrowly pursued by punishing unlawful acts, rather than speech because
of apprehension that such speech creates the danger of such evils.
6o summarize then, we hold that T".> is invalid because &"B it i1+o&e& a +rior
re&traint on t!e freeo1 of e0+re&&ion. A6B it i& a irect an total
&u++re&&ion of a categor) of e0+re&&ion e(en t!oug! &uc! &u++re&&ion i&
onl) for a li1ite +erio. an A3B t!e go(ern1ental intere&t &oug!t to /e
+ro1ote can /e ac!ie(e /) 1ean& ot!er t!an &u++re&&ion of freeo1 of
e0+re&&ion.
ABS7CBN @S CO8ELEC
1%$
Comelec issued a resolution to restrain 'CS3CC from conducting e-it polls which
according to them might conflict with the official Comelec count, as well as the
unofficial (uic: count of the ational 0ovement for Free ,lections &amfrel). It also
noted that it had not authorized or deputized Petitioner 'CS3CC to underta:e the
e-it survey.
Issue5
Bhether or not the 4espondent Commission acted with grave abuse of discretion
amounting to a lac: or e-cess of 7urisdiction when it approved the issuance of a
restraining order en7oining the petitioner or any Iother groupJ, its agents or
representatives from conducting e-it polls during the 0ay 11 elections.
Deld5
Proceural I&&ue&' 8ootne&& an Pre1aturit)
6he issue is not totally moot. W!ile t!e a&&aile Re&olution referre
&+ecificall) to t!e 8a) "". "##$ election. it& i1+lication& on t!e
+eo+le=& funa1ental freeo1 of e0+re&&ion tran&cen t!e +a&t
election. 6he holding of periodic elections is a basic feature of our democratic
government. Cy its very nature, e-it polling is tied up with elections. 6o set aside
the resolution of the issue now will only postpone a tas: that could well crop up
again in future elections.
6his Court, however, has ruled in the past that this procedural re(uirement may
be glossed over to prevent a miscarriage of 7ustice, when the issue involves the
+rinci+le of &ocial 4u&tice or t!e +rotection of la/or, when the eci&ion or
re&olution &oug!t to /e &et a&ie i& a nullit), or when the nee for relief
i& e0tre1el) urgent and certiorari is the onl) ae,uate an &+ee) remedy
available.
8ain I&&ue' @aliit) of Conucting E0it Poll&
6he freedom of e-pression is a fundamental principle of our democratic
government. It 9is a ApreferredA right and, therefore, stands on a higher level than
substantive economic or other liberties. 6his must be so because the lessons of
history, both political and legal, illustrate that freeo1 of t!oug!t an &+eec! i&
t!e ini&+en&a/le conition of nearl) e(er) ot!er for1 of freeo1.-
In Ca/an&ag (. 2ernane9 the Court laid down two theoretical tests in
determining the validity of restrictions to such freedoms, as follows5
Clear an +re&ent anger rule means that the evil conse(uence of the
comment or utterance must be Fe0tre1el) &eriou& an t!e egree of
i11inence e0tre1el) !ig!H before the utterance can be punished. T!e
anger to /e guare again&t i& t!e =&u/&tanti(e e(il= &oug!t to /e
+re(ente5
Dangerou& tenenc) rule means FIf t!e wor& uttere create a
angerou& tenenc) w!ic! t!e &tate !a& a rig!t to +re(ent. t!en &uc!
1%#
wor& are +uni&!a/le.H It is not nece&&ar) t!at &o1e efinite or
i11eiate act& of force. (iolence. or unlawfulne&& /e a(ocate. It i&
&ufficient t!at &uc! act& /e a(ocate in general ter1&. or is it
necessary that the language used be reasonably calculated to incite persons to
acts of force, violence, or unlawfulness. It i& &ufficient if t!e natural
tenenc) an +ro/a/le effect of t!e utterance /e to /ring a/out t!e
&u/&tanti(e e(il w!ic! t!e legi&lati(e /o) &eek& to +re(ent.-
@n(uestionably, this Court adheres to the 9clear and present danger9 test. In
setting the standard or test for the 9clear and present danger9 doctrine, the
Court echoed the words of 7ustice Dolmes5 -T!e ,ue&tion in e(er) ca&e i&
w!et!er t!e wor& u&e are u&e in &uc! circu1&tance& an are of &uc!
a nature a& to create a clear an +re&ent anger t!at t!e) will /ring
a/out t!e &u/&tanti(e e(il& t!at Congre&& !a& a rig!t to +re(ent. It is a
(uestion of pro-imity and degree.9
' limitation on the freedom of e-pression may be 7ustified only by a danger of
such substantive character that the state has a right to prevent. *nlike in t!e
-angerou& tenenc)- octrine. t!e anger 1u&t not onl) /e clear /ut
al&o +re&ent. -Pre&ent- refer& to t!e ti1e ele1ent5 t!e anger 1u&t not
onl) /e +ro/a/le /ut (er) likel) to /e ine(ita/le. 6he evil sought to be
avoided must be so substantive as to 7ustify a clamp over oneAs mouth or a
restraint of a writing instrument.
6he freedoms of speech and of the press should all the more be upheld when
what is sought to be curtailed is the dissemination of information meant to add
meaning to the e(ually vital right of suffrage. Be cannot support any ruling or
order 9the effect of which would be to nullify so vital a constitutional right as free
speech.9 W!en face wit! /orerline &ituation& in w!ic! t!e freeo1 of
a caniate or a +art) to &+eak or t!e freeo1 of t!e electorate to
know i& in(oke again&t action& allegel) 1ae to a&&ure clean an
free election&. t!i& Court &!all lean in fa(or of freeo1. For in the
ultimate analysis, the freedom of the citizen and the StateAs power to regulate
should not be antagonistic. 6here can be no free and honest elections if, in the
efforts to maintain them, the freedom to spea: and the right to :now are unduly
curtailed.
6he balancing of interest test re(uires a court to ta:e conscious and detailed
consideration of the interplay of interests observable in a given situation or
types of situations. It is here where the court has to weigh the individual rights
as against the interest of the public and more often than not, the court has to
uphold the interest of the public.
On e0it +oll& +roucing a clear an +re&ent anger or !a& a angerou&
tenenc)
Such arguments are purely speculative and clearly untenable. First, by the very
nature of a survey, the interviewees or participants are selected at random, so that
the results will as much as possible be representative or reflective of the general
sentiment or view of the community or group polled. Second, the survey result is
not meant to replace or be at par with the official Comelec count. It consists merely
of the opinion of the polling group as to who the electorate in general has probably
voted for, based on the limited data gathered from polled individuals. 2inall). not
at &take !ere are t!e crei/ilit) an t!e integrit) of t!e election&. w!ic!
112
are e0erci&e& t!at are &e+arate an ine+enent fro1 t!e e0it +oll&. T!e
!oling an t!e re+orting of t!e re&ult& of e0it +oll& cannot uner1ine
t!o&e of t!e election&. &ince t!e for1er i& onl) +art of t!e latter. If at all,
the outcome of one can only be indicative of the other.
@iolation of Ballot Secrec)
6he contention of public respondent that e-it polls indirectly transgress the sanctity
and the secrecy of the ballot is off3tangent to the real issue. Petitioner does not
see: access to the ballots cast by the voters. 6he ballot system of voting is not at
issue here.
6he reason behind the principle of ballot secrecy is to avoid vote buying through
voter identification. 6hus, voters are prohibited from e-hibiting the contents of their
official ballots to other persons, from ma:ing copies thereof, or from putting
distinguishing mar:s thereon so as to be identified. 'lso proscribed is finding out
the contents of the ballots cast by particular voters or disclosing those of disabled
or illiterate voters who have been assisted. Clearly, w!at i& for/ien i& t!e
a&&ociation of (oter& wit! t!eir re&+ecti(e (ote&. for t!e +ur+o&e of
a&&uring t!at t!e (ote& !a(e /een ca&t in accorance wit! t!e in&truction&
of a t!ir +art). 6his result cannot, however, be achieved merely through the
votersA verbal and confidential disclosure to a pollster of whom they have voted for.
In e0it +oll&. t!e content& of t!e official /allot are not actuall) e0+o&e.
2urt!er1ore. t!e re(elation of w!o1 an elector !a& (ote for i& not
co1+ul&or). /ut (oluntar). *oters may also choose not to reveal their identities.
Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so
as to minimize or suppress incidental problems in the conduct of e-it polls, without
transgressing the fundamental rights of our people.
.6' C,,5
C.6,6 C'S,; 4,S64IC6I.S '4, I0P.S,; C,C'@S, .F 6D, C.6,6 .F 6D,
SP,,CD '; '4, 6D,4,F.4,, S@C8,C6 6. 6D, C+,'4 '; P4,S,6 ;'E,4
6,S6F
C.6,6 ,@64'+ 4,S64IC6I.S '4, 6D.S, BDICD P4.DICI6 6D, S'+, .4
;.'6I. .F P4I6 SP'C, '; 'I4 6I0, 6. P.+I6IC'+ C';I;'6,S ;@4IE 6D,
C'0P'IE P,4I.;, '; '4, .6 C.C,4,; BI6D 6D, C.6,6 .F 6D,
SP,,CD.
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
IIIIIIIIIIIIIIIIIIIIII
OBSCENITD
8ILLER @S CALI2ORNIA
111
0iller operated a mail order porno. In a campaign for e-pansion, he mass3mailed
brochure to which one was sent to a restaurant where the manager opened such
mail together with his mother. 6hus the proceedingsF 6he prosecution contends that
he committed misdemeanorF
Issue5
Bhat are the tests to determine obscenity=
Deld5
@nder common law and in an 1$%$ case of 4egina vs Dic:lin, obscenity is
that which ten& to -e+ra(e an corru+t t!o&e w!o&e 1in& are o+en to
&uc! i11oral influence&- an coul /e /anne on t!at /a&i&.
In 4oth vs @nited States, 1#"1, the court held that obscenity is not one of
those protected by the First 'mendmentF
In 0emoirs v. 0assachusetts, &1#%%), the Court veered sharply away from the
4oth concept and, with only three 8ustices in the plurality opinion, articulated a
new test of obscenity. 6he plurality held that under the 4oth definition5 9as
elaborated in subse(uent cases, three elements must coalesce5 it 1u&t /e
e&ta/li&!e t!at AaB t!e o1inant t!e1e of t!e 1aterial taken a& a
w!ole a++eal& to a +rurient intere&t in &e05 A/B t!e 1aterial i& +atentl)
offen&i(e /ecau&e it affront& conte1+orar) co11unit) &tanar&
relating to t!e e&cri+tion or re+re&entation of &e0ual 1atter&5 an AcB
t!e 1aterial i& utterl)wit!out reee1ing &ocial (alue.-
Bhile 4oth presumed 9obscenity9 to be 9utterly without redeeming social
importance,9 0emoirs re(uired that to prove obscenity it must be affirmatively
established that the material is 9utterly without redeeming social value.9
A+art fro1 t!e initial for1ulation in t!e Rot! ca&e. no 1a4orit) of
t!e Court !a& at an) gi(en ti1e /een a/le to agree on a &tanar to
eter1ine w!at con&titute& o/&cene. +ornogra+!ic 1aterial &u/4ect to
regulation uner t!e State&= +olice +ower.
6he basic guidelines for the trier of fact must be5
a. w!et!er -t!e a(erage +er&on. a++l)ing conte1+orar) co11unit)
&tanar&- woul fin t!at t!e work. taken a& a w!ole. a++eal& to
t!e +rurient intere&t.
/. w!et!er t!e work e+ict& or e&cri/e&. in a +atentl) offen&i(e wa).
&e0ual conuct &+ecificall) efine /) t!e a++lica/le &tate law5 an
c. w!et!er t!e work. taken a& a w!ole. lack& &eriou& literar). arti&tic.
+olitical. or &cientific (alue.
Be do not adopt as a constitutional standard the 9utterly without redeeming
social value9 test of 0emoirs v. 0assachusettsF that concept has never
commanded the adherence of more than three 8ustices at one time. If a &tate
law t!at regulate& o/&cene 1aterial i& t!u& li1ite. a& written or
con&true. t!e 2ir&t A1en1ent (alue& a++lica/le to t!e State&
t!roug! t!e 2ourteent! A1en1ent are ae,uatel) +rotecte /) t!e
ulti1ate +ower of a++ellate court& to conuct an ine+enent re(iew of
con&titutional clai1& w!en nece&&ar).
11!
GONMALES @S CALAW7CATIGBAC
6he film Oapit sa Patalim was classified as for adults only. Petitioner contends that
such classification was without basis since it is e-ercised as impermissible restraint
of artistic e-pression. 6he film is an integral whole and all its portions, including
those to which the Coard now offers belated ob7ection, are essential for the integrity
of the film.
Issue5
Is the classification valid=
Deld5
It is the opinion of this Court, therefore, that to avoid an unconstitutional taint on
its creation, t!e +ower of re&+onent Boar i& li1ite to t!e
cla&&ification of fil1&. It can. to &afeguar ot!er con&titutional
o/4ection&. eter1ine w!at 1otion +icture& are for general +atronage
an w!at 1a) re,uire eit!er +arental guiance or /e li1ite to ault&
onl). 6hat is to abide by the principle that freedom of e-pression is the rule and
restrictions, the e-emption.
6he test, to repeat, to determine whether freedom of e-pression may be limited
is the clear and present danger of an evil of a substantive character that the
State has a right to prevent. Suc! anger 1u&t not onl) /e clear /ut al&o
+re&ent. T!ere &!oul /e no ou/t t!at w!at i& feare 1a) /e trace to
t!e e0+re&&ion co1+laine of.
6his Court concludes then that there was an abuse of discretion. onetheless,
there are not enough votes to maintain that such an abuse can be considered
grave.
'll that remains to be said is that the ruling is to be limited to the concept of
obscenity applicable to motion pictures. It is the consensus of this Court that
where television is concerned5 a less liberal approach calls for observance. 6his
is so because unli:e motion pictures where the patrons have to pay their way,
television reaches every home where there is a set. Children then will li:ely be
among the avid viewers of the programs therein shown. It cannot /e enie
t!oug! t!at t!e State a& +aren& +atriae i& calle u+on to 1anife&t an
attitue of caring for t!e welfare of t!e )oung.
Nota /ene'
6he power of the board is limited only to classification and not to the issuance or
denial of permit because that is a previous restraint tantamount to censorship.
2REEDO8 O2 ASSE8BLD
ACALIBRATED PRE7E8PTI@E RESPONSEB
C8P @S ER8ITA. GR NO. "J#$3$
11/
Petitioners argue that Catas Pambansa o. $$2 is clearly a violation of the
Constitution and the International Covenant on Civil and Political 4ights and other
human rights treaties of which the Philippines is a signatory. 6hey argue that C.P.
o. $$2 re(uires a permit before one can stage a public assembly regardless of the
presence or absence of a clear and present danger. It also curtails the choice of
venue and is thus repugnant to the freedom of e-pression clause as the time and
place of a public assembly form part of the message for which the e-pression is
sought. Furthermore, it is not content3neutral as it does not apply to mass actions
in support of the government. 'lso, the phrase Gma-imum toleranceH shows that
the law applies to assemblies against the government because they are being
tolerated. Furthermore, the law delegates powers to the 0ayor without providing
clear standards. Finally, petitioners C8*. et al.. argue that the Constitution sets no
limits on the right to assembly and therefore C.P. o. $$2 cannot put the prior
re(uirement of securing a permit. 'nd even assuming that the legislature can set
limits to this right, the limits provided are unreasonable5 First, allowing the 0ayor
to deny the permit on clear and convincing evidence of a clear and present danger
is too comprehensive. Second, the five3day re(uirement to apply for a permit is too
long as certain events re(uire instant public assembly, otherwise interest on the
issue would possibly wane.
Deld5
T!e rig!t of +eaceful a&&e1/l) en4o)& +ri1ac) in t!e !ierarc!) of rig!t&.
6he first point to mar: is that the right to peaceably assemble and petition for
redress of grievances is, together with freedom of speech, of e-pression, and of the
press, a right that en7oys primacy in the realm of constitutional protection. For
these rights constitute the very basis of a functional democratic polity, without
which all the other rights would be meaningless and unprotected. Again. in
"rimicias !. )u%oso. t!e Court likewi&e &u&taine t!e +ri1ac) of freeo1
of &+eec! an to a&&e1/l) an +etition o(er co1fort an con(enience in
t!e u&e of &treet& an +ark&.
Rig!t of +eacea/le a&&e1/l) !owe(er. i& not a/&olute
In %rimicias, this Court said5 6he right to freedom of speech, and to peacefully
assemble and petition the government for redress of grievances, are fundamental
personal rights of the people recognized and guaranteed by the constitutions of
democratic countries. But it i& a &ettle +rinci+le growing out of t!e nature
of well7orere ci(il &ocietie& t!at t!e e0erci&e of t!o&e rig!t& i& not
a/&olute for it 1a) /e &o regulate t!at it &!all not /e in4uriou& to t!e
e,ual en4o)1ent of ot!er& !a(ing e,ual rig!t&. nor in4uriou& to t!e rig!t&
of t!e co11unit) or &ociet). 6he power to regulate the e-ercise of such and
other constitutional rights is termed the sovereign Gpolice power,H which is the
power to prescribe regulations, to promote the health, morals, peace, education,
good order or safety, and general welfare of the people. 6his sovereign police
11>
power is e-ercised by the government through its legislative branch by the
enactment of laws regulating those and other constitutional and civil rights, an it
1a) /e elegate to +olitical &u/i(i&ion&. &uc! a& town&. 1unici+alitie&
an citie& /) aut!ori9ing t!eir legi&lati(e /oie& calle 1unici+al an cit)
council& enact orinance& for +ur+o&e.
It is very clear, therefore, that B.P. No. $$G i& not an a/&olute /an of +u/lic
a&&e1/lie& /ut a re&triction t!at &i1+l) regulate& t!e ti1e. +lace an
1anner of t!e a&&e1/lie&. 6his was adverted to in 'sme>a v. Comelec, where
the Court referred to it as a Fcontent7neutralH regulation of t!e ti1e. +lace.
an 1anner of !oling +u/lic a&&e1/lie&.
' fair and impartial reading of C.P. o. $$2 thus readily shows that it refers to all
:inds of public assemblies that would use public places. 6he reference to Glawful
causeH does not ma:e it content3based /ecau&e a&&e1/lie& reall) !a(e to /e
for lawful cau&e&. ot!erwi&e t!e) woul not /e F+eacea/leH an entitle
to +rotection. either are the words Fo+inion.H F+rote&tingH an
FinfluencingH in t!e efinition of +u/lic a&&e1/l) content /a&e. &ince
t!e) can refer to an) &u/4ect. 6he words Gpetitioning the government for
redress of grievancesH come from the wording of the Constitution, so its use cannot
be avoided. Finally, ma-imum tolerance is for the protection and benefit of all
rallyists and is independent of the content of the e-pressions in the rally.
Furthermore, the +er1it can onl) /e enie on t!e groun of clear an
+re&ent anger to +u/lic orer. +u/lic &afet). +u/lic con(enience. +u/lic
1oral& or +u/lic !ealt!. T!i& i& a recogni9e e0ce+tion to t!e e0erci&e of
t!e rig!t e(en uner t!e *ni(er&al Declaration of ?u1an Rig!t& an t!e
International Co(enant on Ci(il an Political Rig!t&.
Not e(er) e0+re&&ion of o+inion i& a +u/lic a&&e1/l). 6he law refers to Grally,
demonstration, march, parade, procession or any other form of mass or concerted
action held in a public place.H So it oe& not co(er an) an all kin& of
gat!ering&. either is the law overbroad. It regulate& t!e e0erci&e of t!e
rig!t to +eaceful a&&e1/l) an +etition onl) to t!e e0tent neee to a(oi
a clear an +re&ent anger of t!e &u/&tanti(e e(il& Congress has the right to
prevent. 6here is, li:ewise, no prior restraint, &ince t!e content of t!e &+eec! i&
not rele(ant to t!e regulation.
2reeo1 Park& allow a(enue& for free &+eec! A!owe(er. onl) a few
e0i&tingB
Considering that the e-istence of such freedom par:s is an essential part of the
law<s system of regulation of the people<s e-ercise of their right to peacefully
assemble and petition, the Court is constrained to rule that after thirty &/2) days
from the finality of this ;ecision, no +rior +er1it 1a) /e re,uire for t!e
e0erci&e of &uc! rig!t in an) +u/lic +ark or +la9a of a cit) or 1unici+alit)
until t!at cit) or 1unici+alit) &!all !a(e co1+lie wit! Section "> of t!e
law. For without such alternative forum, to deny the permit would in effect be to
deny the right. 'dvance notices should, however, be given to the authorities to
ensure proper coordination and orderly proceedings.
11"
8a0i1u1 Tolerance. efinition
G0a-imum toleranceH means the highest degree of restraint that the military,
police and other peace :eeping authorities shall observe during a public
assembly or in the dispersal of the same.H
Furthermore, there is need to address the situation adverted to by petitioners
where mayors do not act on applications for a permit and when the police demand a
permit and the rallyists could not produce one, the rally is immediately dispersed.
In &uc! a &ituation. a& a nece&&ar) con&e,uence an +art of 1a0i1u1
tolerance. rall)i&t& w!o can &!ow t!e +olice an a++lication ul) file on a
gi(en ate can. after two a)& fro1 &ai ate. rall) in accorance wit!
t!eir a++lication wit!out t!e nee to &!ow a +er1it. t!e grant of t!e
+er1it /eing t!en +re&u1e uner t!e law. and it will be the burden of the
authorities to show that there has been a denial of the application, in which case
the rally may be peacefully dispersed following the procedure of ma-imum
tolerance prescribed by the law.
For this reason, the so3called cali/rate +ree1+ti(e re&+on&e +olic) !a& no
+lace in our legal fir1a1ent an 1u&t /e &truck own a& a arkne&& t!at
&!rou& freeo1. It merely confuses our people and is used by some police
agents to 7ustify abuses. .n the other hand, B.P. No. $$G cannot /e cone1ne
a& uncon&titutional5 it oe& not curtail or unul) re&trict freeo1&5 it
1erel) regulate& t!e u&e of +u/lic +lace& a& to t!e ti1e. +lace an 1anner
of a&&e1/lie&. Far from being insidious, F1a0i1u1 toleranceH i& for t!e
/enefit of rall)i&t&. not t!e go(ern1ent. 6he delegation to the mayors of the
power to issue rally GpermitsH is valid because it is sub7ect to the constitutionally3
sound Gclear and present dangerH standard.
In this ;ecision, the Court goes even one step further in safeguarding liberty by
gi(ing local go(ern1ent& a ealine of 3G a)& wit!in w!ic! to e&ignate
&+ecific freeo1 +ark& a& +ro(ie uner B.P. No. $$G. If. after t!at
+erio. no &uc! +ark& are &o ientifie in accorance wit! Section "> of
t!e law. all +u/lic +ark& an +la9a& of t!e 1unici+alit) or cit) concerne
&!all in effect /e ee1e freeo1 +ark&F no prior permit of whatever :ind shall
be re(uired to hold an assembly therein. 6he only re(uirement will be written
notices to the police and the mayor<s office to allow proper coordination and orderly
activities.
@I. 2REEDO8 O2 RELIGION
Art. III. Section > No law &!all /e 1ae re&+ecting an e&ta/li&!1ent of
religion. or +ro!i/iting t!e free e0erci&e t!ereof. 6he free
e-ercise and en7oyment of religious profession and worship,
without discrimination or preference, shall forever be allowed.
o religious test shall be re(uired for the e-ercise of civil or
political rights.
11%
EBRALINAG @S S*PERINTENDENT Afreeo1 to /elie(e an act on oneP&
/eliefB
Facts5
6wo special civil actions for certiorari, 0andamus and Prohibition were filed and
consolidated for raising same issue. Petitioners allege that the public respondents
acted without or in e-cess of their 7urisdiction and with grave abuse of discretion.
4espondents ordered e-pulsion of %$ DS and ES students of Cantayan,
Pinamunga7an, Caracar, 6aburan and 'sturias in Cebu. Public school authorities
e-pelled these students for refusing to salute the flag, sing the national anthem and
recite the GPanatang 0a:abayanH re(uired by 4'1!%". T!e) are <e!o(a!P&
Witne&&e& /elie(ing t!at /) oing t!e&e are religiou& wor&!i+Oe(otion
akin to iolatr) again&t t!eir teac!ing&. T!e) conten t!at to co1+el
tran&cen& con&titutional li1it& an in(ae& +rotection again&t official
control an religiou& freeo1. 6he respondents relied on the precedence of
Eerona et al v. Secretary of ,ducation. Eerona doctrine provides that we are a
system of separation of the church and state and the flag is devoid of religious
significance and it doesn<t involve any religious ceremony. 6he freedom of religious
belief guaranteed by the Constitution does not mean e-ception from non3
discriminatory laws li:e the saluting of flag and singing national anthem. 6his
e-emption disrupts school discipline and demoralizes the teachings of civic
consciousness and duties of citizenship.
Issue5 Bhether or ot religious freedom has been violated.
Deld5
4eligious freedom is a fundamental right of highest priority. T!e 6 fol a&+ect of
rig!t to religiou& wor&!i+ i&' ".B 2reeo1 to /elie(e w!ic! i& an a/&olute
act wit!in t!e real1 of t!oug!t. 6.B 2reeo1 to act on oneP& /elief
regulate an tran&late to e0ternal act&. 6he onl) li1itation to religiou&
freeo1 i& t!e e0i&tence of gra(e an +re&ent anger to +u/lic &afet).
1oral&. !ealt! an intere&t& w!ere State !a& rig!t to +re(ent. 6he
e-pulsion of the petitioners from the school is not 7ustified.
6he /2 yr old previous E,4.' decision of e-pelling and dismissing students and
teachers who refuse to obey 4'1!%" is violates e-ercise of freedom of speech and
religious profession and worship. <e!o(a!P& Witne&&e& 1a) /e e0e1+te fro1
o/&er(ing t!e flag cere1on) /ut t!i& rig!t oe& not gi(e t!e1 t!e rig!t to
i&ru+t &uc! cere1onie&. In t!e ca&e at /ar. t!e Stuent& e0+elle were
onl) &taning ,uietl) uring cere1onie&. Cy observing the ceremonies (uietly,
it doesn<t present any danger so evil and imminent to 7ustify their e-pulsion. Bhat
the petitioner<s re(uest is e-emption from flag ceremonies and not e-clusion from
public schools. T!e e0+ul&ion of t!e &tuent& /) rea&on of t!eir religiou&
/elief& i& al&o a (iolation of a citi9enP& rig!t to free eucation. 6he non3
observance of the flag ceremony does not totally constitute ignorance of patriotism
and civic consciousness. +ove for country and admiration for national heroes, civic
111
consciousness and form of government are part of the school curricula. 6herefore,
e-pulsion due to religious beliefs is un7ustified.
Petition for Certiorari and Prohibition is E4'6,;. ,-pulsion is '@++,;.
@II. NON7I8PAIR8ENT CLA*SE
Art. III. Section "G o law impairing the obligation of contracts shall be
passed.
@III. LIBERTD O2 ABODE AND TRA@EL
Art. III. Section J 6he li/ert) of a/oe an of c!anging t!e &a1e within the
limits prescribed by law &!all not /e i1+aire e0ce+t u+on
lawful orer of t!e court. either shall the rig!t to tra(el be
impaired e0ce+t in t!e intere&t of national &ecurit). +u/lic
&afet). or +u/lic !ealt!. a& 1a) /e +ro(ie /) law.
I00000000000000000000000000000000000000000000000000000000000
0000000000000000000000000
P*BLIC INTERNATIONAL LAW
T!e Se(en A%B Princi+le& of International Law Concerning 2rienl)
Relation& an Coo+eration A1ong State& in Accorance wit! t!e
C!arter of t!e *nite Nation&
6he @nited ationAs 9;eclaration on the Principles of International +aw
Concerning Friendly 4elations and Cooperation 'mong States in 'ccordance
with the Charter of the @nited ations9, adopted by the @ Eeneral
'ssembly, thru 4esolution o. !%!" &KK*) on .ctober !>, 1#12, after ten &12)
years of wor: and study, contain the following seven &1) basic principles of
international law5
1. 6he principle that states &!all refrain in t!eir international
relation& fro1 t!e t!reat or u&e of force again&t t!e territorial
11$
integrit) or +olitical ine+enence of an) &tate. or in any other manner
inconsistent with the purposes of the @nited ationsF
!. 6he +rinci+le t!at &tate& &!all &ettle t!eir international
i&+ute& /) +eaceful 1ean& in such a manner that international peace
and security and 7ustice are not endangeredF
/. 6he duty not to inter(ene in 1atter& wit!in t!e o1e&tic
4uri&iction of an) &tate. in accordance with the CharterF
>. 6he duty of states to coo+erate wit! one anot!er in accorance
wit! t!e C!arter
". 6he principle of e,ual rig!t& an &elf7eter1ination of +eo+le&5
%. 6he principle of &o(ereign e,ualit) of &tate&F and
1. 6he principle that states &!all fulfill in goo fait! t!e o/ligation
a&&u1e /) t!e1 in accorance wit! t!e C!arter. &cf. fifth &"th)
Introductory Clauses of the 9;eclaration9 in 0erlin 0. 0agallona, #%).
W?AT IS INTERNATIONAL LAWN
It is a body of rules and principles of action which are binding upon civilized
states in their relations to one another.
6he law which defines the conduct of states and of international
organizations and with their relations inter se, as well as with some of their
relations with persons, whether natural or 7uridicalF
So1e t!eorie& a/out international law
Command theory
+aw consists of commands originating from a sovereign and bac:ed up by
threats of sanction if disobeyed
Consensual theory
International law derives its binding force from the consent of states. 6reaties
are an e-pression of consentF li:ewise, custom, as voluntary adherence to
common practices, are seen as e-pression of consentF
atural law theory
+aw is derived by reason from the nature of man. 0ost customary laws are
derivations from natural lawsF
11#
ote5
International law is law because it is seen as such by states and other
sub7ects of international lawF
Public international law R governs the relations between and among states as
well as international organizations and individual personsF
Private international law R domestic law which deals with cases where foreign
law intrudes in the domestic sphere, where there are (uestions of the
applicability of foreign law or the role of foreign courtsF
SO*RCES O2 INTERNATIONAL LAW
a. international conventions, whether general or particular, establishing
rules e-pressly recognized by contesting states
b. international custom, as evidence of a general practice accepted as
law
c. the general principles of law recognized by civilized nations
d. sub7ect to the provisions of 'rt. "# G the decision of the Court has no
binding force e-cept between the parties and in respect to that particular
case.H 8udicial decisions and the teachings of the most highly (ualified
publicists of the various nations, as subsidiary means for the determination of
rules of law
T!e +rinci+le of &o(ereign e,ualit) of &tate&.
'll States en7oy sovereign e(uality. 6hey have e(ual rights and duties and are
e(ual members of the international community, notwithstanding differences
of an economic, social, political or other nature.
In particular, sovereign e(uality includes the following elements5
a. States are 4uriicall) e,ualF
b. ,ach state en4o)& t!e rig!t& in!erent in full &o(ereignt)F
c. ,ach state has the ut) to re&+ect t!e +er&onalit) of other statesF
d. 6he territorial integrit) an +olitical ine+enence of the state
are in(iola/le5
e. ,ach state has the rig!t freel) to c!oo&e an e(elo+ it&
+olitical. &ocial. econo1ic an cultural &)&te1&5
f. ,ach state has the ut) to co1+l) full) an in goo fait! wit! it&
international obligations and to live in peace with other states.9 &cf.
1$2
Principle o. % of the main body of the 9;eclaration9 in 0agallona,
12>).
T!e Su/4ect& an O/4ect& of International Law
A &u/4ect of international law i& an entit) wit! ca+acit) of +o&&e&&ing
international rig!t& an utie& an of /ringing international clai1&. 6his
entity is said to be an international +er&on or one !a(ing an international
+er&onalit). on t!e /a&i& of cu&to1ar) or general international law.
&0agallona, 1$31#).
' sub7ect of Public International +aw is an entity irectl) +o&&e&&e of rig!t&
an o/ligation& in t!e international legal orer, e.g. a sovereign state, such as
the Philippines. &Paras, >/).
'n o/4ect of Pu/lic International Law. on t!e ot!er !an. i& 1erel)
inirectl) (e&te wit! rig!t& an o/ligation& in t!e international &+!ere.
e.g. a Filipino private citizen is generally regarded not as a sub7ect but an ob7ect of
Public International +aw because, while he is entitled to certain rights which other
states ought to respect, he usually has no recourse e-cept to course his grievances
through the 4epublic of the Philippines and its diplomatic officers. &id.).
Cin& of Su/4ect& in International Law
'. 6he S6'6,
0agallona distinguishes between5
a. general or ob7ective international personality and
b. particular or special international personality, as follows5
9- - - 's to the first &general or ob7ective international personality), rig!t& an
o/ligation& are conferre /) general international law an &uc!
+er&onalit) i& /ining erga o1ne&5 and as to the second &particular or special
international personality), +er&onalit) /in& onl) t!o&e w!ic! gi(e con&ent
Ae0+re&& or tacitB.
96he distinction is implied in the 4eparation for In7uries Case, in which on the
(uestion as to the legal personality of the @nited ations to claim reparation for
in7ury to its agents committed by nationals of a non30ember State, the
&International Court of 8ustice or IC8) states5 9--- fift) State&. re+re&enting t!e
(a&t 1a4orit) of t!e 1e1/er& of t!e international co11unit). !a t!e
+ower. in confor1it) wit! international law. to /ring into /eing an entit)
+o&&e&&ing o/4ecti(e international +er&onalit) an not 1erel) +er&onalit)
recogni9e /) t!e1 alone. toget!er wit! ca+acit) to /ring international
clai1& --- IIC8 4eports, 1#>#, p. 1$"J.9 &0agallona, 1#).
C. S6'6,S5 SingleQSimple and Composite
1$1
Paras categorizes 9sub7ects in international law9 into two &!) categories5 &a) the
complete or perfect international personality, and &b) the incomplete or imperfect,
or (ualified or (uasi3international personality. &Paras, >1).
De classifies states into the following species5 &a) single or simple state &e.g.,
Philippines), and &b) composite state.
6he 1#// 0onteviedo Convention on the 4ights and ;uties of States provides for
the legal characteristics of a State, thus5
96he State as a person of international law should possess the following
(ualifications5
a. a permanent populationF
b. a defined territoryF
c. governmentF
d. and capacity to enter into relations with other States.9 &cf. 0agallona,
!2).
6he 9capacity to enter into relations with other States9 refer& to ine+enence.
w!ic! 1an) !ig!l) ,ualifie +u/lici&t& con&ier a& t!e eci&i(e criterion of
&tate!oo. &0agallona, !23!1).
RECOGNITION is considered as 9the act by which another State ac:nowledges that
the political entity recognized possesses the attributes of statehood.9 &0agallona,
!1, citing 8essup, 0odern +aw of ations5 'n Introduction, 1#>#, p. >).
T!ere are two t!eorie& on t!e nature an effect of recognition. a&
i&cu&&e /) 8agallona Aat ++. 66766B'
T!e con&tituti(e &c!ool 1aintain& t!at it i& t!e act of recognition
w!ic! con&titute& or create& t!e &tatu& of a State a& a &u/4ect of law
an t!u& gi(e& it a legal +er&onalit). 6he international status of any entity
as a State is to be determined by the will and consent of already e-isting States.
T!e eclarator) t!eor) a&&ert& t!at recognition 1erel) confir1& t!e
acce+tance /) State& of t!e &tatu& of an entit) a& a State. ' new State
ac,uire& legal +er&onalit) /) it& own creati(e act in /ringing a/out t!e
o/4ecti(e criteria of &tate!oo, rather than by the sub7ective act of other
States.
6he declaratory school is the preferred approach, the prevailing view being that
recognition is not an element of statehood.
Paras, Co(uia and ;efensor3Santiago classify the different :inds of composite states
as follows5
1. 6he Federation or Federal State &such as the @nited States and the @nited
States of Switzerland)F
1$!
!. 6he Confederation &such as the original Confederation of the 'merican
States, which eventually became the nucleus of the present @nited States).
&.6,5 6he principal difference between a federal union and a confederation is that
a feeral union of &tate& e0i&t& w!en t!e central or feeral go(ern1ent
e0erci&e& aut!orit) o(er /ot! t!e (ariou& &tate& in t!e union an t!e
citi9en& t!ereof5 while the confeeration !a& &o1e &ort of +ower o(er it&
ini(iual &tate&. /ut not o(er t!e ini(iual citi9en& of t!e 1e1/er
&tate&. 6he federal union, as such, is an International Person, thus the @nited
States is represented in the @nited ations as one 7uridical or international entityF
on the other hand, t!e confeeration a& &uc! i& not an International Per&on.
eac! of t!e 1e1/er7&tate& /eing re+re&ente /) it& own elegate.
Dowever, there is at present no confederation of confederated states).
/. T!e Real *nion A&uc! a& t!e for1er *nite Ara/ Re+u/lic w!ic! wa&
for1e /) two &o(ereign &tate& VEg)+t an S)riaW linke /) a
co11on go(ern1ent in e0ternal affair& an /) a co11on c!ief of
&tate. 6he union then possessed a single international personality Ithe
separate personalities of the states having been merged into a unified
wholeJ. ---.
>. T!e Per&onal *nion At!i& i& t!e 1erger of two &e+arate &o(ereign
&tate& in t!e &en&e t!at /ot! !a(e t!e &a1e ini(iual a& t!e
acciental or te1+orar) !ea of &tate. Dowever, the union as such has
no separate international personality since each of the member3states has its
own government and its own separate international personality. It would
seem that today, there is no Personal @nion in e-istence. ---.
". T!e Incor+orate *nion Aone w!ere t!e internal an e0ternal organ&
of go(ern1ent of two &tate& are 1erge into one. re&ulting in a
&ingle international +er&onalit). An e0a1+le i& t!e *nite Cingo1
of Great Britain an Irelan ---. Bhile in a 4eal @nion there is a merger
only of foreign affairs or e-ternal relations, in the Incorporate @nion the
merger is actually complete and concerns internal as well as e-ternal affairs
and relations).
.6,5 6he Critish Commonwealth of ations --- apparently does not fall under any
of the preceding classifications ---. &Paras, >#3"2F Co(uia S ;efensor3Santiago, %>3
122).
C. 6he IC.0P+,6,, I0P,4F,C6, N@'+IFI,; .4 N@'SI3I6,4'6I.'+
P,4S.'+I6I,S
Paras lists the incomplete, imperfect, (ualified or (uasi3international personalities
as follows5
9--- among them are the dependent states &protectorate and suzerainties)F
belligerent communities &and in a very, very modified way, insurgent communities,
1$/
sub7ect to certain conditions)F coloniesF dependencies and possessionsF mandates
and trust territoriesF certain public and political corporations or companiesF and
international administrative bodies.9 &Paras, "!F underscoring supplied).
It is noteworthy to state that 9international .rganizations such as the former +eague
of ations and the present @nited ations are of course in their own way
International Persons.9 &Paras, %2).
T!e *nite Nation&. /eing +o&&e&&e of 4uriical +er&onalit). !a& t!e
following ca+acitie&' to contract5 to ac,uire an i&+o&e of i11o(a/le an
1o(a/le +ro+ert)5 an to in&titute legal +roceeing&. &Paras, %/, citing 'rt. 1,
Convention on the Privileges and Immunities of the @nited ations, adopted by the
@ Eeneral 'ssembly on Feb. 1/, 1#>%, in 1 @ 6reaty Series 1").
Paras classifies the three &/) groups of International .rganizations, aside from the
@nited ations, as follows5
1. Inter7go(ern1ental /oie&, including specialized agencies of the @, e.g.,
Food and 'gricultural .rganization, International +abor .rganization,
International 0onetary Fund, @nited ations ,ducational, Scientific and Cultural
.rganizationF
!. Ot!er Inter7Go(ern1ental Boie&, e.g., Permanent Court of 'rbitration,
International Criminal Police Commission, Can: of International SettlementsF
/. Non7Go(ern1ental International Boie&, e.g. International Commission of
8urists, Christian Family 0ovement 0oral 4e3'rmament, International Chamber
of Commerce, 4otary International. &cf. Paras, %23%1).
Private Individuals5 ;eveloping ew Status in International +aw
Para& i&cu&&e& t!at w!ile traitional writer& in&i&t t!at +ri(ate
ini(iual& are 1erel) o/4ect& an not &u/4ect& of international law. some
recognized writers in recent years have accorded to the individual a new status in
international law5 they say, and with good reason, that private individuals should
now be regarded as sub7ects in the international order, in view of the importance
laid on them by the following5
1. the Charter of the @nited ations .rganization, and the @niversal ;eclaration
of Duman 4ightsF
!. the uremberg and 6o:yo Bar 6ribunals for Bar CrimesF
/. the norm of general international law which prohibits piracyF
1$>
>. espionage rulesF conventions punishing acts of illegitimate warfareF rules of
general international law punishing private individuals for breach of bloc:ade
and carriage of contrabandF
". the practice of certain courts of permitting foreigners to appear and
prosecute claimsF
%. the Eenocide Convention of 1#>$ which directly holds liable not only states,
but also private individuals, for the mass e-termination of a racial groupF
1. the e-istence of rules safeguarding the rights of aliens and minoritiesF
$. punishment for the illegal use of the flag &4eporterAs ote5 this refers to
vessels using the flag of s state with which such vessel is not registered)F
#. the procedure in admiralty and maritime mattersF
12.the special status accorded to refugees, and to displaced persons, such as
those fleeing from South *ietnam, from Cambodia, and, more recently, from
Cuba. &cf. Paras, >>3>%).
BELLIGERENT AND INS*RGENT CO88*NITIES
' status of belligerency recognized under international law may arise if
1. there e0i&t& wit!in t!e State an ar1e conflict of a general characterF
!. the insurgents occu+) a &u/&tantial +ortion of the national territoryF and
/. 6hey conuct t!e !o&tilitie& in accorance wit! t!e rule& of war thru
organized groups acting under a responsible authority. &Co(uiaQ;efensor3
Santiago, $").
Recognition of a &tatu& of /elligerenc) on t!e +art of ot!er State& i&
nece&&ar) for t!e legal creation of t!e &tatu& of -/elligerent co11unit).
&id.).
' fourth re(uirement that has been suggested for the recognition of belligerency is
that t!ere 1u&t e0i&t a circu1&tance w!ic! 1ake& it -nece&&ar)- for t!e
recogni9ing State to efine it& attitue to t!e conflict. Co(uia and ;efensor3
Santiago e-plains the matter, thus5
T!e rea&on for t!i& final re,uire1ent i& t!at if t!e +artie& to t!e &truggle
+ro+o&e to e0erci&e /elligerent rig!t& on t!e !ig! &ea& in &uc! a 1anner
a& to affect t!e recogni9ing State=& 1ariti1e intere&t&, the need for it to
define its attitude to the struggle has arisen. If, on the other hand, a distant inland
state with no maritime interests, and in no way affected by the conflict were to
recognize the rebels as belligerents, it could open itself to the charge of
encouraging rebellion. &id., $%).
Recognition of /elligerenc) /efore t!e four conition& are fulfille i&
con&iere a& contrar) to international law Ai.. $J. citing Soren&en. 6$JB.
1$"
Recognition of /elligerenc) /) a State not a +art) to t!e conte&t i&
fre,uentl) announce in a for1al +rocla1ation of neutralit) between the
two contending parties. 4ecognition may be e-press or implied. &id., $1).
If t!e foreign go(ern1ent gi(e& ai to t!e e facto A/elligerentB
go(ern1ent recogni9e /) it. an t!at e facto go(ern1ent i& efeate in
t!e war. t!en t!e lawful go(ern1ent 1a) !ol t!e foreign State
re&+on&i/le for an act of un4u&tifia/le aggre&&ion an of +re1ature
recognition. &id., citing .ppenheim3+auterpacht, 1/).
6he recognized belligerent community lac:s the right to send or receive diplomatic
agents to 7oin international organizations, and to benefit in a normal manner from
multilateral conventions concerned with peacetime international relations and
activities of States. &id., $%).
Co,uia an Defen&or7Santiago cite t!e legal i1+lication& of recognition of
a /elligerent co11unit). t!u&'
T!e granting of recognition of /elligerenc) to re/el& i& onl) +ro(i&ional.
Bhile conferring an e(ual status to warring groups, it does so only for the purposes
and for the duration of the war. 2or t!e +ur+o&e& an for t!e uration of t!e
war. t!e in&urgent& recogni9e a& a /elligerent +ower +o&&e&& for t!e
1o&t +art. t!e utie& an rig!t& of State& w!en engage in war. &id., citing
Oelsen, >1/).
A &tate of in&urgenc) i& not e,ui(alent to a &tate of /elligerenc). T!e
for1er i& -a re/ellion w!ic! !a& not )et ac!ie(e t!e &taning of a
/elligerent co11unit) ---, a condition described as intermediate between
internal tran(uility and civil war.9 &Co(uia, $$).
6he conditions for a state of insurgency are5
1. the insurgents must have a go(ern1ent an a 1ilitar) organi9ation of
their ownF
!. the in&urrection 1u&t /e conucte in t!e tec!nical for1& of war.
that is, it must be more than a petty revolt and must assume the true
characteristics of a warF and
/. the government of the insurgents must in fact control a certain +art of t!e
territor) of t!e State in w!ic! t!e ci(il war take& +lace. &id., citing
Oelsen, >1!).
A relate 1atter i& t!e -go(ern1ent in e0ile-. It !a& two cla&&e&.
accoring to Co,uia an Defen&or7Santiago'
T!e fir&t categor) con&i&t& of go(ern1ent& w!o&e !ea& an ca/inet&
1o(e fro1 t!e national territor) te1+oraril) uring t!e 1o1ent& of cri&i&.
In such cases, no formal act of recognition is necessary because it is deemed that
there is no brea: in legal continuity.
1$%
A &econ categor) con&i&t of go(ern1ent& for1e a/roa. in w!ic! ca&e
t!ere can /e no legal connection /etween t!e go(ern1ent in e0ile an t!e
go(ern1ent o+erating on t!e national territor) at t!e ti1e. ' formal act of
recognition is necessary.
T!e go(ern1ent& uner t!e &econ categor) o not !a(e an) international
&tatu&. Bhile there may be groups assuming governmental powers for their
national territory for political or other reasons, the fact is that they are merely
hoping to form a legitimate government or State at some time in the future.
A recognition accore uring t!e effecti(e continuance of t!e lawful Ae
4ureB go(ern1ent o(er t!e greater +art of t!e national territor) 1a) /e
con&iere a& an act of interference in t!e national affair& of another State.
&id., #1, citing the recognition of the Franco regime in Spain by Eermany and Italy
only five months after the Spanish civil war bro:e out at the time when the
republican government was still in control of the greater part of Spain).
';;,;@05
PDI+IPPI, 6,44I6.4P I 4,+'6I. 6. 6D, @.. C.*,6I. . 6D, +'B .F 6D,
S,'
Article I of t!e "#$% P!ili++ine Con&titution efine& t!e P!ili++ine
territor). t!u&'
6he national territory comprises the Philippine archipelago, with all the islands and
waters embraced therein, and all other territories over which the Philippines has
sovereignty or 7urisdiction, consisting of its terrestial, fluvial,a nd aerial domains,
including its territorial sea, the seabed, the subsoil, the insular shelves and other
submarine areas. 6he waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of the internal
waters of the Philippines.
Pursuant to 'rt. >1.1 of the @ Convention on the +aw of the Sea &@C+.S) which
entered into force on ovember 1%, 1##>, the Philippines, as an archipelagic state,
may determine its archipelagic baselines as follows5
It 1a) raw &traig!t arc!i+elagic /a&eline& &urrouning it&elf. 6his is done
by locating 9the outermost points of ... &its) outermost islands and drying reefs9 and
then by 7oining such points. It is re(uired that the main islands are included within
the baselines as well as an area in which 9the ratio of the area of the water to the
area of the land, including atolls, is between 1 to 1 and # to 1.9 &0agallona, $2,
citing 'rt. >1.1 of @C+.S).
6he 9maritime zones9 of the Philippines, under the provisions of @C+.S, consist of
the following5
1. the territorial seaF
!. the contiguous zoneF and
1$1
/. the e-clusive economic zone.
6he /reat! of it& territorial &ea is measured fro1 arc!i+elagic /a&eline& u+
to a i&tance &eawar not e0ceeing "6 nautical 1ile&.
If it declares a contiguou& 9one, this &!all not e0cee 6; nautical 1ile& fro1
t!e arc!i+elagic /a&eline&.
Its e0clu&i(e econo1ic 9one shall not e0cee /e)on 6GG nautical 1ile&
fro1 t!e arc!i+elagic /a&eline&.&id., citing 'rts. !, //.!, and "1 of @C+.S).
T!e water& enclo&e /) t!e arc!i+elagic /a&eline& of t!e P!ili++ine&.
w!ic! are calle -arc!i+elagic water&.- are wit!in P!ili++ine &o(ereignt). It
also e-tends to -air&+ace o(er arc!i+elagic water& a& well a& t!eir /e an
&u/&oil. incluing t!e re&ource& t!erein.- &id., citing 'rt. ># of @C+.S).
Pur&uant to Article& >6 an >3 of *NCLOS. -&!i+& of all &tate& en4o) t!e
rig!t of innocent +a&&age t!roug! arc!i+elagic water&- Aw!ic! inclue&
-internal water&- or t!e -territorial &ea-B an &uc! arc!i+elagic water&
1a) al&o /e &u/4ect to -t!e continuou& an e0+eitiou& +a&&age of foreign
&!i+& an aircraft. known a& t!e rig!t of arc!i+elagic &ealane&.- 'll ships
and aircraft en7oy this right thru designated sea lanes and air routes. 6he 9territorial
sea9, which is a zone of Philippine sovereignty, is sub7ect to the right of innocent
passage by ships of all states, including 9foreign nuclear3powered ships, those
carrying nuclear or other inherently dangerous or no-ious substances, submarines
and warships.9 'lso, the Philippine territorial sea is also restricted by the right of
archipelagic sea lanes passage but 9only such portions of the territorial sea ad7acent
to the Philippine archipelagic waters.9 'll of the above provisions of @C+.S pose
potential constitutional problems. &id., $!, citing 'rts. !, 11, !2, !/, !>, /2, "! and
"/ of @C+.S).
0agallona discusses the legal status of the 9contiguou& 9one9 thus5
A4acent to t!e territorial &ea. it i& a 9one w!ere t!e P!ili++ine& 1a)
e0erci&e certain +rotecti(e 4uri&iction. i.e., to prevent infringement of its
customs, fiscal, immigration or sanitary laws and regulations and to punish violation
of laws committed within its territory or in the territorial sea.
T!e P!ili++ine& oe& not !a(e &o(ereignt) o(er t!e contiguou& 9one. It is a
zone of 7urisdiction, not of sovereignty.&id., $!3$/, citing 'rt. //.1 of @C+.S).
A& to t!e -e0clu&i(e econo1ic 9one-. t!e P!ili++ine& !a& &o(ereign rig!t&
o(er t!e &a1e -for +ur+o&e& of e0+loring. e0+loiting. con&er(ing an
1anaging t!e natural re&ource&- therein and it as 97urisdictional rights with
regard to artificial islands, environmental protection and maritime scientific
research.9 &id., $/, citing 'rts. "!.1 IaJ and IbJ of @C+.S).
6he Philippines may be re(uired to grant other states access to living resources in
its ,,U5
1$$
It 1u&t eter1ine it& ca+acit) to !ar(e&t li(ing re&ource&. If it oe& not
!a(e t!e ca+acit) to !ar(e&t t!e entire allowa/le catc!. it &!all gi(e ot!er
&tate& acce&& to t!e &ur+lu& of t!e allowa/le catc! /) 1ean& of
agree1ent& con&i&tent wit! t!e *NCLOS.
In the ,,U, all states continue to en7oy the freedom of the high seas, sub7ect to the
rights of the Philippines as thus mentioned. Eenerally, the rules of international law
pertaining to the high seas apply to the ,,U.&id., $>3$", citing 'rts. "%.1 IaJ, "$.1,
"$.!, %1.1, and %!./ of @C+.S).
6here thus appears an apparent incompatibility with the 1#$1 Constitution. It will be
noted that Sec. !, 'rt. KII of the 1#$1 Constitution provides that -t!e State &!all
+rotect t!e nation=& 1arine wealt! in it& arc!i+elagic water&. territorial
&ea. an e0clu&i(e econo1ic 9one. an re&er(e it u&e an en4o)1ent
e0clu&i(el) to 2ili+ino citi9en&.- &id., $>F original underscoring by the author).
Bhat is the P!ili++ine -continental &!elf- uner *NCLOSN 0agallona discusses
its e-tent, thus5
It is the &ea7/e an &u/7&oil of t!e &u/1arine area& e0tening /e)on t!e
P!ili++ine territorial &ea t!roug!out t!e natural +rolongation of t!e lan
territor). It e-tends up &1) the outer edge of the continental margin or &!) up to
the distance of !22 nautical miles from the archipelagic baselines, whichever is
farthest. &id., $", citing 'rt. 1% of @C+.S).
T!e continental &!elf oe& not for1 +art of t!e -P!ili++ine territor).- &id.,
$"). Cut the Philippines !a& t!e &o(ereign rig!t for t!e +ur+o&e of e0+loring
it an e0+loiting it& natural re&ource&. &id., citing 'rt. 11 and 1$ of @C+.S).
,lucidating further on the 9continental shelf9, 0agallona writes5
T!e *NCLOS e&cri/e& t!e&e rig!t& Ai.e. to e0+lore an e0+loit natural
re&ource& in t!e continental &!elfB a& e0clu&i(e in t!e &en&e t!at if t!e
P!ili++ine& oe& not e0+lore t!e continental &!elf or e0+loit it& natural
re&ource&. no one may underta:e these activities without its consent 4ights of the
Philippines over the continental shelf 9do not depend on occupation, effective or
notional, or on any e-press proclamation. &'rt. 11.!, @C+.SF underscoring
supplied).
T!e P!ili++ine& !a& t!e e0clu&i(e rig!t to con&truct. to aut!ori9e an
regulate t!e con&truction. o+eration an u&e of artificial i&lan& an
in&tallation&. &'rts. %2 and $2, @C+.S). Its 7urisdiction over these is e-clusive, in
particular with respect to customs, fiscal, health, safety and immigration
regulations. &'rt. %2.!, @C+.S).
T!e P!ili++ine& !a& e0clu&i(e rig!t to aut!ori9e a& well a& to regulate
rilling for all +ur+o&e&. &'rt. $1, @C+.S). &id., $%, citing 'rts. 11.!, %2.!, and
$1 of @C+.S).
1$#
I0000000000000000000000000000000000000000000000000000000000000000
000000000000000000000000000
ota bene5
L U ?ow 1a) international law /eco1e a +art of o1e&tic lawN E0+lain.

'S5 @nder the 1#$1 Constitution, international law can become part of the sphere
of domestic law either by transformation or incorporation. T!e tran&for1ation
1et!o re,uire& t!at an international law /e tran&for1e into a o1e&tic
law t!roug! a con&titutional 1ec!ani&1 &uc! a& local legi&lation. 6he
incor+oration 1et!o a++lie& w!en. /) 1ere con&titutional eclaration.
international law i& ee1e to !a(e t!e force of o1e&tic law.
6reaties become part of the law of the land through transformation pursuant to
'rticle *II, Section !1 of the Constitution which provides t!at Fno treat) or
international agree1ent &!all /e (ali an effecti(e unle&& concurre in
/) at lea&t two7t!ir& of all t!e 1e1/er& of t!e Senate.H 6hus, treaties or
conventional international law must go through a process prescribed by the
Constitution for it to be transformed into municipal law that can be applied to
domestic conflicts. &Pharmaceutical S Dealth Care 'ssn. of the Phil. v. Dealth
Secretary ;u(ue, et al., E.4. o. 11/2/>, .ctober 1#, !221).
L U 8a) generall) acce+te +rinci+le& of international law for1 +art of
t!e law of t!e lan e(en if t!e) o not eri(e fro1 treat) o/ligation&N
E0+lain.
'S5 Pes. Generall) acce+te +rinci+le& of international law. /) (irtue of
t!e incor+oration clau&e of t!e Con&titution. for1 +art of t!e law& of t!e
lan e(en if t!e) o not eri(e fro1 treat) o/ligation&. 6he classical
formulation in international law sees those customary rules accepted as binding
result from the combination of two elements5 t!e e&ta/li&!e. wie&+rea. an
con&i&tent +ractice on t!e +art of State&5 an a +&)c!ological ele1ent
known a& t!e o+inion 4uri& &i(e nece&&itate& Ao+inion a& to law or
nece&&it)B. Implicit in the latter element is a belief that the practice in (uestion is
rendered obligatory by the e-istence of a rule of law re(uiring it. &0i7ares v. 4anada,
E.4. o. 1/#/!", 'pril 1!, !22", >"" SC4' /#1).

L U State t!e conce+t of t!e ter1 Fgenerall) acce+te +rinci+le& of
international lawH an gi(e e0a1+le&.

1#2
'S' FGenerall) acce+te +rinci+le& of international lawH refer& to nor1&
of general or cu&to1ar) international law w!ic! are /ining on all &tate&.
i.e., renunciation of war as an instrument of national policy, the principle of
sovereign immunity, a person<s right to life, liberty and due process, and pacta sunt
servanda, among others. 6he concept of Ggenerally accepted principles of lawH has
also been depicted in this wise5
So1e legal &c!olar& an 4uge& u+on certain Fgeneral +rinci+le& of lawH a&
a +ri1ar) &ource of international law /ecau&e t!e) !a(e t!e Fc!aracter of
4u& rationaleH an are F(ali t!roug! all kin& of !u1an &ocietie&.H &8udge
6ana:a in his dissenting opinion in the 1#%% South Best 'frica Case, 1#%%, I.C.8.
!#%). .<Conell holds that certain principles are part of international law because
they are Gbasic to legal systems generallyH and hence part of the 7us gentium.
6hese principles, he believes, are established by a process of reasoning based on
the common identity of all legal systems. If there should be doubt or disagreement,
one must loo: to state practice and determine whether the municipal law principle
provides a 7ust and acceptable solution. &Pharmaceutical S Dealth Care 'ssn. of the
Phil. v. Sec. of Dealth ;u(ue, et al., E.4. o. 11/2/>, .ctober #, !221).
L U W!at i& cu&to1ar) international lawN E0+lain.
'S5 Cu&to1 or cu&to1ar) international law 1ean& Fa general an
con&i&tent +ractice of &tate& followe /) t!e1 fro1 a &en&e of legal
o/ligation Ao+inion 4uri&BH. 6his statement contains the two basic elements of
custom5 t!e 1aterial factor. t!at i&. !ow &tate& /e!a(e. an t!e
+&)c!ological or &u/4ecti(e factor. t!at i&. w!) t!e) /e!a(e t!e wa) t!e)
o.
6he initial factor for determining the e-istence of custom is the actual behavior of
states. 6his includes several elements5 duration, consistency, and generality of the
practice of states.
6he re(uired duration can be either short or long.
Duration t!erefore i& not t!e 1o&t i1+ortant ele1ent. 8ore i1+ortant i&
t!e con&i&tenc) an t!e generalit) of t!e +ractice.
.nce the e-istence of state practice has been established it becomes necessary to
determine why states behave the way they do. Do &tate& /e!a(e t!e wa) t!e)
o /ecau&e t!e) con&ier it o/ligator) to /e!a(e t!u& or o t!e) o it onl)
a& a 1atter of courte&)N 'pinio 1uris or the belief that a certain form of behavior
is obligatory, is what ma&es practice an international rule. Bithout it, practice is not
law. &Pharmaceutical S Dealth Care 'ssn. of the Phil. v. Dealth Secretary ;u(ue, et
al., E. 4. o. 11/2/>, .ctober #, !221).
N M Bhat is a soft law= Is it an international law= ,-plain.
'S5 Soft law i& an e0+re&&ion of non7/ining nor1&. +rinci+le& an
+ractice& t!at influence &tate /e!a(ior. &;avid Fidler, ;evelopment Involving
1#1
S'4S, International +aw S Infections ;isease Control at the Fifty3Si- 0eeting of the
Borld Dealth 'ssembly, 8une !22/, 'SI+F Pharmaceutical S Dealth Care 'ssn. of the
Phils. v. Dealth Secretary ;u(ue, et al., E.4. o. 11/2/>, .ctober #, !221). It does
not fall under the international law set forth in 'rticle /$, Chapter III of the 1#>%
Statute of the International Court of 8ustice.
N M Eive e-amples of soft law.
'S5 Certain declarations and resolutions of the @ Eeneral 'ssembly fall under
this category. &+ouis Den:ins, et al., International +aw, Cases and 0aterials, !nd
,d.). T!e *N Declaration of ?u1an Rig!t& i& an e0a1+le. 6his was applied in
Eovernment of Dong:ong Special 'dministrative 4egion v. .laliaF 0e7off v. ;irector
of PrisonsF #2 Phil. 12 &1#"1)F 0i7ares v. 4anadaF Shangri3la International Dotel
0anagement +td. v. ;evelopers Eroup of Companies Inc., E.4. o. 1"##/$, 0arch
/1, !22%, >$% SC4' >2").
It is resorted to in order to reflect and respond to the changing needs and demands
of constituents of certain international organizations li:e the BD..
T?E CO*NT BERNADOTTE CASE
6he (uestion concerning reparation for in7uries suffered in the service of the @nited
ations, was referred to the Court by the Eeneral 'ssembly of the @nited ations
&4esolution of the Eeneral 'ssembly dated ;ecember /rd. 1#>$) in the following
terms5
I. In the event of an agent of the I8nited ations in the performance of his
duties suffering in7ury in circumstances involving the responsibility of a State,
!a& t!e *nite Nation&. a& an Organi9ation. t!e ca+acit) to /ring an
international clai1 again&t t!e re&+on&i/le e 4ure or e facto
go(ern1ent wit! a (iew to o/taining t!e re+aration ue in re&+ect
of t!e a1age cau&e *a+ to t!e *nite Nation&. A/B to t!e (icti1 or
to +er&on& entitle t!roug! !i1
II. In the event of an affirmative reply on point I &b), how is action by the @nited
ations to /e reconciled with such rights as may be possessed by the State
of which the victim is a national=
Deld5
'ccordingly the Court concludes that the .rganization possessing a& it does rights
and obligations, has at the same time a large measure of international personality
and the capacity to operate upon an international plane, although it is certainly not
a super3state
.n t!e first point5, I &a), of t!e 4e(uest for .pinion the Court unanimously reached
the conclusion that t!e Organi9ation !a& t!e ca+acit) to /ring an
international clai1 again&t a State Aw!et!er a 8e1/er or non71e1/erB for
1#!
a1age re&ulting fro1 a /reac! /) t!at State of it& o/ligation& towar&
t!e Organi9ation. 6he Court points out that it is not called upon to determine the
precise e-tent of the reparation which t!e .rganization would be entitled to
recoverF the measure of t!e reparation should depend upon a number of factors
which the Court gives as e-amples.
.n (uestion I &b) the Court was of opinion by 11 votes against > that t!e
Organi9ation !a& t!e ca+acit) to /ring an international clai1 w!et!er or
not t!e re&+on&i/le State i& a 8e1/er of t!e *nite Nation&.
Finally, on point II, the Court was of opinion by 12 votes against " that w!en t!e
*nite Nation& a& an organi9ation i& /ringing a clai1 for re+aration for
a1age cau&e to it& agent. it can onl) o &o /) /a&ing it& clai1 u+on a
/reac! of o/ligation& ue to it&elf5 respect for this rule Awill usually prevent a
conflict between the action of the @nited ations and such rights as the agentAs
national State may possessF moreover, this reconciliation must depend u+on
considerations applicable to each particular case, and upon agreements to be made
between the .rganization and individual States.
T?E *N C?ARTER Arefer to % +rinci+le& a/o(eB
*ni(er&al Declaration on ?u1an Rig!t&
P4,'0C+,
Bhereas recognition of the inherent dignity and of the e(ual and inalienable rights
of all members of the human family is the foundation of freedom, 7ustice and peace
in the world,
Bhereas disregard and contempt for human rights have resulted in barbarous acts
which have outraged the conscience of man:ind, and the advent of a world in which
human beings shall en7oy freedom of speech and belief and freedom from fear and
want has been proclaimed as the highest aspiration of the common people,
Bhereas it is essential, if man is not to be compelled to have recourse, as a last
resort, to rebellion against tyranny and oppression, that human rights should be
protected by the rule of law,
Bhereas it is essential to promote the development of friendly relations between
nations,
Bhereas the peoples of the @nited ations have in the Charter reaffirmed their faith
in fundamental human rights, in the dignity and worth of the human person and in
the e(ual rights of men and women and have determined to promote social
progress and better standards of life in larger freedom,
1#/
Bhereas 0ember States have pledged themselves to achieve, in co3operation with
the @nited ations, the promotion of universal respect for and observance of human
rights and fundamental freedoms,
Bhereas a common understanding of these rights and freedoms is of the greatest
importance for the full realization of this pledge,
ow, 6herefore 6D, E,,4'+ 'SS,0C+P proclaims 6DIS @I*,4S'+ ;,C+'4'6I.
.F D@0' 4IED6S as a common standard of achievement for all peoples and all
nations, to the end that every individual and every organ of society, :eeping this
;eclaration constantly in mind, shall strive by teaching and education to promote
respect for these rights and freedoms and by progressive measures, national and
international, to secure their universal and effective recognition and observance,
both among the peoples of 0ember States themselves and among the peoples of
territories under their 7urisdiction.
'rticle 1. 'll human beings are born free and e(ual in dignity and rights.6hey are
endowed with reason and conscience and should act towards one
another in a spirit of brotherhood.
'rticle !. ,veryone is entitled to all the rights and freedoms set forth in this
;eclaration, without distinction of any :ind, such as race, colour, se-,
language, religion, political or other opinion, national or social origin,
property, birth or other status. Furthermore, no distinction shall be
made on the basis of the political, 7urisdictional or international status
of the country or territory to which a person belongs, whether it be
independent, trust, non3self3governing or under any other limitation of
sovereignty.
'rticle /. ,veryone has the right to life, liberty and security of person.
'rticle >. o one shall be held in slavery or servitudeF slavery and the slave
trade shall be prohibited in all their forms.
'rticle ". o one shall be sub7ected to torture or to cruel, inhuman or degrading
treatment or punishment.
'rticle %. ,veryone has the right to recognition everywhere as a person before
the law.
'rticle 1. 'll are e(ual before the law and are entitled without any discrimination
to e(ual protection of the law. 'll are entitled to e(ual protection
against any discrimination in violation of this ;eclaration and against
any incitement to such discrimination.
'rticle $. ,veryone has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights granted him
by the constitution or by law.
'rticle #. o one shall be sub7ected to arbitrary arrest, detention or e-ile.
1#>
'rticle 12. ,veryone is entitled in full e(uality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights
and obligations and of any criminal charge against him.
'rticle 11.
1. ,veryone charged with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public trial at which
he has had all the guarantees necessary for his defence.
!. o one shall be held guilty of any penal offence on account of any act
or omission which did not constitute a penal offence, under national or
international law, at the time when it was committed. or shall a
heavier penalty be imposed than the one that was applicable at the
time the penal offence was committed.
'rticle 1!. o one shall be sub7ected to arbitrary interference with his privacy,
family, home or correspondence, nor to attac:s upon his honour and
reputation. ,veryone has the right to the protection of the law against
such interference or attac:s.
'rticle 1/. &1) ,veryone has the right to freedom of movement and residence
within the borders of each state.
&!) ,veryone has the right to leave any country, including his own, and
to return to his country.
'rticle 1>. &1) ,veryone has the right to see: and to en7oy in other countries
asylum from persecution.
&!) 6his right may not be invo:ed in the case of prosecutions genuinely
arising from non3political crimes or from acts contrary to the purposes
and principles of the @nited ations.
'rticle 1". &1) ,veryone has the right to a nationality.
&!) o one shall be arbitrarily deprived of his nationality nor denied the
right to change his nationality.
'rticle 1%. &1) 0en and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family.
6hey are entitled to e(ual rights as to marriage, during marriage and
at its dissolution.
&!) 0arriage shall be entered into only with the free and full consent of
the intending spouses.
&/) 6he family is the natural and fundamental group unit of society and
is entitled to protection by society and the State.
'rticle 11. &1) ,veryone has the right to own property alone as well as in
association with others.
&!) o one shall be arbitrarily deprived of his property.
1#"
'rticle 1$. ,veryone has the right to freedom of thought, conscience and religionF
this right includes freedom to change his religion or belief, and
freedom, either alone or in community with others and in public or
private, to manifest his religion or belief in teaching, practice, worship
and observance.
'rticle 1#. ,veryone has the right to freedom of opinion and e-pressionF this right
includes freedom to hold opinions without interference and to see:,
receive and impart information and ideas through any media and
regardless of frontiers.
'rticle !2. &1) ,veryone has the right to freedom of peaceful assembly and
association.
&!) o one may be compelled to belong to an association.
'rticle !1. &1) ,veryone has the right to ta:e part in the government of his
country, directly or through freely chosen representatives.
&!) ,veryone has the right of e(ual access to public service in his
country.
&/) 6he will of the people shall be the basis of the authority of
governmentF this will shall be e-pressed in periodic and genuine
elections which shall be by universal and e(ual suffrage and shall be
held by secret vote or by e(uivalent free voting procedures.
'rticle !!. ,veryone, as a member of society, has the right to social security and
is entitled to realization, through national effort and international co3
operation and in accordance with the organization and resources of
each State, of the economic, social and cultural rights indispensable for
his dignity and the free development of his personality.
'rticle !/. &1) ,veryone has the right to wor:, to free choice of employment, to
7ust and favourable conditions of wor: and to protection against
unemployment.
&!) ,veryone, without any discrimination, has the right to e(ual pay for
e(ual wor:.
&/) ,veryone who wor:s has the right to 7ust and favourable
remuneration ensuring for himself and his family an e-istence worthy
of human dignity, and supplemented, if necessary, by other means of
social protection.
&>) ,veryone has the right to form and to 7oin trade unions for the
protection of his interests.
'rticle !>. ,veryone has the right to rest and leisure, including reasonable
limitation of wor:ing hours and periodic holidays with pay.
'rticle !". &1) ,veryone has the right to a standard of living ade(uate for the
health and well3being of himself and of his family, including food,
clothing, housing and medical care and necessary social services, and
the right to security in the event of unemployment, sic:ness, disability,
1#%
widowhood, old age or other lac: of livelihood in circumstances beyond
his control.
&!) 0otherhood and childhood are entitled to special care and
assistance. 'll children, whether born in or out of wedloc:, shall en7oy
the same social protection.
'rticle !%. &1) ,veryone has the right to education. ,ducation shall be free, at
least in the elementary and fundamental stages. ,lementary education
shall be compulsory. 6echnical and professional education shall be
made generally available and higher education shall be e(ually
accessible to all on the basis of merit.
&!) ,ducation shall be directed to the full development of the human
personality and to the strengthening of respect for human rights and
fundamental freedoms. It shall promote understanding, tolerance and
friendship among all nations, racial or religious groups, and shall
further the activities of the @nited ations for the maintenance of
peace.
&/) Parents have a prior right to choose the :ind of education that shall
be given to their children.
'rticle !1. &1) ,veryone has the right freely to participate in the cultural life of the
community, to en7oy the arts and to share in scientific advancement
and its benefits.
&!) ,veryone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production of
which he is the author.
'rticle !$. ,veryone is entitled to a social and international order in which the
rights and freedoms set forth in this ;eclaration can be fully realized.
'rticle !#. &1) ,veryone has duties to the community in which alone the free and
full development of his personality is possible.
&!) In the e-ercise of his rights and freedoms, everyone shall be
sub7ect only to such limitations as are determined by law solely for the
purpose of securing due recognition and respect for the rights and
freedoms of others and of meeting the 7ust re(uirements of morality,
public order and the general welfare in a democratic society.
&/) 6hese rights and freedoms may in no case be e-ercised contrary to
the purposes and principles of the @nited ations.
'rticle /2. othing in this ;eclaration may be interpreted as implying for any
State, group or person any right to engage in any activity or to perform
any act aimed at the destruction of any of the rights and freedoms set
forth herein.
INTERNATIONAL CO@ENANT ON CI@IL AND POLITICAL RIG?TS
Prea1/le
1#1
6he States Parties to the present Covenant,
Considering that, in accordance with the principles proclaimed in the Charter of the
@nited ations, recognition of the inherent dignity and of the e(ual and inalienable
rights of all members of the human family is the foundation of freedom, 7ustice and
peace in the world,
4ecognizing that these rights derive from the inherent dignity of the human person,
4ecognizing that, in accordance with the @niversal ;eclaration of Duman 4ights, the
ideal of free human beings en7oying civil and political freedom and freedom from
fear and want can only be achieved if conditions are created whereby everyone
may en7oy his civil and political rights, as well as his economic, social and cultural
rights,
Considering the obligation of States under the Charter of the @nited ations to
promote universal respect for, and observance of, human rights and freedoms,
4ealizing that the individual, having duties to other individuals and to the
community to which he belongs, is under a responsibility to strive for the promotion
and observance of the rights recognized in the present Covenant,
'gree upon the following articles5
PART I
Article "
1. 'll people have the right of self3determination. Cy virtue of that right they
freely determine their political status and freely pursue their economic, social
and cultural development.
!. 'll people may, for their own ends, freely dispose of their natural wealth and
resources without pre7udice to any obligations arising out of international
economic co3operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of
subsistence.
/. 6he States Parties to the present Covenant, including those having
responsibility for the administration of on3Self3Eoverning and 6rust
6erritories, shall promote the realization of the right of self3determination,
and shall respect that right, in conformity with the provisions of the Charter
of the @nited ations.
PART II
Article 6
1. ,ach State Party to the present Covenant underta:es to respect and to
ensure to all individuals within its territory and sub7ect to its 7urisdiction the
rights recognized in the present Covenant, without distinction of any :ind,
1#$
such as race, colour, se-, language, religion, political or other opinion,
national or social origin, property, birth or other status.
!. Bhere not already provided for by e-isting legislative or other measures,
each State Party to the present Covenant underta:es to ta:e the necessary
steps, in accordance with its constitutional processes and with the provisions
of the present Covenant, to adopt such laws or other measures as may be
necessary to give effect to the rights recognized in the present Covenant.
/. ,ach State Party to the present Covenant underta:es5
a. 6o ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding
that the violation has been committed by persons acting in an official
capacityF
b. 6o ensure that any person claiming such a remedy shall have his right
thereto determined by competent 7udicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of 7udicial remedyF
c. 6o ensure that the competent authorities shall enforce such remedies
when granted.
INTERNATIONAL CO@ENANT ON ECONO8IC. SOCIAL AND C*LT*RAL RIG?TS
Prea1/le
6he States Parties to the present Covenant,
Considering that, in accordance with the principles proclaimed in the Charter of the
@nited ations, recognition of the inherent dignity and of the e(ual and inalienable
rights of all members of the human family is the foundation of freedom, 7ustice and
peace in the world,
4ecognizing that these rights derive from the inherent dignity of the human person,
4ecognizing that, in accordance with the @niversal ;eclaration of Duman 4ights, the
ideal of free human beings en7oying freedom from fear and want can only be
achieved if conditions are created whereby everyone may en7oy his economic,
social and cultural rights, as well as his civil and political rights,
Considering the obligation of States under the Charter of the @nited ations to
promote universal respect for, and observance of, human rights and freedoms,
4ealizing that the individual, having duties to other individuals and to the
community to which he belongs, is under a responsibility to strive for the promotion
and observance of the rights recognized in the present Covenant,
1##
'gree upon the following articles5
PART I
Article "
1. 'll people have the right of self3determination. Cy virtue of that right they
freely determine their political status and freely pursue their economic, social
and cultural development.
!. 'll people may, for their own ends, freely dispose of their natural wealth and
resources without pre7udice to any obligations arising out of international
economic co3operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of
subsistence.
/. 6he States Parties to the present Covenant, including those having
responsibility for the administration of on3Self3Eoverning and 6rust
6erritories, shall promote the realization of the right of self3determination,
and shall respect that right, in conformity with the provisions of the Charter
of the @nited ations.
PART II
Article 6
1. ,ach State Party to the present Covenant underta:es to ta:e steps,
individually and through international assistance and co3operation, especially
economic and technical, to the ma-imum of its available resources, with a
view to achieving progressively the full realization of the rights recognized in
the present Covenant by all appropriate means, including particularly the
adoption of legislative measures.
!. 6he States Parties to the present Covenant underta:e to guarantee that the
rights enunciated in the present Covenant will be e-ercised without
discrimination of any :ind as to race, colour, se-, language, religion, political
or other opinion, national or social origin, property, birth or other status.
/. ;eveloping countries, with due regard to human rights and their national
economy, may determine to what e-tent they would guarantee the economic
rights recognized in the present Covenant to non3nationals.
Article 3
6he States Parties to the present Covenant underta:e to ensure the e(ual right of
men and women to the en7oyment of all economic, social and cultural rights set
forth in the present Covenant.
Article ;
!22
6he States Parties to the present Covenant recognize that, in the en7oyment of
those rights provided by the State in conformity with the present Covenant, the
State may sub7ect such rights only to such limitations as are determined by law only
in so far as this may be compatible with the nature of these rights and solely for the
purpose of promoting the general welfare in a democratic society.
Article >
1. othing in the present Covenant may be interpreted as implying for any
State, group or person any right to engage in any activity or to perform any
act aimed at the destruction of any of the rights or freedoms recognized
herein, or at their limitation to a greater e-tent than is provided for in the
present Covenant.
!. o restriction upon or derogation from any of the fundamental human rights
recognized or e-isting in any country in virtue of law, conventions,
regulations or custom shall be admitted on the prete-t that the present
Covenant does not recognize such rights or that it recognizes them to a
lesser e-tent.
PART III
Article J
1. 6he States Parties to the present Covenant recognize the right to wor:, which
includes the right of everyone to the opportunity to gain his living by wor:
which he freely chooses or accepts, and will ta:e appropriate steps to
safeguard this right.
!. 6he steps to be ta:en by a State Party to the present Covenant to achieve
the full realization of this right shall include technical and vocational guidance
and training programmes, policies and techni(ues to achieve steady
economic, social and cultural development and full and productive
employment under conditions safeguarding fundamental political and
economic freedoms to the individual.
GO@ERN8ENT O2 ?ONGCONG @S OLALIA
4espondent was granted bail while in an e-tradition case with petitioner Dong Oong
special administrative region. 4espondent 7udge granted said bail under the
following conditions5
1. Cail is set at Php1"2,222.22 in cash with the condition that accused hereby
underta:es that he will appear and answer the issues raised in these
proceedings and will at all times hold himself amenable to orders and
processes of this Court, will further appear for 7udgment. If accused fails in
this underta:ing, the cash bond will be forfeited in favor of the governmentF
!. 'ccused must surrender his valid passport to this CourtF
!21
/. 6he ;epartment of 8ustice is given immediate notice and discretion of filing
its own motion for hold departure order before this Court even in e-tradition
proceedingF and
>. 'ccused is re(uired to report to the government prosecutors handling this
case or if they so desire to the nearest office, at any time and day of the
wee:F and if they further desire, manifest before this Court to re(uire that all
the assets of accused, real and personal, be filed with this Court soonest, with
the condition that if the accused flees from his underta:ing, said assets be
forfeited in favor of the government and that the corresponding
lienQannotation be noted therein accordingly.
Issue5
Petitioner alleged that the trial court committed grave abuse of discretion
amounting to lac: or e-cess of 7urisdiction in admitting private respondent to
bailF
that there is nothing in the Constitution or statutory law providing that a
potential e-traditee has a right to bail, the right being limited solely to criminal
proceedings.
Deld5
T!e con&titutional +ro(i&ion on /ail oe& not a++l) to e0traition
+roceeing&.
In Eovernment of @nited States of 'merica v. Don. Euillermo E. Purganan, spea:ing
through then 'ssociate 8ustice 'rtemio *. Panganiban, later Chief 8ustice, !el t!at
t!e con&titutional +ro(i&ion on /ail oe& not a++l) to e0traition
+roceeing&. It i& -a(aila/le onl) in cri1inal +roceeing&.-. 0oreover, the
constitutional right to bail 9flows from the presumption of innocence in favor of
every accused who should not be sub7ected to the loss of freedom as thereafter he
would be entitled to ac(uittal, unless his guilt be proved beyond reasonable doubt9
&;e la Camara v. ,nage, >1 SC4' 1, %, September 11, 1#11, per Fernando, 8., later
C8). It follow& t!at t!e con&titutional +ro(i&ion on /ail will not a++l) to a
ca&e like e0traition. w!ere t!e +re&u1+tion of innocence i& not at i&&ue.
6he provision in the Constitution stating that the 9right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended9 does not detract
from the rule that the constitutional right to bail is available only in criminal
proceedings. It 1u&t /e note t!at t!e &u&+en&ion of t!e +ri(ilege of t!e
writ of !a/ea& cor+u& fin& a++lication -onl) to +er&on& 4uiciall) c!arge
for re/ellion or offen&e& in!erent in or irectl) connecte wit! in(a&ion-
&Sec. 1$, 'rt. *III, Constitution). Dence, the second sentence in the constitutional
provision on bail merely emphasizes the right to bail in criminal proceedings for the
aforementioned offenses. It cannot be ta:en to mean that the right is available even
in e-tradition proceedings that are not criminal in nature.
't first glance, the above ruling applies s(uarely to private respondent<s case.
Dowever, this Court cannot ignore the following trends in international law5 A"B t!e
!2!
growing i1+ortance of t!e ini(iual +er&on in +u/lic international law
w!o. in t!e 6Gt! centur). !a& grauall) attaine glo/al recognition5 A6B
t!e !ig!er (alue now /eing gi(en to !u1an rig!t& in t!e international
&+!ere5 A3B t!e corre&+oning ut) of countrie& to o/&er(e t!e&e uni(er&al
!u1an rig!t& in fulfilling t!eir treat) o/ligation&5 an A;B t!e ut) of t!i&
Court to /alance t!e rig!t& of t!e ini(iual uner our funa1ental law.
on one !an. an t!e law on e0traition. on t!e ot!er.
T!e 1oern tren in +u/lic international law i& t!e +ri1ac) +lace on t!e
wort! of t!e ini(iual +er&on an t!e &anctit) of !u1an rig!t&.
Slowly, the recognition that the individual person may properly be a sub7ect of
international law is now ta:ing root. 6he vulnerable doctrine that the sub7ects of
international law are limited only to states was dramatically eroded towards the
second half of the past century. For one, the uremberg and 6o:yo trials after
Borld Bar II resulted in the unprecedented spectacle of individual defendants for
acts characterized as violations of the laws of war, crimes against peace, and
crimes against humanity. 4ecently, under the uremberg principle, Serbian leaders
have been persecuted for war crimes and crimes against humanity committed in
the former Pugoslavia. T!e&e &ignificant e(ent& &!ow t!at t!e ini(iual
+er&on i& now a (ali &u/4ect of international law.
T!e *nite Nation& General A&&e1/l) ao+te t!e *ni(er&al Declaration of
?u1an Rig!t& in w!ic! t!e rig!t to life. li/ert) an all t!e ot!er
funa1ental rig!t& of e(er) +er&on were +roclai1e.
Bhile not a treaty, the principles contained in the said ;eclaration are now
recognized as customarily binding upon the members of the international
community. 6hus, in 0e7off v. ;irector of Prisons, this Court, in granting bail to a
prospective deportee, held that under the Constitution, t!e +rinci+le& &et fort! in
t!at Declaration are +art of t!e law of t!e lan. In 1#%%, the @ Eeneral
'ssembly also adopted the International Covenant on Civil and Political 4ights which
the Philippines signed and ratified. Fundamental among the rights enshrined therein
are the rights of every person to life, liberty, and due process.
6he Philippine authorities are under obligation to ma:e available to every person
under detention such remedies which safeguards their fundamental right to liberty.
6hese remedies include the right to be admitted to bail. Bhile this Court in
Purganan limited the e-ercise of the right to bail to criminal proceedings, however,
in light of the various international treaties giving recognition and protection to
human rights, particularly the right to life and liberty, a ree-amination of this
Court<s ruling in Purganan is in order.
2ir&t. we note t!at t!e e0erci&e of t!e StateP& +ower to e+ri(e an
ini(iual of !i& li/ert) i& not nece&&aril) li1ite to cri1inal +roceeing&.
4espondents in administrative proceedings, such as deportation and (uarantine,
have li:ewise been detained.
Secon. to li1it /ail to cri1inal +roceeing& woul /e to clo&e our e)e& to
our 4uri&+ruential !i&tor). P!ili++ine 4uri&+ruence !a& not li1ite t!e
e0erci&e of t!e rig!t to /ail to cri1inal +roceeing& onl). T!i& Court !a&
!2/
a1itte to /ail +er&on& w!o are not in(ol(e in cri1inal +roceeing&. In
fact, bail has been allowed in this 7urisdiction to persons in detention during the
pendency of administrative proceedings, ta:ing into cognizance the obligation of
the Philippines under international conventions to uphold human rights.
In 8e4off (. Director of Pri&on& an C!ir&koff (. Co11i&&ion of
I11igration. t!i& Court rule t!at foreign national& again&t w!o1 no
for1al cri1inal c!arge& !a(e /een file 1a) /e relea&e on /ail +ening
t!e finalit) of an orer of e+ortation. 's previously stated, the Court in 0e7off
relied upon the @niversal declaration of Duman 4ights in sustaining the detainee<s
right to bail.
If /ail can /e grante in e+ortation ca&e&. we &ee no 4u&tification w!) it
&!oul not al&o /e allowe in e0traition ca&e&. +i:ewise, considering that the
@niversal ;eclaration of Duman 4ights applies to deportation cases, there is no
reason why it cannot be invo:ed in e-tradition cases. 'fter all, both are
administrative proceedings where the innocence or guilt of the person detained is
not in issue.
T!e 1ean& e1+lo)e to attain t!e +ur+o&e of e0traition i& al&o -t!e
1ac!iner) of cri1inal law.-
,-tradition has thus been characterized as the right of a foreign power, created by
treaty, to demand the surrender of one accused or convicted of a crime within its
territorial 7urisdiction, and the correlative duty of the other state to surrender him to
the demanding state. It is not a criminal proceeding. E(en if t!e +otential
e0traitee i& a cri1inal. an e0traition +roceeing i& not /) it& nature
cri1inal. for it i& not +uni&!1ent for a cri1e. e(en t!oug! &uc!
+uni&!1ent 1a) follow e0traition. It is sui generis, tracing its e-istence wholly
to treaty obligations between different nations. It is not a trial to determine the guilt
or innocence of the potential e-traditee. or is it a full3blown civil action, but one
that is merely administrative in character. It& o/4ect i& to +re(ent t!e e&ca+e of
a +er&on accu&e or con(icte of a cri1e an to &ecure !i& return to t!e
&tate fro1 w!ic! !e fle. for t!e +ur+o&e of trial or +uni&!1ent.
But w!ile e0traition i& not a cri1inal +roceeing. it i& c!aracteri9e /)
t!e following' AaB it entail& a e+ri(ation of li/ert) on t!e +art of t!e
+otential e0traitee an A/B t!e 1ean& e1+lo)e to attain t!e +ur+o&e of
e0traition i& al&o -t!e 1ac!iner) of cri1inal law.- 6his is shown by Section %
of P.;. o. 12%# &6he Philippine ,-tradition +aw) which mandates the 9immediate
arrest and temporary detention of the accused9 if such 9will best serve the interest
of 7ustice.9 Be further note that Section !2 allows the re(uesting state 9in case of
urgency9 to as: for the 9provisional arrest of the accused, pending receipt of the
re(uest for e-traditionF9 and that release from provisional arrest 9shall not pre7udice
re3arrest and e-tradition of the accused if a re(uest for e-tradition is received
subse(uently.9
O/(iou&l). an e0traition +roceeing. w!ile o&ten&i/l) a1ini&trati(e.
/ear& all ear1ark& of a cri1inal +roce&&. A +otential e0traitee 1a) /e
!2>
&u/4ecte to arre&t. to a +rolonge re&traint of li/ert). an force to
tran&fer to t!e e1aning &tate following t!e +roceeing&. 96emporary
detention9 may be a necessary step in the process of e-tradition, but the length of
time of the detention should be reasonable.
4ecords show that private respondent was arrested on September !/, 1###, and
remained incarcerated until ;ecember !2, !221, when the trial court ordered his
admission to bail. In other words, he had been detained for over two &!) years
without having been convicted of any crime. B) an) &tanar. &uc! an
e0tene +erio of etention i& a &eriou& e+ri(ation of !i& funa1ental
rig!t to li/ert). In fact. it wa& t!i& +rolonge e+ri(ation of li/ert) w!ic!
+ro1+te t!e e0traition court to grant !i1 /ail.
Bhile our e-tradition law does not provide for the grant of bail to an e-traditee,
however, there is no provision prohibiting him or her from filing a motion for bail, a
right to due process under the Constitution.
T?E PRINCIPLE O2 PACTA S*NT SER@ANDA @S CONSTIT*TIONAL LAW AND
INTERNATIONAL LAW
6he time3honored principle of pacta sunt servanda demands that the Philippines
honor its obligations under the ,-tradition 6reaty it entered into with the Dong Oong
Special 'dministrative 4egion. Failure to comply with these obligations is a setbac:
in our foreign relations and defeats the purpose of e-tradition. ?owe(er. it oe&
not nece&&aril) 1ean t!at in kee+ing wit! it& treat) o/ligation&. t!e
P!ili++ine& &!oul i1ini&! a +otential e0traiteeP& rig!t& to life. li/ert).
an ue +roce&&. 8ore &o. w!ere t!e&e rig!t& are guarantee. not onl) /)
our Con&titution. /ut al&o /) international con(ention&. to w!ic! t!e
P!ili++ine& i& a +art). Be should not, therefore, deprive an e-traditee of his right
to apply for bail, provided that a certain standard for the grant is satisfactorily met.
Clear an con(incing e(ience- &!oul /e u&e in granting /ail in
e0traition ca&e&.
'n e-tradition proceeding being sui generis, the standard of proof re(uired in
granting or denying bail can neither be the proof beyond reasonable doubt in
criminal cases nor the standard of proof of preponderance of evidence in civil cases.
Bhile administrative in character, the standard of substantial evidence used in
administrative cases cannot li:ewise apply given the ob7ect of e-tradition law which
is to prevent the prospective e-traditee from fleeing our 7urisdiction. In his Separate
.pinion in Purganan, then 'ssociate 8ustice, now C!ief <u&tice Re)nato S. Puno.
+ro+o&e t!at a new &tanar w!ic! !e ter1e -clear an con(incing
e(ience- &!oul /e u&e in granting /ail in e0traition ca&e&. Accoring
to !i1. t!i& &tanar &!oul /e lower t!an +roof /e)on rea&ona/le ou/t
/ut !ig!er t!an +re+onerance of e(ience. T!e +otential e0traitee 1u&t
+ro(e /) -clear an con(incing e(ience- t!at !e i& not a flig!t ri&k an
will a/ie wit! all t!e orer& an +roce&&e& of t!e e0traition court.
In this case, there is no showing that private respondent presented evidence to
show that he is not a flight ris:. Conse(uently, this case should be remanded to the
!2"
trial court to determine whether private respondent may be granted bail on the
basis of 9clear and convincing evidence.9
K----------------------------------------------------------------------
---------------------------
ota bene5
a. 4,P4IS'+ is a coercive measure short of war, directed by a state
against another, in retaliation for acts of the latter and as means of
obtaining reparation or satisfaction for such acts. 4eprisal involves
retaliatory acts which by themselves would be illegal. For e-ample, for
violation of a treaty by a state, the aggrieved state seizes on the high
seas the ships of the offending state.
b. 4,6.4SI. is a legal but deliberately unfriendly act directed by a state
against another in retaliation for an unfriendly though legal act to compel
that state to alter its unfriendly conduct. 'n e-ample of retorsion is
banning e-ports to the offending state.
c. 6he ;,C+'4'6.4P 6D,.4P .F 4,C.EI6I. is a theory according to
which recognition of a state is merely an ac:nowledgment of the fact of its
e-istence. In other words, the recognized state already e-ists and can
e-ist even without such recognition. For e-ample, when other countries
recognized Cangladesh, Cangladesh already e-isted as a state even
without such recognition.
d. 4,C.EI6I. .F C,++IE,4,CP is the formal ac:nowledgment by a
third party of the e-istence of a state of war between the central
government and a portion of that state. Celligerency e-ists when a
sizeable portion of the territory of a state is under the effective control of
an insurgent community which is see:ing to establish a separate
government and the insurgents are in de facto control of a portion of the
territory and population, have a political organization, are able to maintain
such control, and conduct themselves according to the laws of war. For
e-ample, Ereat Critain recognized a state of belligerency in the @nited
States during the Civil Bar,
e. C.6I,6'+ SD,+F of a coastal state comprises the sea3bed and
subsoil of the submarine areas that e-tend beyond its territorial sea
throughout the natural prolongation of its land territory to the outer edge
of the continental margin, or to a distance of !22 nautical miles from the
9baselines from which the breadth of the territorial sea is measured where
the outer edge of the continental shelf does not e-tend up to that
distance.
f. ,K,N@'6@4 is an authorization from the receiving state admitting the
head of a consular post to the e-ercise of his functions. For e-ample, if the
Philippines appoints a consul general for ew Por:, he cannot start
!2%
performing his functions unless the President of the @nited States issues
an e-e(uatur to him,
g. 6he principle of ;.@C+, C4I0I'+I6P is the rule in e-tradition which
states that for a re(uest to be honored the crime for which e-tradition is
re(uested must be a crime in both the re(uesting state and the state to
which the fugitive has fled. For e-ample, since murder is a crime both in
the Philippines and in Canada, under the 6reaty on ,-tradition between
the Philippines and Canada, the Philippines can re(uest Canada to
e-tradite a Filipino who has fled to Canada.
h. P4.6,C6I*, P,4S.'+I6P principle is the principle by which the state
e-ercise 7urisdiction over the acts of an alien even if committed outside its
territory, if such acts are adverse to the interest of the national state.
i. I.C,6 P'SS'E, means the right of continuous and e-peditious
navigation of a foreign ship through the territorial sea of a state for the
purpose of traversing that sea without entering the internal waters or
calling at a roadstead or port facility outside internal waters, or
proceeding to or from internal waters or a call at such roadstead or port
facility. 6he passage is innocent so long as it is not pre7udicial to the
peace, good order or security of the coastal state.
7. 8@S C.E,S is a peremptory norm of general international law
accepted and recognized by the international community as a whole as a
norm from which no derogation is permitted and which can be modified
only by a subse(uent norm of general international law having the same
character, 'n e-ample is the prohibition against the use of force.
S*GGESTED ANSWERS TO T?E 6GG# BAR EIA8 L*ESTIONS ON P*BLIC
INTERNATIONAL LAW
III.
Willia1. a +ri(ate A1erican citi9en. a uni(er&it) grauate an fre,uent
(i&itor to t!e P!ili++ine&. wa& in&ie t!e *.S. e1/a&&) w!en !e got into a
!eate argu1ent wit! a +ri(ate 2ili+ino citi9en. T!en. in front of 1an)
&!ocke witne&&e&. !e kille t!e +er&on !e wa& arguing wit!. T!e +olice
ca1e. an /roug!t !i1 to t!e neare&t +olice &tation. *+on reac!ing t!e
&tation. t!e +olice in(e&tigator. in !alting Engli&!. infor1e Willia1 of !i&
8irana rig!t&. an a&&igne !i1 an ine+enent local coun&el. Willia1
refu&e t!e &er(ice& of t!e law)er. an in&i&te t!at !e /e a&&i&te /) a
2ili+ino law)er currentl) /a&e in t!e *.S. T!e re,ue&t wa& enie. an
t!e coun&el a&&igne /) t!e +olice &ta)e for t!e uration of t!e
in(e&tigation.
Willia1 +rote&te !i& arre&t.
!21
VaW ?e argue t!at &ince t!e incient took +lace in&ie t!e *.S. e1/a&&).
P!ili++ine court& !a(e no 4uri&iction /ecau&e t!e *.S. e1/a&&) groun&
are not +art of P!ili++ine territor)5 t!u&. tec!nicall). no cri1e uner
P!ili++ine law wa& co11itte. I& Willia1 correctN E0+lain )our an&wer.
A3TB
'ns. o, Billiam is not correct. Bhile 'rticle !! of the *ienna Convention on
;iplomatic 4elations provides that the premises of a diplomatic mission shall be
inviolable, and may not be entered by the police or by any other agent of the
receiving State, e-cept with the consent of the 'mbassador or the head of the
mission, it does not alter the fact, however, that such premises are still part of
Philippine territory. T!e conce+t of Fe0territorialit).H uner w!ic! i+lo1atic
+re1i&e& are ee1e to /e +art of t!e &o(ereign territor) of t!e &ening
State. !a& not /een ao+te in t!e @ienna Con(ention. Dence, a crime
committed on or within such premises by a private person li:e Billiams who en7oys
no diplomatic immunity falls within the 7urisdiction of Philippine courts.
IIII.
A terrori&t grou+ calle t!e E1eral Brigae i& /a&e in t!e State of
A&)alan. T!e go(ern1ent of A&)alan oe& not &u++ort t!e terrori&t
grou+. /ut /eing a +oor countr). i& +owerle&& to &to+ it.
T!e E1eral Brigae launc!e an attack on t!e P!ili++ine&. firing two
1i&&ile& t!at kille t!ou&an& of 2ili+ino&. It t!en warne t!at 1ore
attack& were fort!co1ing. T!roug! i+lo1atic c!annel&. t!e P!ili++ine&
e1ane t!at A&)alan &to+ t!e E1eral Brigae5 ot!erwi&e. it will o
w!ate(er i& nece&&ar) to efen it&elf.
Recei(ing relia/le intelligence re+ort& of anot!er i11inent attack /) t!e
E1eral Brigae. an it a++earing t!at A&)alan wa& inca+a/le of
+re(enting t!e a&&ault. t!e P!ili++ine& &ent a crack co11ano tea1 to
A&)alan. T!e tea1 &ta)e onl) for a few !our& in A&)alan. &ucceee in
killing t!e leaer& an 1o&t of t!e 1e1/er& of t!e E1eral Brigae. t!en
i11eiatel) returne to t!e P!ili++ine&.
VaW Wa& t!e P!ili++ine action 4u&tifie uner t!e international law +rinci+le
of F&elf7efen&eHN E0+lain )our an&wer. A3TB
'ns. Pes, the Philippine action was 7ustified. Article >" of t!e *.N. C!arter
affir1& t!e in!erent rig!t of State& to ini(iual or collecti(e &elf7efence.
6he terrorist group ,merald Crigade had already launched actual armed attac:s on
the Philippines which :illed thousands of Filipinos with a warning that more attac:s
were forthcoming. 'syland, on the other hand, had failed to fulfill its obligations,
under international law, to prevent the use of its territory for the staging of terrorist
acts against the Philippines. 's such, in the face of another imminent attac: by the
,merald Crigade, and it appearing that 'syland was incapable of preventing the
!2$
assault, the Philippines was therefore 7ustified in resorting to military action to
protect its own security as an act of self3defence.
V/W A& a con&e,uence of t!e foregoing incient. A&)alan c!arge& t!e
P!ili++ine& wit! (iolation of Article 6.; of t!e *nite Nation& C!arter t!at
+ro!i/it& Ft!e t!reat or u&e of force again&t t!e territorial integrit) or
+olitical ine+enence of an) State.H T!e P!ili++ine& counter& t!at it&
co11ano tea1 neit!er took an) territor) nor interfere in t!e +olitical
+roce&&e& of A&)alan. W!ic! contention i& correctN Rea&on&. A3TB
'ns. 6he contention of the Philippines is the correct one. State +ractice an t!e
*.N. Securit) Council=& action& after #O"" inicate a tren towar&
recogni9ing t!at a State t!at &uffer& large7&cale (iolence +er+etrate /)
non7State actor& locate in anot!er State !a& a rig!t to u&e force w!en A"B
t!at ot!er State +ro(e& unwilling or una/le to reuce or eli1inate t!e
&ource of t!e (iolence. A6B t!e u&e of force i& +ro+ortional to t!e t!reat
+o&e /) t!e non7State actor. an A3B t!e u&e of force i& te1+orar) an
oe& not re&ult in non7con&en&ual occu+ation or anne0ation of territor).
@nder @Q'Q4,SQ%2Q!$$ &!22%), :nown as the @ global counter3terrorism strategy,
member States shall adopt a plan of action, including a number of measures to
prevent and combat terrorism, in particular by denying terrorists access to the
means to carry out their attac:s, to their targets and to the desired impact of their
attac:s.
VcW A&&u1e t!at t!e co11ano tea1 ca+ture a 1e1/er of t!e E1eral
Brigae an /roug!t !i1 /ack to t!e P!ili++ine&. T!e P!ili++ine
Go(ern1ent in&i&t& t!at a &+ecial international tri/unal &!oul tr) t!e
terrori&t. On t!e ot!er !an. t!e terrori&t argue& t!at terrori&1 i& not an
international cri1e an. t!erefore. t!e 1unici+al law& of t!e P!ili++ine&.
w!ic! recogni9e acce&& of t!e accu&e to con&titutional rig!t&. &!oul
a++l). Decie wit! rea&on&. A3TB
'ns. Terrori&1 i& an international cri1e /ot! in +eace ti1e an in ti1e& of
ar1e conflict&. an t!erefore it 1a) /e trie /) a &+ecial international
tri/unal. 6he municipal laws of the Philippines cannot apply because the terrorist
acts in (uestion are transnational in natureF that is, not limited to the territory of the
Philippines and they o not fall uner t!e e0traterritorial cri1inal 4uri&iction
of t!e P!ili++ine& uner Article 6 of t!e Re(i&e Penal Coe.
Bhen committed during peacetime, international terrorism may be prosecuted
under the different international conventions on the prevention, suppression and
punishment of terrorism, and when committed during an armed conflict, it may be
prosecuted as a distinct category of war crimes. International law indisputably bans
terrorism in time of armed conflict. 'rticle //&1) of the Fourth Eeneva Convention of
1#># prohibits Gall measures of terrorism against civilians.H ' similar provision is
contained in the Second 'dditional Protocol of 1#11. 'rticle >&!)&d) prohibits Gacts
of terrorismH against all persons who do not ta:e a direct part or have ceased to
ta:e part in hostilities.
!2#
II@.
T!e P!ili++ine Go(ern1ent i& negotiating a new &ecurit) treat) wit! t!e
*nite State& w!ic! coul in(ol(e engage1ent in 4oint 1ilitar) o+eration&
of t!e two countrie&P ar1e force&. A loo&e organi9ation of 2ili+ino&. t!e
Ca/ataan at 8atatanang 8aka/an&a AC88B wrote t!e De+art1ent of
2oreign Affair& AD2AB an t!e De+art1ent of National Defen&e ADNDB
e1aning i&clo&ure of t!e etail& of t!e negotiation&. a& well a& co+ie&
of t!e 1inute& of t!e 1eeting&. T!e D2A an t!e DND refu&e. contening
t!at +re1ature i&clo&ure of t!e offer& an counter7offer& /etween t!e
+artie& coul 4eo+ari9e on7going negotiation& wit! anot!er countr). C88
file &uit to co1+el i&clo&ure of t!e negotiation etail&. an /e grante
acce&& to t!e recor& of t!e 1eeting&. in(oking t!e con&titutional rig!t of
t!e +eo+le to infor1ation on 1atter& of +u/lic concern.
VaW Decie wit! rea&on&. A3TB
'ns. 6he suit filed by O00 should be dismissed. It is true that the details of the
treaty negotiation, including the offers and counter3offers between the Philippine
Eovernment and @nited States, are matters of public concern. Dowever, it is also
well3established in 7urisprudence that neither the right to information nor the policy
of full public disclosure is absolute, there being matters which, albeit of public
concern or public interest, are recognized as privileged in nature.
's held in the recent case of ':bayan vs. '(uino &E.4. o. 112"1%, 8uly 1%, !22$),
the privileged character of diplomatic negotiations has been recognized in this
7urisdiction. In discussing valid limitations on the right to information, the Supreme
Court in Chavez v. PCEE &/%2 Phil. 1//, 1%> I1##$J) held that Finfor1ation on
inter7go(ern1ent e0c!ange& +rior to t!e conclu&ion of treatie& an
e0ecuti(e agree1ent& 1a) /e &u/4ect to rea&ona/le &afeguar& for t!e
&ake of national intere&t.H ,ven earlier, the same privilege was upheld in
People<s 0ovement for Press Freedom &P0PF) v. 0anglapus &E.4. o. $>%>!,
September 1/, 1#$$) wherein the Supreme Court stressed that Gsecrecy of
negotiations with foreign countries is not violative of the constitutional provisions of
freedom of speech or of the press nor of the freedom of access to information.H
IbJ Bill your answer be the same if the information sought by O00 pertains to
contracts entered into by the Eovernment in its proprietary or commercial capacity=
Bhy or why not= &/L)
'ns. o, the answer will be different. Infor1ation +ertaining to contract&
entere into /) t!e Go(ern1ent in it& +ro+rietar) or co11ercial ca+acit)
are not co(ere /) t!e octrine of e0ecuti(e +ri(ilege. T!e&e infor1ation
are 1atter& of +u/lic concern to w!ic! t!e +eo+le !a(e t!e rig!t to
infor1ation uner Section % of t!e Bill of Rig!t&. @nder Section 1, citizens
shall be afforded access to official records, and to documents, and papers
pertaining to government transactions. 0oreover, Section !$ of the ;eclaration of
!12
Principles directs the State to adopt and implement a policy of full public disclosure
of all its transactions involving public interest.
1. Bhat is e-territoriality=
3 It i& t!e fiction in international law /) (irtue of w!ic! foreign
+er&on& an t!eir t!ing& are e0e1+te fro1 t!e 4uri&iction of t!e
State on t!e t!eor) t!at t!e) for1 an e0ten&ion of t!e territor) of
t!eir own State.
!. Bhat is e-tra3territoriality=
3 It i& t!e e0e1+tion of foreign +er&on& fro1 law& an 4uri&iction of a
State in w!ic! t!e) +re&entl) re&ie. an e0e1+tion w!ic! can onl)
e0i&t /) (irtue of a treat) &ti+ulation to t!i& effect.
/. Bhat is imperium=
3 T!e rig!t of t!e State to +a&& or enact it& own law& an e1+lo) force
to &ecure o/eience. 1aintain +eace an orer wit!in it& territorial
li1it&. efen t!e State again&t foreign in(a&ion. an o an) ot!er
act of go(ernance o(er it& +eo+le an territor).
>. Bhat is dominium=
3 It refer& to t!e ine+enent +ro+rietar) rig!t of +o&&e&&ion. u&e.
con&er(ation. i&+o&ition or &ale. an control /) t!e State o(er it&
territorial lan&.
00000000000000000000000000000000000000000000000000000000000000000
000000000000000000000000000
II. 2*NDA8ENTAL RIG?TS O2 STATES
!11
Inter(ention
@nder the basic principles of international law5
1. 6he principle that states &!all refrain in t!eir international
relation& fro1 t!e t!reat or u&e of force again&t t!e territorial
integrit) or +olitical ine+enence of an) &tate. or in any other manner
inconsistent with the purposes of the @nited ationsF
!. 6he duty not to inter(ene in 1atter& wit!in t!e o1e&tic
4uri&iction of an) &tate. in accordance with the CharterF
/. 6he principle of e,ual rig!t& an &elf7eter1ination of +eo+le&5
>. 6he principle of &o(ereign e,ualit) of &tate&F and
So(ereignt)
3 Independence from outside controlF the 0ontivedeo Convention e-presses
this in positive terms as including the capacity to enter into relations with
other StatesF this latter element of sovereignty, however, is dependent on
recognitionF an entity may in fact possess all elements of a state but if one or
more states do not e-tend recognition to it, the entity would not be able to
establish relations with those states.
Conce+t of re& nulliu&
3 6he definition of res nullius is 9' thing which has no owner or ' thing which
has been abandoned by its owner is as much res nullius as if it had never
belonged to anyone.9
3 6he Philippines bases its claims of sovereignty over the Spratlys on the issues
of res nullius and geography. Bhen 8apan renounced its sovereignty over the
islands in the San Francisco 6reaty in 1#"1, the islands became res nullius
and available for anne-ation.
3 6wo modes of territorial ac(uisition in International +awF namely, occupation
and prescription5
.ccupation is an original mode of territorial ac(uisition, and is effected
through possession and administration of the territory by or in behalf
of the ac(uiring State. 6he prime ob7ect of settlement by occupation is
the incorporation of unappropriated territory into the national domain
of the ac(uiring State. Onl) &uc! territor) a& i& not wit!in t!e
o1inion of an) State 1a) /e t!e o/4ect of occu+ation. In
ot!er wor&. t!e territor) 1u&t /e re& nulliu& or terra nulliu&.
T!e ter1 re& nulliu&. a& !a& /een inter+rete. oe& not re,uire
t!at t!e territor) /e unin!a/ite. /ut t!at it /e not alrea)
occu+ie /) a +eo+le or State w!o&e +olitical organi9ation i&
&uc! a& to cau&e it& +rior rig!t& of occu+anc) to /e recogni9e.
Be must concede that in the past ,uropean powers did not recognize
the title of settled peoples whose civilization was allegedly below the
!1!
,uropean standard. 6he emergence of non3,uropean powers, and the
growing importance of new nations in the 'fro3'sian bloc, have eroded
away this concept. 't any rate, insofar as the Critish Eovernment is
concerned, it is precluded from claiming that the Sultan of Sulu had a
title or a political organization below the ,uropean standard. 'll we
need to do is to refer bac: to the te-t, of +ord EranvilleAs
correspondence.
.uter space R outer space begins where sovereignty over air space ends
3 .uter space, wherever that might be, and celestial bodies, are not
susceptible to appropriation by any state.
3 @nder the 1#%1 6reaty on the e-ploration and use of outer space
,-ploration and use of the moon and other celestial bodies are for the
benefit and interest of all countries
.uter space and the moon shall be free for e-ploration and use by all
states
.uter space and the moon not sub7ect to national appropriation
Parties to treaty agree not to place in orbit around earth any ob7ects
carrying nuclear weapons or any other :inds of weapons of mass
destruction install such on celestial bodies or station such weapons in
outer space in any other manner
0oon and other celestial bodies shall be used by all states for peaceful
purposes.
'stronauts are envoys of man:ind in outer space and shall render
them assistance in every accident, distress, or emergency landing on
the territory of another state party or on the high seas. 6hey shall be
safely and promptly returned to the state of registry of their space
vehicle.
8urisdiction
3 6he authority to affect legal interests. Corresponding to the powers of the
government, 7urisdiction can be
". 8urisdiction to prescribe norms of conduct &legislative 7urisdiction)
6. 8urisdiction to enforce the norms prescribed &e-ecutive 7urisdiction)
3. 8urisdiction to ad7udicate &7udicial 7urisdiction)
;iplomatic immunity
CALLADO @S IRRI
Callado was terminated by I44I. Filed charges with the +4C. I44I set defense of
immunity. +abor arbiter said no immunity in labor case.
Deld5
I44IAs immunity from suit is undisputed.
Pre&iential Decree No. "J6G. Article 3 +ro(ie&'
!1/
'rt. /. Immunity from +egal Process. 6he Institute shall en7oy immunity from any
penal, civil and administrative proceedings, e-cept insofar as that immunity has
been e-pressly waived by the ;irector3Eeneral of the Institute or his authorized
representatives.
I44I en7oy&s) immunities accorded to international organizations, which
determination has been held to be a political (uestion conclusive upon the
Courts in order not to embarass a political department of Eovernment.
in BD. v. Don. Cen7amin '(uino5
3 It i& a recogni9e +rinci+le of international law an uner our &)&te1
of &e+aration of +ower& t!at i+lo1atic i11unit) i& e&&entiall) a
+olitical ,ue&tion an court& &!oul refu&e to look /e)on a
eter1ination /) t!e e0ecuti(e /ranc! of t!e go(ern1ent. an
w!ere t!e +lea of i+lo1atic i11unit) i& recogni9e an affir1e /)
t!e e0ecuti(e /ranc! of t!e go(ern1ent a& in t!e ca&e at /ar. it i&
t!en t!e ut) of t!e court& to acce+t t!e clai1 of i11unit) u+on
a++ro+riate &ugge&tion /) t!e +rinci+al law officer of t!e
go(ern1ent . . . or other officer acting under his direction. Dence, in
adherence to the settled principle that courts may not so e-ercise their
7urisdiction . . . as to embarass the e-ecutive arm of the government in
conducting foreign relations, it is accepted doctrine that in such cases the
7udicial department of &this) government follows the action of the political
branch and will not embarrass the latter by assuming an antagonistic
7urisdiction.
3 Further, we held that 9&t)he raison dAetre for these immunities is the
a&&urance of uni1+ee +erfor1ance of t!eir function& /) t!e
agencie& concerne.
3 6he grant of immunity from local 7urisdiction to . . . and I44I is clearly
necessitated by their international character and respective purposes. T!e
o/4ecti(e i& to a(oi t!e anger of +artialit) an interference /) t!e
!o&t countr) in t!eir internal working&. T!e e0erci&e of 4uri&iction
/) t!e De+art1ent of La/or in t!e&e in&tance& woul efeat t!e (er)
+ur+o&e of i11unit). w!ic! i& to &!iel t!e affair& of international
organi9ation&, in accordance with international practice, from political
pressure or control by the host country to the pre7udice of member States of
the organization, and to ensure the unhampered the performance of their
functions.
CONS*LS AND CONS*LAR I88*NITIES
Consuls are not concerned with political matters. 6hey attend rather to
administrative and economic issues such as the issuance of visas.
6he head of a consular post may be admitted through an authorization letter from
the receiving state termed an e-e(uatur. De may be declared persona non grata by
the receiving state, and in such event would be recalled or his functions with the
consular post terminated.
@nder the *ienna Convention on Consular relations, pertinent provisions relating to
their functions are the following5
!1>
'rt. /> F4,,;.0 .F 0.*,0,6 &sub7ect to laws and regulations, movement
and travel in the territory of the receiving State by the members of the
consular post)
'rt. /" F4,,;.0 .F C.00@IC'I6.
'rt. /% C.00@IC'6I. '; C.6'C6 BI6D '6I.'+S .F 6D, S,;IE
S6'6,
'rt. >1 P,4S.'+ I*I.+'CI+I6P .F C.S@+'4 .FFIC,4S
ot be liable to arrest or detention pending trial e-cept of a grave
crime
'rt. >! .6IFIC'6I. .F '44,S6, ;,6,6I. .4 P4.S,C@6I.
4eceiving state shall notify head of the consular post
'rt. >/ I00@I6P F4.0 8@4IS;IC6I.
Consular officers and consular employees shall not be amenable to
the 7urisdiction of 7udicial or administrative authorities of the
receiving state with respect to act& +erfor1e in t!e e0erci&e
of con&ular function&
First paragraph shall not apply with respect to a civil action either5
'rising out of a contract concluded by the consular officer or
consular employee in w!ic! !e i not contract
e0+re&&l) or i1+liel) a& an agent of t!e &ening
&tate5
B) a t!ir +art) for a1age& ari&ing fro1 an accient
in t!e recei(ing &tate, caused by a vehicle, vessel, or
aircraft.
'rt. >> +I'CI+I6P 6. EI*, ,*I;,C,
'rt. >" B'I*,4 .F P4I*I+,E,S '; I00@I6I,S
Sending state may waive, with regard to the consular post, any of
the privileges and immunities provided for in 'rt. >1, >/, >>
Ca&e concerning *S Di+lo1atic an Con&ular Staff in Te!eran
Iran did not brea: off diplomatic relations with the @S government and in no
time declared the members of the consular staff persona non grata. 6hey did not
employ remedies in ending the crisis. It allowed the group of militants to attac:
and occupy the @S ,mbassy by force and held the diplomatic and consular staff
hostageF
6he Iranian authoritiesA decision to continue the sub7ection of the ,mbassy to
occupation, and of its staff to detention as hostages, gave rise to repeated and
multiple breaches of IranAs treaty obligations, additional to those already
committed at the time of the seizure of the ,mtbassy &1#%1 Convention5 'rts.
!!,!>,!",!%,!1 and !#F 1#%/ Convention5 inter alia, 'rt. //F 1#"" 6:aty, 'rt. iI
&>)).
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---------------------------
Di+lo1atic I11unit) A6GGGB
!1"
o KK 3' foreign ambassador to the Philippines leased a vacation house in 6agaytay
for his personal use. For some reason, he failed to pay rentals for more than one
year. 6he lessor filed an action for the recovery of his property in court.
a) Can the foreign ambassador invo:e his diplomatic immunity to resist the lessorAs
action=
&/L)
b) 6he lessor gets hold of evidence that the ambassador is about to return to his
home country. Can the lessor as: the court to stop the ambassadorAs departure
from the Philippines=
&!L)
S@EE,S6,; 'SB,45
a) o, the foreign ambassador cannot invo:e his diplomatic immunity to resist the
action, since he is not using the house in 6agaytay City for the purposes of his
mission but merely for vacation. @nder 'rticle /&l)&a) of the *ienna Convention on
;iplomatic 4elations, a diplomatic agent has no immunity in case of a real action
relating to private immovable property situated in the territory of the receiving
State unless he holds it on behalf of the sending State for purposes of the mission.
b) o, the lessor cannot as: the court to stop the departure of the ambassador from
the Philippines. @nder 'rticle !# of the *ienna Convention, a diplomatic agent shall
not be liable to any form of arrest or detention. &per ;ondee) 6he grounds cited by
PU is tenable on the basis that the precept that a State cannot be sued in the courts
of a foreign state is a long3standing rule of customary international law then closely
identified with the personal immunity of a foreign sovereign from suit and, with the
emergence of democratic states, made to attach not 7ust to the person of the head
of state, or his representative, but also distinctly to the state itself in its sovereign
capacity. If the acts giving rise to a suit are those of a foreign government done by
its foreign agent, although not necessarily a diplomatic personage, but acting in his
official capacity, the complaint could be barred by the immunity of the foreign
sovereign from suit without its consent. Suing a representative of a state is believed
to be, in effect, suing the state itself. &OD.S4.B 0I@CD,4 vs. C.@46 .F
'PP,'+S, E.4. o. 1>!/#%. February 11, !22/)
Di+lo1atic I11unit) A6GG"B
o KK 3 ;r. *elen, an official of the Borld Dealth .rganization &BD.) assigned in
the Philippines, arrived at the inoy '(uino International 'irport with his personal
effects contained in twelve crates as unaccompanied baggage. 's such, his
personal effects were allowed free entry from duties and ta-es, and were directly
stored at 'rshaine CorporationAs warehouse at 0a:ati, pending ;r. *elenAs
!1%
relocation to his permanent (uarters. 't the instance of police authorities, the
4egional 6rial Court &46C) of 0a:ati issued a warrant for the search and seizure of
;r. *elenAs personal effects in view of an alleged violation of the 6ariff and CustomAs
Code. 'ccording to the police, the crates contained contraband items. @pon protest
of BD. officials, the Secretary of Foreign 'ffairs formally advised the 46C as to ;r.
*elenAs immunity. 6he Solicitor Eeneral li:ewise 7oined ;r. *elenAs plea of immunity
and motion to (uash the search warrant. 6he 46C denied the motion. Is the denial
of the motion to (uash proper= &"L)
S@EE,S6,; 'SB,45
6he denial of the motion is improper. 's held in Borld Dealth .rganization vs.
'(uino, >$ SC4' !>! &1#1!). as an official of the Borld Dealth .rganization, ;r.
*elen en7oyed diplomatic immunity and this included e-emption from duties and
ta-es. Since diplomatic immunity involves a political (uestion, where a plea of
diplomatic immunity is recognized and affirmed by the ,-ecutive ;epartment, it is
the duty of the court to accept the claim of immunity
EITRADITION
WRIG?T @S CA
'ustralia and the Eovernment of the Philippines in the suppression of crime,
entered into a 6reaty of ,-tradition on the 1th of 0arch 1#$$. 6he said treaty was
ratified in accordance with the provisions of Section !1, 'rticle *II of the 1#$1
Constitution in a 4esolution adopted by the Senate on September 12, 1##2 and
became effective /2 days after both States notified each other in writing that the
respective re(uirements for the entry into force of the 6reaty have been complied
with. Petitioner contends that the provision of the 6reaty giving retroactive effect to
the e-tradition treaty amounts to an e- post facto law which violates Section !1 of
'rticle *I of the Constitution.
ISS@,5 Can an e-tradition treaty be applied retroactively=
D,+;5 A++l)ing t!e con&titutional +rinci+le. t!e Court !a& !el t!at t!e
+ro!i/ition a++lie& onl) to cri1inal legi&lation w!ic! affect& t!e
&u/&tantial rig!t& of t!e accu&e. 6his being so, there is no absolutely no merit
in petitionerAs contention that the ruling of the lower court sustaining the 6reatyAs
retroactive application with respect to offenses committed prior to the 6reatyAs
coming into force and effect, violates the Constitutional prohibition against e- post
facto laws. 's the Court of 'ppeals correctly concluded, the Treat) i& neit!er a
+iece of cri1inal legi&lation nor a cri1inal +roceural &tatute. It 1erel)
+ro(ie& for t!e e0traition of +er&on& wante for +ro&ecution of an
offen&e or a cri1e w!ic! offen&e or cri1e wa& alrea) co11itte or
con&u11ate at t!e ti1e t!e treat) wa& ratifie.
III. LAW O2 INTERNATIONAL OBLIGATIONS
!11
PACTA S*NT SER@ANDA @S REB*S SIC STANTIB*S
Pacta &unt &er(ana
&+atin for 9agreements must be :ept9), is a brocard, a basic principle of civil
law and of international law.
In it& 1o&t co11on &en&e. t!e +rinci+le refer& to +ri(ate contract&.
&tre&&ing t!at containe clau&e& are law /etween t!e +artie&. an
i1+lie& t!at non7fulfil1ent of re&+ecti(e o/ligation& i& a /reac! of
t!e +act. 6he general principle of correct behaviour in commercial pra-is M
and implies the bona fide M is a re(uirement for the efficacy of the whole
system, so the eventual disorder is sometimes punished by the law of some
systems even without any direct penalty incurred by any of the parties.
Wit! reference to international agree1ent&. -e(er) treat) in force i&
/ining u+on t!e +artie& to it an 1u&t /e +erfor1e /) t!e1 in
goo fait!.- Pacta sunt servanda is based on good faith. 6his entitles states
to re(uire that obligations be respected and to rely upon the obligations
being respected. T!i& goo fait! /a&i& of treatie& i1+lie& t!at a +art)
to t!e treat) cannot in(oke +ro(i&ion& of it& 1unici+al Ao1e&ticB
law a& 4u&tification for a failure to +erfor1.
6he only limit to pacta sunt servanda is the peremptory norms of general
international law, called 4u& cogen& Aco1+elling lawB. 6he legal principle
clausula re/u& &ic &tanti/u&, part of customary international law, also
allows for treaty obligations to be unfulfilled due to a compelling change in
circumstances.
Re/u& &ic &tanti/u&
In public international law, clausula rebus sic stantibus &+atin for 9things thus
standing9) is the legal doctrine allowing for treatie& to /eco1e ina++lica/le
/ecau&e of a funa1ental c!ange of circu1&tance&. It is essentially an
9escape clause9 that ma:es an e-ception to the general rule of pacta sunt
servanda &promises must be :ept).
Cecause the doctrine poses a ris: to the security of treaties as its scope is
relatively unconfined, it re(uires strict regulations as to the conditions in which it
may be invo:ed.
6he doctrine is part of customary international law, but is also provided for in
the "#J# @ienna Con(ention on t!e Law of Treatie& uner Article J6
A2una1ental C!ange of Circu1&tanceB. although the doctrine is never
mentioned by name. 'rticle %! provides the only two 7ustifications of the
invocation of rebus sic stantibus5 fir&t. t!at t!e circu1&tance& e0i&ting at
t!e ti1e of t!e conclu&ion of t!e treat) were inee o/4ecti(el)
e&&ential to t!e o/ligation& of treat) A&u/7+aragra+! AB an t!e
in&tance w!erein t!e c!ange of circu1&tance& !a& !a a raical effect
on t!e o/ligation& of t!e treat) A&u/7+aragra+! BB.
If the +artie& to a treat) !a conte1+late for t!e occurrence of t!e
c!ange circu1&tance t!e octrine oe& not a++l) an t!e +ro(i&ion
re1ain& in effect. Clausula rebus sic stantibus only relate& to c!ange
!1$
circu1&tance& t!at were ne(er conte1+late by the parties. 6his principle
is clarified in the Fisheries 8urisdiction Case &@nited Oingdom v. Iceland, 1#1/).
'lthough it is clear that a fundamental change of circumstances might 7ustify
terminating or modifying a treaty, unilateral enunciation of a treat) i&
+ro!i/ite5 a +art) oe& not !a(e t!e rig!t to enounce a treat)
unilaterall).
I@. PACI2IC SETTLE8ENT O2 INTERNATIONAL DISP*TES
Article 33 6he parties to any dispute, the continuance of which is li:ely to
endanger the maintenance of international peace and security, shall,
first of all, &eek a &olution /) negotiation. en,uir). 1eiation.
conciliation. ar/itration. 4uicial &ettle1ent. re&ort to regional
agencie& or arrange1ent&. or ot!er +eaceful 1ean& of t!eir
own c!oice.
6he Security Council shall, when it deems necessary, call upon the
parties to settle their dispute by such means.
Article 3; 6he Securit) Council 1a) in(e&tigate an) i&+ute. or an)
&ituation w!ic! 1ig!t lea to international friction or gi(e ri&e
to a i&+ute, in order to determine whether the continuance of the
dispute or situation is li:ely to endanger the maintenance of
international peace and security.
Article 3> 'ny 8e1/er of t!e *nite Nation& 1a) /ring an) i&+ute. or
an) &ituation of t!e nature referre to in Article 3;. to t!e
attention of t!e Securit) Council or of t!e General A&&e1/l).
' &tate w!ic! i& not a 8e1/er of t!e *nite Nation& 1a) /ring
to t!e attention of t!e Securit) Council or of t!e General
A&&e1/l) an) i&+ute to w!ic! it i& a +art) if it accepts in
advance, for the purposes of the dispute, the obligations of pacific
settlement provided in the present Charter.
6he proceedings of the Eeneral 'ssembly in respect of matters
brought to its attention under this 'rticle will be sub7ect to the
provisions of 'rticles 11 and 1!.
Article 3J 6he Security Council may, at any stage of a dispute of the nature
referred to in 'rticle // or of a situation of li:e nature, reco11en
a++ro+riate +roceure& or 1et!o& of a4u&t1ent.
6he Security Council &!oul take into con&ieration an)
+roceure& for t!e &ettle1ent of t!e i&+ute w!ic! !a(e
alrea) /een ao+te /) t!e +artie&.
In ma:ing recommendations under this 'rticle the Security Council
should also ta:e into consideration that legal disputes should as a
!1#
general rule be referred by the parties to the International Court of
8ustice in accordance with the provisions of the Statute of the Court.
Article 3% Should the parties to a dispute of the nature referred to in 'rticle //
fail to settle it by the means indicated in that 'rticle, they shall refer it
to the Security Council.
If t!e Securit) Council ee1& t!at t!e continuance of t!e
i&+ute i& in fact likel) to enanger t!e 1aintenance of
international +eace an &ecurit). it &!all ecie w!et!er to
take action uner Article 3J or to reco11en &uc! ter1& of
&ettle1ent a& it 1a) con&ier a++ro+riate.
Article 3$ Bithout pre7udice to the provisions of 'rticles // to /1, the Security
Council may, if all the parties to any dispute so re(uest, 1ake
reco11enation& to t!e +artie& wit! a (iew to a +acific
&ettle1ent of t!e i&+ute.
@. INTERNATIONAL ?*8ANITARIAN LAW
8us ad bellum
6he rules of 7us ad bellum are addressed, first and foremost, to heads of state. Since
political leaders are the ones who inaugurate wars, setting their armed forces in
motion, they are to be held accountable to 7us ad bellum principles. If they fail in
that responsibility, then they commit war crimes. In the language of the uremberg
prosecutors, aggressive leaders who launch un7ust wars commit Gcrimes against
peace.H Bhat constitutes a 7ust or un7ust resort to armed force is disclosed to us by
the rules of 7us ad bellum. 8ust war theory contends that, for any resort to war to be
7ustified, a political community, or state, must fulfil each and every one of the
following si- re(uirements5
". <u&t cau&e
6his is clearly the most important ruleF it sets the tone for everything which follows.
' state may launch a war only for the right reason. 6he 7ust causes most fre(uently
mentioned include5 self3defence from e-ternal attac:F the defence of others from
suchF the protection of innocents from brutal, aggressive regimesF and punishment
for a grievous wrongdoing which remains uncorrected. *itoria suggested that all the
7ust causes be subsumed under the one category of Ga wrong received.H Balzer,
and most modern 7ust war theorists, spea: of the one 7ust cause for resorting to war
being the resistance of aggression. 'ggression is the use of armed force in violation
of someone elseAs basic rights.
6he basic rights of two :inds of entity are involved here5 those of statesF and those
of their individual citizens. International law affirms that states have many rights,
notably those to political sovereignty and territorial integrity. It thus affirms that
aggression involves the use of armed forcesMarmies, navies, air forces, marines,
missilesMin violation of these rights. Classic cases would be azi Eermany into
!!2
Poland in 1#/#, and Ira( into Ouwait in 1##2, wherein the aggressor used its armed
forces to invade the territory of the victim, overthrow its government and establish
a new regime in its place. Crucially, the commission of aggression causes the
aggressor to forfeit its own state rights, thereby permitting violent resistance. 'n
aggressor has no right not to be warred against in defenceF indeed, it has the duty
to stop its rights3violating aggression.
Cut why do states have rights= 6he only respectable answer seems to be that they
need these rights to protect their people and to help provide them with the ob7ects
of their human rights. 's 8ohn +oc:e, and the @.S. Founding Fathers, declared5
governments are instituted among people to realize the basic rights of those
people. If governments do so, they are legitimateF if not, they have neither right nor
reason to e-ist. 6his is vital5 from the moral point of view, only legitimate
governments have rights, including those to go to war. Be need a theory of
legitimate governance to ground 7ust war theory, and '(uinas perhaps saw this
more clearly than any classical member of the tradition. 6his connection to
legitimacy is consistent with the perspective on war offered so far5 war, at its heart,
is a violent clash over how a territory and its people are to be governed.
Cased on international law &see 4oth), it seems li:e there are three basic criteria for
a legitimate government. If these conditions are met, the state in (uestion has
rights to govern and to be left in peace. 6hey are as follows. First, the state is
recognized as legitimate by its own people and by the international community.
6here is an uncoerced general peace and order within that society, and the state is
not shunned as a pariah by the rest of the world. Second, the state avoids violating
the rights of other legitimate states. In particular, legitimate governments donAt
commit aggression against other societies. Finally, legitimate states ma:e every
reasonable effort to satisfy the human rights of their own citizens, notably those to
life, liberty and subsistence. States failing any of these criteria have no right to
govern or to go to war. Be can spea: of states satisfying these criteria as
legitimate, or Gminimally 7ust,H political communities.
Bhy do we need to tal: about these rights= First, to give state rights moral
legitimacy and to avoid fetishizing state rights for their own sa:e. Second, to
describe what is wrong about aggression and why it 7ustifies war in response.
'ggression is so serious because it involves the infliction of physical force in
violation of the most elemental entitlements people and their communities have5 to
surviveF to be physically secureF to have enough resources to subsist at allF to live in
peaceF and to choose for themselves their own lives and societies. 'ggression thus
attac:s the very spine of human civilization itself. 6his is what ma:es it permissible
to resist with means as severe as war, provided the other 7us ad bellum criteria are
also met. 6hird, tal: of legitimacy is essential for e-plaining 7ustice in a civil war,
wherein there isnAt classical, cross3border aggression between competing countries
but, rather, a vicious fight over the one state between rival communities within a
formerly united society. 6he :ey to discerning morality in such cases revolves
around the idea of legitimacy5 which, if any, side has minimal 7ustice= Bhich side is
defendingMor is see:ing to establishMa legitimate political structure in our three3
fold sense= 6hatAs the side which it is permissible to5 a) be part ofF or b) if youAre an
outsider, to support.
!!1
Dow does this conception of 7ust cause impact on the issue of armed humanitarian
intervention= 6his is when a state does not commit cross3border aggression but, for
whatever reason, turns savagely against its own people, deploying armed force in a
series of massacres against large numbers of its own citizens. Such events
happened in Cambodia and @ganda in the 1#12s, 4wanda in 1##>, SerbiaQOosovo in
1##$3# and in SudanQ;arfur from !22> to the present. .ur definitions allow us to
say itAs permissible to intervene on behalf of the victims, and to attac: with
defensive force the rogue regime meting out such death and destruction. Bhy=
6hereAs no logical re(uirement that aggression can only be committed across
borders. 'ggression is the use of armed force in violation of someone elseAs basic
rights. 6hat Gsomeone elseH might be5 a) another person &violent crime)F b) another
state &international or Ge-ternalH aggression)F or c) many other people within oneAs
own community &domestic or GinternalH aggression). 6he commission of aggression,
in any of these forms, causes the aggressor to forfeit its rights. 6he aggressor has
no right not to be resisted with defensive forceF indeed, the aggressor has the duty
to stop and submit itself to punishment. If the aggressor doesnAt stop, it is entirely
permissible for its victims to resort to force to protect themselvesMand for anyone
else to do li:ewise in aid of the victims. @sually, in humanitarian intervention,
armed aid from the international community is essential for an effective resistance
against the aggression, since domestic populations are at a huge disadvantage, and
are massively vulnerable, to the violence of their own state.
6errorists can commit aggression too. 6hereAs nothing to the concept which
e-cludes this5 they, too, can deploy armed force in violation of someone elseAs basic
rights. Bhen they do so, they forfeit any right not to suffer the conse(uences of
receiving defensive force in response. Indeed, terrorists almost always commit
aggression when they act, since terrorism is precisely the use of random violenceM
especially :illing forceMagainst civilians, with the intent of spreading fear
throughout a population, hoping this fear will advance a political ob7ective. .n #Q11,
the al3Naeda terrorist group clearly used armed force, both to gain control of the
planes and then again when using the planes as missiles against the targets in 6he
Pentagon and 6he Borld 6rade Center. 6his use of armed force was in violation of
'mericaAs state rights to political sovereignty and territorial integrity, and to all
those peopleAs human rights to life and liberty. 6he terrorist stri:es on #Q11 were
aggressionMdefiantly so, deliberately modelled after Pearl Darbor. 's such, they
7ustified the responding attac: on the 6aliban regime in 'fghanistan. 6he 6aliban
had sponsored and enabled al3NaedaAs attac:, by providing resources, personnel
and a safe haven to the terrorist group.
'n important issue in 7ust cause is whether, to be 7ustified in going to war, one must
wait for the aggression actually to happen, or whether in some instances it is
permissible to launch a pre3emptive stri:e against anticipated aggression. 6he
tradition is severely split on this issue. *itoria said you must wait, since it would be
absurd to Gpunish someone for an offense they have yet to commit.H .thers, li:e
Balzer, strive to define the e-ceptional criteria, stressing5 the seriousness of the
anticipated aggressionF the :ind and (uality of evidence re(uiredF the speed with
which one must decideF and the issue of fairness and the duty to protect oneAs
people. If one :nows a terrible attac: is coming soon, one owes it to oneAs people to
!!!
shift from defense to offense. 6he best defense, as they say, is a good offense. Bhy
let the aggressor have the upper hand of the first stri:e= Cut thatAs the very issue5
can you attac: first and not, thereby, yourself become the aggressor= Can stri:ing
first still be considered an act of defence from aggression= International law, for its
part, sweepingly forbids pre3emptive stri:es unless they are clearly authorized in
advance by the @ Security Council. 6hese issues, of course, were highlighted in the
run3up to the !22/ @.S.3led pre3emptive stri:e on Ira(. 6he @.S. still maintains, in its
ational Security Strategy, the right to stri:e first as part of its war on terror. 0any
other countries find this e-tremely controversial.
6. Rig!t intention.
' state must intend to fight the war only for the sa:e of its 7ust cause. Daving the
right reason for launching a war is not enough5 the actual motivation behind the
resort to war must also be morally appropriate. @lterior motives, such as a power or
land grab, or irrational motives, such as revenge or ethnic hatred, are ruled out. 6he
only right intention allowed is to see the 7ust cause for resorting to war secured and
consolidated. If another intention crowds in, moral corruption sets in. International
law does not include this rule, probably because of the evidentiary difficulties
involved in determining a stateAs intent.
3. Pro+er aut!orit) an +u/lic eclaration.
' state may go to war only if the decision has been made by the appropriate
authorities, according to the proper process, and made public, notably to its own
citizens and to the enemy state&s). 6he Gappropriate authorityH is usually specified
in that countryAs constitution. States failing the re(uirements of minimal 7ustice lac:
the legitimacy to go to war.
;. La&t Re&ort.
' state may resort to war only if it has e-hausted all plausible, peaceful alternatives
to resolving the conflict in (uestion, in particular diplomatic negotiation. .ne wants
to ma:e sure something as momentous and serious as war is declared only when it
seems the last practical and reasonable shot at effectively resisting aggression.
>. Pro/a/ilit) of Succe&&.
' state may not resort to war if it can foresee that doing so will have no measurable
impact on the situation. 6he aim here is to bloc: mass violence which is going to be
futile. International law does not include this re(uirement, as it is seen as biased
against small, wea:er states.
J. Pro+ortionalit).
' state must, prior to initiating a war, weigh the universal goods e-pected to result
from it, such as securing the 7ust cause, against the universal evils e-pected to
result, notably casualties. .nly if the benefits are proportional to, or GworthH, the
costs may the war action proceed. &6he universal must be stressed, since often in
!!/
war states only tally their own e-pected benefits and costs, radically discounting
those accruing to the enemy and to any innocent third parties.)
8ust war theory insists all si- criteria must each be fulfilled for a particular
declaration of war to be 7ustified5 itAs all or no 7ustification, so to spea:. 8ust war
theory is thus (uite demanding, as of course it should be, given the gravity of its
sub7ect matter. It is important to note that the first three of these si- rules are what
we might call deontological re(uirements, otherwise :nown as duty3based
re(uirements or first3principle re(uirements. For a war to be 7ust, some core duty
must be violated5 in this case, the duty not to commit aggression. ' war in
punishment of this violated duty must itself respect further duties5 it must be
appropriately motivated, and must be publicly declared by &only) the proper
authority for doing so. 6he ne-t three re(uirements are conse(uentialist5 given that
these first principle re(uirements have been met, we must also consider the
e-pected conse(uences of launching a war. 6hus, 7ust war theory attempts to
provide a common sensical combination of both deontology and conse(uentialism
as applied to the issue of war.
<u& in /ello
8us in bello refers to 7ustice in war, to right conduct in the midst of battle.
4esponsibility for state adherence to 7us in bello norms falls primarily on the
shoulders of those military commanders, officers and soldiers who formulate and
e-ecute the war policy of a particular state. 6hey are to be held responsible for any
breach of the principles which follow below. Such accountability may involve being
put on trial for war crimes, whether by oneAs own national military 7ustice system or
perhaps by the newly3formed International Criminal Court &created by the 1##$
6reaty of 4ome).
Be need to distinguish between e-ternal and internal 7us in bello. ,-ternal, or
traditional, 7us in bello concerns the rules a state should observe regarding the
enemy and its armed forces. Internal 7us in bello concerns the rules a state must
follow in connection with its own people as it fights war against an e-ternal enemy.
6here are several rules of e-ternal 7us in bello5
". O/e) all international law& on wea+on& +ro!i/ition.
Chemical and biological weapons, in particular, are forbidden by many treaties.
uclear weapons arenAt so clearly prohibited but it seems fair to say a huge taboo
attaches to such weapons and any use of them would be greeted with incredible
hostility by the international community.
6. Di&cri1ination an Non7Co1/atant I11unit).
Soldiers are only entitled to use their &non3prohibited) weapons to target those who
are, in BalzerAs words, Gengaged in harm.H 6hus, when they ta:e aim, soldiers must
discriminate between the civilian population, which is morally immune from direct
and intentional attac:, and those legitimate military, political and industrial targets
involved in rights3violating harm. Bhile some collateral civilian casualties are
!!>
e-cusable, it is wrong to ta:e deliberate aim at civilian targets. 'n e-ample would
be saturation bombing of residential areas. &It is worth noting that almost all wars
since 1#22 have featured larger civilian, than military, casualties. Perhaps this is
one reason why this rule is the most fre(uently and stridently codified rule in all the
laws of armed conflict, as international law see:s to protect unarmed civilians as
best it can.)
3. Pro+ortionalit).
Soldiers may only use force proportional to the end they see:. 6hey must restrain
their force to that amount appropriate to achieving their aim or target. Beapons of
mass destruction, for e-ample, are usually seen as being out of proportion to
legitimate military ends.
;. Bene(olent ,uarantine for +ri&oner& of war APOW&B.
If enemy soldiers surrender and become captives, they cease being lethal threats to
basic rights. 6hey are no longer Gengaged in harm.H 6hus it is wrong to target them
with death, starvation, rape, torture, medical e-perimentation, and so on. 6hey are
to be provided, as 6he Eeneva Conventions spell out, with benevolentMnot
malevolentM(uarantine away from battle zones and until the war ends, when they
should be e-changed for oneAs own P.Bs. ;o terrorists deserve such protection,
too= Ereat controversy surrounds the detainment and aggressive (uestioning of
terrorist suspects held by the @.S. at 7ails in Cuba, Ira( and Pa:istan in the name of
the war on terror.
>. No 8ean& 8ala in Se. Solier& 1a) not u&e wea+on& or 1et!o& w!ic!
are Fe(il in t!e1&el(e&.H
6hese include5 mass rape campaignsF genocide or ethnic cleansingF using poison or
treachery &li:e disguising soldiers to loo: li:e the 4ed Cross)F forcing captured
soldiers to fight against their own sideF and using weapons whose effects cannot be
controlled, li:e biological agents.
J. No re+ri&al&.
' reprisal is when country ' violates 7us in bello in war with country C. Country C
then retaliates with its own violation of 7us in bello, see:ing to chasten ' into
obeying the rules. 6here are strong moral and evidentiary reasons to believe that
reprisals donAt wor:, and they instead serve to escalate death and ma:e the
destruction of war increasingly indiscriminate. Binning well is the best revenge.
Internal 7us in bello essentially boils down to the need for a state, even though itAs
involved in a war, nevertheless to still respect the human rights of its own citizens
as best it can during the crisis. 6he following issues arise5 is it 7ust to impose
conscription, or press censorship= Can one curtail traditional civil liberties, and due
process protections, for perceived gains in national security= Should elections be
cancelled or post3poned= 0ay soldiers disobey orders, e.g. refuse to fight in wars
they believe un7ust= ' comprehensive theory of wartime 7ustice must include
!!"
consideration of them, and not merely focus on what one may do to the enemy. For
some of the worst atrocities in wartime have occurred within, and not between,
national borders. Some states, historically, have used the cloa: of war with foreign
powers to engage in massive internal human rights violations, usually against some
disfavoured group. .ther states, which are otherwise decent, panic amidst the
wartime situation and impose emergency legislation which turns out to have been
complete over:ill, and which they later regret and view as the product of fear rather
than reason.
<u& +o&t /ellu1
8us post bellum refers to 7ustice during the third and final stage of war5 that of war
termination. It see:s to regulate the ending of wars, and to ease the transition from
war bac: to peace. 6here is little international law hereMsave occupation law and
perhaps the human rights treatiesMand so we must turn to the moral resources of
7ust war theory. Cut even here the theory has not dealt with 7us post bellum to the
degree it should. 6here is a newness, unsettledness and controversy attaching to
this important topic. 6o focus our thoughts, consider the following proposed
principles for 7us post bellum5
". Pro+ortionalit) an Pu/licit).
6he peace settlement should be measured and reasonable, as well as publicly
proclaimed. 6o ma:e a settlement serve as an instrument of revenge is to ma:e a
volatile bed one may be forced to sleep in later. In general, this rules out insistence
on unconditional surrender.
6. Rig!t& @inication.
6he settlement should secure those basic rights whose violation triggered the
7ustified war. 6he relevant rights include human rights to life and liberty and
community entitlements to territory and sovereignty. 6his is the main substantive
goal of any decent settlement, ensuring that the war will actually have an improving
affect. 4espect for rights, after all, is a foundation of civilization, whether national or
international. *indicating rights, not vindictive revenge, is the order of the day.
3. Di&cri1ination.
;istinction needs to be made between the leaders, the soldiers, and the civilians in
the defeated country one is negotiating with. Civilians are entitled to reasonable
immunity from punitive post3war measures. 6his rules out sweeping socio3economic
sanctions as part of post3war punishment.
;. Puni&!1ent X".
Bhen the defeated country has been a blatant, rights3violating aggressor,
proportionate punishment must be meted out. 6he leaders of the regime, in
particular, should face fair and public international trials for war crimes.
!!%
>. Puni&!1ent X6. Soldiers also commit war crimes. 8ustice after war re(uires
that such soldiers, from all sides to the conflict, li:ewise be held accountable to
investigation and possible trial.
J. Co1+en&ation.
Financial restitution may be mandated, sub7ect to both proportionality and
discrimination. ' post3war poll ta- on civilians is generally impermissible, and there
needs to be enough resources left so that the defeated country can begin its own
reconstruction. 6o beggar thy neighbor is to pic: future fights.
%. Re!a/ilitation.
6he post3war environment provides a promising opportunity to reform decrepit
institutions in an aggressor regime. Such reforms are permissible but they must be
proportional to the degree of depravity in the regime. 6hey may involve5
demilitarization and disarmamentF police and 7udicial re3trainingF human rights
educationF and even deep structural transformation towards a minimally 7ust society
governed by a legitimate regime. 6his is, obviously, the most controversial aspect of
7us post bellum.
6he terms of a 7ust peace should satisfy all these re(uirements. 6here needs, in
short, to be an ethical Ge-it strategyH from war, and it deserves at least as much
thought and effort as the purely military e-it strategy so much on the minds of
policy planners and commanding officers.
'ny serious defection, by any participant, from these principles of 7ust war
settlement should be seen as a violation of the rules of 7ust war termination, and so
should be punished. 't the least, violation of such principles mandates a new round
of diplomatic negotiationsMeven binding international arbitrationMbetween the
relevant parties to the dispute. 't the very most, such violation may give the
aggrieved party a 7ust causeMbut no more than a 7ust causeMfor resuming
hostilities. Full recourse to the resumption of hostilities may be made only if all the
other traditional criteria of 7us ad bellumMproportionality, last resort, etc.Mare
satisfied in addition to 7ust cause.
Perhaps a few additional thoughts on coercive regime change should here be
added, in light of controversial recent events, especially in 'fghanistan and Ira(.
Can coercive regime change ever be 7ustified, or is it essentially an act of
imperialism= In my view, forcible post3war regime change can be permissible
provided5 1) the war itself was 7ust and conducted properlyF !) the target regime
was illegitimate, thus forfeiting its state rightsF /) the goal of the reconstruction is a
minimally 7ust regimeF and >) respect for 7us in bello and human rights is integral to
the transformation process itself. 6he permission is then granted because the
transformation5 1) violates neither state nor human rightsF !) its e-pected
conse(uences are very desirable, namely, satisfied human rights for the local
population and increased international peace and security for everyoneF and /) the
post3war moment is especially promising regarding the possibilities for reform. 'nd
the transformation will be successful when thereAs5 1) a stable new regimeF !) run
!!1
entirely by localsF which is /) minimally 7ust. 6here is e-tensive historical evidence
that this :ind of success probably ta:es from $ to 1! years to achieve &essentially, a
decade). ote that successful, rights3respecting coercive regime change can be
done, contrary to some pessimistic viewsF it was actually done in Eermany and
8apan from 1#>"3"", and so it is neither conceptually nor empirically impossible. ItAs
very difficult, to be sureMand, in some cases, itAs not a wise thing to doMbut itAs not
literally impossible.
' review of the literature suggests something of a 123point recipe for
transforming a defeated aggressive regime into one which is minimally 7ust5
'dhere diligently to the laws of war during the regime ta:e3down and
occupation.
Purge much of the old regime, and prosecute its war criminals.
;isarm and demilitarize the society.
Provide effective military and police security for the whole country.
Bor: with a cross3section of locals on a new, rights3respecting constitution which
features chec:s and balances.
'llow other, non3state associations, or Gcivil societyH, to flourish.
Forego compensation and sanctions in favour of investing in and re3building the
economy.
If necessary, re3vamp educational curricula to purge past poisonous propaganda
and cement new and better values.
,nsure, in a timely fashion, that the benefits of the new order will be5 1)
concreteF and !) widely, and not narrowly, distributed. 6he bul: of the population
must feel their lives after the regime change are clearly better than their former
lives for the change to be sustainable.
Follow an orderly, not3too3hasty e-it strategy when the new regime can stand on
its own two feet. 'gain, this will probably ta:e a decade of intensive effort.
6o summarize this whole section, 7ust war theory offers rules to guide decision3
ma:ers on the appropriateness of their conduct during the resort to war, conduct
during war and the termination phase of the conflict. Its over3all aim is to try and
ensure that wars are begun only for a very narrow set of truly defensible reasons,
that when wars brea: out they are fought in a responsibly controlled and targeted
manner, and that the parties to the dispute bring their war to an end in a speedy
and responsible fashion that respects the re(uirements of 7ustice.
INTERNATIONAL AR8ED CON2LICT @S NON7INTERNATIONAL AR8ED
CON2LICT
International humanitarian law distinguishes two types of armed conflicts, namely5
Y international armed conflicts, opposing two or more States, and
Y non3international armed conflicts, between governmental forces and
nongovernmentalarmed groups, or between such groups only. ID+ treaty law
also establishes a distinction between non3international armed conflicts in the
meaning of common 'rticle / of the Eeneva Conventions of 1#># and non3
international armed conflicts falling within the definition provided in 'rt. 1 of
'dditional Protocol II.
!!$
+egally spea:ing, no other type of armed conflict e-ists. It is nevertheless important
to underline that a situation can evolve from one type of armed conflict to another,
depending on the facts prevailing at a certain moment.
I. International Ar1e Conflict AIACB
"B I?L Treatie&
Common 'rticle ! to the Eeneva Conventions of 1#># states that5 !0n addition to
the provisions which shall be implemented in peacetime, the present Convention
shall apply to all cases of declared war or of any other armed conflict which may
arise between two or more of the 3igh Contracting %arties, even if the state of war
is not recogni9ed by one of them. The Convention shall also apply to all cases of
partial or total occupation of the territory of a 3igh Contracting %arty, even if the
said occupation meets with no armed resistance!. 'ccording to this provision, I'Cs
are those which oppose 9Digh Contracting Parties9, meaning States. 'n I'C occurs
when one or more States have recourse to armed force against another State,
regardless of the reasons or the intensity of this confrontation. 4elevant rules of ID+
may be applicable even in the absence of open hostilities. 0oreover, no formal
declaration of war or recognition of the situation is re(uired. 6he e-istence of an
I'C, and as a conse(uence, the possibility to apply International Dumanitarian +aw
to this situation, depends on what actually happens on the ground. It is based on
factual conditions. For e-ample, there may be an I'C, even though one of the
belligerents does not recognize the government of the adverse party!. 6he
Commentary of the Eeneva Conventions of 1#># confirms that !any difference
arising between two -tates and leading to the intervention of armed forces is an
armed conflict within the meaning of (rticle 2, even if one of the %arties denies the
eistence of a state of war. 0t ma&es no difference how long the conflict lasts, or
how much slaughter ta&es place!. 'part from regular, inter3state armed conflicts,
'dditional Protocol I e-tends the definition of I'C to include armed conflicts in which
peoples are fighting against colonial domination, alien occupation or racist regimes
in the e-ercise of their right to self3determination &wars of national liberation).
6B <uri&+ruence
6he International Criminal 6ribunal for the former Pugoslavia &IC6P) proposed a
general definition of international armed conflict. In the 6adic case, the 6ribunal
stated that !an armed conflict eists whenever there is a resort to armed force
between -tates!." 6his definition has been adopted by other international bodies
since then.
3B Doctrine
6he doctrine gives useful comments concerning the definition of an international
armed conflict. 'ccording to ;. Schindler, !the eistence of an armed conflict within
the meaning of (rticle 2 common to the ?eneva Conventions can always be
assumed when parts of the armed forces of two -tates clash with each other. @AB
(ny &ind of use of arms between two -tates brings the Conventions into effect!. D.3
P. Easser e-plains that !any use of armed force by one -tate against the territory of
!!#
another, triggers the applicability of the ?eneva Conventions between the two
-tates. @AB 0t is also of no concern whether or not the party attac&ed resists. @AB (s
soon as the armed forces of one -tate find themselves with wounded or
surrendering members of the armed forces or civilians of another -tate on their
hands, as soon as they detain prisoners or have actual control over a part of the
territory of the enemy -tate, then they must comply with the relevant convention!.
6he Eerman 8oint Services 4egulations &U;v) 1"Q! says that !an international armed
conflict eists if one party uses force of arms against another party. @AB The use of
military force by individual persons or groups of persons will not suffice!.
II. Non7International Ar1e Conflict ANIACB
1) ID+ 6reaties
6wo main legal sources must be e-amined in order to determine what a I'C under
international humanitarian law is5 a) common 'rticle / to the Eeneva Conventions
of 1#>#F b) 'rticle 1 of 'dditional Protocol II5
a) on3International 'rmed Conflicts within the 0eaning of Common 'rticle /
Common 'rticle / applies to 9armed conflicts not of an international character
occurring in the territory of one of the 3igh Contracting %arties9. 6hese include
armed conflicts in which one or more non3governmental armed groups are involved.
;epending on the situation, hostilities may occur between governmental armed
forces and non3governmental armed groups or between such groups only. 's the
four Eeneva Conventions have universally been ratified now, the re(uirement that
the armed conflict must occur 9in the territory of one of the 3igh Contracting
%arties9 has lost its importance in practice. Indeed, any armed conflict between
governmental armed forces and armed groups or between such groups cannot but
ta:e place on the territory of one of the Parties to the Convention. In order to
distinguish an armed conflict, in the meaning of common 'rticle /, from less serious
forms of violence, such as internal disturbances and tensions, riots or acts of
banditry, the situation must reach a certain threshold of confrontation. It has been
generally accepted that the lower threshold found in 'rticle 1&!) of 'PII, which
e-cludes internal disturbances and tensions from the definition of I'C, also applies
to common 'rticle /.
6wo criteria are usually used in this regard5
First, the hostilities must reach a minimum level of intensity. 6his may be the
case, for e-ample, when the hostilities are of a collective character or when
the government is obliged to use military force against the insurgents,
instead of mere police forces.11
Second, non3governmental groups involved in the conflict must be
considered as 9parties to the conflict9, meaning that they possess organized
armed forces. 6his means for e-ample that these forces have to be under a
certain command structure and have the capacity to sustain military
operations.
b) on3International 'rmed Conflicts in the 0eaning of 'rt. 1 of 'dditional Protocol II
!/2
' more restrictive definition of I'C was adopted for the specific purpose of
'dditional Protocol II. 6his instrument applies to armed conflicts !which ta&e place
in the territory of a 3igh Contracting %arty between its armed forces and dissident
armed forces or other organi9ed armed groups which, under responsible command,
eercise such control over a part of its territory as to enable them to carry out
sustained and concerted military operations and to implement this %rotocol!. 6his
definition is narrower than the notion of I'C under common 'rticle / in two
aspects. Firstly, it introduces a re(uirement of territorial control, by providing that
non3governmental parties must e-ercise such territorial control !as to enable them
to carry out sustained and concerted military operations and to implement this
%rotocol!. Secondly, 'dditional Protocol II e-pressly applies only to armed conflicts
between State armed forces and dissident armed forces or other organised armed
groups. Contrary to common 'rticle /, the Protocol does not apply to armed
conflicts occurring only between non3State armed groups. In this conte-t, it must be
reminded that 'dditional Protocol II 9develops and supplements9 common 'rticle /
9without modifying its eisting conditions of application9.1> 6his means that this
restrictive definition is relevant for the application of Protocol II only, but does not
e-tend to the law of I'C in general. 6he Statute of the International Criminal Court,
in its article $, para. ! &f), confirms the e-istence of a definition of a non3
international armed conflict not fulfilling the criteria of Protocol II.
!) 8urisprudence
Case law has brought important elements for a definition of an armed conflict, in
particular regarding the non3international armed conflicts in the meaning of
common 'rticle / which are not e-pressly defined in the Conventions concerned.
8udgments and decisions of the IC6P throw also some light on the definition of I'C.
's mentioned above, the IC6P went on to determine the e-istence of a I'C
!whenever there is @AB protracted armed violence between governmental
authorities and organised armed groups or between such groups within a -tate!.
6he IC6P thus confirmed that the definition of I'C in the sense of common 'rticle /
encompasses situations where !several factions @confrontB each other without
involvement of the governmentCs armed forces!. Since that first ruling, each
7udgment of the IC6P has ta:en this definition as a starting point.
/) ;octrine
Several recognized authors also commented very clearly on what should be
considered as a non3international armed conflict. 6heir comments are relevant in
first place to the conflicts which do not fulfil the strict criteria foreseen in 'dditional
Protocol II and provide useful elements to ensure the application of the guarantees
provided in common article / to the Eeneva Conventions of 1#>#.
'ccording to D.3P. Easser, it is generally admitted that !non-international armed
conflicts are armed confrontations that ta&e place within the territory of a -tate
between the government on the one hand and armed insurgent groups on the other
hand. @AB (nother case is the crumbling of all government authority in the country,
as a result of which various groups fight each other in the struggle for power!1$.
!/1
;. Schindler also proposes a detailed definition5 9The hostilities have to be
conducted by force of arms and ehibit such intensity that, as a rule, the
government is compelled to employ its armed forces against the insurgents instead
of mere police forces. -econdly, as to the insurgents, the hostilities are meant to be
of a collective character, @i.eB they have to be carried out not only by single groups.
0n addition, the insurgents have to ehibit a minimum amount of organi9ation. Their
armed forces should be under a responsible command and be capable of meeting
minimal humanitarian re;uirements9. 0. Sassoli, writes 9common (rticle 8 refers to
conflicts Coccurring in the territory of one of the 3igh Contracting %arties,C whereas
(rticle < of %rotocol 00 refers to those Cwhich ta&e place in the territory of a 3igh
Contracting %arty.C (ccording to the aim and purpose of 03#, this must be
understood as simply recalling that treaties apply only to their state parties. 0f such
wording meant that conflicts opposing states and organi9ed armed groups and
spreading over the territory of several states were not DnonZinternational armed
conflictsE, there would be a gap in protection, which could not be eplained by
statesE concerns about their sovereignty. Those concerns made the law of
nonZinternational armed conflicts more rudimentary. Fet concerns about state
sovereignty could not eplain why victims of conflicts spilling over the territory of
several states should benefit from less protection than those affected by conflicts
limited to the territory of only one state. (dditionally, (rticles < and = of the -tatute
of the 0nternational Criminal Tribunal for 4wanda etend the 1urisdiction of that
tribunal called to enforce, inter alia, the law of non3international armed conflicts, to
the neighbouring countries. This confirms that even a conflict spreading across
borders remains a nonZinternational armed conflict. 0n conclusion, internal conflicts
are distinguished from international armed conflicts by the parties involved rather
than by the territorial scope of the conflict.9
III. Conclu&ion
.n the basis of the analysis set out above, the IC4C proposes the following
definitions, which reflect the strong prevailing legal opinion5
1. International ar1e conflict& e-ist whenever there is resort to armed force
between two or more -tates.
!. Non7international ar1e conflict& are protracted armed confrontations
occurring between governmental armed forces and the forces of one or more armed
groups, or between such groups arising on the territory of a State Iparty to the
Eeneva ConventionsJ. 6he armed confrontation must reach a minimum level of
intensity and the parties involved in the conflict must show a minimum of
organi9ation.
@I. INTERNATIONAL TRADE LAW
E'66QB6.
E'663B6. 4atification
!/!
In Dece1/er "##;. t!e P!ili++ine Congre&& ratifie t!e P!ili++ine
acce&&ion to t!e *rugua) Roun General Agree1ent on Tariff an Trae
uner t!e Worl Trae Organi9ation AGATT7WTOB. S+ecificall). uner t!e
GATT7WTO. an ot!er e0ternal agree1ent& congruent to WTO. t!e
P!ili++ine& wa& co11itte to t!e following'
1. 4emoval of Nuantitative 4estrictions &N4s) and Conversion of N4s into their
6ariff ,(uivalents.
!. 4eduction of 6ariffs on 'gricultural Products. ;eveloping countries to reduce
average tariffs by !>L with a minimum 12L cut per tariff lines from 1##" to
!22>.
/. 4eduction of Production Subsidies. For developing countries, reduction of trade
distorting domestic subsidies by 1/L from 1##" to !22>. Dowever, under the
Gde minimisH principle of the agreement, no reductions are re(uired if the
domestic support is no more than 12L.
>. 0inimum 'ccess *olume &0'*). 6he allowing of annual imports at a lower tariff
of volumes e(uivalent to /L of 1#$%31#$$ consumption for 1##", increasing to
"L of 1#$%31#$$ consumption by !22>.
". 6ariff Cindings. Countries will bind tariff rates at levels beyond which no further
increases will be imposed.
%. Prohibition of 'dditional on36ariff 0easures. o new non3tariff measures, such
as import licensing, variable import levies, import (uotas, and import bans may
be imposed.
1. Plant *ariety 4egistration and Protection. Intervention and ownership of
biological products such as plant and microorganisms should be protected under
patent or the sui generis system or both.
To cu&!ion t!e i1+act of trae refor1& uner GATT7WTO. t!e P!ili++ine
go(ern1ent co11itte &afet) net 1ea&ure& to neutrali9e te1+orar)
a4u&t1ent& an i&location& in t!e &ector an to en!ance far1erP&
co1+etiti(ene&&. So1e of t!e&e internal co11it1ent& of t!e P!ili++ine
Go(ern1ent inclue'
1. 6ariff 4eduction on Inputs. For those inputs directly used for agricultural
modernization, the tariff rates were reduced to zero.
!. 6rade 4emedies. 6hese are measures that provide industries relief from import
surges, declining import prices andQor dumping.
/. 4eforms in the *'6 for 'gricultural Processors. ,-emptions from the value3added
ta- &*'6) of food and non3food agricultural products and marine commodities.
>. Cudgetary Support in 'griculture. @nder the @ruguay 'ction Plan of ;', the
budget support for agriculture from 1##" to1##$ was estimated at P1!.#C. Fifty3
eight percent of this should have come from ;'3E'' and the rest from ;'4,
;PBD3E'', 'sset Privatization 6hrust &'P6), 0inimum 'ccess Proceeds, Savings
and 4eserves.
*NCITRAL
Composed of a diverse composition of member States, the @CI64'+ carries out
the goals of harmonizing and unifying international trade laws.1% G6he
!//
Commission has established si- wor:ing groups to perform the substantive
preparatory wor: on topics within the Commission<s program of wor:. ,ach
wor:ing group is comprised of all member States of the Commission.H11 +ocated
in *ienna, 'ustria, the Secretariat of @CI64'+ Gcarries out legal research on
sub7ect matters within the program of wor: of @CI64'+ and prepares reports,
preliminary draft te-ts and commentaries on draft legal te-ts.H1$ 6his research
forms the basis for topics that will be addressed by the wor:ing groups. In
addition to researching substantive legal issues, the Secretariat also Gorganizes
administrative services for meetings of the Commission and of its wor:ing
groups and groups of e-perts.
Scope
6he scope of wor: originally carried out by the Commission was far narrower
than the wide range of topics addressed today. .ver the past thirty3si- years,
the Commission has addressed and recommended laws, rules, and legal guides
on topics ranging from international commercial arbitration!! to rules governing
commercial conciliation!/ to a model law governing electronic commerce. GIt is
noteworthy that @CI64'+<s program of wor: avoids such critical problems as
tariffs, import (uotas, e-port restrictions, and e-change controls.H!" .ther
techni(ues to promote the harmonization and unification of international trade
laws include the creation of international conventions, model treaty provisions,
legal guides that Gidentify legal issues arising in a particular area,H and
recommendations to governments and international organizations.!%
'lso, the Commission provides Gupdated information on case law and
enactments of uniform commercial law, technical assistance in law reform
pro7ects,H and offers regional and national seminars to promote the
Commission<s wor:. GIn 1#%#, I@CI64'+J authorized the Secretary Eeneral to
establish a Fearboo& which would ma:e the wor: of the Commission more
widely :nown and readily available.H Published in 1#11, the first Fearboo&
discussed @CI64'+<s activities in 1#%$3 1#12, the first three years of
@CI64'+<s operation. 6he Fearboo& demonstrates a genuine effort toward
educating the member States and provides Ga rich store of information on the
most ambitious attempt yet at unification of private law on an international
scale.H 'dditionally, the Commission has wor:ed, or is wor:ing, on topics such
as the international sale of goods and related transactions, international
transport of goods, international commercial arbitration and conciliation, public
procurement and infrastructure development, construction contracts,
international payments, electronic commerce, and cross3border insolvency./1
Currently, the si- wor:ing groups are assigned the topics of privately financed
infrastructure pro7ects, international arbitration and conciliation, transport law,
electronic commerce, insolvency law, and security interests.
Salient +oint&
6he 4ules are divided into four sections5 Section I R Introductory 4ules &'rticles 13>),
Section II R Composition of the 'rbitral 6ribunal &'rticles "31>), Section III R 'rbitral
!/>
Proceedings &'rticles 1"3/2), and Section I* R 6he 'ward &'rticles /13>1) In Section
I, the 4ules set out the basic prere(uisites for arbitration, such as the re(uirement
of writing, conveniently supplying the prospective parties to a contract &and, ergo,
to a dispute) with a model arbitration clause in a note to 'rticle 1. Section II calls for
the selection of an odd number of one &1) to three &/) arbitrators, three &/) being
the default rule &'rticle "). Bith respect to the appointment of arbitrators, the 4ules
had to provide a solution for the composition of the tribunal in the absence of
consensus by the parties since @CI64'+ is not an institution. Dence, the 4ules
introduced the notion of a party3agreed upon appointing authority &or, if parties
cannot agree, either party may re(uest the Secretary Eeneral of the Permanent
Court of 'rbitration at the Dague to designate an appointing authority). In
appointing the sole or the third arbitrator, the so3called Glist procedure,H a concept
borrowed from the ''' practice,>% shall be used.>1 6he issues of challenging
procedure, covered in 'rticles #3 1!, center on the standard of G7ustifiable doubts as
to . . . impartiality or independence.H 'rticle 12 clarifies that these standards apply
to party3appointed arbitrators, whereas paragraph ! allows for a challenge of a
party<s own arbitrator, though not unconditionally.
6he 4ules cover the arbitral proceedings in great detail in Section III. S:ipping the
provisions regarding the place of arbitration, language, claims, defenses,
amendments, time periods, Oompetenz3 Oompetenz &'rticle !1&1)),>$ and
separability># &'rticle !1&!)), we turn to the matters of evidence and hearings in
'rticles !> and !". 6he 4ules do not provide for discovery, and 'rticle !"&>) leaves
the tribunal free to determine the manner in which witnesses are e-amined &viz.,
whether it be under the common law tradition of e-amination primarily by the
lawyer and cross3e-amination by the other party<s lawyer, or under the civil law
tradition of e-amination from the bench, or perhaps a mi-ture). 'nother
discrepancy between civil and common law was resolved by adhering to a civil law
norm R e-perts are tribunal3appointed &'rticle !1&1)). 6he (uestion of interim
measures shall be separately discussed later, but the 4ules do provide for arbitral3
tribunal ordered measures &'rticle !%), and a rather narrowly defined re(uirement
of Gsecurity for the costs of such measures.H 6urning to the arbitral award, 'rticle
/1 calls for a ma7ority of arbitrators to agree, while 'rticle /! sets out the
re(uirements of writing, reasons, and signature. Consent of the parties is needed
for publication of the award."1 'ccording to 'rticle //, the arbitrators may decide
on the merits either according to the applicable law designated by the parties, or
absent such designation, Gthe law determined by the conflict of laws rules which
they consider applicableH &'rticle //&1)), or as amiables compositeurs, if e-pressly
authorized by the parties &'rticle //&!)). Dowever, the conflict of laws approach is
considered outdated and is rarely used. 6he 0odel +aw approach of direct choice is
widely followed. 'rticle /> provides for an award on agreed terms, or award by
consent, and 'rticles /$3>1 cover the issue of costs R with the re(uirement that the
tribunal, when fi-ing its fees, shall ta:e into account the schedule of fees of the
appointing authority &'rticle /#&!)). 6he latter was necessary, as @CI64'+ is not an
arbitral institution and, conse(uently, has no schedule of fees.
!/"