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BILL OF RIGHTS: Rights of an Accused RIGHTS OF AN ACCUSED 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Before Criminal Prosecution: (before arraignment) Right to due process (Sec. 14(1)) Custodial rights (Sec. 12) Right to be informed of his rights Right to remain silent Right to counsel Right to bail (Sec. 13) Right to speedy disposition of his case (Sec. 16) Right of free access to the courts

During Criminal Prosecution: (after arraignment up to promulgation of judgment) 11. Right to presumption of innocence (Sec. 14(2)) 12. Right to be heard by himself and counsel (Sec. 14(2)) 13. Right to be informed of the nature and cause of accusation against him (Sec. 14(2)) 14. Right to have speedy, impartial and public trial (Sec. 14(2)) 15. Right to confrontation (Sec. 14(2)) 16. Right to have compulsory process to secure attendance of witnesses and production of evidence on his behalf (Sec. 14(2)) 17. Right against self-incrimination (Sec. 17) 18. Right against double jeopardy (Sec. 21) 19. 9.Right against ex-post facto law and bill of attainder (Sec. 22) 20. After Conviction: 21. Right against excessive fines and cruel, degrading or inhuman punishment (Sec. 19) 22.

SECTION 12 Custodial Rights

Sec. 12: (1) Any 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

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counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No 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. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.

- To put the accused on equal footing with the State "in custody" - includes deprivation or mere restriction on physical liberty Custodial Investigation investigation conducted by law enforcer immediately after arrest The Fruit of the Poisonous Tree Doctrine all evidence (the fruit) derived from an illegal search (the poisonous tree) must be suppressed, whether it was obtained directly through the illegal search itself, or indirectly using information obtained in the illegal search But For Test or taint doctrine; the evidence would not have come to light but for the illegal action of the police WHEN CUSTODIAL INVESTIGATION BEGINS: Restrictive View - limited to in-custody interrogations as when the accused has been arrested and brought to the custody of the police for questioning Expanded View contemplates two situations: (1) general inquiry as to identification, circumstances of a crime without focus on any particular suspect; and (2) suspicion is focused on a particular person and questions are asked from him to elicit admissions or information

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**Under the expanded view, general inquiry as to identification, like in a police line-up, is not considered part of custodial investigation hence the accused may be identified by a witness in a police line-up even if made not in the presence of counsel NOT PART OF CUSTODIAL INVESTIGATION: Police line-up, or during process of identification Spontaneous statement not elicited through questioning, but given in an ordinary manner (spur-of-the-moment statements) res gestae Volunteered statements Extrajudicial admission to the prosecutor or a private person Investigation made by a citizen or private security officer

Miranda Doctrine: Rights Under Custodial Investigation

Miranda vs. Arizona, 16 L. Ed 2d 694

Our holding will be spelled out with some specificity in the pages which follow, but, briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial investigation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As 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 exercise it, the following measures are required: Prior to any questioning, the person must be warned that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly 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 speaking, there can be no questioning. Likewise,

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if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of hte right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. Extrajudicial Confessions to Mayor and Media Admissible

People vs. Andan, G.R. No. 116437, March 3, 1997

Under these circumstances, it cannot be successfully claimed that appellant's confession before the mayor is inadmissible. It is true that a municipal mayor has "operational supervision and control" over the local police and may arguably be deemed a law enforcement officer for purposes of applying Section 12 (1) and (3) of Article III of the Constitution. However, appellant's confession to the mayor was not made in response to any interrogation by the latter. In fact, the mayor did not question appellant at all. No police authority ordered appellant to talk to the mayor. It was appellant himself who spontaneously, freely and voluntarily sought the mayor for a private meeting. The mayor did not know that appellant was going to confess his guilt to him. When appellant talked with the mayor as a confidant and not as a law enforcement officer, his uncounseled confession to him did not violate his constitutional rights. Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth. Hence we hold that appellant's confession to the mayor was correctly admitted by the trial court. Appellant's confessions to the media were likewise properly admitted. The confessions were made in response to questions by news reporters, not by the police or any other investigating officer. We have held that statements spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in evidence.

Q: COA auditor investigated certain anomalies in the accounts of a government agency. He

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questioned X, a public employee therein, without benefit of counsel. Are Xs statements admissible? A: Yes. A COA auditor is not a law enforcer. Q: Miguel, an AFP major, arrested B and questioned him without benefit of counsel. Admissible? A: Yes. An AFP member is not a law enforcer. Q: H, a police officer, and husband of W, saw the latter cheating on him with her paramour. The paramour was able to escape while W was detained by H and then questioned. Later, H filed a case for adultery against W and used her statement as evidence. Admissible? A: Yes. Even if H is a police officer, the time when he questioned W, his wife, he was not acting in his official capacity as a police officer but in his personal capacity as her husband. Q: X, the accused in a case for rape, was asked to provide the police investigating team with samples of his DNA. He did so without assistance of counsel. Admissible? A: Yes. The act of providing samples for identification is a mere mechanical act, not covered by the right against self-incrimination. Q: If in the above case, X was also made to sign booking sheets and police reports, also without counsel. Admissible? A: No. Handwriting is not a mere mechanical act.

RIGHT TO REMAIN SILENT - Refers not only to testimonial confessions but also to acts - but does not apply to acts that are merely mechanical (does not require use of intelligence) or to general questions (e.g. What is your name? Right to remain silent? Grabe ha ^_^)

MECHANICAL ACTS: Paraffin test DNA test Examination of physical body

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Fingerprinting Being asked to step on a footprint to compare foot size NOT MECHANICAL: Handwriting Initials on marked money Signing of inventory receipts in search warrant (see People vs. Go) Reenactment

RIGHT TO INDEPENDENT AND COMPETENT COUNSEL - absolute, even if accused himself is a lawyer Independent - counsel is not hampered with any conflicts of interest Competent - counsel who is vigilant in protecting the rights of accused

Accused must be apprised of his rights under custodial investigation

People vs. Obrero, G.R. No. 122142, May 17, 2000

Extrajudicial confessions are presumed voluntary, and, in the absence of conclusive evidence showing the declarants consent in executing the same has been vitiated, such confession will be sustained. xxx But what renders the confession of accused-appellant inadmissible is the fact that accusedappellant was not given the Miranda warnings effectively. Under the Constitution, an uncounseled statement, such as it is called in the United States from which Art. III, 12(1) was derived, is presumed to be psychologically coerced. Swept into an unfamiliar environment and surrounded by intimidating figures typical of the atmosphere of police

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interrogation, the suspect really needs the guiding hand of counsel. Now, under the first paragraph of this provision, it is required that the suspect in custodial interrogation must be given the following warnings: (1) He must be informed of his right to remain silent; (2) he must be warned that anything he says can and will be used against him; and (3) he must be told that he has a right to counsel, and that if he is indigent, a lawyer will be appointed to represent him. Mere Perfunctory Reading of Miranda Warnings not Enough There was thus only a perfunctory reading of the Miranda rights to accused-appellant without any effort to find out from him whether he wanted to have counsel and, if so, whether he had his own counsel or he wanted the police to appoint one for him. This kind of giving of warnings, in several decisions[16] of this Court, has been found to be merely ceremonial and inadequate to transmit meaningful information to the suspect. Especially in this case, care should have been scrupulously observed by the police investigator that accused-appellant was specifically asked these questions considering that he only finished the fourth grade of the elementary school. xxx Independent Counsel Moreover, Art. III, 12(1) requires that counsel assisting suspects in custodial interrogations be competent and independent. Here, accused-appellant was assisted by Atty. De los Reyes, who, though presumably competent, cannot be considered an "independent counsel" as contemplated by the law for the reason that he was station commander of the WPD at the time he assisted accused-appellant.

NOTA BENE: The right to counsel attaches upon investigation, that is, when the investigation officer starts to ask question to elicit information or confession or admission. In case of waiver of rights, the same must be done in writing and in the presence of counsel.

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A legal officer of a city cannot qualify as independent counsel. As 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 admission is made before a private person, then it is admissible even if done without assistance of counsel.

SECTION 13 Right to Bail

Sec. 13: All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

- Available whether or not the case has already been filed for as long as the person has been denied his liberty or otherwise deprived thereof - A mode to ensure the attendance of the accused at his trial 2 KINDS OF BAIL: Bail Bond > Cash money, not check > Property real property, not personal property (because value depreciates); annotated in the title > Surety similar to insurance Recognizance

GENERAL RULE: Available to all persons, not exclusively to those already formally charged of a crime. Any person who is under detention and custody and deprived of his liberty may avail himself of this right.

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EXCEPTIONS: Reclusion perpetua, life imprisonment, and death when evidence of guilt is strong Military men facing charges before court martial Recidivists, habitual delinquents, quasi-recidivists, person who violated his probation or parole, even if penalty is less than six years Extradition or deportation proceedings Contempts in legislative inquiry

RIGHTS INCLUDED: Right to a hearing, which may be summary and does not have to be separate and distinct from the trial itself Prosecution has right to present evidence if this is denied, the grant of bail is void

WHEN A MATTER OF RIGHT: MTC - before and after conviction (less than 6 years imprisonment) RTC - before conviction, below reclusion perpetua and even if evidence of guilt is strong Minority - even if reclusion perpetua or death and evidence of guilt is strong; a privileged mitigating circumstance (lower by two degrees, the highest penalty that can be imposed is only reclusion temporal) Reclusion Perpetua or higher if evidence of guilt is not strong

NOTA BENE: If the accused is convicted and penalty of more than 6 years imprisonment is imposed, the trial court should cancel the bail, if he has been provisionally released. It becomes discretionary only upon the court whether to grant the accused provisional liberty on the same bail bond.

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When the charge is punishable by reclusion perpetua or higher, hearing for grant of bail is mandatory to comply with due process of law. The prosecution should also be allowed to present evidence. WHEN A MATTER OF DISCRETON: RTC - after conviction, below reclusion perpetua but more than 6 years imprisonment Reclusion Perpetua or death - before conviction Minority - after conviction for more than 6 years imprisonment CA - accused was charged with murder but was convicted with homicide, which conviction was appealed to the CA; the trial court should deny bail but the CA has discretion whether to let the accused out on provisional liberty

WHEN BAIL SHALL BE DENIED: MTC - recidivist, habitual delinquent, quasi-recidivist, violated parole or probation RTC - charged with reclusion perpetua and evidence of guilt is strong, even if convicted of lesser penalty; or after conviction for offense punishable by death or reclusion perpetua

Habeas Corpus vis--vis Bail; When Bail may be Cancelled

Mendoza vs. CFI, G.R. No. L-35612-14, June 27, 1973

Habeas Corpus: When it is available Habeas corpus could be invoked by petitioner if he were able to show the illegality of his detention. There is aptness and accuracy in the characterization of the writ of habeas corpus as the writ of liberty. Rightfully it is latitudinarian in scope. It is wide-ranging and all embracing in its reach. It can dig deep into the facts to assure that there be no toleration of illegal restraint. Detention must be for a cause recognized by law. The writ imposes on the judiciary the grave responsibility of ascertaining whether a deprivation of physical freedom is warranted. This it has to discharge without loss of time. The party who is

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keeping a person in custody has to produce him in court as soon as possible. What is more, he must justify the action taken. Only if it can be demonstrated that there has been no violation of one's right to liberty will he be absolved from responsibility. Unless there be such a showing, the confinement must thereby cease. Remedy of Habeas Corpus not available when there is Warrant of Arrest The above formulation of what is settled law finds no application to the present situation. Petitioner's deprivation of liberty is in accordance with a warrant of arrest properly issued after a determination by the judge in compliance with the constitutional provision requiring the examination under oath or affirmation of the complainant and the witnesses produced. No allegation to the contrary may be entertained. It cannot be denied that petitioner's co-accused, Nelso Unal, Hermogenes Lumanglas and Leopoldo Trinidad, had previously come to this court to challenge the filing of one information where there were three victims. Accordingly, this Court, in Unal v. People, required three separate amended informations. There was no question, however, as to the legality of the warrants of arrest previously issued, not only in the case of the parties in such petition, but likewise of petitioner. Habeas corpus, under the circumstances, would not therefore lie." Bail, concept, rationale Even 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 one's 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 Mulanay. Thereafter, however, the bail was revoked 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 landmark decision of Chief Justice Concepcion, People v. Hernandez, the right to bail was rightfully stress as an aspect of the protection accorded individual freedom which, in his eloquent language," is too basic, too transcendental and vital in a republican state, like ours, ...." To be more matter of fact about it, there is this excerpt from de la Camara v. Enage "Before conviction, every person is bailable except if charged with capital offense when the evidence of guilt is strong. Such a right flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. Thereby a regime of liberty is honored in the observance and not in the breach. It is not beyond the realm of probability, however, ftlinethat a person charged with a crime, especially so where his defense is weak, would just simply make himself scarce and

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thus frustrate the hearing of his case. A 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 subsequent trial. Nor is there anything unreasonable in denying this right to one charged with a capital offense when evidence of guilt is strong, as the likelihood is, rather than await the outcome of the proceeding against him with a death sentence, an ever-present threat, temptation to flee the jurisdiction would be too great to be resisted." Can bail be cancelled without violating the right to bail? The precise question 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 General Estelito Mendoza did stress the absence of authority on the part of special counselor Antonio R. Robles who was not authorized to intervene in this case on behalf of the state but did so, his failure to object being the basis of the bail granted by the municipal court of Mulanay, Quezon. Such an allegation was denied by petitioner. We are not called upon to rule definitely on this aspect as independently thereof, there are two other basic objections. One was that petitioner, when the bail was granted, was still at large. The municipal court, therefore, could not have granted bail in accordance with our ruling in Feliciano v. Pasicolan. Thus: "'The constitutional mandate that all persons shall before conviction be bailable except those charged with capital offenses when evidence of guilt is strong, is subject to the limitation that the person applying for bail should be in custody of the law, or otherwise deprived of his liberty. The purpose of bail is to secure one's release and it would be incongruous as to grant bail to one who is free.'" Secondly, and what is worse, the prosecution was never given a chance to present its evidence. The authoritative doctrine in People v. San Diego is thus squarely in point: "Whether 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."

Extradition Proceedings: Due Process and Right to Bail Govt. of the USA vs. Purganan, G.R. No. 148571, Sept. 24, 2002

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FACTS: Pursuant to the existing RP-US Extradition Treaty, the US Government requested the extradition of Mark Jimenez. A hearing was held to determine whether a warrant of arrest should be issued. Afterwards, such warrant was issued but the trial court allowed Jimenez to post bail for his provisional liberty. ISSUE: Whether or not extraditee is entitled to notice and hearing before issuance of warrant of arrest Whether or not the right to bail is available in extradition proceedings

RULING: Five Postulates of Extradition 1. Extradition Is a Major Instrument for the Suppression of Crime. First, extradition treaties are entered into for the purpose of suppressing crime by facilitating the arrest and the custodial transfer of a fugitive from one state to the other. With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries. Today, a majority of nations in the world community have come to look upon extradition as the major effective instrument of international co-operation in the suppression of crime.[30] It is the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law. xxx Indeed, in this era of globalization, easier and faster international travel, and an expanding

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ring of international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in order to improve our chances of suppressing crime in our own country. 2. The Requesting State Will Accord Due Process to the Accused Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each others legal system and judicial process. More pointedly, our duly authorized representatives signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited. That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality. 3. The Proceedings Are Sui Generis Third, as pointed out in Secretary of Justice v. Lantion, extradition proceedings are not criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis -- in a class by itself -- they are not. An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x. xxxxxxxxx There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceedings involve a fullblown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may

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adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nations foreign relations before making the ultimate decision to extradite. Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited. Such determination during the extradition proceedings will only result in needless duplication and delay. Extradition is merely a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not part of the function of the assisting authorities to enter into questions that are the prerogative of that jurisdiction. The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable. 4. Compliance Shall Be in Good Faith. Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national interest. Fulfilling our obligations under the Extradition Treaty promotes comity with the requesting state. On the other hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world community. Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity. Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty. This principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied. In other words, [t]he demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender. Accordingly, the Philippines must be ready and in a position to deliver the accused, should it be found proper. 5. There Is an Underlying Risk of Flight

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Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement in the experience of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state. The present extradition case further validates the premise that persons sought to be extradited have a propensity to flee. Indeed, extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting country. Prior acts of herein respondent -- (1) leaving the requesting state right before the conclusion of his indictment proceedings there; and (2) remaining in the requested state despite learning that the requesting state is seeking his return and that the crimes he is charged with are bailable -- eloquently speak of his aversion to the processes in the requesting state, as well as his predisposition to avoid them at all cost. These circumstances point to an everpresent, underlying high risk of flight. He has demonstrated that he has the capacity and the will to flee. Having fled once, what is there to stop him, given sufficient opportunity, from fleeing a second time? Due Process Is an extraditee entitled to notice and hearing before the issuance of a warrant of arrest? It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word immediate to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, receiving facts and arguments from them, and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can no longer be considered immediate. The law could not have intended the word as a mere superfluity but, on the whole, as a means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should be issued. By using the phrase if it appears, the law further conveys that accuracy is not as important as speed at such early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual situation, immediately upon the filing of the petition. From the knowledge and the material then available to it, the court is expected merely to get a good first impression -- a prima facie finding -- sufficient to make a speedy initial determination as regards the arrest and detention of the accused. xxx

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Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest. It provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination -- under oath or affirmation -- of complainants and the witnesses they may produce. There is no requirement to notify and hear the accused before the issuance of warrants of arrest. xxx At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their witnesses. In the present case, validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If the accused were allowed to be heard and necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also anathema to the summary nature of extraditions. That the case under consideration is an extradition and not a criminal action is not sufficient to justify the adoption of a set of procedures more protective of the accused. If a different procedure were called for at all, a more restrictive one -- not the opposite -- would be justified in view of respondents demonstrated predisposition to flee. Right to Bail Extradition Different from Ordinary Criminal Proceedings We agree with petitioner. As suggested by the use of the word conviction, the

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constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. Hence, 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 taken to mean that the right is available even in extradition proceedings that are not criminal in nature. That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court. Exceptions to the No Bail Rule The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the constitutional duty to curb grave abuse of discretion and tyranny, as well as the power to promulgate rules to protect and enforce constitutional rights. Furthermore, we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the life, liberty or property of every person. It is dynamic and resilient, adaptable to every situation calling for its application. Accordingly and to best serve the ends of justice, we believe and so hold that, after a

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potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised. In short, while this Court is ever protective of the sporting idea of fair play, it also recognizes the limits of its own prerogatives and the need to fulfill international obligations. Bail is a Matter of Discretion on the part of Appellate Court

Obosa vs. CA, G.R. No. 144350, Jan. 16, 1997

FACTS: Obosa was charged with two counts of murder for the ambush and slaying of former Secretary of Interior and Local Governments Jaime Ferrer and his driver Jesus Calderon. However, he was only convicted of two counts of homicide by the trial court. Obosa applied for bail with the trial court. While this is pending, he appealed the case to the CA, which found strong evidence of guilt. Meanwhile, the trial court approved Obosas bail bond, prompting the prosecution to request the CA to cancel the bail bond approved by the trial court. Hence, this petition. ISSUE: Whether or not accused is entitled to right to bail pending appeal as a matter of right RULING:

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The Purpose of Bail In the case of De la Camara vs. Enage, we analyzed the purpose of bail and why it should be denied to one charged with a capital offense when evidence of guilt is strong: "x x x Before conviction, every person is bailable except if charged with capital offenses when the evidence of guilt is strong. Such a right flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. Thereby 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 weak, would just simply make himself scarce and thus frustrate the hearing of his case. A 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 subsequent trial. Nor is there anything unreasonable in denying this right to one charged with a capital offense when evidence of guilt is strong. as the likelihood is, rather than await the outcome of the proceeding against him with a death sentence, an ever-present threat, temptation to flee the jurisdiction would be too great to be resisted." (Underscoring supplied). The aforequoted rationale applies with equal force to an appellant who, though convicted of an offense not punishable by death, reclusion perpetua or life imprisonment, was nevertheless originally charged with a capital offense. Such appellant can hardly be unmindful of the fact that, in the ordinary course of things, there is a substantial likelihood of his conviction (and the corresponding penalty) being affirmed on appeal, or worse, the not insignificant possibility and infinitely more unpleasant prospect of instead being found guilty of the capital offense originally charged. In such an instance, the appellant cannot but be sorely tempted to flee. Appeal in a Criminal Case Opens the Whole Case for Review, including Penalty In Quemuel vs. CA, et al., this Court held that the appeal in a criminal case opens the whole case for review and this includes the penalty, which may be increased. Thus, on appeal, as the entire case is submitted for review, even factual questions may once more be weighed and evaluated. That being the situation, the possibility of conviction upon the original charge is ever present. Likewise, if the prosecution had previously demonstrated that evidence of the accused's guilt is strong, as it had done so in this case, such

21
determination subsists even on appeal, despite conviction for a lesser offense, since such determination is for the purpose of resolving whether to grant or deny bail and does not have any bearing on whether petitioner will ultimately be acquitted or convicted of the charge. Bail is a Matter of Discretion on Appeal We have previously held that, while the accused, after conviction, may upon application be bailed at the discretion of the court, that discretion particularly with respect to extending the bail should be exercised not with laxity, but with caution and only for strong reasons, with the end in view of upholding the majesty of the law and the administration of justice.

SECTION 14 Right to Due Process, to be Presumed Innocent, Speedy Trial

Sec. 14: (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

DUE PROCESS - procedural, not substantive - procedure established by law for the prosecution of offenses must be followed STEPS:

22
Preliminary examination by judge to determine probable cause for issuance of warrant of arrest Arrest and interrogation by authorities Preliminary investigation by the prosecutor to determine probable cause for purposes of filing information Filing of information in court Arraignment Preliminary conference Pre-trial conference Presentation of evidence by prosecution Presentation of evidence by defense Rebuttal Offer of evidence Decision Promulgation of judgment

NOTA BENE: The absence of preliminary investigation does not impair the validity of a criminal information, nor does it otherwise render it defective, neither does it affect the jurisdiction of the court over the case.

Extradition Proceedings: No Notice and Hearing during Evaluation Stage

Secretary of Justice vs. Lantion, G.R. No. 139465, Oct. 17, 2000

FACTS: On June 18, 1999, the Department of Justice received from the Department of Foreign

23
Affairs U.S Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jiminez to the United States. On the same day petitioner designate and authorizing a panel of attorneys to take charge of and to handle the case. Pending evaluation of the aforestated extradition documents, Mark Jiminez through counsel, wrote a letter to Justice Secretary requesting copies of the official extradition request from the U.S Government and that he be given ample time to comment on the request after he shall have received copies of the requested papers but the petitioner denied the request for the consistency of Article 7 of the RP-US Extradition Treaty stated in Article 7 that the Philippine Government must present the interests of the United States in any proceedings arising out of a request for extradition. ISSUE: Whether or not private respondent has right to notice and hearing RULING: Rationale of Extradition Treaty; Summary Proceeding It cannot be gainsaid that today, countries like the Philippines forge extradition treaties to arrest the dramatic rise of international and transnational crimes like terrorism and drug trafficking. Extradition treaties provide the assurance that the punishment of these crimes will not be frustrated by the frontiers of territorial sovereignty. Implicit in the treaties should be the unbending commitment that the perpetrators of these crimes will not be coddled by any signatory state. It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will minimize if not prevent the escape of extraditees from the long arm of the law and expedite their trial. The submission of the private respondent, that as a probable extraditee under the RP-US Extradition Treaty he should be furnished a copy of the US government request for his extradition and its supporting documents even while they are still under evaluation by petitioner Secretary of Justice, does not meet this desideratum. The fear of the petitioner Secretary of Justice that the demanded notice is equivalent to a notice to flee must be deeply rooted on the experience of the executive branch of our government. As it comes from the branch of our government in charge of the faithful execution of our laws, it deserves the careful consideration of this Court. In addition, it cannot be gainsaid that private respondents demand for advance notice can delay the summary process of executive evaluation of the extradition request and its accompanying papers. The foresight of Justice Oliver Wendell Holmes did not miss this danger. In 1911, he held:

24
"It is common in extradition cases to attempt to bring to bear all the factitious niceties of a criminal trial at common law. But it is a waste of time . . . if there is presented, even in somewhat untechnical form according to our ideas, such reasonable ground to suppose him guilty as to make it proper that he should be tried, good faith to the demanding government requires his surrender." (emphasis supplied) We erode no right of an extraditee when we do not allow time to stand still on his prosecution. Justice is best served when done without delay. Extradition Proceeding is Sui Generis; Not Criminal An extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation. As held by the US Supreme Court in United States v. Galanis: "An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty." There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceedings involve a fullblown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited "upon showing of the existence of a prima facie case." Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nation's foreign relations before making the ultimate decision to extradite. As an extradition proceeding is not criminal in character and the evaluation stage in an

25
extradition proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not necessarily apply to the former. This we hold for the procedural due process required by a given set of circumstances "must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action." The concept of due process is flexible for "not all situations calling for procedural safeguards call for the same kind of procedure." Constitutional Right to Due Process vis-a-vis States Obligation to Treaty Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the nature of the right being claimed by the private respondent is nebulous and the degree of prejudice he will allegedly suffer is weak, we accord greater weight to the interests espoused by the government thru the petitioner Secretary of Justice. In Angara v. Electoral Commission, we held that the "Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government." Under our constitutional scheme, executive power is vested in the President of the Philippines. Executive power includes, among others, the power to contract or guarantee foreign loans and the power to enter into treaties or international agreements. The task of safeguarding that these treaties are duly honored devolves upon the executive department which has the competence and authority to so act in the international arena. It is traditionally held that the President has power and even supremacy over the countrys foreign relations. The executive department is aptly accorded deference on matters of foreign relations considering the Presidents most comprehensive and most confidential information about the international scene of which he is regularly briefed by our diplomatic and consular officials. His access to ultra-sensitive military intelligence data is also unlimited. The deference we give to the executive department is dictated by the principle of separation of powers. This principle is one of the cornerstones of our democratic government. It cannot be eroded without endangering our government. The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate the extradition of persons covered by treaties duly entered by our government. More and more, crimes are becoming the concern of one world. Laws involving crimes and crime prevention are undergoing universalization. One manifest purpose of this trend towards globalization is to deny easy refuge to a criminal whose activities threaten the peace and progress of civilized countries. It is to the great interest of the Philippines to be part of this irreversible movement in light of its vulnerability to

26
crimes, especially transnational crimes. In tilting the balance in favor of the interests of the State, the Court stresses that it is not ruling that the private respondent has no right to due process at all throughout the length and breadth of the extrajudicial proceedings. Procedural due process requires a determination of what process is due, when it is due, and the degree of what is due. Stated otherwise, a prior determination should be made as to whether procedural protections are at all due and when they are due, which in turn depends on the extent to which an individual will be "condemned to suffer grievous loss." We have explained why an extraditee has no right to notice and hearing during the evaluation stage of the extradition process. As aforesaid, P.D. No. 1069 which implements the RP-US Extradition Treaty affords an extraditee sufficient opportunity to meet the evidence against him once the petition is filed in court. The time for the extraditee to know the basis of the request for his extradition is merely moved to the filing in court of the formal petition for extradition. The extraditee's right to know is momentarily withheld during the evaluation stage of the extradition process to accommodate the more compelling interest of the State to prevent escape of potential extraditees which can be precipitated by premature information of the basis of the request for his extradition. No less compelling at that stage of the extradition proceedings is the need to be more deferential to the judgment of a co-equal branch of the government, the Executive, which has been endowed by our Constitution with greater power over matters involving our foreign relations. Needless to state, this balance of interests is not a static but a moving balance which can be adjusted as the extradition process moves from the administrative stage to the judicial stage and to the execution stage depending on factors that will come into play. In sum, we rule that the temporary hold on private respondent's privilege of notice and hearing is a soft restraint on his right to due process which will not deprive him of fundamental fairness should he decide to resist the request for his extradition to the United States. There is no denial of due process as long as fundamental fairness is assured a party.

PRESUMPTION OF INNOCENCE Burden of proof lies on his accusers to prove him guilty Equiponderance of Evidence (Equipoise Doctrine) when preponderance of evidence is at equipoise, court will find for the defendant; when the scale stand at an equipoise and there is nothing in evidence to incline it either way, the court shall rule against the party who has

27
the burden of proof Proof beyond reasonable doubt not to be equated with absolute certainty; moral certainty, or that degree of proof which produces conviction in an unprejudiced mind Prosecution has Burden of Proof

People vs. Austria, G.R. No. L-55109, April 8, 1991

It is axiomatic that conviction should be made on the basis of a strong, clear and compelling evidence (People v. Tulagan, 143 SCRA 107 [1986]. Thus, "if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the tests of moral certainty and is not sufficient to support a conviction" (People v. Ale, 145 SCRA 64 [1986]; People v. Modesto, 25 SCRA 36 [1968]). To overcome the presumption of innocence, proof beyond reasonable doubt is needed. Thus, in People v. Dramayo, 42 SCRA 60 [1971], this Court held: Accusation is not, according to the fundamental law, synonymous with guilt; the prosecution must overthrow the presumption of innocence with proof of guilt beyond reasonable doubt. To meet this standard, there is need for the most careful scrutiny of the testimony of the state, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. Presumption of Innocence vs. Presumption of Regularity of Performance of Official Duty

People vs. Briones, G.R. No. 113498, Jan. 16, 1997

The foregoing circumstances militate against affirming appellant's conviction. For the

28
same reason, we can not stamp with approval the trial court's undue reliance with the presumption of regularity in the performance of duty. While SPO1 Alilio is presumed to have regularly performed his official duty, this presumption alone cannot by itself support a judgment of conviction. Indeed, under our Constitution, an accused, no matter how despicable the crime for which he may have been charged, still enjoys the presumption of innocence. And this presumption prevails over the presumption of regularity of the performance of official duty. Nor can it be overcome by just an ordinary proof to the contrary for to convict an accused, no less and nothing more than proof beyond reasonable doubt is necessary. In this case, the threshold issue is whether or not the guilt of the appellant has been established by this required quantum of proof? We rule in the negative. Accordingly, we reverse his conviction based on reasonable doubt. Equipoise Doctrine

Corpuz vs. People, G.R. No. 74259, Feb. 14, 1991

The equipoise rule invoked by the petitioner is applicable only where the evidence of the parties is evenly balanced, in which case the constitutional presumption of innocence should tilt the scales in favor of the accused. There is no such equipoise here. The evidence of the prosecution is overwhelming and has not been overcome by the petitioner with his nebulous claims of persecution and conspiracy. The presumed innocence of the accused must yield to the positive finding that he malversed the sum of P50,310.87 to the prejudice of the public whose confidence he has breached. His conviction must be affirmed.

RIGHT TO BE HEARD

Right to be present at the trial accused has an absolute right to be personally present during the entire proceedings from arraignment to sentence, if he so desires limited only to trial court proceedings and only to the actual trial therein, not to appellate proceedings or proceedings subsequent to the entry of final judgment, looking only to the execution of the sentence

GENERAL RULE: Accused may waive his right to be present during trial.

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EXCEPTIONS: (Presence of Accused is Mandatory) Arraignment and plea presence of lawyer is also indispensable 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 judgment is one of acquittal, the accused need not be present. If the judgment is conviction but for a light offense, the accused need not be present. If the judgment is conviction and the offense is grave, the presence of the accused is mandatory. If trial in absentia and judgment is rendered, it will be promulgated even without presence of accused but he will be furnished with copies sent to his last known address. If appeal, presence of the accused is not necessary. It is the duty of the appellate court to appoint counsel, whose presence is indispensable.

Right to counsel if the accused appears without an attorney, he must be informed by the court of such right before being arraigned, and must be asked if he desires to have the aid of counsel if he cant afford one, a counsel de officio shall be appointed for him the indispensable aid of counsel continues even at the stage of appeal not waivable the right to be represented by counsel is ABSOLUTE, but the option of the accused to hire one of his own choice is LIMITED

Right to an impartial judge

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a judge who had conducted the preliminary investigation and made a finding of probable cause is not disqualified from trying the case, in the absence of evidence of partiality Right of confrontation available only during trial, not during preliminary investigation REASON: so defendant may make objection to the witness or so witness may identify him right to cross-examine if the defense counsel deferred cross-examination of the prosecution witness and then this witness dies, accused cannot anymore ask the witness direct examination to be expunged from the records since the denial of the right to confrontation is through no fault of plaintiff EXCEPTIONS: Dying Declaration Trial in absentia - REQUISITES: (1) accused has been arraigned; (2) accused has been duly notified of the date of trial; (3) failure of the accused to appear is unjustified Depositions - witness is dead, insane or otherwise cannot be found, with due diligence, in the Philippines

Right to compulsory processes 2 KINDS OF SUBPOENA: Ad testificandum - to compel a witness to attend and testify Duces Tecum - to compel a person having under his control documents or papers relevant to the case to bring such items to court during trial

RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION presence of accused is indispensable during arraignment and promulgation of judgment of conviction

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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 qualifying circumstances must be alleged in the Information and proved during trial; EXCEPT: for purposes of proving moral damages only, then it is allowed to be proved even if not alleged

RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL - available in every criminal prosecution Speedy - there is no fixed criterion in our statues to determine with precision the time for speedy trial. As soon as after indictment as the prosecution can with reasonable diligence prepare for it. It means a trial free from vexatious, capricious, and oppressive delays. But justice and fairness, not speed, are the objectives NOTA BENE: If the accused is acquitted on ground of denial of his right to speedy trial, it is a judgment on the merits and therefore, first jeopardy attaches. Impartial - cold neutrality of an impartial judge; absence of bias or prejudice Public - open to the free observation of all - EXCEPT: evidence to be adduced at the trial is of such character as to be offensive to decency and public morals

SECTION 16 Right to Speedy Disposition of Cases

Sec. 16: All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

**Covers all phases of any judicial, quasi-judicial or administrative proceedings, including

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custodial and preliminary investigation of an accused. Speedy is a relative term and must be a flexible concept. The circumstances of each case must be weighed carefully to find out whether there has been a speedy disposition Inordinate Delay in Preliminary Investigation Violative, Exception to the Rule

Tatad vs. Sandiganbayan, G.R. No. 72335-39, March 21, 1988

We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutional guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights. A delay of close to three (3) years can not be deemed reasonable or justifiable in the light of the circumstance obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that "the delay may be due to a painstaking and gruelling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high ranking government official." In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republic Act No. 3019, which certainly did not involve complicated legal and factual issues necessitating such "painstaking and gruelling scrutiny" as would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to alleged bribery and alleged giving of unwarranted benefits to a relative, while presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case. It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True-but the absence of a preliminary

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investigation can be corrected by giving the accused such investigation. But an undue delay in the conduct of a preliminary investigation can not be corrected, for until now, man has not yet invented a device for setting back time. After a careful review of the facts and circumstances of this case, we are constrained to hold that the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of the foregoing, we find it unnecessary to rule on the other issues raised by petitioner. Delay in Preliminary Investigation, Not Violative

Santiago vs. Garchitorena, G.R. No. L-109266, Dec. 2, 1993

Petitioner cannot complain that her constitutional rights to due process were violated by reason of the delay in the termination of the preliminary investigation. According to her, while the offense was allegedly committed "on or before October 17, 1988", the information was filed only on May 9, 1991 and the amended informations on December 8, 1992 (Rollo, p. 14). Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to petitioner's case. In Tatad, there indeed was an unexplained inaction on the part of the public prosecutors in spite of the simplicity of the legal and factual issues involved therein. In the case at bench, there was a continuum of the investigatory process but it got snarled because of the complexity of the issues involved. The act complained of in the original information came to the attention of the Ombudsman only when it was first reported in the January 10, 1989 issue of the Manila Standard. Immediately thereafter, the investigatory process was set in motion. The investigation was first assigned to Special Prosecutor Gualberto dela Llana but on request of petitioner herself the investigation was re-assigned to the Office of the Deputy Ombudsman for Luzon. The case was handled by a panel of four prosecutors, who submitted a draft resolution for the filing of the charges on March 29, 1990. The draft resolution had to undergo the hierarchy of review, normal for a draft resolution with a dissenting vote, until it reached the Ombudsman in March 1991. We note that petitioner had previously filed two petitions before us involving Criminal

34
Case No. 16698 (G.R. Nos. 99289-99290; G.R. No. 107598). Petitioner has not explained why she failed to raise the issue of delay in the preliminary investigation and the filing of the information against her in those petitions. A piece-meal presentation of issues, like the splitting of causes of action, is self-defeating. SECTION 17 Right Against Self-Incrimination

Sec. 17: No person shall be compelled to be a witness against himself.

Available both before or during criminal prosecution Accused is competent to testify in his behalf, but he is entitled to the right not to testify as a witness against himself. He cannot be compelled to incriminate himself; that is, to say or do anything that can be used against himself Accused can invoke this right from the beginning; however in case of witness, he can invoke this right only when the questions start to become incriminating

RATIONALE: Public policy Humanity

GENERAL RULE: The accused cannot be compelled to testify against his co-accused under the theory that the act of one is the act of all. EXCEPTIONS: If he is discharged as a state witness After he is convicted or acquitted By trying him separately instead of jointly with his other co-accused

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SECTION 19 Right Against Excessive Fines and Cruel, Degrading or Inhuman Punishment Sec. 19: (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. (2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.

Excessive fines flagrantly disproportionate to the offense no matter what circumstances the offense was committed Cruel and unusual punishment in its form; duration or amount; in flagrant disproportion between the offense and the punishment

SECTION 21 Right Against Double Jeopardy

Sec. 21: No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Double Jeopardy two perils or dangers of being tried and punished 2 KINDS: 1.Same Offense (First sentence of Sec. 21) REQUISITES:

36
First jeopardy A valid complaint and information A court of competent jurisdiction Arraignment and valid plea First jeopardy has been terminated Second jeopardy for the same offense includes an attempt or frustration of the same offense or it necessarily includes or is necessarily included in the other Terminated either by conviction, acquittal or dismissal upon the merit without consent of the accused CONVICTION: a judgment declaring the accused guilty of the offense charged and imposing upon him the penalty provided by law; accused may appeal and this is not double jeopardy ACQUITTAL: a termination of the case based upon the merits of the issue; prosecution cannot appeal anymore DISMISSAL: a termination of the case other than upon the merits thereof; first jeopardy only attaches if dismissal without consent of accused NOTA BENE: Consent means approval, acquiescence, conformity, agreement, etc. Mere silence of the accused should not be construed as consent. Even if the motion to dismiss was filed by the accused, the dismissal is equivalent to acquittal if it is grounded on (1) insufficiency of evidence (demurrer to evidence after prosecution has rested its case); (2) denial of the right to speedy trial Supervening Facts when the second offense was not in existence when the first offense was charged and tried, then another information may be filed or the present information may be amended (substantial)

2.Act Punished by a Law and Ordinance (Second sentence of Sec. 21) this will only apply if the accused has been either convicted or acquitted

37
if the case was only dismissed not upon the merits, the prosecution may re-file Provisional Dismissal People vs. Lacson, G.R. No. 149453, April 1, 2003

Section 8, Rule 117 of the Revised Rules of Criminal Procedure reads: Sec. 8. Provisional dismissal. A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived. Having invoked said rule before the petitioners-panel of prosecutors and before the Court of Appeals, the respondent is burdened to establish the essential requisites of the first paragraph thereof, namely: 1. the prosecution with the express conformity of the accused or the accused moves for a provisional (sin perjuicio) dismissal of the case; or both the prosecution and the accused move for a provisional dismissal of the case; 2. the offended party is notified of the motion for a provisional dismissal of the case; 3. the court issues an order granting the motion and dismissing the case provisionally; 4. the public prosecutor is served with a copy of the order of provisional dismissal of the case. The foregoing requirements are conditions sine qua non to the application of the time-bar in the second paragraph of the new rule. The raison d etre for the requirement of the express consent of the accused to a provisional dismissal of a criminal case is to bar him from subsequently asserting that the revival of the criminal case will place him in double jeopardy for the same offense or for an offense necessarily included therein. Although the second paragraph of the new rule states that the order of dismissal shall

38
become permanent one year after the issuance thereof without the case having been revived, the provision should be construed to mean that the order of dismissal shall become permanent one year after service of the order of dismissal on the public prosecutor who has control of the prosecution without the criminal case having been revived. The public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order of dismissal. Express consent to a provisional dismissal is given either viva voce or in writing. It is a positive, direct, unequivocal consent requiring no inference or implication to supply its meaning. Where the accused writes on the motion of a prosecutor for a provisional dismissal of the case No objection or With my conformity, the writing amounts to express consent of the accused to a provisional dismissal of the case. The mere inaction or silence of the accused to a motion for a provisional dismissal of the case or his failure to object to a provisional dismissal does not amount to express consent. A motion of the accused for a provisional dismissal of a case is an express consent to such provisional dismissal. If a criminal case is provisionally dismissed with the express consent of the accused, the case may be revived only within the periods provided in the new rule. On the other hand, if a criminal case is provisionally dismissed without the express consent of the accused or over his objection, the new rule would not apply. The case may be revived or refiled even beyond the prescribed periods subject to the right of the accused to oppose the same on the ground of double jeopardy or that such revival or refiling is barred by the statute of limitations. The case may be revived by the State within the time-bar either by the refiling of the Information or by the filing of a new Information for the same offense or an offense necessarily included therein. There would be no need of a new preliminary investigation. However, in a case wherein after the provisional dismissal of a criminal case, the original witnesses of the prosecution or some of them may have recanted their testimonies or may have died or may no longer be available and new witnesses for the State have emerged, a new preliminary investigation must be conducted before an Information is refiled or a new Information is filed. A new preliminary investigation is also required if aside from the original accused, other persons are charged under a new criminal complaint for the same offense or necessarily included therein; or if under a new criminal complaint, the original charge has been upgraded; or if under a new criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a principal. The accused must be accorded the right to submit counter-affidavits and evidence. After all, the fiscal is not called by the Rules of Court to wait in ambush; the role of a fiscal is not mainly to prosecute but essentially to do justice to every man and to assist the court in dispensing

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that justice. In this case, the respondent has failed to prove that the first and second requisites of the first paragraph of the new rule were present when Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-81679 to Q-99-81689. Irrefragably, the prosecution did not file any motion for the provisional dismissal of the said criminal cases. xxx xxx Since the conditions sine qua non for the application of the new rule were not present when Judge Agnir, Jr. issued his resolution, the State is not barred by the time limit set forth in the second paragraph of Section 8 of Rule 117 of the Revised Rules of Criminal Procedure. The State can thus revive or refile Criminal Cases Nos. Q-99-81679 to Q-99-81689 or file new Informations for multiple murder against the respondent.

SECTION 22 No Ex Post Facto Law or Bill of Attainder

Sec. 22: No ex post facto law or bill of attainder shall be enacted.

Ex post facto law one that punishes an act which was not punishable when committed; or aggravates a crime or makes it greater than when committed; or changes the laws on evidence so that lesser evidence is needed for conviction than when the act was done Bill of Attainder a law which inflicts punishment without benefit of judicial trial ELEMENTS OF EX POST FACTO LAW: Penal Retroactive Disadvantageous to the accused

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Must take 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 enjoyed at the time of the commission of the offense charged against him ELEMENTS OF BILL OF ATTAINDER: There is a law The law imposes a penal burden on a specified individual or an easily ascertainable members of a group The penal burden is imposed directly by the law without judicial trial

Feb 1, 2010 ARTICLE VI: Legislative Department (Part 1) Sec. 1: One Congress, Two Houses

Sec. 1: The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

POWERS: Legislative Republican Systems: 1. Original possessed by the sovereign people 2. Derivative that which is delegated by the sovereign people to the legislative bodies and is subordinate to the original power of the people; vested in Congress

Power according to its application:

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1. Constituent power to amend the Constitution 2. Ordinary power to pass ordinary laws Non-legislative NOTA BENE: Powers of Congress may be inherent (like the determination of its rules of proceedings and discipline of its members) or implied (like the power to punish for contempt in legislative investigations). The people, through amendatory process, can exercise constituent power, and, through initiative and referendum, legislative power.

Allowable Delegation of Legislative Power To the President (See ABAKADA Guro case) To Administrative Agencies: 2 Tests of Valid Delegation; Subordinate Legislation Eastern Shipping Lines v. POEA, 166 SCRA 533 (1988)

What must be examined to determine if rule passed the tests of valid delegation

Echegaray vs. Sec. of Justice, G.R. No. 132601, Oct. 12, 1998

There is no undue delegation of legislative power in RA 8177 to the Sec. of Justice and the Dir. Of Bureau of Corrections, but Sec. 19 of the Rules and Regulations to implement RA 8177 is invalid. Empowering the Sec. of Justice in conjunction with the Sec. of Health and the Dir. Of the Bureau of Corrections, to promulgate rules and regulations on the subject of lethal injection is a form of delegation of legislative authority to administrative bodies. xxx

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Although Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself it must be set forth therein the policy to be executed, carried out or implemented by the delegate and (b) fix a standard the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions. Considering the scope and the definiteness of RA 8177, which changed the mode of carrying out the death penalty, the Court finds that the law sufficiently describes what job must be done, who is to do it, and what is the scope of his authority. RA 8177 likewise provides the standards which define the legislative policy, mark its limits, map out its boundaries, and specify the public agencies which will apply it. It indicates the circumstances under which the legislative purpose may be carried out. RA 8177 specifically requires that [t]he death sentence shall be executed under the authority of the Director of the Bureau of Corrections, endeavoring so far as possible to mitigate the sufferings of the person under the sentence during the lethal injection as well as during the proceedings prior to the execution. Further, [t]he Director of the Bureau of Corrections shall take steps to ensure that the lethal injection to be administered is sufficient to cause the instantaneous death of the convict. The legislature also mandated that all personnel involved in the administration of lethal injection shall be trained prior to the performance of such task. The Court cannot see that any useful purpose would be served by requiring greater detail. The question raised is not the definition of what constitutes a criminal offense, but the mode of carrying out the penalty already imposed by the Courts. In this sense, RA 8177 is sufficiently definite and the exercise of discretion by the administrative officials concerned iscanalized within banks that keep it from overflowing. Thus, the Court finds that the existence of an area for exercise of discretion by the Sec. of Justice and the Dir. Of the Bureau of Corrections under delegated legislative power is proper where standards are formulated for the guidance and the exercise of limited discretion, which though general, are capable of reasonable application. xxx A careful reading of RA 8177 would show that there is no undue delegation of legislative power from the Sec. of Justice to the Dir. Of the Bureau of Corrections for the simple reason that under the Administrative Code of 1987, the Bureau of Corrections is a mere

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constituent unit of the Dept. of Justice. Further, the Dept. of Justice is tasked, among others, to take charge of the administration of the correctional system. Hence, the import of the phraseology of the law is that the Sec. of Justice should supervise the Dir. Of the Bureau of Corrections in promulgating the Lethal Injection Manual, in consultation with the Dept. of Health. However, the Rules and Regulations to Implement RA 8177 suffer serious flaws that could not be overlooked. To begin with, something basic appears missing in Sec. 19 of the implementing rules... xxx Thus, the Court finds in the first paragraph of Sec. 19 of the implementing rules a veritable vacuum. The Sec. of Justice has practically abdicated the power to promulgate the manual on the execution procedure to the Dir. Of the Bureau of Corrections, by not providing for a mode of review and approval thereof. Being a mere constituent unit of the Dept. of Justice, the Bureau of Corrections could not promulgate a manual that would not bear the imprimatur of the administrative superior, the Sec. of Justice as the rule-making authority under RA 8177. Such apparent abdication of departmental responsibility renders the said paragraph invalid.

To People (See Santiago and Lambino cases)

Sec. 2: Composition of Senate 24 Senators

Sec. 3: Qualifications of Senators Natural-born citizen 35 years old Able to read and write Registered voter

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2-year residency Sec. 4: Term of Office 6 yrs. COMMENCE: noon on the thirtieth day of June next following their election (unless otherwise provided by law) RE-ELECTION: no Senator shall serve for more than 2 consecutive terms Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term

Sec. 5: Composition of the House of Representatives (1)not more than 250 members, UNLESS otherwise provided by law; and (2) party-list members LEGISLATIVE DISTRICT: contiguous, compact, and adjacent territory (city: 250,000 pop.) VACANCY: holding of special election is discretionary on House concerned (Sec. 9)

Congress has power of reapportionment of legislative districts

Montejo vs. COMELEC, G.R. No. 118702, March 16, 1995

It may well be that the conversion of Biliran from a sub-province to a regular province brought about an imbalance in the distribution of voters and inhabitants in the five (5) legislative districts of the province of Leyte. This imbalance, depending on its degree, could devalue a citizens vote in violation of the equal protection clause of the Constitution. Be that as it may, it is not proper at this time for petitioner to raise this issue using the case at bench as his legal vehicle. The issue involves a problem of reapportionment of legislative districts and petitioners remedy lies with Congress. Sec. 5(4), Art. VI of the Constitution categorically gives Congress the power to reapportion, thus: Within three (3) years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. In Macias v. COMELEC, we ruled that the validity of a legislative apportionment is a justiciable question. But while this Court can strike down an unconstitutional reapportionment, it

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cannot itself make the reapportionment as petitioner would want us to do by directing respondent COMELEC to transfer the municipality of Tolosa from the First District to the Second District of the province of Leyte. Congress may increase its present composition

Tobias vs. Abalos, G.R. No. L-114783, Dec. 8, 1994

As to the contention that the assailed law violates the present limit on the number of representatives as set forth in the Constitution, a reading of the applicable provision, Art. VI, Sec. 5(1), as aforequoted, shows that the present limit of 250 members is not absolute. The Constitution clearly provides that the House of Representatives shall be composed of not more than 250 members, unless otherwise provided by law. The inescapable import of the latter clause is that the present composition of Congress may be increased, if Congress itself so mandates through a legislative enactment. Therefore, the increase in congressional representation mandated by RA 7675 is not unconstitutional. xxx As to the contention that Sec. 49 of RA 7675 in effect preempts the right of Congress to reapportion legislative districts, the said argument borders on the absurd since petitioners overlook the glaring fact that it was Congress itself which drafted, deliberated upon and enacted the assailed law, including Sec. 49 thereof. Congress cannot possibly preempt itself on a right which pertains to itself. xxx Petitioners contend that the people of San Juan should have been made to participate in the plebiscite on RA 7675 as the same involved a change in their legislative district. The contention is bereft of merit since the principal subject involved in the plebiscite was the conversion of Mandaluyong into a highly urbanized city. The matter of separate district representation was only ancillary thereto. Thus, the inhabitants of San Juan were properly excluded from the said plebiscite as they had nothing to do with the change of status of neighboring Mandaluyong.

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Similarly, petitioners additional argument that the subject law has resulted in gerrymandering, which is the practice of creating legislative districts to favor a particular candidate or party, is not worthy of credence. As correctly observed by the Solicitor General, it should be noted that Rep. Ronaldo Zamora, the author of the assailed law, is the incumbent representative of the former San Juan/Mandaluyong district, having consistently won in both localities. By dividing San Juan/Mandaluyong, Rep. Zamoras constituency has in fact been diminished, which development could hardly be considered as favorable to him.

Party-list System: Inviolable parameters to determine the winners; Computation

Veterans Federation Party vs. Comelec, G.R. No. 136781, Oct. 6, 2000

To determine the winners in a Philippine-style party-list election, the Constitution and RA 7941 mandate at least four inviolable parameters. These are: First, the twenty percent allocation the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list. Second, the two percent threshold only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are qualified to have a seat in the House of Representatives; Third, the three-seat limit each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one qualifying and two additional seats. Fourth, proportional representation the additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes. The Party-list System, Explained Our 1987 Constitution introduced a novel feature into our presidential system of government the party-list method of representation. Under this system, any national, regional or sectoral party or organization registered with the Commission on Elections may

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participate in the election of party-list representatives who, upon their election and proclamation, shall sit in the House of Representatives as regular members. In effect, a voter is given two (2) votes for the House one for a district congressman and another for a party-list representative. xxx xxx Complying with its constitutional duty to provide by law the selection or election of party-list representatives, Congress enacted RA 7941 on March 3, 1995. Under this statutes policy declaration, the State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. Whether the Twenty Percent Constitutional Allocation is Mandatory Determination of the Total Number of Party-List Lawmakers Clearly, the Constitution makes the number of district representatives the determinant in arriving at the number of seats allocated for party-list lawmakers, who shall comprise twenty per centum of the total number of representatives including those under the partylist. We thus translate this legal provision into a mathematical formula, as follows: No. of district representatives ---------------------------------- x .20 = No. of party-list .80 representatives This formulation means that any increase in the number of district representatives, as may be provided by law, will necessarily result in a corresponding increase in the number of party-list seats. To illustrate, considering that there were 208 district representatives to be elected during the 1998 national elections, the number of party-list seats would be 52,

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computed as follows: 208 -------- x .20 = 52 .80 The foregoing computation of seat allocation is easy enough to comprehend. The problematic question, however, is this: Does the Constitution require all such allocated seats to be filled up all the time and under all circumstances? Our short answer is No. Twenty Percent Allocation a Mere Ceiling The Constitution simply states that "[t]he party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. According to petitioners, this percentage is a ceiling; the mechanics by which it is to be filled up has been left to Congress. In the exercise of its prerogative, the legislature enacted RA 7941, by which it prescribed that a party, organization or coalition participating in the party-list election must obtain at least two percent of the total votes cast for the system in order to qualify for a seat in the House of Representatives. xxx We rule that a simple reading of Section 5, Article VI of the Constitution, easily conveys the equally simple message that Congress was vested with the broad power to define and prescribe the mechanics of the party-list system of representation. The Constitution explicitly sets down only the percentage of the total membership in the House of Representatives reserved for party-list representatives. xxx Considering the foregoing statutory requirements, it will be shown presently that Section 5 (2), Article VI of the Constitution is not mandatory. It merely provides a ceiling for partylist seats in Congress. On the contention that a strict application of the two percent threshold may result in a mathematical impossibility, suffice it to say that the prerogative to determine whether to adjust or change this percentage requirement rests in Congress. Xxx The Statutory Requirement and Limitation

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The Two Percent Threshold In imposing a two percent threshold, Congress wanted to ensure that only those parties, organizations and coalitions having a sufficient number of constituents deserving of representation are actually represented in Congress. xxx The two percent threshold is consistent not only with the intent of the framers of the Constitution and the law, but with the very essence of "representation." Under a republican or representative state, all government authority emanates from the people, but is exercised by representatives chosen by them. But to have meaningful representation, the elected persons must have the mandate of a sufficient number of people. Otherwise, in a legislature that features the party-list system, the result might be the proliferation of small groups which are incapable of contributing significant legislation, and which might even pose a threat to the stability of Congress. Thus, even legislative districts are apportioned according to "the number of their respective inhabitants, and on the basis of a uniform and progressive ratio" to ensure meaningful local representation. All in all, we hold that the statutory provision on this two percent requirement is precise and crystalline. When the law is clear, the function of courts is simple application, not interpretation or circumvention. The Three-Seat-Per-Party Limit An important consideration in adopting the party-list system is to promote and encourage a multiparty system of representation. xxx Consistent with the Constitutional Commission's pronouncements, Congress set the seatlimit to three (3) for each qualified party, organization or coalition. "Qualified" means having hurdled the two percent vote threshold. Such three-seat limit ensures the entry of various interest-representations into the legislature; thus, no single group, no matter how large its membership, would dominate the party-list seats, if not the entire House. Method of Allocating Additional Seats Having determined that the twenty percent seat allocation is merely a ceiling, and having upheld the constitutionality of the two percent vote threshold and the three-seat limit imposed under RA 7941, we now proceed to the method of determining how many party-

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list seats the qualified parties, organizations and coalitions are entitled to. The very first step - there is no dispute on this - is to rank all the participating parties, organizations and coalitions (hereafter collectively referred to as "parties") according to the votes they each obtained. The percentage of their respective votes as against the total number of votes cast for the party-list system is then determined. All those that garnered at least two percent of the total votes cast have an assured or guaranteed seat in the House of Representatives. Thereafter, "those garnering more than two percent of the votes shall be entitled to additional seats in proportion to their total number of votes." The problem is how to distribute additional seats "proportionally," bearing in mind the three-seat limit further imposed by the law. The Formula Step One. There is no dispute among the petitioners, the public and the private respondents, as well as the members of this Court, that the initial step is to rank all the participating parties, organizations and coalitions from the highest to the lowest based on the number of votes they each received. Then the ratio for each party is computed by dividing its votes by the total votes cast for all the parties participating in the system. All parties with at least two percent of the total votes are guaranteed one seat each. Only these parties shall be considered in the computation of additional seats. The party receiving the highest number of votes shall thenceforth be referred to as the first party. Step Two. The next step is to determine the number of seats the first party is entitled to, in order to be able to compute that for the other parties. Since the distribution is based on proportional representation, the number of seats to be allotted to the other parties cannot possibly exceed that to which the first party is entitled by virtue of its obtaining the most number of votes. For example, the first party received 1,000,000 votes and is determined to be entitled to two additional seats. Another qualified party which received 500,000 votes cannot be entitled to the same number of seats, since it garnered only fifty percent of the votes won by the first party. Depending on the proportion of its votes relative to that of the first party whose number of seats has already been predetermined, the second party should be given less than that to which the first one is entitled. The other qualified parties will always be allotted less additional seats than the first party for two reasons: (1) the ratio between said parties and the first party will always be less than 1:1, and (2) the formula does not admit of mathematical rounding off, because there is

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no such thing as a fraction of a seat. Verily, an arbitrary rounding off could result in a violation of the twenty percent allocation. An academic mathematical demonstration of such incipient violation is not necessary because the present set of facts, given the number of qualified parties and the voting percentages obtained, will definitely not end up in such constitutional contravention. The Court has previously ruled in Guingona Jr. v. Gonzales that a fractional membership cannot be converted into a whole membership of one when it would, in effect, deprive another party's fractional membership. It would be a violation of the constitutional mandate of proportional representation. We said further that "no party can claim more than what it is entitled to x x x. Formula for Determining Additional Seats for the First Party Now, how do we determine the number of seats the first party is entitled to? The only basis given by the law is that a party receiving at least two percent of the total votes shall be entitled to one seat. Proportionally, if the first party were to receive twice the number of votes of the second party, it should be entitled to twice the latter's number of seats and so on. The formula, therefore, for computing the number of seats to which the first party is entitled is as follows: Number of votes of first party Proportion of votes of -------------------- = first party relative to Total votes for total votes for party-list system party-list system If the proportion of votes received by the first party without rounding it off is equal to at least six percent of the total valid votes cast for all the party list groups, then the first party shall be entitled to two additional seats or a total of three seats overall. If the proportion of votes without a rounding off is equal to or greater than four percent, but less than six percent, then the first party shall have one additional or a total of two seats. And if the proportion is less than four percent, then the first party shall not be entitled to any additional seat. We adopted this six percent bench mark, because the first party is not always entitled to the maximum number of additional seats. Likewise, it would prevent the allotment of more than the total number of available seats, such as in an extreme case wherein 18 or more

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parties tie for the highest rank and are thus entitled to three seats each. In such scenario, the number of seats to which all the parties are entitled may exceed the maximum number of party-list seats reserved in the House of Representatives. Formula for Additional Seats of Other Qualified Parties Step Three The next step is to solve for the number of additional seats that the other qualified parties are entitled to, based on proportional representation. The formula: No. of votes for concerned party --------------------------------------- x No. of additional seats allocated for first party No. of votes for first party xxx Incidentally, if the first party is not entitled to any additional seat, then the ratio of the number of votes for the other party to that for the first one is multiplied by zero. The end result would be zero additional seat for each of the other qualified parties as well. The above formula does not give an exact mathematical representation of the number of additional seats to be awarded since, in order to be entitled to one additional seat, an exact whole number is necessary. In fact, most of the actual mathematical proportions are not whole numbers and are not rounded off for the reasons explained earlier. To repeat, rounding off may result in the awarding of a number of seats in excess of that provided by the law. Furthermore, obtaining absolute proportional representation is restricted by the three-seat-per-party limit to a maximum of two additional slots. An increase in the maximum number of additional representatives a party may be entitled to would result in a more accurate proportional representation. But the law itself has set the limit: only two additional seats. Hence, we need to work within such extant parameter.

NOTA BENE: In a later decision (Banat vs. COMELEC), SC has struck down in part the "two percent threshold" so that now, the way to allocate seats for party-list representatives is as follows: Step One. Parties, organizations and coalitions shall be ranked from the highest to the lowest based on the number of votes garnered

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Step Two. Those receiving at least 2% of the total votes cast for the party-list system shall be entitled to one guaranteed seat Step Three. Those garnering sufficient number of votes according to the ranking in Step One, shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated. Step Four. Each party, organization or coalition shall not be entitled to more than 3 seats.

Computing additional seats for party-list other than first party: use the number of additional seats allotted for first party as multiplier

CIBAC vs. Comelec, G.R. No. 172103, April 13, 2007 Applying the Veterans formula in petitioners case, we reach the conclusion that CIBAC is not entitled to an additional seat. Party-list Canvass Report No. 20 contained in the petition shows that the first party, Bayan Muna, garnered the highest number of votes, that is, a total of 1,203,305 votes. Petitioner CIBAC, on the other hand, received a total of 495,190 votes. It was proclaimed that the first party, Bayan Muna, was entitled to a maximum of three (3) seats based on June 2, 2004 Resolution NO. NBC 04-004 of the COMELEC. A computation using the Veterans formula would therefore lead us to the following result: No. of votes of concerned party No. of additional Additional x seats allocated to = Seats for No. of votes of the first party concerned first party (Emphasis supplied.) party

Applying this formula, the result is as follows: 495,190 x 2 = 1,203,305 0.41152493 x 2 = 0.82304986

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This is a far cry from the claimed Ang Bagong Bayani and Bayan Muna formula which used the multiplier allotted seats for the first party, viz: Additional Seats = Votes Cast for Qualified Party x Allotted Seats ____________________ for First Party Votes Cast for First Party Applying the Ang Bagong Bayani and Bayan Muna formula to CIBAC, it yields the following result: Additional seats = 495,190 x 3 = 1.2345 ________ 1,203,305 Unfortunately, it is the Veterans formula that is sanctioned by the Court and not the Ang Bagong Bayani and Bayan Muna formula that petitioner alleges. Since petitioner CIBAC got a result of 0.82304986 only, which is less than one (1), then it did not obtain or reach a whole number. Petitioner has not convinced us to deviate from our ruling in Veterans that in order to be entitled to one additional seat, an exact whole number is necessary. Clearly, petitioner is not entitled to an additional seat.

Are people entitled to know the nominees of party-list organizations? BA-RA 7941 vs. Comelec, G.R. No. 177271, May 4, 2007

The Right to Information The right to information is a public right where the real parties in interest are the public, or the citizens to be precise. And for every right of the people recognized as fundamental lies a corresponding duty on the party of those who govern to respect and protect that right. This is the essence of the Bill of Rights in a constitutional regime. Without a governments acceptance of the limitations upon it by the Constitution in order to uphold individual liberties, without an acknowledgment on its part of those duties exacted by the rights pertaining to the citizens, the Bill of Rights becomes sophistry.

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By weight of jurisprudence, any citizen can challenge any attempt to obstruct the exercise of his right to information and may seek its enforcement by mandamus. And since every citizen by the simple fact of his citizenship possesses the right to be informed, objections on ground of locus standi are ordinarily unavailing. Right to Information Limited to Matters of Public Concern Like all constitutional guarantees, however, the right to information and its companion right of access to official records are not absolute. As articulated in Legaspi, supra, the peoples right to know is limited to matters of public concern and is further subject to such limitation as may be provided by law. Similarly, the policy of full disclosure is confined to transactions involving public interest and is subject to reasonable conditions prescribed by law. Too, there is also the need of preserving a measure of confidentiality on some matters, such as military, trade, banking and diplomatic secrets or those affecting national security. The terms public concerns and public interest have eluded precise definition. But both terms embrace, to borrow from Legaspi, a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally whet the interest of an ordinary citizen. At the end of the day, it is for the courts to determine, on a case to case basis, whether or not at issue is of interest or importance to the public. If, as in Legaspi, it was the legitimate concern of a citizen to know if certain persons employed as sanitarians of a health department of a city are civil service eligibles, surely the identity of candidates for a lofty elective public office should be a matter of highest public concern and interest. Disclosure of Party-list Group Nominees not an Exception As may be noted, no national security or like concerns is involved in the disclosure of the names of the nominees of the party-list groups in question. Doubtless, the Comelec committed grave abuse of discretion in refusing the legitimate demands of the petitioners for a list of the nominees of the party-list groups subject of their respective petitions. Mandamus, therefore, lies. The last sentence of Section 7 of R.A. 7941 reading: [T]he names of the party-list nominees shall not be shown on the certified list is certainly not a justifying card for the Comelec to deny the requested disclosure. To us, the prohibition imposed on the Comelec

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under said Section 7 is limited in scope and duration, meaning, that it extends only to the certified list which the same provision requires to be posted in the polling places on election day. To stretch the coverage of the prohibition to the absolute is to read into the law something that is not intended. As it were, there is absolutely nothing in R.A. No. 7941 that prohibits the Comelec from disclosing or even publishing through mediums other than the Certified List the names of the party-list nominees. The Comelec obviously misread the limited non-disclosure aspect of the provision as an absolute bar to public disclosure before the May 2007 elections. The interpretation thus given by the Comelec virtually tacks an unconstitutional dimension on the last sentence of Section 7 of R.A. No. 7941. Peoples Right to Elect based on Informed Judgment The Comelecs reasoning that a party-list election is not an election of personalities is valid to a point. It cannot be taken, however, to justify its assailed non-disclosure stance which comes, as it were, with a weighty presumption of invalidity, impinging, as it does, on a fundamental right to information. While the vote cast in a party-list elections is a vote for a party, such vote, in the end, would be a vote for its nominees, who, in appropriate cases, would eventually sit in the House of Representatives. It has been repeatedly said in various contexts that the people have the right to elect their representatives on the basis of an informed judgment. Hence the need for voters to be informed about matters that have a bearing on their choice. The ideal cannot be achieved in a system of blind voting, as veritably advocated in the assailed resolution of the Comelec. The Court, since the 1914 case of Gardiner v. Romulo, has consistently made it clear that it frowns upon any interpretation of the law or rules that would hinder in any way the free and intelligent casting of the votes in an election. So it must be here for still other reasons articulated earlier. In all, we agree with the petitioners that respondent Comelec has a constitutional duty to disclose and release the names of the nominees of the party-list groups named in the herein petitions.

Sec. 6: Qualifications of Member of House of Representatives Natural-born citizen 25 years old

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Able to read and write Registered voter of the district in which he shall be elected (except party-list representatives) Resident of at least one year of such district

Sec. 7: Term of Office of House of Representatives 3 years COMMENCE: noon on the 30th day of June next following their election (unless otherwise provided by law) LIMIT: no more than 3 consecutive terms Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected

Sec. 11: Parliamentary Immunities

Sec. 11: A Senator or Member of the House of Representative shall, in all offenses punishable by not more than six years of imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.

Congress Immunity from Arrest vs. Confinement under Penal Sanction

People vs. Jalosjos, G.R. No. 132975-76, Feb. 3, 2000

Aguinaldo Doctrine does not apply Accused-appellants reliance on the ruling in Aguinaldo v. Santos, which states, inter alia, that The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers.

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When a people have elected a man to office, it must be assumed that they did this with the knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the Court, by reason of such fault or misconduct, to practically overrule the will of the people. will not extricate him from his predicament. It can be readily seen in the above-quoted ruling that the Aguinaldo case involves the administrative removal of a public officer for acts done prior to his present term of office. It does not apply to imprisonment arising from the enforcement of criminal law. Moreover, in the same way that preventive suspension is not removal, confinement pending appeal is not removal. He remains a congressman unless expelled by Congress or, otherwise, disqualified. Rationale of Confinement: Public Self-defense and Example/Warning to Others One rationale behind confinement, whether pending appeal or after final conviction, is public self-defense. Society must protect itself. It also serves as an example and warning to others. A person charged with crime is taken into custody for purposes of the administration of justice. As stated in United States v. Gustilo, it is the injury to the public which State action in criminal law seeks to redress. It is not the injury to the complainant. After conviction in the Regional Trial Court, the accused may be denied bail and thus subjected to incarceration if there is risk of his absconding. The accused-appellant states that the plea of the electorate which voted him into office cannot be supplanted by unfounded fears that he might escape eventual punishment if permitted to perform congressional duties outside his regular place of confinement. It will be recalled that when a warrant for accused-appellants arrest was issued, he fled and evaded capture despite a call from his colleagues in the House of Representatives for him to attend the sessions and to surrender voluntarily to the authorities. Ironically, it is now the same body whose call he initially spurned which accused-appellant is invoking to justify his present motion. This can not be countenanced because, to reiterate, aside from its being contrary to well-defined Constitutional restrains, it would be a mockery of the aims of the States penal system. Only Emergency Temporary Leaves from Imprisonment Allowed

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Accused-appellant argues that on several occasions, the Regional Trial Court of Makati granted several motions to temporarily leave his cell at the Makati City Jail, for official or medical reasons xxx There is no showing that the above privileges are peculiar to him or to a member of Congress. Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders. What the accused-appellant seeks is not of an emergency nature. Allowing accusedappellant to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accused-appellants status to that of a special class, it also would be a mockery of the purposes of the correction system. xxx When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in office. Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under law? The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that

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particular duty. The importance of a function depends on the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals. The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded. We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class.

Parliamentary Immunity as to Speech vis--vis Power of Congress to Discipline its Members for Disorderly Behavior

Osmena vs. Pendatun. G.R. No. L-17144, Oct. 29, 1960

Parliamentary Immunity, background Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in every legislative assembly of the democratic world. As old as the English Parliament, its purpose "is to enable and encourage a representative of the public to discharge his public trust with firmness and success" for "it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom exercise of that liberty may occasion offense."2 Such immunity has come to this country from the practices of Parliamentary as construed and applied by the Congress of the United States. Its extent and application

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remain no longer in doubt in so far as related to the question before us. It guarantees the legislator complete freedom of expression without fear of being made responsible in criminal or civil actions before the courts or any other forum outside of the Congressional Hall. But is does not protect him from responsibility before the legislative body itself whenever his words and conduct are considered by the latter disorderly or unbecoming a member thereof. xxx For unparliamentary conduct, members of Parliament or of Congress have been, or could be censured, committed to prison, even expelled by the votes of their colleagues. The appendix to this decision amply attest to the consensus of informed opinion regarding the practice and the traditional power of legislative assemblies to take disciplinary action against its members, including imprisonment, suspension or expulsion. It mentions one instance of suspension of a legislator in a foreign country. Who determines if an act is disorderly conduct On the question whether delivery of speeches attacking the Chief Executive constitutes disorderly conduct for which Osmea may be discipline, many arguments pro and con have been advanced. We believe, however, that the House is the judge of what constitutes disorderly behaviour, not only because the Constitution has conferred jurisdiction upon it, but also because the matter depends mainly on factual circumstances of which the House knows best but which can not be depicted in black and white for presentation to, and adjudication by the Courts. For one thing, if this Court assumed the power to determine whether Osmea conduct constituted disorderly behaviour, it would thereby have assumed appellate jurisdiction, which the Constitution never intended to confer upon a coordinate branch of the Government. The theory of separation of powers fastidiously observed by this Court, demands in such situation a prudent refusal to interfere. Each department, it has been said, had exclusive cognizance of matters within its jurisdiction and is supreme within its own sphere. xxx We have underscored in the above quotation those lines which in our opinion emphasize the principles controlling this litigation. Although referring to expulsion, they may as well be applied to other disciplinary action. Their gist as applied to the case at bar: the House has exclusive power; the courts have no jurisdiction to interfere.

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Sec. 12: Full Disclosure Sec. 13 and 14: Disqualifications Cannot hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including GOCCs 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 justice or before the Electoral Tribunals, or quasi-judicial 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 Government, or any subdivision, agency or instrumentality thereof, including GOCCs 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

An Assemblyman cannot appear as counsel before an administrative body, whether directly or indirectly

Puyat vs. de Guzman, G.R. No. L-51122, March 25, 1982

FACTS: An election for the eleven Directors of the International Pipe Industries Corporation (IPI), a private corporation, was held. A quo warranto proceeding was subsequently instituted with the SEC, wherein Justice Estanislao Fernandez, then a member of the Interim Batasang Pambansa, appeared as counsel for respondent Acero. Puyat objected on constitutional ground than an assemblyman cannot appear as counsel before any administrative body, like SEC. Thus, Fernandez withdrew his appearance, but later, he purchased ten IPI shares and then filed a motion for intervention on the basis that he is a

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shareholder in said corporation. ISSUE: Whether or not Assemblyman Fernandez, as a then stockholder of IPI may intervene in the SEC case

RULING: Ordinarily, by virtue of the Motion for Intervention, Assemblyman Fernandez cannot be said to be appearing as counsel. Ostensibly, he is not appearing on behalf of another, although he is joining the cause of the private respondents. His appearance could theoretically be for the protection of his ownership of ten (10) shares of IPI in respect of the matter in litigation and not for the protection of the petitioners nor respondents who have their respective capable and respected counsel. However, certain salient circumstances militate against the intervention of Assemblyman Fernandez in the SEC Case. He had acquired a mere P200.00 worth of stock in IPI, representing ten shares out of 262,843 outstanding shares. He acquired them "after the fact" that is, on May 30, 1979, after the contested election of Directors on May 14, 1979, after the quo warranto suit had been filed on May 25, 1979 before SEC and one day before the scheduled hearing of the case before the SEC on May 31, 1979. And what is more, before he moved to intervene, he had signified his intention to appear as counsel for respondent Eustaquio T. C. Acero, but which was objected to by petitioners. Realizing, perhaps, the validity of the objection, he decided, instead, to "intervene" on the ground of legal interest in the matter under litigation. And it maybe noted that in the case filed before the Rizal Court of First Instance (L-51928), he appeared as counsel for defendant Excelsior, co-defendant of respondent Acero therein. Under those facts and circumstances, we are constrained to find that there has been an indirect "appearance as counsel before ... an administrative body" and, in our opinion, that is a circumvention of the Constitutional prohibition. The "intervention" was an afterthought to enable him to appear actively in the proceedings in some other capacity. To believe the avowed purpose, that is, to enable him eventually to vote and to be elected as Director in the event of an unfavorable outcome of the SEC Case would be pure naivet. He would still appear as counsel indirectly. A ruling upholding the "intervention" would make the constitutional provision ineffective.

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All an Assemblyman need do, if he wants to influence an administrative body is to acquire a minimal participation in the "interest" of the client and then "intervene" in the proceedings. That which the Constitution directly prohibits may not be done by indirection or by a general legislative act which is intended to accomplish the objects specifically or impliedly prohibited. In brief, we hold that the intervention of Assemblyman Fernandez in SEC. No. 1747 falls within the ambit of the prohibition contained in Section 11, Article VIII of the Constitution.

Sec. 15: Sessions REGULAR once every year on the fourth Monday of July, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until 30 days before the next regular session SPECIAL anytime when called by the President

Sec. 16: Officers, Quorom, Rules of Proceedings, Discipline of Members DISCIPLINE: Expulsion disorderly behavior Suspension should not be for more than 60 days

NOTA BENE: The 60-day suspension imposed by Congress to discipline its member does not include the preventive suspension which may be imposed by the Sandiganbayan for prosecution of offenses.

Courts have no authority to interfere in the manner of choosing officers in the Senate; such prerogative belongs to the Senate Santiago vs. Guingona, Jr., G.R. No. 134577, Nov. 18, 1998

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What constitutes a Quorom Avelino vs. Cuenco, G.R. No. L-2821, March 4, 1949 When the Constitution declares that a majority of "each House" shall constitute a quorum, "the House: does not mean "all" the members. Even a majority of all the members constitute "the House". (Missouri Pac. vs. Kansas, 63 Law ed. [U. S.], p. 239). There is a difference between a majority of "the House", the latter requiring less number than the first. Therefore an absolute majority (12) of all the members of the Senate less one (23), constitutes constitutional majority of the Senate for the purpose of a quorum. Mr. Justice Pablo believes furthermore than even if the twelve did not constitute a quorum, they could have ordered the arrest of one, at least, of the absent members; if one had been so arrested, there would be no doubt Quorum then, and Senator Cuenco would have been elected just the same inasmuch as there would be eleven for Cuenco, one against and one abstained.

Rules of Proceedings: Courts do not have the power to inquire into their observance; Enrolled Bill Doctrine vis--vis Journal

Arroyo vs. De Venecia, G.R. No. 127255, Aug. 14, 1997

Petitioners contend that the House rules were adopted pursuant to the constitutional provision that each House may determine the rules of its proceedings and that for this reason they are judicially enforceable. To begin with, this contention stands the principle on its head. In the decided cases, the constitutional provision that each House may determine the rules of its proceedings was invoked by parties, although not successfully, precisely to support claims of autonomy of the legislative branch to conduct its business free from interference by courts. Here petitioners cite the provision for the opposite purpose of invoking judicial review. But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals. In Osmea v. Pendatun, it was held: At any rate, courts have declared that the rules adopted by deliberative bodies are

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subject to revocation, modification or waiver at the pleasure of the body adopting them. And it has been said that Parliamentary rules are merely procedural, and with their observance, the courts have no concern. They may be waived or disregarded by the legislative body. Consequently, mere failure to conform to parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisite number of members have agreed to a particular measure. In this case no rights of private individuals are involved but only those of a member who, instead of seeking redress in the House, chose to transfer the dispute to this Court. We have no more power to look into the internal proceedings of a House than members of that House have to look over our shoulders, as long as no violation of constitutional provisions is shown. xxx Given this fact, it is difficult to see how it can plausibly be contended that in signing the bill which became R.A. No. 8240, respondent Speaker of the House be acted with grave abuse of his discretion. Indeed, the phrase grave abuse of discretion amounting to lack or excess of jurisdiction has a settled meaning in the jurisprudence of procedure. It means such capricious and whimsical exercise of judgment by a tribunal exercising judicial or quasi judicial power as to amount to lack of power. As Chief Justice Concepcion himself said in explaining this provision, the power granted to the courts by Art. VIII, 1 extends to cases where a branch of the government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. Matter complained of is a matter of internal procedure of the House Here, the matter complained of concerns a matter of internal procedure of the House with which the Court should not be concerned. To repeat, the claim is not that there was no quorum but only that Rep. Arroyo was effectively prevented from questioning the presence of a quorum. Rep. Arroyos earlier motion to adjourn for lack of quorum had already been defeated, as the roll call established the existence of a quorum. The question of quorum cannot be raised repeatedly especially when the quorum is obviously present for the purpose of delaying the business of the House. Rep. Arroyo waived his objection by his continued interpellation of the sponsor for in so doing he in effect acknowledged the presence of a quorum. Enrolled Bill Doctrine

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Under the enrolled bill doctrine, the signing of H. No. 7198 by the Speaker of the House and the President of the Senate and the certification by the secretaries of both Houses of Congress that it was passed on November 21, 1996 are conclusive of its due enactment. Much energy and learning is devoted in the separate opinion of Justice Puno, joined by Justice Davide, to disputing this doctrine. To be sure, there is no claim either here or in the decision in the EVAT cases [Tolentino v. Secretary of Finance] that the enrolled bill embodies a conclusive presumption. In one case we went behind an enrolled bill and consulted the Journal to determine whether certain provisions of a statute had been approved by the Senate. But, where as here there is no evidence to the contrary, this Court will respect the certification of the presiding officers of both Houses that a bill has been duly passed. Under this rule, this Court has refused to determine claims that the three-fourths vote needed to pass a proposed amendment to the Constitution had not been obtained, because a duly authenticated bill or resolution imports absolute verity and is binding on the courts. Journal The Journal is regarded as conclusive with respect to matters that are required by the Constitution to be recorded therein. With respect to other matters, in the absence of evidence to the contrary, the Journals have also been accorded conclusive effect. Thus, in United States v. Pons, this Court spoke of the imperatives of public policy for regarding the Journals as public memorials of the most permanent character, thus: They should be public, because all are required to conform to them; they should be permanent, that rights acquired today upon the faith of what has been declared to be law shall not be destroyed tomorrow, or at some remote period of time, by facts resting only in the memory of individuals. As already noted, the bill which became R.A. No. 8240 is shown in the Journal. Hence its due enactment has been duly proven.

Discipline of Members (See Osmena case supra)

Sandiganbayan is not precluded from issuing preventive suspension against a Senator facing criminal charges Santiago vs. Sandiganbayan, G.R. No. 128055, April 18, 2001

Sec. 17: Electoral Tribunals

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COMPOSITION: (9 members) 3 SC Justices senior Justice is the Chairman 6 Congressmen (Senators or Representatives)

Based on proportional representation from the political parties or party-lists Instituted within 30 days after organization of Senate and House with election of President and Speaker

FUNCTIONS: Exclusive power to determine the qualifications of members of Congress Sole jurisdiction to judge election contest between a member and the defeated candidate

HRET has sole and exclusive jurisdiction to judge election contests concerning its members; House has no power to interfere; HRET members are entitled to security of tenure, regardless of any change in their political affiliations Bondoc vs. Pineda, G.R. No. 97710, Sept. 26, 1991

If the validity of the proclamation is the core issue of the disqualification case, the proclamation of the candidate cannot divest Comelec en banc of its jurisdiction to review its validity; Ministerial duty of the House to administer oath of office Codilla vs. de Venecia, G.R. no. 150605, Dec. 10, 2002

NOTA BENE: Distinguish between Codilla and Barbers. In 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 jurisdiction to see the case through even when the proclaimed winner already assumed office. On the other hand, in the Barbers case, the action was only taken after the proclamation of the winning candidate. Thus, the proper forum should have been the SET, and not the Comelec, since

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the act of proclaiming the winner made the latter a member of the Senate and thus within the sole jurisdiction of the SET. Appeal, as a general rule, does not lie in election contests decided by the SET/HRET. However, the Supreme Court may exercise its power of judicial review if the circumstances warrant.

Q: Who is the proper party to put up an election contest against a winning candidate? A: Follow the rule on real party-in-interest. The proper party is the one who stands to benefit or lose as a result of the decision. Thus, only a losing candidate (2nd or 3rd placer) can file an election contest. Q: What if the winning candidate is a lone candidate. Who can question his qualification? Who has jurisdiction? A: It is submitted that in case of a winning candidate who is a lone candidate, a noncandidate may question his qualification. In which case, jurisdiction belongs with the electoral tribunal of the House concerned in quo warranto proceedings.

Remedy: Petition for Cancellation of Candidacy before election, or Quo Warrant within 10 days from proclamation Sampayan vs. Daza, 213 SCRA 807

Enrolled Bill and Journal MATTERS REQUIRED TO BE ENTERED IN THE JOURNAL: The yeas and nays on the third and final reading of a bill The yeas and nays on any question, at the request of 1/5 of the members present The yeas and nays upon repassing a bill over the Presidents veto The Presidents objection to a bill he had votoed

Enrolled Bill vis--vis Journal (See Arroyo vs. De Venecia case supra)

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Rationale of the Enrolled Bill Theory; when courts may turn to the journal Astorga vs. Villegas, G.R. No. L-23475, April 30, 1974 ARTICLE VI: Legislative Department (Part 2) Sec. 18: Commission on Appointments COMPOSITION: President of Senate as ex officio Chairman 12 Senators 12 Reps Act on all appointments within 30 session days of Congress from their submission Majority vote of all members

Proportional Representation vis-a-vis Political Realignment

Daza vs. Singson, G.R. No. 86344, Dec. 21, 1989

FACTS: Petitioner Daza, a Liberal Party member, was given a seat in the Commission on Appointments. However, after the reorganization of the LDP, which resulted in a political realignment in the House. 24 members of the Liberal Party formally resigned and joined the LDP, thereby welling its number to 159 and correspondingly reducing their former party to only 17 members. On the basis of this development, the House revised its representation in the Commission by withdrawing the seat occupied by petitioner and giving this to the newly-formed LDP, who was represented by Respondent Singson. ISSUES:

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Whether or not the reorganization of the House representation in the Commission is based on a permanent political realignment as to warrant petitioners removal therein RULING: In the case of Cunanan v. Tan, the Court noted that the Allied Majority was a merely temporary combination as the Nacionalista defectors had not disaffiliated from their party and permanently joined the new political group. Officially, they were still members of the Nacionalista Party. The reorganization of the Commission on Appointments was invalid because it was not based on the proportional representation of the political parties in the House of Representatives as required by the Constitution. The Court held: ... In other words, a shifting of votes at a given time, even if du to arrangements of a more or less temporary nature, like the one that has led to the formation of the so-called "Allied Majority," does not suffice to authorize a reorganization of the membership of the Commission for said House. Otherwise the Commission on Appointments may have to be reorganized as often as votes shift from one side to another in the House. The framers of our Constitution could not have intended to thus place a constitutional organ, like the Commission on Appointments, at the mercy of each House of Congress. The petitioner's contention that, even if registered, the party must still pass the test of time to prove its permanence is not acceptable. Under this theory, a registered party obtaining the majority of the seats in the House of Representatives (or the Senate) would still not be entitled to representation in the Commission on Appointments as long as it was organized only recently and has not yet "aged." The Liberal Party itself would fall in such a category. That party was created in December 1945 by a faction of the Nacionalista Party that seceded therefrom to support Manuel A. Roxas's bid for the Presidency of the Philippines in the election held on April 23, 1946. The Liberal Party won. At that time it was only four months old. Yet no question was raised as to its right to be represented in the Commission on Appointments and in the Electoral Tribunals by virtue of its status as the majority party in both chambers of the Congress. The LDP has been in existence for more than one year now. It now has 157 members in the House of Representatives and 6 members in the Senate. Its titular head is no less than the President of the Philippines and its President is Senator Neptali A. Gonzales, who took over recently from Speaker Ramon V. Mitra. It is true that there have been, and there still are, some internal disagreements among its members, but these are to be expected in any political organization, especially if it is democratic in structure. In fact even the monolithic

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Communist Party in a number of socialist states has undergone similar dissension, and even upheavals. But it surely cannot be considered still temporary because of such discord. If the petitioner's argument were to be pursued, the 157 members of the LDP in the House of Representatives would have to be denied representation in the Commission on Appointments and, for that matter, also the Electoral Tribunal. By the same token, the KBL, which the petitioner says is now "history only," should also be written off. The independents also cannot be represented because they belong to no political party. That would virtually leave the Liberal Party only with all of its seventeen members to claim all the twelve seats of the House of Representatives in the Commission on Appointments and the six legislative seats in the House Electoral Tribunal. It is noteworthy that when with 41 members the Liberal Party was alloted two of the seats in the Commission on Appointments, it did not express any objection. Inconsistently, the petitioner is now opposed to the withdrawal from it of one seat although its original number has been cut by more than half. As for the other condition suggested by the petitioner, to wit, that the party must survive in a general congressional election, the LDP has doubtless also passed that test, if only vicariously. It may even be said that as it now commands the biggest following in the House of Representatives, the party has not only survived but in fact prevailed. At any rate, that test was never laid down in Cunanan.

KINDS OF APPOINTMENT: Regular requires concurrence of CA; if revoked by CA, can return to his old post but cannot be reappointed; if bypassed by CA, reappointment is allowed Ad Interim permanent and effective until revoked or disapproved by CA; if revoked by CA, cannot return to his old post or be reappointed; if bypassed, the appointment shall only last until the next adjournment of Congress and official may be reappointed to the same position Temporary appointments in acting capacity; no need for concurrence of CA and shall last only for a period not exceeding one year

Acting Appointments of President (See Pimentel vs. Executive Secretary)

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Legislative Inquiries/Investigations KINDS: In Aid of Legislation (Sec. 21) Question Hour (Sec. 22)

In Aid of Legislation vs. Question Hour (See Neri vs. Senate)

In Aid of Legislation CONDITIONS: Must be in aid of legislation either in making a new legislation or improving a defective one The rules and regulations providing for its conduct must be duly published The rights of individuals must be respected (e.g. right against self-incrimination)

Question Hour Congress may summon heads of executive 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 President; either in the Congressional Chamber or the Executive Office

Q: Can a member of the Cabinet refuse to appear before Congress? A: A distinction must be made between the question hour and inquiries in aid of legislation. The 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. However, if the inquiry 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. The only exemption to this power is if the President or the Executive Secretary by the Presidents authority invokes executive privilege.

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Sec. 23: Power to Declare Existence of War and Delegate Emergency Powers Q: Can Congress declare war? A: No. The power to declare war rests with the President. All that the Congress can do, via two-thirds vote of all its members in a joint session, is to declare its existence. Q: How does Congress delegate emergency powers to the President? A: Through 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 Presidents approval. If no resolution is passed, the power will automatically cease upon the next adjournment of Congress.

Requisites to Declare Existence of War (See David vs. Arroyo)

Sec. 24: Bills Originating from the House of Reps MUST ORIGINATE FROM THE HOUSE OF REPS: Appropriation, revenue and tariff bills (ART) Bills authorizing the increase of public debt Bills of local application Private bills

Q: Why should these bills originate from the House of Reps? A: The House Reps are elected by district, hence, they are more familiar with the needs of their constituents. They are also more numerous, therefore, representative of the people. Q: Does Sec. 24 violate the co-equality between the House Reps and Senate? A: No, because the Senate can still file ahead of the House Reps any of the bills mentioned above. However, they must withhold any action on the bill until it has received the version filed by the House of Reps.

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Sec. 25: ART Bills, Transfer of Funds, Discretionary Funds Appropriation Bill a statue the primary and specific purpose of which is to authorize the release of funds from the treasury 2 KINDS OF APPROPRIATION BILLS: General Appropriation Special Appropriation

SPECIFIC REQUIREMENTS OF GENERAL APPROPRIATION BILL: Must originate from the House of Reps which has the power of the purse Must be based on a budget prepared by the President The particular provision must relate to a particular item in the said bill Must 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, EXCEPT: when such priest, etc. is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium

Q: Can a law creating an office and at the same time provide for disbursement of funds be considered an appropriation bill? A: No, because the main purpose of that law is not the disbursement of funds but the creation of an office. Q: Can Congress increase the budget appropriated or recommended by the President? A: No, but Congress can decrease the amount. Q: What happens if Congress fails to pass a general appropriations act? A: The previous act will be re-enacted to be used for the fiscal year until such time that a General Appropriations Bill shall be passed.

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SPECIFIC REQUIREMENTS OF SPECIAL APPROPRIATION BILL: Must be for a specific purpose Must have a certification from the National Treasurer 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 National Treasurer is needed in order to avoid sub rosa appropriation, wherein a special appropriations measure is done even though the funds are not available. But 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.

Tax/Revenue 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 INHERENT CONSTITUTIONAL LIMITATIONS OF TAXATION: Taxes are for public purposes Non-delegation of taxing power Territoriality or situs of taxation Tax exemptions as provided in the Constitution with concurrence of majority of Congress International comity Taxes should not be oppressive Due process must be observed Adheres to the bill of rights Non-infringement of religious freedom

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Non-impairment of contracts Tax 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 Government Tax laws must be uniform and equitable Progressive tax system

Discretionary Funds CONDITIONS: Disbursed for a public purpose Duly supported by appropriate vouchers Subject to guidelines prescribed by law

Transfer of Funds GR: transfer of funds is not allowed EXC: 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 WHO MAY TRANSFER FUNDS: 1. 2. 3. 4. 5. President Senate President Speaker of the House Chief Justice Heads of the Constitutional Commissions

Sec. 26: Requirements as to Bills REQUIREMENTS:

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One subject per title to prevent hodgepodge or logrolling legislation wherein many subjects are contained in a single bill in order to accommodate some subjects that cannot possibly pass through a single bill on its own and so that greater support for the bill is garnered Subject of the bill must be expressed in the title to prevent surprise or fraud beause some members of Congress might not be able to read the whole bill; a way of informing the public of what the bill is all about Some bills must originate EXCLUSIVELY from the House of Reps 3 readings on 3 separate days and printing and distribution at least 3 days before final approval EXCEPTION: when the President certifies the necessity of its immediate enactment to meet a public calamity or emergency

NOTA BENE: Logrolling legislation is sought to be prevented in order to avoid a situation wherein what had been disapproved if taken on its own, may be approved because it was lumped in a favorable subject. It is enough that the title must be able to state what the bill is all about, without necessarily enumerating the details of the bill. Presidential certification dispenses with both the 3-day printing and the 3 readings on 3 separate days. But the bill must still go through 3 readings, which may be done on the same day. This is not subject to judicial review, as a general rule, because there is no factual basis of grave abuse of discretion to speak of.

Sec. 27: Presidents Veto HOW PRESIDENT EXERCISES VETO POWER: General for all bills except ART bills; veto the whole bill (general rule) Line or Item only for ART bills because each item of ART is a bill in itself in terms of importance; veto only certain provisions that are inappropriate

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INAPPROPRIATE PROVISIONS: Any provision that does not relate to a particular, distinctive appropriation or item; in such a case, the inappropriate provision shall be treated as an item and therefore can be vetoed Any provision blocking admnistrative action in implementing the law or requiring legislative approval for executive action Any provision that is unconstitutional Any provision that amends a certain law

Q: When does a bill become a law? A: A bill becomes a law after the Presidents approval. A bill may also become a law through the Presidents inaction (given 30 days to either approve or veto a bill; if no action, it is implied approval). Another way for a bill to become a law is if Congress, after the Presidents veto, overrides the same by 2/3 votes of the members of each House. Q: What is the effect of an invalid veto? A: It will be like there was no veto at all. Q: What is a pocket veto? A: The rule is that if the President, after receiving a copy of the bill, does not act on the same within 30 days, neither indicating his approval nor veto, the bill shall pass into law as if he had signed it. The exception is before the lapse of the 30-day period the Congress adjourns and the President does not act on the bill until the said period lapses, thus effectively vetoing it. Ignoring legislation, or putting a bill in ones pocket until Congress adjourns is thus called a pocket veto. Since Congress cannot vote while in adjournment, a pocket veto cannot be overridden. Q: When does a law take effect? A: A law becomes effective 15 days after publication, unless otherwise provided. The phrase unless otherwise provideddoes not mean that publication may be dispensed with. Rather, the phrase refers to the 15-day 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 Tanada vs. Tuvera)

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The Legislative Mill Drafting done by either a member of the House or the Bill Drafting Division. The draft goes to the Plenary Affairs Bureau of the Index and Bills Division where it will be docketed and assigned a bill number, e.g. House Bill No. First Reading only the title and the number of the bill is read, after which, the Senate President or the House Speaker will refer it to the right committee, depending on the title; the committee will study the bill and, if necessary, conduct public hearings; this is where the bill either gets killed or recommended for approval, with amendments, if any, or consolidated with other bills on the same subject Second Reading involves a reading of the whole text of the bill, not just the title and docket number; the sponsor of the bill will make his Sponsorship Speech, followed by the Turno en Contra who will oppose the passage of the bill; then comes the debate and interpellation, after which, the amendments agreed upon are finalized; the bill as amended is then printed and distributed to the members at least 3 days before the 3rd reading Third Reading no more debates or discussions or questions; members are only there to vote to approve or reject the bill and, if required by law, to explain why so; voting will be done through yeas and nays Referral after the 3rd reading, the bill will be referred to the other chamber where it will also undergo 3 readings; in case of conflict, the bill will be referred to the Bicameral Chamber, which is a committee composed of members of each House; the Bicameral Chamber will draft a compromise measure that, if approved by both Houses, will be submitted to the President for him to veto or approve into law

Limitations on Legislative Power Substantive - curtail the contents of a law Non-delegation of legislative power Prohibiting passage of irrepealable laws Prohibiting passage of law that increases the appellate jurisdiction of SC without its advice and concurrence (Sec. 30) Prohibiting law granting royalty or nobility (Sec. 31) Procedural curtail the manner of passing a law

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ARTICLE VII: Executive Department Sec. 1: President The executive power shall be vested in the President of the Philippines.

Sec. 2: Qualifications Natural-born citizen Registered voter Able to read and write At least 40 yrs old on the day of election Resident for at least 10 yrs immediately preceding the election

Sec. 3: Vice-President Same qualifications and term of office as Pres Elected and removed in same manner as Pres May be a member of the Cabinet without need of confirmation

Sec. 4: Election and Term of Office PRESIDENT six years without re-election VICE-PRESIDENT six years, 2 successive terms Q: If the Vice-President succeeds in the Presidency, is he allowed to run for President in the next election? A: Yes, provided he did not hold the office of the President for more than 4 yrs. Congress as Board of Canvassers

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PROCEDURE: Duly certified returns from each province or city shall be transmitted to Congress, directed to the Senate President Upon receipt of certificate of canvass, the Senate President shall, not later than 30 days after election day, open all the certificates in the presence of the Senate and the House of reps in a joint public session Congress shall determine the due authenticity and due execution 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 majority votes of all members of both Houses shall be proclaimed the winner

Role of Congress in Presidential Election is to canvass the votes (See Barbers vs. Comelec) Supreme Court en banc as Presidential Electoral Tribunal Sole judge of all contents relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose

NOTA BENE: No pre-proclamation controversy is allowed against Presidential or Vice-Presidential candidates, EXCEPT: the correction of manifest errors in the certificate of canvass or election returns or State of Votes Only the candidate who garners the second or third highest number of votes may question the proclamation of a winner.

COMELEC has no jurisdiction over pre-proclamation controversies in presidential, vicepresidential, senatorial and congressional elections; Correction of Manifest Error in the Statement of Votes may be filed directly with COMELEC en banc Sandoval vs. COMELEC, G.R. No. 133842, Jan. 26, 2000

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The case involves the elective office of congressman of one legislative district, which is contested on the ground of manifest error arising from the non-inclusion of 19 election returns in the canvass, thus making the same incomplete. While the COMELEC has exclusive jurisdiction over all pre-proclamation controversies, the exception to the general rule can be found under sec. 15 of RA 7166 which prohibits candidates in the presidential, vice-presidential, senatorial and congressional elections from filing pre-proclamation cases. The prohibition aims to avoid delay in the proclamation of the winner in the election, which delay might result in a vacuum in these sensitive posts. The law, nonetheless, provides an exception to the exception. The second sentence of Sec. 15 allows the filing of petitions for correction of manifest errors in the certificate of canvass or election returns even in elections for president, vice-president and members of the House for the simple reason that the correction of manifest error will not prolong the process of canvassing nor delay the proclamation of the winner in the election. Correction of a manifest error in the Statement of Votes may be filed directly with the COMELEC en banc (rule 27, sec. 5, 1993 Rules of the COMELEC). This is another exception to the rule that pre-proclamation controversies must first be heard and decided by a division of the Commission. In determination of the case, the COMELEC must observe due process of law since this involves the exercise of its quasi-judicial power.

Protestant cannot be substituted by widow in case of death of the former pending resolution of election protest; Substitute must be a real party in interest Poe vs. Arroyo, PET Case No. 002, March 29, 2005

FACTS: GMA and FPJ both ran for President in the May 10, 2004 elections. GMA obtained the highest number of votes, with FPJ at second place. On July 23, 2004, after GMA took her Oath of Office, FPJ seasonably filed an election protest but while case was pending, FPJ

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died of cardio-pulmonary arrest. Mrs. FPJ, through counsel, filed a petition for substitution, substituting herself for her deceased husband. ISSUE: Whether or not the window of a deceased candidate is a proper party in an election contest RULING: ...only two persons, the 2nd and 3rd placers, may contest the election. By this express enumeration, the rule makers have in effect determined the real parties in interest concerning an on-going election contest. It envisioned a scenario where, if the declared winner had not been truly voted upon by the electorate, the candidate who received that 2nd or 3rd highest number of votes would be the legitimate beneficiary in a successful election contest. Suppletory application of the Rules of Court Rule 3, Sec. 16 is the rule on substitution in the Rules of Court. This rule allows substitution by a legal representative. It can be gleaned from the citation of this rule that movant/intervenor seeks to appear before this Tribunal as the legal representative/substitute of the late protestant prescribed by said Sec. 16. However, in our application of this rule to an election contest, we have every time ruled that a public office is personal to the public officer and not a property transmissible to the heirs upon death. Thus, we consistently rejected substation by the widow or the heirs in election contests where the protestant dies during the pendency of the protest. In Vda. De De Mesa vs. Mencias, we recognized substitution upon the death of the protestee but denied substitution by the widow or heirs since they are not the real parties in interest. Similarly, in the later case of De la Victoria vs. Commission on Elections, we struck down the claim of the surviving spouse and children of the protestee to the contested office for the same reason. Even in analogous cases before other electoral tribunals, involving substitution by the widow of a deceased protestant, in cases where the widow is not a real party in interest, we denied substitution by the wife or heirs. Who may question: Real Party in Interest ...We have held...that while the right to a public office is personal and exclusive to the public officer, an election protest is not purely personal and exclusive to the protestant or to the protestee such that the death of either would oust the court of all authority to

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continue the protest proceedings. Hence, we have allowed substitution and intervention by only by a real party in interest. A real party in interest is the party who would be benefited or injured by the judgment, and the party who is entitled to the avails of the suit. In Vda. De De Mesa vs. Mencias and Lomugdang vs. Javier, we permitted substitution by the vicemayor since the vice-mayor is a real party in interest considering that if the protest succeeds and the protestee is unseated, the vice-mayor succeeds to the office of the mayor that becomes vacant if the one duly elected cannot assume office. In contrast, herein movant/intervenor, Mrs. FPJ, herself denies any claim to the august office of President. Thus, given the circumstances of this case, we can conclude that protestants widow is not a real party in interest to this election protest.

Effect of resumption of old post on the election protest Santiago vs. Ramos, PET Case No. 001, Feb. 13, 1996

In assuming the office of Senator, the protestant has effectively abandoned or withdrawn her election protests, thereby making it moot. The term of office of the Senators elected in the 8 May 1995 election is six years, the first three of which coincides with the last three years of the term of the President elected in the 11 May 1992 synchronized elections. The latter would be Protestant Santiagos term if she would succeed in proving in the instant protest that she was the true winner in the 1992 elections. In assuming the office of Senator then, the Protestant has effectively abandoned or withdrawn this protest, or at the very least, in the language of Moraleja, abandoned her determination to protect and pursue the public interest involved in the matter of who is the real choice of the electorate. Such abandonment or withdrawal operates to render moot the instant protest. Moreover, the dismissal of this protest would serve public interest as it would dissipate the aura of uncertainty as to the results of the 1992 presidential election, thereby enhancing the all-to crucial political stability of the nation during this period of national recovery. It must also be stressed that under the Rules of the Presidential Electoral Tribunal, an election protest may be summarily dismissed, regardless of the public policy and public interest implications thereof, on the following grounds: (1) The petition is insufficient in form and substance; (2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof; (3) The filing fee is not paid within the periods provided for in these Rules; (4) The cash deposit, or the first P 100,000.00 thereof, is not paid within 10 days after the filing of the protest; and (5) The petition or copies thereof and

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the annexes thereto filed with the Tribunal are not clearly legible. Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court which apply in a suppletory character, may likewise be pleaded as affirmative defenses in the answer. After which, the Tribunal may, in its discretion, hold a preliminary hearing on such grounds. In sum, if an election be dismissed on technical grounds, then it must be, for a decidedly stronger reason, if it has become moot due to its abandonment by the Protestant. The protestant abandoned her election protest when she waived the revision of the remaining ballots and failed to inform the tribunal whether she still intends to present additional evidence after the completion of the revision of the ballots from the pilot areas This Tribunal cannot close its eyes to the fact that the Protestant has decided to waive the revision of the remaining unrevised ballots from 4,017 precincts out of the 17,527 precincts of the designated three pilot areas. This is an unabashed reversal from her original stand in her Motion and Manifestation dated 18 October 1993. Taking this into account, this Tribunal declared in its resolution of 21 October 1993: After deliberating on the foregoing pleadings and the arguments of the parties, the Tribunal rules for the Protestant insofar as the revision of the remaining ballot boxes from her pilot areas are concerned, and against the immediate application of Rule 61 of the Rules of the Tribunal to the Protestee in respect of the Counter-Protest. At this stage of the proceedings in this case it cannot be reasonably determined whether the revised ballots are considerable enough to establish a trend either in favor of or against the Protestant as would justify an appropriate action contemplated in Rule 61 of the Rules of the Tribunal, or whether the unrevised ballots from said areas would not, in the language of the Protestant, materially affect the result of the representative sample of the ballot boxes so far revised. As to the 1,300 ballot boxes from Makati, the proper time to raise the objections to the ballot boxes and its contents would be during the revision stage. Consequently, we resolved therein to: A. ORDER the revision of the remaining unrevised ballot boxes enumerated in the aforequoted paragraph A to the 5 October 1995 Resolution and for the purpose to DiRECT the Acting Clerk of Court of the Tribunal to collect said ballot boxes and other election documents and paraphernalia from their respective custodians in the event that their revisions in connection with other election protests in which they are involved have been terminated, and if such revisions are not yet completed, to coordinate with the appropriate tribunal or court in which such other election protests are pending and which have already obtained custody of the ballot boxes and started revision with the end in view of either seeking expeditious revisions in such other election protests or obtaining the custody of the ballot boxes and related election documents and paraphernalia for their immediate delivery to the Tribunal; and B. REQUIRE the Protestant to inform the Tribunal, within ten (10) days

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from receipt hereof, if after the completion of the revision of the ballots from her pilot areas she would present evidence in connection therewith. Until the present,however, the Protestant has not informed the Tribunal whether after the completion of the revision of the ballots from her pilot areas, she still intends to present evidence in connection therewith. This failure then, is nothing short of a manifest indication that she no longer intends to do so.

Sec. 6: Privilege and Salary PRIVILEGES: Official residence (Malacanang Palace) Immunity from suit not provided in the Constitution; to prevent distraction from performance of duties

SALARY Fixed by law Cannot be decreased during tenure (actual time he held office) and cannot be increased during his term (only upon expiration of the term) Shall not receive during tenure any other emolument from Government or any other source

Sec. 7 and 8: Assumption of Office and Succession WHEN: before noon of June 30 If President-elect fails to qualify, dies or is permanently incapacitated, Vice-President-elect becomes the President If the President-elect becomes incapacitated temporarily, the Vice-President-elect will act as President until such a time that the President can assume office If there is failure to elect the president, the Vice-President will assume or act as President If the President, during his term, dies, gets disabled permanently, is removed from office, or resigns, the Vice-President becomes the President

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SUCCESSION IN CASE OF VACANCY: Vice-President Senate President Speaker of the House

Sec. 9: Vacancy of Vice-Presidency The President shall nominate one from the Senate and the House of Reps who shall assume office upon confirmation by a majority vote of all the Members of the Houses, voting separately Sec. 10: Special Election in Case of Vacancy WHEN: 10:00 a.m. of the third day after the vacancy Congress will convene without need of a call and within 7 days enact a law calling for a special election to be held not earlier than 45 days nor later than 60 days from time of such call Sec. 11: Acting President GROUND: inability to discharge the powers and duties of the office HOW: written declaration of the President or majority of his Cabinet Vice-President shall assume office as Acting President RESUMPTION OF OFFICE: also through written declaration of the President; if majority of Cabinet denies such declaration, Congress shall decide the issue (if not in session, Congress will convene within 48 hrs) within 10 days (12 days if not in session), by 2/3 vote Sec. 12: Illness of the President Public shall be informed of the state of his health Members of the Cabinet in charge of national security and foreign relations and the Chief of Staff of the Armed Forces shall not be denied access to the President during such illness Sec. 13: Prohibition Cannot hold any other office or employment during tenure

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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 Government Strictly avoid conflict of interest in the conduct of their office Presidents spouse and relatives by consanguinity or affinity within the 4th civil degree be appointed as members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including GOCCs and subsidiaries

WHO CANNOT HOLD ANY OTHER OFFICE DURING TENURE: President Vice-President Cabinet Members Deputies and Assistants

EXCEPTIONS: When Vice-President is appointed as member of the Cabinet When Vice-President acts as President When Secretary of Justice is also a member of the Judiciary

Q: Does the President have the same prohibition as Congress? A: No, because Congress is only prohibited from holding offices in GOCCs and any other government instrumentality, agency or subsidiary during term while Executive is prohibited from holding any other office, whether public or private during tenure. Q: What is ex officio capacity? A: When an official holds other duties for the same office where he does not receive additional compensation and the office is required by his primary function. Sec. 14 and 15: Appointments extended by Acting President

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Effective unless revoked by the elected President within 90 days from his assumption or reassumption of office Acting President shall not make appointments 2 mos immediately before the next presidential elections and up to the end of his term, EXCEPT: temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety

Sec. 16: Appointing Power TYPES OF APPOINTMENT: Regular Ad Interim Temporary

Acting Appointments, effect and validity (See Pimental vs. Executive Secretary) Q: When is Congress considered to be in recess? A: Recess it not the time between the adjournment of Congress and the start of its regular session. The recess referred to here is the times of interval of the session of the same Congress. Q: How long will ad interim appointments last? A: Such appointments will last until disapproved by the Commission on Appointments or until the next adjournment of Congress. WHO ARE APPOINTED BY PRESIDENT: Heads of executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution requires confirmation from Commission on Appointments All other officers of the Government whose appointments are not otherwise provided by law Those whom the President may be authorized by law to appoint

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Officers lower in rank whose appointments the Congress may by law vest in the President alone Nature of Ad Interim Appointment; Rights of Ad Interim Appointee; How Ad Interim Appointment is Terminated; Effect of Ad Interim Appointment as to Reappointment Matibag vs. Benipayo, G.R. No. 149036, April 2, 2002

FACTS: COMELEC en banc appointed petitioner as Acting Director IV of the EID. Such appointment was renewed in temporary capacity twice, first by Chairperson Demetrio and then by Commissioner Javier. Later, PGMA appointed, ad interim, Benipayo as COMELEC Chairman, and Borra and Tuason as COMELEC Commissioners, each for a term of 7 yrs. The three took their oaths of office and assumed their positions. However, since the Commission on Appointments did not act on said appointments, PGMA renewed the ad interim appointments. ISSUES: Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad interim appointments issued by the President amounts to a temporary appointment prohibited by Sec. 1(2), Art. IX-C Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are legal, whether or not the renewal of their ad interim appointments and subsequent assumption of office to the same positions violate the prohibition on reappointment under Sec. 1(2), Art. IX-C

RULING: Nature of an Ad Interim Appointment An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment

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permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. The second paragraph of Sec.16, Art.VII of the Constitution provides as follows: The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. xxx ...the term ad interim appointment means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. Rights of an Ad Interim Appointee An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitution protection that [n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law. Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office. Once an appointee has qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of due process. How Ad Interim Appointment is Terminated An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the adjournment of Congress without the Commission on Appointments acting on his appointment. These two causes are resolutory conditions

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expressly imposed by the Constitution on all ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one, however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees. Ad Interim Appointment vs. Temporary Appointment While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing power. A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the President from making to the three independent constitutional commissions, including the COMELEC xxx Was the renewal of appointment valid? There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer be extended a new appointment. The disapproval is a final decision of the Commission on Appointments in the exercise of its checking power on the appointing authority of the President. The disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for any appeal from such decision, the disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the President can no longer renew the appointment not because of the constitutional prohibition on reappointment, but because of a final decision by the Commission on Appointments to withhold its consent to the appointment. An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed appointee xxx The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be revived by another ad interim appointment because the

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disapproval is final under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A bypassed ad interim appointment can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years.

Appointment Power of President; Power of Control Rufino vs. Endriga, G.R. No. 139554, July 21, 2006 Appointment Power of President Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of officers. The first group refers to the heads of the Executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in the President by the Constitution. The second group refers to those whom the President may be authorized by law to appoint. The third group refers to all other officers of the Government whose appointments are not otherwise provided by law. Under the same Section 16, there is a fourth group of lower-ranked officers whose appointments Congress may by law vest in the heads of departments, agencies, commissions, or boards. The present case involves the interpretation of Section 16, Article VII of the 1987 Constitution with respect to the appointment of this fourth group of officers. The President appoints the first group of officers with the consent of the Commission on Appointments. The President appoints the second and third groups of officers without the consent of the Commission on Appointments. The President appoints the third group of officers if the law is silent on who is the appointing power, or if the law authorizing the head of a department, agency, commission, or board to appoint is declared unconstitutional. Thus, if Section 6(b) and (c) of PD 15 is found unconstitutional, the President shall appoint the trustees of the CCP Board because the trustees fall under the third group of officers. Scope of Appointment Power of the Heads of Departments, Agencies, Commissions or Boards

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The framers of the 1987 Constitution clearly intended that Congress could by law vest the appointment of lower-ranked officers in the heads of departments, agencies, commissions, or boards. The deliberations of the 1986 Constitutional Commission explain this intent beyond any doubt. The framers of the 1987 Constitution changed the qualifying word inferior to the less disparaging phrase lower in rank purely for style. However, the clear intent remained that these inferior or lower in rank officers are the subordinates of the heads of departments, agencies, commissions, or boards who are vested by law with the power to appoint. The express language of the Constitution and the clear intent of its framers point to only one conclusion the officers whom the heads of departments, agencies, commissions, or boards may appoint must be of lower rank than those vested by law with the power to appoint. Congress may vest the authority to appoint only in the heads of the named offices Further, Section 16, Article VII of the 1987 Constitution authorizes Congress to vest in the heads of departments, agencies, commissions, or boards the power to appoint lowerranked officers. xxx In a department in the Executive branch, the head is the Secretary. The law may not authorize the Undersecretary, acting as such Undersecretary, to appoint lower-ranked officers in the Executive department. In an agency, the power is vested in the head of the agency for it would be preposterous to vest it in the agency itself. In a commission, the head is the chairperson of the commission. In a board, the head is also the chairperson of the board. In the last three situations, the law may not also authorize officers other than the heads of the agency, commission, or board to appoint lower-ranked officers. The grant of the power to appoint to the heads of agencies, commissions, or boards is a matter of legislative grace. Congress has the discretion to grant to, or withhold from, the heads of agencies, commissions, or boards the power to appoint lower-ranked officers. If it so grants, Congress may impose certain conditions for the exercise of such legislative delegation, like requiring the recommendation of subordinate officers or the concurrence of the other members of the commission or board. This is in contrast to the Presidents power to appoint which is a self-executing power vested by the Constitution itself and thus not subject to legislative limitations or conditions.

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The power to appoint conferred directly by the Constitution on the Supreme Court en banc and on the Constitutional Commissions is also self-executing and not subject to legislative limitations or conditions. The Constitution authorizes Congress to vest the power to appoint lower-ranked officers specifically in the heads of the specified offices, and in no other person. The word heads refers to the chairpersons of the commissions or boards and not to their members xxx. Presidents Power of Control The presidential power of control over the Executive branch of government extends to all executive employees from the Department Secretary to the lowliest clerk. This constitutional power of the President is self-executing and does not require any implementing law. Congress cannot limit or curtail the Presidents power of control over the Executive branch. xxx The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also not one of the independent constitutional bodies. Neither is the CCP a quasi-judicial body nor a local government unit. Thus, the CCP must fall under the Executive branch. Under the Revised Administrative Code of 1987, any agency not placed by law or order creating them under any specific department falls under the Office of the President. Since the President exercises control over all the executive departments, bureaus, and offices, the President necessarily exercises control over the CCP which is an office in the Executive branch. In mandating that the President shall have control of all executive x x x offices, Section 17, Article VII of the 1987 Constitution does not exempt any executive office one performing executive functions outside of the independent constitutional bodies from the Presidents power of control. There is no dispute that the CCP performs executive, and not legislative, judicial, or quasi-judicial functions. The Presidents power of control applies to the acts or decisions of all officers in the Executive branch. This is true whether such officers are appointed by the President or by heads of departments, agencies, commissions, or boards. The power of control means the power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of discretion. In short, the President sits at the apex of the Executive branch, and exercises control of all

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the executive departments, bureaus, and offices. There can be no instance under the Constitution where an officer of the Executive branch is outside the control of the President. The Executive branch is unitary since there is only one President vested with executive power exercising control over the entire Executive branch. Any office in the Executive branch that is not under the control of the President is a lost command whose existence is without any legal or constitutional basis. The Legislature cannot validly enact a law that puts a government office in the Executive branch outside the control of the President in the guise of insulating that office from politics or making it independent. If the office is part of the Executive branch, it must remain subject to the control of the President. Otherwise, the Legislature can deprive the President of his constitutional power of control over all the executive x x x offices. If the Legislature can do this with the Executive branch, then the Legislature can also deal a similar blow to the Judicial branch by enacting a law putting decisions of certain lower courts beyond the review power of the Supreme Court. This will destroy the system of checks and balances finely structured in the 1987 Constitution among the Executive, Legislative, and Judicial branches. Of course, the Presidents power of control does not extend to quasi-judicial bodies whose proceedings and decisions are judicial in nature and subject to judicial review, even as such quasi-judicial bodies may be under the administrative supervision of the President. It also does not extend to local government units, which are merely under the general supervision of the President.

Sec. 17: Power of Control Power to Reorganize Buklod ng Kawaning EIIB vs. Zamora, G.R. No. 142801-802, July 10, 2001

FACTS: Pres. Estrada issued EO 191, deactivating the EIIB and transferring its functions to the BOC and NBI. As a result, the EIIB personnel were deemed separated from service. RULING:

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Deactivation vs. Abolition At first glance, it seems that the resolution of this case hinges on the question Does the deactivation of EIIB constitute abolition of an office? However, after coming to terms with the prevailing law and jurisprudence, we are certain that the ultimate queries should be a) Does the President have the authority to reorganize the executive department? And b) How should the reorganization be carried out? Surely, there exists a distinction between the words deactivate and abolish. To deactivate means to render inactive or ineffective or to break up by discharging or reassigning personnel, while to abolish means to do away with, to annul, abrogate or destroy completely. In essence, abolition denotes an intention to do away with the office wholly and permanently. Thus, while in abolition, the office ceases to exist, the same is not true in deactivation where the office continues to exist, albeit remaining dormant or inoperative. Be that as it may, deactivation and abolition are both reorganization measures. GR: Congress has power to abolish The general rule has always been that the power to abolish a public office is lodged with the legislature. This proceeds from the legal precept that the power to create includes the power to create includes the power to destroy. A public office is either created by the Constitution, by statute, or by authority of law. Thus, except where the office was created by the Constitution itself, may be abolished by the same legislature that brought it into existence. The exception, however, is that as far as bureaus, agencies or offices in the executive department are concerned, the Presidents power of control may justify him to inactivate the functions of a particular office, or certain laws may grant him the broad authority to carry out reorganization measures. What law gives President power to reorganize? In the whereas clause of E.O. No. 191, former President Estrada anchored his authority to deactivate EIIB on Section 77 of Republic Act 8745 (FY 1999 General Appropriations Act), a provision similar to Section 62 of R.A. 7645 quoted in Larin, thus; Sec. 77. Organized Changes. Unless otherwise provided by law or directed by the

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President of the Philippines, no changes in key positions or organizational units in any department or agency shall be authorized in their respective organizational structures and funded from appropriations provided by this Act. We adhere to the precedent or ruling in Larin that this provision recognizes the authority of the President to effect organizational changes in the department or agency under the executive structure. Such a ruling further finds support in Section 78 of Republic Act No. 8760. Under this law, the heads of departments, bureaus, offices and agencies and other entities in the Executive Branch are directed (a) to conduct a comprehensive review of their respective mandates, missions, objectives, functions, programs, projects, activities and systems and procedures; (b) identify activities which are no longer essential in the delivery of public services and which may be scaled down, phased-out or abolished; and (c) adopt measures that will result in the streamlined organization and improved overall performance of their respective agencies. Section 78 ends up with the mandate that the actual streamlining and productivity improvement in agency organization and operation shall be effected pursuant to Circulars or Orders issued for the purpose by the Office of the President. The law has spoken clearly. We are left only with the duty to sustain. But of course, the list of legal basis authorizing the President to reorganize any department or agency in the executive branch does not have to end here. We must not lose sight of the very source of the power that which constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), the President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative structure of the Office of the President. For this purpose, he may transfer the functions of other Departments or Agencies to the Office of the President. In Canonizado v. Aguirre, we ruled that reorganization involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. It takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. The EIIB is a bureau attached to the Department of Finance. It falls under the Office of the President. Hence, it is subject to the Presidents continuing authority to reorganize. Was the reorganization valid? It having been duly established that the President has the authority to carry out reorganization in any branch or agency of the executive department, what is then left for us

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to resolve is whether or not the reorganization is valid. In this jurisdiction, reorganizations have been regarded as valid provided they are pursued in good faith. Reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient. Pertinently, Republic Act No. 6656 provides for the circumstances which may be considered as evidence of bad faith in the removal of civil service employees made as a result of reorganization, to wit: (a) where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; (b) where an office is abolished and another performing substantially the same functions is created; (c) where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; (d) where there is a classification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices, and (e) where the removal violates the order of separation. While basically, the functions of the EIIB have devolved upon the Task Force Aduana, we find the latter to have additional new powers. The Task Force Aduana, being composed of elements from the Presidential Security Group (PSG) and Intelligence Service Armed Forces of the Philippines (ISAFP), has the essential power to effect searches, seizures and arrests. The EIIB did not have this power. The Task Force Aduana has the power to enlist the assistance of any department, bureau, office, or instrumentality of the government, including government-owned or controlled corporations; and to use their personnel, facilities and resources. Again, the EIIB did not have this power. And, the Task Force Aduana has the additional authority to conduct investigation of cases involving ill-gotten wealth. This was not expressly granted to the EIIB. Consequently, it cannot be said that there is a feigned reorganization. In Blaquera v. Civil Sevice Commission, we ruled that a reorganization in good faith is one designed to trim the fat off the bureaucracy and institute economy and greater efficiency in its operation. Valid abolition of office is not separation Lastly, we hold that petitioners right to security of tenure is not violated. Nothing is better settled in our law than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. Valid abolition of offices is neither removal nor separation of the incumbents.

Alter Ego Doctrine or Qualified Political Agency Sec. of DOTC vs. Mabalot, 378 SCRA 129 (2000)

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FACTS: The Sec. of DOTC issued to LTFRB Chairman MO 96-735, transferring the regional functions of that office to DOTCCAR Regional Office, pending creation of a Regional LTFRO. Later, the new Sec. of DOTC issued DO 97-1025, establishing the DOTCCAR Regional Office as the Regional Office of the LTFRB to exercise regional functions of the LTFRB in the CAR subject to the direct supervision and control of the LTFRB Central Office. Mabalot protested. ISSUE: W/N the MO and DO are violative of the provision of the Constitution against encroachment on the powers of the legislative department HELD: SC upheld the validity of the issuance of the challenged orders. In the absence of any patent or latent constitutional or statutory infirmity attending the issuance of the challenged orders, Court upholds. The President, through his duly constituted political agent and alter ego, may legally and validly decree the reorganization of the Department, particularly the establishment of the DOTCCAR as the LTFRB Regional Office of CAR with the concomitant transfer and performance of public functions and responsibilities appurtenant to a regional office of the LTFRB. There are three modes of establishing an administrative body: (1) Constitution; (2) Statute; and (3) by authority of law. This case falls under the third category. The DOTC Secretary, as alter ego of the President, is authorized by law to create and establish the LTFRB-CAR Regional Office. This is anchored on the Presidents power of control under sec. 17, Art. VII, 1987 Constitution. Control By definition, control is the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. It includes the authority to order the doing of an act by a subordinate or to undo such act or to assume a power directly vested in him by law.

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Under sec. 20, Bk. III, E.O. 292, the Chief Executive is granted residual powers, stating that unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws xxx What law then gives him the power to reorganize? It is PD 1772 which amended PD 1416. These decrees expressly grant the President of the Philippines the continuing authority to reorganize the national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities and to standardize salaries and materials. Granted that the President has the power to reorganize, was the reorganization of DOTCCAR valid? In this jurisdiction, reorganization is regarded as valid provided it is pursued in good faith. As a general rule, a reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient. The reorganization in the instant case was decreed in the interest of service and for purposes of economy and more effective coOrdination of the DOTC functions in the Cordillera Administrative Region. It thus bear the earmarks of good faith.

Power of President to Contract or Guarantee Foreign Loans may be delegated to Secretary of Finance but must first secure Prior Consent; What Powers May Not Be Delegated Constantino vs. Cuisia, .G.R. No. 106064, Oct. 13, 2005

Power of President to contract or guarantee foreign loans (Sec. 20, Art. VII) For their first constitutional argument, petitioners submit that the buyback and bondconversion schemes do not constitute the loan contract or guarantee contemplated in the Constitution and are consequently prohibited. Sec. 20, Art. VII of the Constitution provides xxx The language of the Constitution is simple and clear as it is broad. It allows the President to contract and guarantee foreign loans. It makes no prohibition on the issuance of certain kinds of loans or distinctions as to which kinds of debt instruments are more onerous than

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others. This Court may not ascribe to the Constitution meanings and restrictions that would unduly burden the powers of the President. The plain, clear and unambiguous language of the Constitution should be construed in a sense that will allow the full exercise of the power provided therein. It would be the worst kind of judicial legislation if the courts were to misconstrue and change the meaning of the organic act. The only restriction that the Constitution provides, aside from the prior concurrence of the Monetary Board, is that the loans must be subject to limitations provided by law. In this regard, we note that Republic Act (R.A.) No. 245 as amended by Pres. Decree (P.D.) No. 142, s. 1973, entitled An Act Authorizing the Secretary of Finance to Borrow to Meet Public Expenditures Authorized by Law, and for Other Purposes, allows foreign loans to be contracted in the form of, inter alia, bonds. xxx Under the foregoing provisions, sovereign bonds may be issued not only to supplement government expenditures but also to provide for the purchase, redemption, or refunding of any obligation, either direct or guaranteed, of the Philippine Government. On the Buyback Scheme In their Comment, petitioners assert that the power to pay public debts lies with Congress and was deliberately withheld by the Constitution from the President. It is true that in the balance of power between the three branches of government, it is Congress that manages the countrys coffers by virtue of its taxing and spending powers. However, the law-making authority has promulgated a law ordaining an automatic appropriations provision for debt servicing by virtue of which the President is empowered to execute debt payments without the need for further appropriations. xxx Buyback is a necessary power which springs from the grant of the foreign borrowing power. Every statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms. The President is not empowered to borrow money from foreign banks and governments on the credit of the Republic only to be left bereft of authority to implement the payment despite appropriations therefor.

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On Delegation of Power Petitioners stress that unlike other powers which may be validly delegated by the President, the power to incur foreign debts is expressly reserved by the Constitution in the person of the President. They argue that the gravity by which the exercise of the power will affect the Filipino nation requires that the President alone must exercise this power. They submit that the requirement of prior concurrence of an entity specifically named by the Constitutionthe Monetary Boardreinforces the submission that not respondents but the President alone and personally can validly bind the country. Petitioners position is negated both by explicit constitutional and legal imprimaturs, as well as the doctrine of qualified political agency. The evident exigency of having the Secretary of Finance implement the decision of the President to execute the debt-relief contracts is made manifest by the fact that the process of establishing and executing a strategy for managing the governments debt is deep within the realm of the expertise of the Department of Finance, primed as it is to raise the required amount of funding, achieve its risk and cost objectives, and meet any other sovereign debt management goals. If, as petitioners would have it, the President were to personally exercise every aspect of the foreign borrowing power, he/she would have to pause from running the country long enough to focus on a welter of time-consuming detailed activitiesthe propriety of incurring/guaranteeing loans, studying and choosing among the many methods that may be taken toward this end, meeting countless times with creditor representatives to negotiate, obtaining the concurrence of the Monetary Board, explaining and defending the negotiated deal to the public, and more often than not, flying to the agreed place of execution to sign the documents. This sort of constitutional interpretation would negate the very existence of cabinet positions and the respective expertise which the holders thereof are accorded and would unduly hamper the Presidents effectivity in running the government. Necessity thus gave birth to the doctrine of qualified political agency xxx What powers may not be delegated xxx There are certain presidential powers which arise out of exceptional circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government. The declaration of martial law, the suspension of the writ of habeas corpus,

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and the exercise of the pardoning power notwithstanding the judicial determination of guilt of the accused, all fall within this special class that demands the exclusive exercise by the President of the constitutionally vested power. The list is by no means exclusive, but there must be a showing that the executive power in question is of similar gravitas and exceptional import. We cannot conclude that the power of the President to contract or guarantee foreign debts falls within the same exceptional class. Indubitably, the decision to contract or guarantee foreign debts is of vital public interest, but only akin to any contractual obligation undertaken by the sovereign, which arises not from any extraordinary incident, but from the established functions of governance. Secretary of Finance must get prior consent of President Another important qualification must be made. The Secretary of Finance or any designated alter ego of the President is bound to secure the latters prior consent to or subsequent ratification of his acts. In the matter of contracting or guaranteeing foreign loans, the repudiation by the President of the very acts performed in this regard by the alter ego will definitely have binding effect. Had petitioners herein succeeded in demonstrating that the President actually withheld approval and/or repudiated the Financing Program, there could be a cause of action to nullify the acts of respondents. Notably though, petitioners do not assert that respondents pursued the Program without prior authorization of the President or that the terms of the contract were agreed upon without the Presidents authorization. Congruent with the avowed preference of then President Aquino to honor and restructure existing foreign debts, the lack of showing that she countermanded the acts of respondents leads us to conclude that said acts carried presidential approval.

Sec. 18: Commander-in-Chief Powers of the President: Power to call on the military or armed forces Power to suspend the writ of habeas corpus Power to declare martial law

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CALLING OUT POWER Conditions for calling out the armed forces: To suppress lawless violence, rebellion or invasion Whenever it becomes necessary

MARTIAL LAW

Conditions for declaration of Martial Law: When there is (1) rebellion or (2) invasion (grounds) Public safety requires the declaration

NOTA BENE: There must be actual rebellion or invasion. Differ this from the calling out power which does not require actual rebellion or invasion but only that whenever it (the exercise of the calling out power) becomes necessary to suppress lawless violence, rebellion or invasion. (See Sanlakas vs. Reyes, G.R. No. 159085, Feb. 3, 2004)

What happens when Martial Law is declared: No suspension of operation of the Constitution No supplanting of the functioning of the civil courts and legislative assemblies No conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function No automatic suspension of the writ of habeas corpus

Constitutional guards against the power to declare Martial Law:

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Will last only for 60 days, unless sooner revoked by Congress Within 48 hours after declaration, President is required to submit a report to Congress Congress shall revoke or extend the period by jointly voting with an absolute majority and President may not reverse such revocation If Congress is not in session, they shall convene within 24 hours from such declaration without need for call Supreme Court may nullify the declaration on the ground of lack of factual basis, judgment to be rendered within 30 days from its filing by any ordinary citizen

SUSPENSION OF THE WRIT OF HABEAS CORPUS

(NOTE: the conditions and effect of the suspension of the writ is similar to declaration of martial law) Restrictions to the suspension of the writ of habeas corpus: Apply only to persons judicially charged for rebellion Apply only to persons judicially charged for offenses inherent in or directly connected with invasion The person arrested must be judicially charged within 3 days from arrest, otherwise he shall be released

Sec. 19: Executive Clemencies Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

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EXECUTIVE CLEMENCIES: Amnesty Pardon Reprieve Commutation Remit fines and forfeitures Amnesty an act of grace by the Chief Executive 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 is a blanket pardon given to a class of persons who committed crimes that are political in nature. To be valid, Congress has to concur with a majority vote (thus, it is a public act) and the accused must admit his guilt. Pardon a private act of the President granted after judgment by final conviction for ordinary offenses. It may be absolute or condition, in which case, acceptance of condition if burdensome to the accused is necessary. The effect is to relieve the accused from further punishment, thus, if given after sentence has been served, its effect is to extinguish the accessory penalties. In case of administrative cases, effect is reinstatement but no payment of backwages. Reprieve discretionary upon the President to suspend the enforcement of judgment Sec. 20: Power to Contract or Guarantee Foreign Loans Scope of Power (See Constantino vs. Cuisia) Sec. 21: Treaty-making Power No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

Power to enter into and ratify treaties is sole prerogative of the Executive (See AKBAYAN vs. Aquino)

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Power to Ratify by President vs. Senates Power to Concur Bayan vs. Zamora, G.R. No. 138570, Oct. 10, 2000 Sec. 21, Art. VII vs. Sec. 25, Art. XVIII One focal point of inquiry in this controversy is the determination of which provision of the Constitution applies, with regard to the exercise by the senate of its constitutional power to concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA has for its subject the presence of foreign military troops in the Philippines. Respondents, on the contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing arrangement but an agreement which involves merely the temporary visits of United States personnel engaged in joint military exercises. The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements. Section 21, Article VII, which herein respondents invoke, reads: No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. Section 25, Article XVIII, provides: After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. Section 21, Article VII deals with treatise or international agreements in general, in which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays down the general rule on treatise or international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treatise or those economic in nature. All treaties or international agreements entered into by the Philippines, regardless of

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subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective. In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further requires that foreign military bases, troops, or facilities may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting state. It is our considered view that both constitutional provisions, far from contradicting each other, actually share some common ground. These constitutional provisions both embody phrases in the negative and thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause No treaty x x x, and Section 25 contains the phrase shall not be allowed. Additionally, in both instances, the concurrence of the Senate is indispensable to render the treaty or international agreement valid and effective. To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the Senate extended its concurrence under the same provision, is immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional requirements. On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies. Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate, as will be further discussed hereunder.

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Sec. 21, Art. VII should be read together with Sec. 25, Art. XVIII At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were complied with when the Senate gave its concurrence to the VFA. Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state. There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution, whether under the general requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it. As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international agreement, to be valid and effective, must be concurred in by at least twothirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be duly concurred in by the Senate. Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is clearly required so that the concurrence contemplated by law may be validly obtained and deemed present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty-the VFA, in the instant case-be duly concurred in by the Senate, it is very true however that said provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which in more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a two thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to section 21, Article, VII. As noted, the concurrence requirement under Section 25, Article XVIII must be construed in relation to the provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate contemplated under Section 25, Article XVIII means that at least two-thirds of all the members of the Senate favorably vote to concur with the treaty-the VFA in the instant case.

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Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24) Senators. Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16) members, favorably acting on the proposal is an unquestionable compliance with the requisite number of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three (23) incumbent Senators at the time the voting was made, will not alter in any significant way the circumstance that more than two-thirds of the members of the Senate concurred with the proposed VFA, even if the two-thirds vote requirement is based on this figure of actual members (23). In this regard, the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes, suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the subject treaty. What constitutes a treaty This Court is of the firm view that the phrase recognized as a treaty means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase. xxx Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty. Ratification by President vis--vis Concurrence of Senate Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate should be taken as a clear an unequivocal expression of our nations consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder. Ratification is generally held to be an executive act, undertaken 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. A State may provide in its domestic legislation the process of ratification of a treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established that the

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negotiating States agreed that ratification should be required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation. In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution, declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations. Who has power to ratify treaties? By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country. In many ways, the President is the chief architect of the nations foreign policy; his dominance in the field of foreign relations is (then) conceded. Wielding vast powers an influence, his conduct in the external affairs of the nation, as Jefferson describes, is executive altogether." As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President, subject only to the concurrence of at least two-thirds vote of all the members of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. Consequently, the acts or judgment calls of the President involving the VFA-specifically the acts of ratification and entering into a treaty and those necessary or incidental to the exercise of such principal acts squarely fall within the sphere of his constitutional powers and thus, may not be validly struck down, much less calibrated by this Court, in the absence of clear showing of grave abuse of power or discretion.

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Senates Power to Concur As to the power to concur with treaties, the constitution lodges the same with the Senate alone. Thus, once the Senate performs that power, or exercises its prerogative within the boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed to constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the exercise of its discretion and acting within the limits of such power, may not be similarly faulted for having simply performed a task conferred and sanctioned by no less than the fundamental law. For the role of the Senate in relation to treaties is essentially legislative in character; the Senate, as an independent body possessed of its own erudite mind, has the prerogative to either accept or reject the proposed agreement, and whatever action it takes in the exercise of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. In this sense, the Senate partakes a principal, yet delicate, role in keeping the principles of separation of powers and of checks and balances alive and vigilantly ensures that these cherished rudiments remain true to their form in a democratic government such as ours. The Constitution thus animates, through this treaty-concurring power of the Senate, a healthy system of checks and balances indispensable toward our nations pursuit of political maturity and growth. True enough, rudimentary is the principle that matters pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to inquire.

Power of President to Reclassify Public Lands and Sell the Same Reclaimed Lands vs. Submerged Lands; When invalid sales may no longer be invalidated Chavez vs. PEA & AMARI, G.R. No. 133250, May 6, 2003

FACTS: The government through the PEA entered into a JVA with AMARI, a private corporation, in order to reclaim 157.84 hectares of lands comprising the Freedom Islands and 592.15 hectares of submerged areas of Manila Bay. The JVA provides, among others, the transfer of ownership of 77.34 hectares of the Freedom Islands to AMARI. ISSUE: Whether or not the JVA is valid

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RULING: Reclaimed Lands are Alienable Lands of the Public Domain The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by certificates of title in the name of PEA, are alienable lands of the public domain. PEA may lease these lands to private corporations but may not sell or transfer ownership of these lands to private corporations. PEA may only sell these lands to Philippine citizens, subject to the ownership limitations in the 1987 Constitution and existing laws. Submerged Areas are Inalienable The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural resources of the public domain until classified as alienable or disposable lands open to disposition and declared no longer needed for public service. The government can make such classification and declaration only after PEA has reclaimed these submerged areas. Only then can these lands qualify as agricultural lands of the public domain, which are the only natural resources the government can alienate. In their present state, the 592.15 hectares of submerged areas are inalienable and outside the commerce of man. JVA is invalid The prevailing doctrine before, during and after the signing of the Amended JVA is that private corporations cannot hold, except by lease, alienable lands of the public domain. This is one of the two main reasons why the Decision annulled the Amended JVA. The other main reason is that submerged areas of Manila Bay, being part of the sea, are inalienable and beyond the commerce of man, a doctrine that has remained immutable since the Spanish Law on Waters of 1886. Clearly, the Decision merely reiterates, and does not overrule, any existing judicial doctrine. Even on the characterization of foreshore lands reclaimed by the government, the Decision does not overrule existing law or doctrine. Since the adoption of the Regalian doctrine in this jurisdiction, the sea and its foreshore areas have always been part of the public domain. And since the enactment of Act No. 1654 on May 18, 1907 until the effectivity of the 1973 Constitution, statutory law never allowed foreshore lands reclaimed by the government to be sold to private corporations. The 1973 and 1987 Constitution enshrined and expanded the ban to include any alienable land of the public domain.

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Exceptions to Invalid Sales: When they may be upheld There are, of course, decisions of the Court which, while recognizing a violation of the law or Constitution, hold that the sale or transfer of the land may no longer be invalidated because of weighty considerations of equity and social justice. The invalidation of the sale or transfer may also be superfluous if the purpose of the statutory or constitutional ban has been achieved. But none of these cases apply to Amari. Thus, the Court has ruled consistently that where a Filipino citizen sells land to an alien who later sells the land to a Filipino, the invalidity of the first transfer is corrected by the subsequent sale to a citizen. Similarly, where the alien who buys the land subsequently acquires Philippine citizenship, the sale is validated since the purpose of the constitutional ban to limit land ownership to Filipinos has been achieved. In short, the law disregards the constitutional disqualification of the buyer to hold land if the land is subsequently transferred to a qualified party, or the buyer himself becomes a qualified party. In the instant case, however, Amari has not transferred the Freedom Islands, or any portion of it, to any qualified party. In fact, Amari admits that title to the Freedom Islands still remains with PEA. The Court has also ruled consistently that a sale or transfer of the land may no longer be questioned under the principle of res judicata, provided the requisites for res judicata are present. Under this principle, the courts and the parties are bound by a prior final decision, otherwise there will be no end to litigation. As the Court declared...once a judgement has become final and executory, it can no longer be disturbed no matter how erroneous it may be. In the instant case, there is no prior final decision adjudicating the Freedom Islands to Amari.

Properties of the Public Domain are outside the commerce of man; Abandonment does not amount to conversion; Congressional enactment needed to convey lands of the public domain Laurel vs. Garcia, G.R. Nos. 92013 & 92047, July 25, 1990

FACTS: The Roppongi Property is one of the four properties in Japan acquired by the Philippine

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government under the Reparations Agreement, as part of the indemnification to the Filipino people for their losses in life and property and their suffering during WWII. The Roppongi property became the site of the Philippine Embassy until the latter was transferred to another site when the Roppongi building needed major repairs. Due to the failure of our government to provide necessary funds, the Roppongi property has remained undeveloped since that time. After many years, the Aquino administration advanced the sale of the reparation properties, which included the Roppongi lot. RULING: Roppongi Property belongs to the Public Domain, hence outside the Commerce of Man The nature of the Roppongi lot as property for public service is expressly spelled out. It is dictated by the terms of the Reparations Agreement and the corresponding contract of procurement which bind both the Philippine government and the Japanese government, that these were assigned to the government sector and that the Roppongi property itself was specifically designated under the Reparations Agreement to house the Philippine Embassy. There can be no doubt that it is of public dominion unless it is convincingly shown that the property has become patrimonial; which respondents have failed to show. As property of public dominion, the Roppongi lot is outside the commerce of man. It cannot be alienated. Its ownership is a special collective ownership for general use and enjoyment, an application to the satisfaction of collective needs, and resides in the social group. The purpose is not to serve the State as a juridical person, but the citizens; it is intended for the common and public welfare and cannot be the object of appropriation. But since Roppongi Property has not been used for any public purpose, was there abandonment amounting to conversion of said property as patrimonial? The fact that the Roppongi site has not been used for a long time for actual Embassy service does not automatically convert it to patrimonial property. Any such conversion happens only if the property is withdrawn from public use (Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]). A property continues to be part of the public domain, not available for private appropriation or ownership "until there is a formal declaration on the part of the government to withdraw it from being such (Ignacio v. Director of Lands, 108 Phil. 335 [1960]) An abandonment of the intention to use the Roppongi property for public service and to make it patrimonial property under Article 422 of the Civil Code must be definite. Abandonment cannot be inferred from the non-use

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alone specially if the non-use was attributable not to the government's own deliberate and indubitable will but to a lack of financial support to repair and improve the property (See Heirs of Felino Santiago v. Lazarao, 166 SCRA 368 [1988]). Abandonment must be a certain and positive act based on correct legal premises. In the present case, the recent Administrative Orders authorizing a study of the status and conditions of government properties in Japan were merely directives for investigation but did not in any way signify a clear intention to dispose of the properties. Further EO 296 does not declare that the properties lost their public character, but merely intends to make the properties available to foreigners and not to Filipinos alone in case of a sale, lease or other disposition. Conveyance effected by Congressional Enactment Section 79 (f) of the Revised Administrative Code of 1917 (Conveyances and contracts to which the Government is a party) provides that in cases in which the Government of the Republic of the Philippines is a party to any deed or other instrument conveying the title to real estate or to any other property the value of which is in excess of P100,000, the respective Department Secretary shall prepare the necessary papers which, together with the proper recommendations, shall be submitted to the Congress of the Philippines for approval by the same. Such deed, instrument, or contract shall be executed and signed by the President of the Philippines on behalf of the Government of the Philippines unless the Government of the Philippines unless the authority therefor be expressly vested by law in another officer." The requirement has been retained in Section 48, Book I of the Administrative Code of 1987 (EO 292; Official authorized to convey real property), which provides that Whenever real property of the Government is authorized by law to be conveyed, the deed of conveyance shall be executed in behalf of the government by the following: (1) for property belonging to and titled in the name of the Republic of the Philippines, by the President, unless the authority therefor is expressly vested by law in another officer; (2) for property belonging to the Republic of the Philippines but titled in the name of any political subdivision or of any corporate agency or instrumentality, by the executive head of the agency or instrumentality." Thus, it is not for the President to convey valuable real property of the government on his or her own sole will. Any such conveyance must be authorized and approved by a law enacted by the Congress. It requires executive and legislative concurrence.

Who is authorized to reclaim foreshore and submerged land; Power to order reclamation of land is reposed in the President Chavez vs. NHA, G.R. No. 164527, Aug. 15, 2007

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FACTS: This is a Petition for Prohibition and Mandamus seeking to declare null and void the JVA entered into by NHA and the R-II Builders, Inc. Pursuant to a Memorandum Order on waste management issued by then Pres. Aquino, NHA undertook the Smokey Mountain Development and Reclamation Project (SMDRP) for the purpose of converting the Smokey Mountain dumpsite, inclusive of foreshore and submerged areas of Manila Bay, into a low cost medium rise housing complex and industrial/commercial site. A public bidding was held and R-II Builders, Inc. (RBI) was declared the winning bidder. Subsequently, NHA and R-II builders entered into a JVA implementing the Project. MO 415 of Pres. Aquino and P.O. 39 of Pres. Ramos, coupled with Special Patents issued by the DENR in favour of NHA, classified the reclaimed lands as alienable and disposable. ISSUES: Whether or not NHA and RBI may validly reclaim foreshore and submerged land Whether or not RBI can acquire the reclaimed foreshore and submerged land areas Whether or not RBI, being a private corporation, is disqualified from being a transferee of public land RULING: Who has authority to reclaim foreshore and submerged land? Petitioner contends that the power and authority to reclaim lands of the public domain is exclusively vested in the PEA. Thus, neither NHA nor R-II builders may validly reclaim foreshore and submerged land. But under EO 525, the requisites for a legal and valid reclamation project are: 1. Approval by the President; 2. Favourable recommendation of PEA; and 3. Undertaken by any of the following: (a) By PEA (b) By any person or entity pursuant to a contract it executed with PEA (c) By the National Government agency or entity authorized under its charter to reclaim lands subject to consultation with PEA

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Thus, while PEA under PD 1084 has the power to reclaim land and under EO 525 is primarily responsible for integrating, directing and coordinating reclamation projects, such authority is NOT exclusive and such power to reclaim may be granted or delegated to another government agency or entity or may even be undertaken by the National Government itself, PEA being only an agency and a part of the National Government. While the authority of NHA to reclaim lands is challenged by petitioner, we find that the NHA had more than enough authority to do so under existing laws. While PD 757, the charter of NHA, does not explicitly mention "reclamation" in any of the listed powers of the agency, we rule that the NHA has an implied power to reclaim land as this is vital or incidental to effectively, logically, and successfully implement an urban land reform and housing program enunciated in Sec. 9 of Article XIII of the 1987 Constitution. Basic in administrative law is the doctrine that a government agency or office has express and implied powers based on its charter and other pertinent statutes. Express powers are those powers granted, allocated, and delegated to a government agency or office by express provisions of law. On the other hand, implied powers are those that can be inferred or are implicit in the wordings of the law or conferred by necessary or fair implication in the enabling act In Angara v. Electoral Commission, the Court clarified and stressed that when a general grant of power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred by necessary implication. It was also explicated that when the statute does not specify the particular method to be followed or used by a government agency in the exercise of the power vested in it by law, said agency has the authority to adopt any reasonable method to carry out its functions. The power to reclaim on the part of the NHA is implicit from PD 757, RA 7279, MO 415, RA 6957, and PD 3-A. Is the DENRs authorization needed before a reclamation project in Manila Bay or in any part of the Philippines can be undertaken? ...[t]he NHA is still required to procure DENR's authorization before a reclamation project in Manila Bay or in any part of the Philippines can be undertaken. The requirement applies to PEA, NHA, or any other government agency or office granted with such power under the law.

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Notwithstanding the need for DENR permission, we nevertheless find petitioner's position bereft of merit. The DENR is deemed to have granted the authority to reclaim in the Smokey Mountain Project for the following reasons: 1. Sec. 17, Art. VII of the Constitution provides that "the President shall have control of all executive departments, bureaus and offices." The President is assigned the task of seeing to it that all laws are faithfully executed. "Control," in administrative law, means "the power of an officer to alter, modify, nullify or set aside what a subordinate officer has done in the performance of his duties and to substitute the judgment of the former for that of the latter."[71] As such, the President can exercise executive power motu proprio and can supplant the act or decision of a subordinate with the President's own. The DENR is a department in the executive branch under the President, and it is only an alter ego of the latter. Ordinarily the proposed action and the staff work are initially done by a department like the DENR and then submitted to the President for approval. However, there is nothing infirm or unconstitutional if the President decides on the implementation of a certain project or activity and requires said department to implement it. Such is a presidential prerogative as long as it involves the department or office authorized by law to supervise or execute the Project. Thus, as in this case, when the President approved and ordered the development of a housing project with the corresponding reclamation work, making DENR a member of the committee tasked to implement the project, the required authorization from the DENR to reclaim land can be deemed satisfied. It cannot be disputed that the ultimate power over alienable and disposable public lands is reposed in the President of the Philippines and not the DENR Secretary. To still require a DENR authorization on the Smokey Mountain when the President has already authorized and ordered the implementation of the Project would be a derogation of the powers of the President as the head of the executive branch. Otherwise, any department head can defy or oppose the implementation of a project approved by the head of the executive branch, which is patently illegal and unconstitutional. xxx Moreover, the power to order the reclamation of lands of public domain is reposed first in the Philippine President. The Revised Administrative Code of 1987 grants authority to the President to reserve lands of public domain for settlement for any specific purpose, thus:

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Section 14. Power to Reserve Lands of the Public and Private Domain of the Government.-(1) The President shall have the power to reserve for settlement or public use, and for specific public purposes, any of the lands of the public domain, the use of which is not otherwise directed by law. The reserved land shall thereafter remain subject to the specific public purpose indicated until otherwise provided by law or proclamation. (Emphasis supplied.) Can RBI acquire reclaimed foreshore and submerged lands considered as inalienable and outside the commerce of man? The reclaimed lands across R-10 were classified alienable and disposable lands of public domain of the State for the following reasons, viz: First, there were three (3) presidential proclamations classifying the reclaimed lands across R-10 as alienable or disposable hence open to disposition or concession, to wit: (1) MO 415 issued by President Aquino, of which Sec. 4 states that "[t]he land covered by the Smokey Mountain Dumpsite is hereby conveyed to the National Housing Authority as well as the area to be reclaimed across R-10." The directive to transfer the lands once reclaimed to the NHA implicitly carries with it the declaration that said lands are alienable and disposable. Otherwise, the NHA cannot effectively use them in its housing and resettlement project. (2) Proclamation No. 39 issued by then President Ramos by which the reclaimed lands were conveyed to NHA for subdivision and disposition to qualified beneficiaries and for development into a mixed land use (commercial/industrial) to provide employment opportunities to on-site families and additional areas for port-related activities. Said directive carries with it the pronouncement that said lands have been transformed to alienable and disposable lands. Otherwise, there is no legal way to convey it to the beneficiaries. (3) Proclamation No. 465 likewise issued by President Ramos enlarged the reclaimed area to 79 hectares to be developed and disposed of in the implementation of the SMDRP. The authority put into the hands of the NHA to dispose of the reclaimed lands tacitly sustains the conversion to alienable and disposable lands. Secondly, Special Patents Nos. 3591, 3592, and 3598 issued by the DENR anchored on

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Proclamations Nos. 39 and 465 issued by President Ramos, without doubt, classified the reclaimed areas as alienable and disposable. Admittedly, it cannot be said that MO 415, Proclamations Nos. 39 and 465 are explicit declarations that the lands to be reclaimed are classified as alienable and disposable. We find however that such conclusion is derived and implicit from the authority given to the NHA to transfer the reclaimed lands to qualified beneficiaries. The query is, when did the declaration take effect? It did so only after the special patents covering the reclaimed areas were issued. It is only on such date that the reclaimed lands became alienable and disposable lands of the public domain. It may be argued that the grant of authority to sell public lands, pursuant to PEA, does not convert alienable lands of public domain into private or patrimonial lands. We ruled in PEA that "alienable lands of public domain must be transferred to qualified private parties, or to government entities not tasked to dispose of public lands, before these lands can become private or patrimonial lands (emphasis supplied)." To lands reclaimed by PEA or through a contract with a private person or entity, such reclaimed lands still remain alienable lands of public domain which can be transferred only to Filipino citizens but not to a private corporation. This is because PEA under PD 1084 and EO 525 is tasked to hold and dispose of alienable lands of public domain and it is only when it is transferred to Filipino citizens that it becomes patrimonial property. On the other hand, the NHA is a government agency not tasked to dispose of public lands under its charter--The Revised Administrative Code of 1987. The NHA is an "end-user agency" authorized by law to administer and dispose of reclaimed lands. The moment titles over reclaimed lands based on the special patents are transferred to the NHA by the Register of Deeds, they are automatically converted to patrimonial properties of the State which can be sold to Filipino citizens and private corporations, 60% of which are owned by Filipinos. The reason is obvious: if the reclaimed land is not converted to patrimonial land once transferred to NHA, then it would be useless to transfer it to the NHA since it cannot legally transfer or alienate lands of public domain. More importantly, it cannot attain its avowed purposes and goals since it can only transfer patrimonial lands to qualified beneficiaries and prospective buyers to raise funds for the SMDRP. From the foregoing considerations, we find that the 79-hectare reclaimed land has been declared alienable and disposable land of the public domain; and in the hands of NHA, it has been reclassified as patrimonial property. Can RBI acquire reclaimed lands when there was no declaration that said lands are no

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longer needed for public use? MO 415 and Proclamations Nos. 39 and 465 are declarations that proclaimed the non-use of the reclaimed areas for public use or service as the Project cannot be successfully implemented without the withdrawal of said lands from public use or service. Certainly, the devotion of the reclaimed land to public use or service conflicts with the intended use of the Smokey Mountain areas for housing and employment of the Smokey Mountain scavengers and for financing the Project because the latter cannot be accomplished without abandoning the public use of the subject land. Without doubt, the presidential proclamations on SMDRP together with the issuance of the special patents had effectively removed the reclaimed lands from public use. Is there a law authorizing the sale of reclaimed lands? Petitioner next claims that RBI cannot acquire the reclaimed lands because there was no law authorizing their sale. He argues that unlike PEA, no legislative authority was granted to the NHA to sell reclaimed land. This position is misplaced. Petitioner relies on Sec. 60 of Commonwealth Act (CA) 141 to support his view that the NHA is not empowered by any law to sell reclaimed land, thus: Section 60. Any tract of land comprised under this title may be leased or sold, as the case may be, to any person, corporation or association authorized to purchase or lease public lands for agricultural purposes. The area of the land so leased or sold shall be such as shall, in the judgment of the Secretary of Agriculture and Natural Resources, be reasonably necessary for the purposes for which such sale or lease if requested and shall in no case exceed one hundred and forty-four hectares: Provided, however, That this limitation shall not apply to grants, donations, transfers, made to a province, municipality or branch or subdivision of the Government for the purposes deemed by said entities conducive to the public interest; but the land so granted donated or transferred to a province, municipality, or branch or subdivision of the Government shall not be alienated, encumbered, or otherwise disposed of in a manner affecting its title, except when authorized by Congress; Provided, further, That any person, corporation, association or partnership disqualified from purchasing public land for agricultural purposes under the provisions of this Act, may lease land included under this title suitable for industrial or residential purposes, but the lease granted shall only be valid while such land is used for the purposes referred to.

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(Emphasis supplied.) Reliance on said provision is incorrect as the same applies only to "a province, municipality or branch or subdivision of the Government." The NHA is not a government unit but a government corporation performing governmental and proprietary functions. In addition, PD 757 is clear that the NHA is empowered by law to transfer properties acquired by it under the law to other parties.... Is RBI, being a private corporation, barred by the Constitution to acquire lands of public domain? Petitioner's proposition has no legal mooring for the following reasons: 1. RA 6957 as amended by RA 7718 explicitly states that a contractor can be paid "a portion as percentage of the reclaimed land" subject to the constitutional requirement that only Filipino citizens or corporations with at least 60% Filipino equity can acquire the same. It cannot be denied that RBI is a private corporation, where Filipino citizens own at least 60% of the stocks. Thus, the transfer to RBI is valid and constitutional. 2. When Proclamations Nos. 39 and 465 were issued, inalienable lands covered by said proclamations were converted to alienable and disposable lands of public domain. When the titles to the reclaimed lands were transferred to the NHA, said alienable and disposable lands of public domain were automatically classified as lands of the private domain or patrimonial properties of the State because the NHA is an agency NOT tasked to dispose of alienable or disposable lands of public domain. The only way it can transfer the reclaimed land in conjunction with its projects and to attain its goals is when it is automatically converted to patrimonial properties of the State. Being patrimonial or private properties of the State, then it has the power to sell the same to any qualified person--under the Constitution, Filipino citizens as private corporations, 60% of which is owned by Filipino citizens like RBI. 3. The NHA is an end-user entity such that when alienable lands of public domain are transferred to said agency, they are automatically classified as patrimonial properties. The NHA is similarly situated as BCDA which was granted the authority to dispose of patrimonial lands of the government under RA 7227. Sec. 22: Preparation and Submission of Budget

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Sec. 22: The President shall submit to the Congress within thirty-days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. Sec. 23: SONA Sec. 23: The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time.

Administrative Law: General Considerations Doctrines

Separation of Powers - ULTIMATE OBJECTIVE: to limit the powers of the State **Q: Is there a specific provision in the Constitution that mandates separation of powers? A: The Doctrine of Separation of Powers is not expressly stated in the Constitution but it can be implied from the distribution of powers among the executive, legislative and judiciary. The Constitution does not mandate that there shall be separation of powers of government because the powers are actually already separated. Non-Delegation of Powers - Potestas delegata non delegari potest - Corollary to the Doctrine of Separation of Powers - as a rule, delegation of powers of government is not allowed for it will constitute an abdication of duty of the branch concerned **Q: When may delegation of powers be allowed? A: The general rule of non-delegation of powers is susceptible of exceptions, such as: (1) through immemorial practice, powers are delegated to the LGUs; (2) as provided by the

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Constitution under Art. VI, sec. 23 (2); (3) permissible delegation to administrative agencies; and (4) to the people in Initiative and Referendum, provided that the two tests of a valid delegation are observed. (NOTA BENE: It is not categorically stated that these two tests must be complied with or whether one test is sufficient. See below for more.) Characteristics of Administrative Law two powers: quasi-legislative and quasi-judicial recent development object and scope: regulation of private rights for public welfare provides remedies in case of violation of rights pertain to the executive branch recent development (modern law)

- It is that field of public law that deals with the Constitution, jurisprudence, and rules and regulations relative to or depicting the establishment, function, and actual operations of Philippine administrative agencies.

Reasons for Growth of Administrative Agencies increasing complexity of task of government growing inability of legislature to cope with the myriad problems demanding its attention growth of society which created peculiar and sophisticated problems that the legislature cannot be expected to reasonably comprehend competence of legislature to provide the required direct and efficacious and specific solutions

- the obvious solution is to delegate power to administrative agencies

PANTRANCO vs. PSC, 70 Phil 229 (1940)

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FACTS: PANTRANCO, a holder of an existing Certificate of Public Convenience is applying to operate additional buses with the Public Service Commission (PSC). The PSC granted the application but added several conditions for PANTRANCOs compliance. ISSUE: PANTRANCO is questioning whether PSC can impose said conditions. If so, wouldnt this power of the PSC, as provided for under sec. 15, CA 146, constitute undue delegation of powers? HELD: SC held that there was valid delegation of powers. The theory of the separation of powers is designed by its originators to secure action at the same time forestall overaction which necessarily results from undue concentration of powers and thereby obtain efficiency and prevent deposition. But due to the growing complexity of modern life, the multiplication of subjects of governmental regulation and the increased difficulty of administering laws, there is a constantly growing tendency toward the delegation of greater powers by the legislature, giving rise to the adoption, within certain limits, of the principle of subordinate legislation. All that has been delegated to the Commission is the administrative function, involving the use of discretion to carry out the will of the National Assembly having in view, in addition, the promotion of public interests in a proper and suitable manner.

Eastern Shipping Lines v. POEA, 166 SCRA 533 (1988)

FACTS: Vitaliano Saco, the Chief Officer of a ship, was killed in an accident in Tokyo, Japan. The widow filed a complaint for damages against the Eastern Shipping Lines with the POEA,

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based on Memorandum Circular No. 2 issued by the latter which stipulated death benefits and burial expenses for the family of an overseas worker. Eastern Shipping Lines questioned the validity of the memorandum circular. Nevertheless, the POEA assumed jurisdiction and decided the case. ISSUE: W/N the issuance of Memorandum Circular No. 2 is a violation of non-delegation of powers HELD: SC held that there was valid delegation of powers. In questioning the validity of the memorandum circular, Eastern Shipping Lines contended that POEA was given no authority to promulgate the regulation, and even with such authorization, the regulation represents an exercise of legislative discretion which, under the principle, is not subject to delegation. It is true that legislative discretion as to the substantive contents of the law cannot be delegated. What can be delegated is the discretion to determine how the law may be enforced, not what the law shall be. The ascertainment of the latter subject is a prerogative of the legislature. This prerogative cannot be abdicated or surrendered by the legislature to the delegate. There are two accepted tests to determine whether or not there is a valid delegation of legislative power, viz, the completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate the only thing he will have to do is to enforce it. Under the sufficient standard test, there must be adequate guidelines or stations in the law to map out the boundaries of the delegates authority and prevent the delegation from running riot. Both tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative. Xxx The delegation of legislative power has become the rule and its non-delegation the exception.

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The reason is the increasing complexity of the task of government and the growing inability of the legislature to cope directly with the myriad problems demanding its attention. The growth of society has ramified its activities and created peculiar and sophisticated problems that the legislature cannot be expected to reasonably comprehend. Specialization even in legislation has become necessary. Too many of the problems attendant upon present-day undertakings, the legislature may not have the competence to provide the required direct and efficacious, not to say, specific solutions. These solutions may, however, be expected from its delegates, who are supposed to be experts in the particular fields. The reasons given above for the delegation of legislative powers in general are particularly applicable to administrative bodies. With the proliferation of specialized activities and their attendant peculiar problems, the national legislature has found it more and more necessary to entrust to administrative agencies the authority to issue rules to carry out the general provisions of the statute. This is called the power of subordinate legislation. With this power, administrative bodies may implement the broad policies laid down in statute by filling in the details which the Congress may not have the opportunity or competence to provide. Memorandum Circular No. 2 is one such administrative regulation.

Solid Homes, Inc. vs. Payawal, 177 SCRA 72, 79 (1989)

FACTS: Payawal is a buyer of a certain subdivision lot who is suing Solid Homes for failure to deliver the certificate of title. The complaint was filed with the RTC. Solid Homes contended that jurisdiction is with the National Housing Authority (NHA) pursuant to PD 957, as amended by PD 1344 granting exclusive jurisdiction to NHA. ISSUE: W/N NHA has jurisdiction to try the case and the competence to award damages HELD: SC held that NHA (now HLURB) has jurisdiction.

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In case of conflict between a general law and a special law, the latter must prevail regardless of the dates of their enactment. It is obvious that the general law in this case is BP 129 and PD 1344 the special law. On the competence of the Board to award damages, we find that this is part of the exclusive power conferred upon it by PD 1344 to hear and decide claims involving refund and any other claims filed by subdivision lot or condominium unit buyers against the project owner, developer, dealer, broker or salesman. As a result of the growing complexity of the modern society, it has become necessary to create more and more administrative bodies to help in the regulation of its ramified activities. Specialized in the particular fields assigned to them, they can deal with the problems thereof with more expertise and dispatch than can be expected from the legislature or the courts of justice. This is the reason for the increasing vesture of quasilegislative and quasi-judicial powers in what is now not unreasonably called the fourth department of the government. Statues conferring powers on their administrative agencies must be liberally construed to enable them to discharge their assigned duties in accordance with the legislative purpose.

Sources of Administrative Law Constitution Statute Jurisprudence Rules and regulations by the administrative agencies (quasi-legislative) Orders and decisions by the administrative agencies (quasi-judicial)

Mecano vs. COA, 216 SCRA 500 (1992)

FACTS:

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Mecano, an NBI Director, was hospitalized for cholecystitis, for which he incurred medical and hospitalization expenses, the total amount of which he is claiming from the COA, based on sec. 699 of the RAC. COA contended that the RAC has been repealed by the Administrative Code of 1987, specifically sec. 699 was not restated nor re-enacted in the Code. ISSUE: W/N the Administrative Code of 1987 repealed or abrogated sec. 699 of the RAC HELD: The question of whether or not a particular law has been repealed or not by a subsequent law is a matter of legislative intent. The lawmakers may expressly repeal a law by incorporating therein a repealing provision which expressly and specifically cites the particular law or laws, and portions thereof, that are intended to be repealed. A declaration in a statute, usually in its repealing clause, that a particular and specific law, identified by its number or title, is repealed is an express repeal; all others are implied repeals. Under sec. 27, Bk. VII (Final Provisions) of the Administrative Code of 1987, the repealing clause states that all laws, decrees, orders, rules and regulations, or portions thereof, inconsistent with this Code are hereby repealed or modified accordingly. The question that should be asked is: What is the nature of this repealing clause? It is certainly not an express repealing clause because it fails to identify or designate the act or acts that are intended to be repealed. Rather, it is an example of a general repealing provision. It is a clause which predicates the intended repeal under the condition that a substantial conflict must be found in existing and prior acts. The failure to add a specific repealing clause indicates the intent was not to repeal any existing law, unless an irreconcilable inconsistency and repugnancy exist in the terms of the new and old laws. The latter situation falls under the category of an implied repeal. (NOTA BENE: This means that the RAC, despite the passage of the Administrative Code of 1987, may still be a source of administrative law)

Leveriza vs. IAC, 157 SCRA 282 (1988)

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FACTS: This case involves three contracts of lease: 1) Contract A: executed between Civil Aeronautics Administration (lessor) and Rosario Leveriza (lessee) 2) Contract B: executed between Leveriza (lessor) and Mobil Oil (lessee) 3) Contract C: executed between CAA (lessor) and Mobil Oil (lessee) When Leveriza subleased the property to Mobil Oil (Contract B) without permission from the lessor, CAA cancelled Contract A and executed Contract C with Mobil Oil. Leveriza contended that Contract C was invalid not only because it was entered into by CAA without approval by the Department Secretary but also because it was not executed by the President of the Philippines or officer duly designated. According to Leveriza, the officer duly designated to cancel the contract is not the Airport General Manager but the Secretary of Public Works and Communication or the Director of the CAA. ISSUE: W/N Contract C was validly entered into HELD: SC held that the Airport General Manager had authority to enter into contracts of lease. In executing Contract C, the Airport General Manager signed for the Director of the CAA, who subsequently ratified the same. Under sec. 567 of the RAC, a contract of lease may be executed by: (1) President; (2) officer duly designated by him; and (3) officer expressly vested by law. Under sec. 32 (24) of RA 776, the Director of the CAA is one such officer vested by law. Meaning of Administration

AS AN INSTITUTION: aggregate of individuals running the government for the period of

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their term of office AS A FUNCTION: actual running of the government **Q: Is administration and government the same? A: No. While the two concepts are intricately related, there are fundamental differences between them. Government is that institution or aggregate of institutions by which an independent society makes or carries out those rules of actions 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. Administration, on the other hand, refers to that aggregate of individuals holding the reins of government for the time being. Thus, compared to administration, government has a more permanent character.

TWO KINDS OF ADMINISTRATION: Internal Administration rules within the particular agency External Administration rules governing the relationship between the agency and the public

NOTA BENE: Administrative Law deals with both although its central focus is External Administration.

Administrative Agencies and Reorganization Administrative Agencies

Definition (See Definition of Terms under E.O. 292) ***Q: Is Cebu City Government an agency? A: Yes, under sec. 2(4), E.O. 292, Agency of the Government refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit

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therein. ***Q: Differentiate department from instrumentality. A: Both are agencies of government but occupy different places under the administrative structure. While a department refers to an executive department created by law, an instrumentality is any agency of the National Government that is not integrated within the departmental framework. Thus, a department includes bureaus and the offices under it, while instrumentality covers all other administrative bodies, including regulatory agencies, chartered institutions and government-owned or controlled corporations. An instrumentality is vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. (NOTA BENE: It is legally significant to distinguish between the two for purposes of ascertaining who has power of control over a particular administrative body and in order to determine whether the creation, reorganization or abolition of the same is validly done.)

Creation, Reorganization and Abolition HOW AN AGENCY IS CREATED: by the Constitution by statute by authority of law

Sec. of DOTC vs. Mabalot, 378 SCRA 129 (2000)

FACTS: The Sec. of DOTC issued to LTFRB Chairman MO 96-735, transferring the regional functions of that office to DOTCCAR Regional Office, pending creation of a Regional LTFRO. Later, the new Sec. of DOTC issued DO 97-1025, establishing the DOTCCAR Regional Office as the Regional Office of the LTFRB to exercise regional functions of the

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LTFRB in the CAR subject to the direct supervision and control of the LTFRB Central Office. Mabalot protested. ISSUE: W/N the MO and DO are violative of the provision of the Constitution against encroachment on the powers of the legislative department HELD: SC upheld the validity of the issuance of the challenged orders. In the absence of any patent or latent constitutional or statutory infirmity attending the issuance of the challenged orders, Court upholds. The President, through his duly constituted political agent and alter ego, may legally and validly decree the reorganization of the Department, particularly the establishment of the DOTCCAR as the LTFRB Regional Office of CAR with the concomitant transfer and performance of public functions and responsibilities appurtenant to a regional office of the LTFRB. There are three modes of establishing an administrative body: (1) Constitution; (2) Statute; and (3) by authority of law. This case falls under the third category. The DOTC Secretary, as alter ego of the President, is authorized by law to create and establish the LTFRB-CAR Regional Office. This is anchored on the Presidents power of control under sec. 17, Art. VII, 1987 Constitution. By definition, control is the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. It includes the authority to order the doing of an act by a subordinate or to undo such act or to assume a power directly vested in him by law. Under sec. 20, Bk. III, E.O. 292, the Chief Executive is granted residual powers, stating that unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws xxx What law then gives him the power to reorganize? It is PD 1772 which amended PD 1416. These decrees expressly grant the President of the Philippines the continuing authority to

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reorganize the national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities and to standardize salaries and materials. Granted that the President has the power to reorganize, was the reorganization of DOTCCAR valid? In this jurisdiction, reorganization is regarded as valid provided it is pursued in good faith. As a general rule, a reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient. The reorganization in the instant case was decreed in the interest of service and for purposes of economy and more effective coOrdination of the DOTC functions in the Cordillera Administrative Region. It thus bear the earmarks of good faith.

Eugenio vs. CSC, 243 SCRA 196 (1995)

FACTS: Eugenio, the Deputy Director of Philippine Nuclear Research Institute, applied for a Career Executive Service (CES) Eligibility and a CESO rank. But before she got the rank, the CSC passed Resolution No. 93-459, reorganizing itself and changing the CES Board (CESB) to Office for Career Executive Service of the Civil Service Commission (OCES). ISSUE: W/N CSC usurped legislative function of Congress by abolishing the CESB and transferring its budget to OCES HELD: CESB was created by PD 1. It cannot be disputed, therefore, that as CESB was created by law, it can only be abolished by the legislature. While CSC has the power to reorganize under Sec. 17, Chap. 3, Subtitle A, Title I, Bk. V. of the Administrative Code of 1987, this must be read with sec. 16, which enumerates the offices under the control of the CSC. CESB is not one of such offices.

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CESB was intended to be an autonomous entity, albeit administratively attached to CSC. This essential autonomous character of the CESB is not negated by its attachment to respondent Commission. By said attachment, CESB was not made to fall within the control of respondent Commission. Under the Administrative Code of 1987, the purpose of attaching one functionally inter-related government agency to another is to attain policy and program coordination.

De la Llana vs. Alba, 112 SCRA 294 (1982) > The issue in this case is whether or not B.P. 129, An Act Reorganizing the Judiciary, is unconstitutional, considering that in the time-honored principle protected and safeguarded by the constitution the judiciary is supposed to be independent from legislative will. Does the reorganization violate the security of tenure of justices and judges as provided for under the Constitution? HELD: Nothing is better settled in our law than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. What is really involved in this case is not the removal or separation of the judges and justices from their services. What is important is the validity of the abolition of their offices. It is a well-known rule that valid abolition of offices is neither removal nor separation of the incumbents. Of course, if the abolition is void, the incumbent is deemed never to have ceased to hold office. As well-settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith. Removal is to be distinguished from termination by virtue of valid abolition of the office. There can be no tenure to a non-existent office. After the abolition, there is in law no occupant. In case of removal, there is an office with an occupant who would thereby lose his position. It is in that sense that from the standpoint of strict law, the question of any impairment of security of tenure does not arise.

Larin vs. Executive Secretary, 280 SCRA 713 (1997)

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FACTS: Larin, a Revenue Specific Tax Officer under the Assistant Commissioner of the BIR, is convicted of crimes of violation of sec. 268 (4) NIRC and sec. 3 (e) RA 3019 (grave misconduct). Acting by authority of the president, Sr. Deputy Executive Secretary Quisumbing issued a memorandum order, creating an Executive Committee to investigate Larins administrative charge. While the investigation was going on, the President issued E.O. 132, streamlining the BIR and abolishing the office of the Specific Tax Service. Afterwards, Larin was found guilty and was subsequently dismissed. However, in the appealed case, SC set aside the conviction of Larin ISSUE: W/N Larin was unlawfully removed from office (1) Does the President have the power to dismiss him? Reorganize the BIR? (2) Was reorganization valid, considering that there was no law enacted by Congress authorizing reorganization by the Executive HELD: SC held that removal as a result of reorganization was done in bad faith. Does the President have the power to dismiss him? Larin is a presidential appointee. As such, he comes under the direct disciplining authority of the President for the power to remove is inherent in the power to appoint. However, Larin is a career service officer, therefore, he enjoys security of tenure. Under the Civil Service Decree, career service officers and employees who enjoy security of tenure may be removed only for any of the causes enumerated in said law. In other words, the fact that the petitioner is a presidential appointee does not give the appointing authority the license to remove him at will or at his pleasure for it is an admitted fact that he is likewise a career service officer who under the law is the recipient of tenurial protection, thus, may only be removed for a cause and in accordance with procedural due process. Was the removal for a legal cause under a valid proceeding?

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SC held that the removal complied with the requirements for procedural due process but that the dismissal was not for a valid cause. The basis used in Larins removal is the criminal conviction against him, but this conviction was later set aside by the Supreme Court upon appeal. Where the very basis of the administrative case against petitioner is his conviction in the criminal action which was later on set aside by this court upon a categorical and clear findings that the acts for which he was administratively held liable are not unlawful and irregular, the acquittal of the petitioner in the criminal case necessarily entails the dismissal of the administrative action against him, because in sch a case, there is no basis nor justifiable reason to maintain the administrative suit. Does the President have the power to reorganize the BIR? Yes, under sec. 48 and 62 of RA 7645, sec. 20, Bk. III of EO 292 (Residual Powers), and PD 1772 which amended PD 1416. But while the Presidents power to reorganize can not be denied, this does not mean however that the reorganization itself is properly made in accordance with law. Well-settled is the rule that reorganization is regarded as valid provided it is pursued in good faith. When is there reorganization made in good faith? The general rule is that a reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient. In that event no dismissal or separation actually occurs because the position itself ceases to exist. And in that case the security of tenure would not be a Chinese Wall. Be that as it may, if the abolition which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid abolition takes place and whatever abolition is done is void ab initio. What are the marks of bad faith in removal as a result of reorganization? Sec. 2, RA 6656 enumerates the circumstances evidencing bad faith in the removal of employees as a result of reorganization: (1) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; (2) Where an office is abolished and another performing substantially the same functions is created; (3) Where incumbents are replaced by those less qualified in terms of status of

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appointment, performance and merit; (4) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices; (5) Where the removal violates the order of separation provided in sec. 3 hereof.

Cebu United Enterprises v. Gallofin, 106 Phil 491 (1959)

FACTS: Cebu United Enterprises has import license to purchase over issue newspaper from the US. However, this license expired on Dec. 16, or one day before the date of the importation of the items. Gallofin, the collector of customs, refused to deliver the imported items on the ground that Cebu United Enterprises was importing goods without a valid license. ISSUE: W/N duly executed acts of a governmental agency can have valid effects even beyond the life span of said agency HELD: Although RA 650 creating the Import Control Commission (ICC) expired on July 31, it is to be conceded that its duly executed acts can have valid effects even beyond the life span of said government agency. The ICC who issued the license was abolished yet, the LICENSE was extended, the latter has still its valid effects.

Crisostomo vs. CA, 258 SCRA 134 (1996)

FACTS: Crisostomo was appointed the President of the Philippine College of Commerce (PCC) by the President of the Philippines. During his incumbency, two administrative charges were

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filed against him for illegal use of government vehicles, misappropriation of construction materials, oppression and harassment, grave misconduct, nepotism and dishonesty before the Office of the President. Likewise, he was also charged with violation of Anti-Grant and Corrupt Practices Act with the Tanodbayan. As such, he was preventively suspended and Dr. Mateo was designated as the officer-in-charge in his place. Meanwhile, Pres. Marcos passed PD 1341 converting PCC into PUP with Mateo as President. Crisostomo was later acquitted and his administrative charges were dismissed. ISSUE: Did PD 1314 abolish PCC? HELD: PD 1314 did not abolish, but only changed the PCC into what is now PUP. What took place was a change in the academic status of the educational institution, not in its corporate life. Hence, the change in its name, the expansion of its curriculum offerings and changes in its structure and organization. As a general rule, when the purpose of the lawmaking authority is to abolish the office and create a new one, he says so. In the instant case, PD 1314 merely states that PCC is converted into the PUP. In addition, the law does not state that the lands, buildings and equipment owned by the PCC were being transferred to the PUP but only that they stand transferred to it. Stand transferred simply means, for example, that lands transferred to the PCC were to be understood as transferred to the PUP as the new name of the institution.

***Q: Who has the power to reorganize? A: It depends. In order to determine who has the power to reorganize, it is essential to characterize whether the body to be reorganized is a department or an instrumentality of government. Under EO 292, the President is given the power of control over all departments, bureaus and offices under the executive branch. Since the power of control includes the power to reorganize, then the power to reorganize a department, a bureau or an office can be said to be lodged in the President. On the other hand, an instrumentality is, as a general rule, created by statute or made pursuant to a law. So unless the law creating such instrumentality delegates the authority to reorganize to a separate body, the power to reorganize such is with Congress.

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***Q: When is reorganization of administrative agencies valid? A: First, determine whether the agency is a department or an instrumentality in order to determine who has the authority to reorganize. Then, determine whether the reorganization is done in good faith, not in good faith, or in bad faith. Reorganization is in good faith if done for the purpose of economy and efficiency. ***Q: May a public officer validly claim violation of security of tenure as a result of abolition of office? A: It depends on the validity of the abolition. Was the abolition done by someone who has authority? To determine who has authority to abolish, bear in mind the three modes of creating an office: (1) Constitution; (2) Statute; and (3) authority by law. An office created by the Constitution may only be abolished by Constitutional amendment or revision, unless the Constitution itself provides for another mode of abolition. Likewise, an office created by Statute, may, as a general rule, be only abolished by Congress, unless this power is delegated. And the President may abolish an office if such office is under his power of control and Congress has not provided for a different mode of abolition. So if the abolition is made by someone with authority, then was it done in good faith? Abolition is in good faith if the purpose is for economy and efficiency, or if it not done in bad faith, bearing in mind the circumstances evidencing bad faith. If done in good faith, then the abolition is valid. When there is valid abolition, there can be no separation or removal from office and the affected public officer cannot claim violation of security of tenure for there can be no tenure to a non-existent office. ***Q: May an official of an abolished office claim vested right to that office? A: There is no such thing as a vested right to an office. The only exceptions are those offices established by the Constitution, such as the Constitutional Commissions, etc. ***Q: In case of abolition and a new office is thereby created, may the incumbent of the abolished office claim preference to that new office? A: The concept of preference is illustrated in the next-in-rank rule. Under that rule, anyone who is employed on a permanent basis in a position that has been previously determined to be next-in-rank to the vacated office and who is qualified is given preference to said office. This presupposes that there is an old office which is vacated. Thus, the rule does not apply to a newly created office, which necessarily entails new positions. Besides, preference only

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means that the old employee should be considered first but it does not automatically follow that they should then be automatically reappointed. Quasi-Legislative Power Delegation of Legislative Power Doctrine of Subordinate Legislation; Limitations rule-making power cannot contravene a statute or the Constitution rules are not laws but have the force and effect of laws - partakes of the nature of statute enjoy presumption of legality - therefore courts should respect and apply them UNLESS declared invalid; all other agencies should likewise respect them

Q: Distinguish between Legislative and Quasi-Legislative power. A: Legislative power is vested in the Legislature while quasi-legislative power is in the nature of subordinate legislation or the rule-making power delegated to administrative bodies. Legislative power is plenary while quasi-legislative is not plenary and therefore subject to limitations e.g. Constitution, statute, and administrative law limitations such as the tests for valid delegation. Legislative power includes the power to determine what the law is and how it shall be applied. Quasi-legislative power only includes the power to determine how the law is to be applied but not what the law is; administrative bodies cannot determine the legality or illegality of an act, NOT UNLESS they are duly authorized by Congress. Q: Distinguish between Judicial and Quasi-Judicial power. A: Judicial power is original, vested in the judiciary. Quasi-judicial power is derivative, a product of valid delegation of power to administrative bodies. Judicial power includes the determination of rights and obligations conclusively while quasi-judicial power is temporary in nature as courts have the final say. Judicial power is a primary power exercised by the judiciary while quasi-judicial power is incidental to the primary function of administrative bodies of implementing and enforcing laws. (NOTA BENE: It is called quasi-judicial because it is a power that belongs to the judiciary but is exercised by a non-judicial body. In addition, it is only incidental to the primary function of implementation and enforcement of laws.)

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Q: Why is it important to distinguish between quasi-legislative and quasi-judicial power? A: It is important to distinguish between these two powers of administrative bodies because there are certain rules and principles in administrative law, which apply to one but not to the other. Thus, the requirements of due process (notice & hearing) apply when the administrative body is exercising quasi-judicial functions because such power includes the determination of rights and obligations. On the other hand, there is generally no need of prior notice & hearing in the exercise of quasi-legislative power. Likewise the prior exhaustion of remedies and the doctrine of primary jurisdiction do not apply in quasilegislative processes, and only in the exercise of quasi-judicial functions. And finally, a body exercising quasi-judicial functions is considered equivalent to a regional trial court. Hence, one can seek relief from its judgment by appealing to the Court of Appeals or the Supreme Court, depending on the mode of appeal. A body exercising quasi-legislative functions is not considered equivalent to a court. Hence, one can resort to the regional trial court to obtain relief. Q: How are administrative rules interpreted? A: It is a settled principle of law that in determining whether a board or commission has a certain power, the authority given should be liberally construed in the light of the purposes for which it was created, and that which is incidentally necessary to a full implementation of the legislative intent should be upheld as being germane to the law. Necessarily, too, where the end is required, the appropriate means are deemed given. (Matienzo v. Abellera, G.R. No. L-45839, June 1, 1988)

People v. Exconde, 101 Phil 1125 (1957)

SUBORDINATE LEGISLATION, JUSTIFIED: It is well established in this jurisdiction that, while the making of laws is a non-delegable activity that corresponds exclusively to Congress, nevertheless the latter may constitutionally delegate authority to promulgate rules and regulations to implement a given legislation and effectuate its policies, for the reason that the legislature often finds it impracticable (if not impossible) to anticipate and provide for the multifarious and complex situations that may be met in carrying the law into effect. All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction with it, but conform to the standards that the law prescribes.

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MUST CONFORM TO STATUTES: The regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself can not be extended. So long, however, as the regulations relate solely to carrying into effect the provisions of the law, they are valid. A violation of a regulation prescribed by an executive officer of the Government in conformity with and based upon a statute authorizing such regulation, constitutes an offense and renders the offender liable to punishment in accordance with the provisions of law. RULE ON PENAL SANCTIONS: The legislature cannot delegate to a board or to an executive officer the power to declare what acts shall constitute a criminal offense. It is competent for it, however, to authorize a commission to prescribe duties on which the law may operate in imposing a penalty and in effectuating the purpose designed in enacting the law. There are numerous cases in which the courts have sustained statutes authorizing administrative officers to promulgate rules on a specified subject and providing that a violation of such rules or orders should constitute a misdemeanor, punishable as provided in the statute. Where statutes provide that violation of a rule or regulation of an administrative agency shall be a misdemeanor, if the rule or regulation is reasonable, the enforcement of the penalty for its violation is sustained by the courts, for the legislature and not the administrative agency made the action penal.

Echegaray vs. Secretary of Justice, G.R. No. 132601, Oct. 12, 1998

TESTS FOR VALID DELEGATION: Although Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself it must set forth therein the policy to be executed, carried out or implemented by the delegate and (b) fix a standard the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions.

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IS IT COMPLETE? Considering the scope and the definiteness of RA 8177, which changed the mode of carrying out the death penalty, the Court finds that the law sufficiently describes what job must be done, who is to do it, and what is the scope of his authority. DOES IT HAVE SUFFICIENT STANDARDS? RA 8177 likewise provides the standards which define the legislative policy, mark its limits, map out its boundaries, and specify the public agencies which will apply it. It indicates the circumstances under which the legislative purpose may be carried out.

Land Bank of the Philippines vs. Leonila P. Celada, G.R. No. 164876, Jan. 23, 2006

RULES AND REGULATIONS HAVE THE FORCE OF LAW: It is elementary that rules and regulations issued by administrative bodies to interpret the law which they are entrusted to enforce, have the force of law, and are entitled to great respect. Administrative issuances partake of the nature of a statute and have in their favor a presumption of legality. As such, courts cannot ignore administrative issuances especially when, as in this case, its validity was not put in issue. Unless an administrative order is declared invalid, courts have no option but to apply the same. Tests of Delegation (1) COMPLETENESS TEST - what is to be examined: subject matter (what is delegated) scope of the subject matter or measure what job must be done authority (who is to do it) scope of authority

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(2) SUFFICIENT STANDARD TEST - what is to be examined: legislative policy (whereas clauses) specific administrative agency to apply the legislative policy scope of the policy and the circumstances under which it is to be carried out

Eastern Shipping Lines, Inc. vs. POEA, 166 SCRA 533 (1988)

WHAT CAN BE DELEGATED: Legislative discretion as to the substantive contents of the law cannot be delegated. What can be delegated is the discretion to determine how the law may be enforced, not what the law shall be. The ascertainment of the latter subject is a prerogative of the legislature. This prerogative cannot be abdicated or surrendered by the legislature to the delegate. TWO TESTS: There are two accepted tests to determine whether or not there is a valid delegation of legislative power, viz, the completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate the only thing he will have to do is enforce it. Under the sufficient standard test, there must be adequate guidelines or stations in the law to map out the boundaries of the delegates authority and prevent the delegation from running riot. Both tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative. POWER OF SUBORDINATE LEGISLATION: With this power, administrative bodies may implement the broad policies laid down in a statute by filling in the details which the Congress may not have the opportunity or competence to provide. This is effected by their promulgation of what are known as

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supplementary regulations, such as the implementing rules issued by the Department of Labor on the new Labor Code. These regulations have the force and effect of law. ACCEPTED SUFFICIENT STANDARDS: (1) public interest; (2) justice and equity; (3) public convenience and welfare; (4) simplicity, economy and efficiency; (5) sense and experience of men; and (6) national security.

Tatad vs. Secretary of the Department of Energy, 281 SCRA 330 (1997)

The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.

Santiago vs. COMELEC, 270 SCRA 106 (1997)

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is a form of delegation of legislative authority. However, in every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently determinate and determinable to which the delegate must conform in the performance of his functions. A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances which the legislative command is to be effected.

Doctrine of Potestas delegata non delegari potest; Exception Kilusang Mayo Uno Labor Center vs. Garcia, Jr., 239 SCRA 386 (1994) An administrative body may implement broad policies laid down in a statute by filling in the details which the Legislature may neither have time nor competence to provide.

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However, nowhere under the aforesaid provisions of law are the regulatory bodies authorized to delegate that power to a common carrier, a transport operator or other public service. EXCEPTION TO THE EXCEPTION: The authority given by the LTFRB to the provincial bus operators to set a fare range over and above the authorized existing fare is illegal and invalid as it is tantamount to an undue delegation of legislative authority. Potestas delegate non delegari potest. What has been delegated cannot be delegated. This doctrine is based on the ethical principle that such a delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another. A further delegation of such power would indeed constitute a negation of the duty in violation of the trust reposed in the delegate mandated to discharge it directly. The policy of allowing the provincial bus operators to change and increase their fares at will would result not only to a chaotic situation but to an anarchic state of affairs. This would leave the riding public at the mercy of transport operators who may increase fares every hour, every day, every month or every year, whenever it pleases them or whenever they deem it necessary to do so.

American Tobacco Co. vs. Director of Patents, 67 SCRA 287 (1975)

CAN DIRECTOR OF PATENTS DELEGATE A FUNCTION? It has been held that power conferred upon and administrative agency to which the administration of a statute is entrusted to issue such regulations and orders as may be deemed necessary or proper in order to carry out its purposes and provisions may be an adequate source of authority to delegate a particular function, unless by express provisions of the Act or by implication it has been withheld. SUB-DELEGATION OF POWER: A far wider range of delegations to subordinate officers. This sub-delegation of power has been justified by sound principles of organization which demand that those at the top be able to concentrate their attention upon the larger and more-important questions of policy and practice, and their time be freed, so far as possible, from the consideration of the smaller and far less important matters of detail. Thus, it is well-settled that while the power

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to decide resides solely in the administrative agency vested by law, this does not preclude a delegation of the power to hold a hearing on the basis of which the decision of the administrative agency will be made. The rule that requires an administrative officer to exercise his own judgment and discretion does not preclude him from utilizing as a matter of practical administrative procedure, the aid of subordinates to investigate and report to him the facts, on the basis of which the officer makes his decisions. It is sufficient that the judgment and discretion finally exercised are those of the officer authorized by law. There is no abnegation of responsibility on the part of the officer concerned as the actual decision remains with and is made by said officer. It is, however, required that to give the substance of a hearing, which is for the purpose of making determinations upon evidence, the officer who makes the determinations must consider and appraise the evidence which justifies them.

Kinds of Administrative Regulations (Quasi-Legislative) Legislative subordinate legislation; details of the law Interpretative guidelines to the law to be enforced

Q: Why is it important to distinguish between legislative and interpretative rules and regulations? A: It is important to distinguish between the two because the requirements of due process generally apply to one but not to the other. Thus, interpretative rules and regulations do not require notice and hearing or publication for their validity. However, legislative rules may require notice and hearing (1) if the law itself provides that there is a need for observance of due process (e.g. provisional fixing of rate); and (2) if the rule adds burden to the governed. Publication is likewise a condition precedent to the effectivity of legislative rules and regulations, EXCEPT if they are merely internal regulations (e.g. letters of instruction).

Eslao vs. Commission on Audit, 236 SCRA 161 (1994)

COA, under its constitutional mandate, is not authorized to substitute its own judgment for any applicable law or administrative regulation with the wisdom or propriety of which, however, it does not agree, at least not before such law or regulation is set aside by the

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authorized agency of government i.e., the courts as unconstitutional or illegal and void. The COA, like all other government agencies, must respect the presumption of legality and constitutionality to which statutes and administrative regulations are entitled until such statute or regulation is repealed or amended, or until set aside in appropriate case by a competent court and ultimately the Supreme Court.

Commissioner of Internal Revenue vs. CA, 261 SCRA 236 (1996)

LEGISLATIVE v. INTERPRETATIVE RULE: A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. In the same way that laws must have the benefit of public hearing, it is generally required that before a legislative rule is adopted there must be hearing. It should be understandable that when an administrative rule is merely interpretative in nature, its applicability needs nothing further than its bare issuance for it gives no real consequence more than what the law itself has already prescribed. When, upon the other hand, the administrative rule goes beyond merely providing for the means that can facilitate or render least cumbersome the implementation of the law but substantially adds to or increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter to be duly informed, before that new issuance is given the force and effect of law.

Peralta vs. Civil Service Commission, 211 SCRA 425 (1992)

INTERPRETATIVE RULE: When an administrative or executive agency renders an opinion or issues a statement of policy, it merely interprets a pre-existing law; and the administrative interpretation of the law is at best advisory, for it is the courts that finally determine what the law means. It has also been held that interpretative regulations need not be published. ADMINISTRATIVE CONSTRUCTION; EFFECT: Administrative construction is not necessarily binding upon the courts. Action of an

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administrative agency may be disturbed or set aside by the judicial department if there is an error of law, or abuse of power or lack of jurisdiction or grave abuse of discretion clearly conflicting with either the letter or the spirit of a legislative enactment. WHAT IS THE EFFECT OF AN INVALID ADMINISTRATIVE RULE? The general rule vis--vis legislation is that an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed. But it is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such determination is an operative fact and may have consequences which cannot always be ignored.

Melendres vs. COMELEC, 319 SCRA 262 (1999)

It needs to be stressed that the power of administrative agencies to promulgate rules in the implementation of a statute is necessarily limited to what is provided for in the legislative enactment. However, a long line of cases establish the basic rule that courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies. Generally, the interpretation of an administrative government agency, which is tasked to implement a statute, is accorded great respect and ordinarily controls the construction of the courts. However, courts will not hesitate to set aside such executive interpretation when it is clearly erroneous, or when there is no ambiguity in the rule, or when the language or words used are clear and plain or readily understandable to any ordinary reader.

Eastern Telecommunications Philippines, Inc. vs. International Communication Corporation, G.R. No. 135992, Jan. 31, 2006

The interpretation of an agency of its own rules should be given more weight than the interpretation by that agency of the law it is merely tasked to administer. Thus, in cases where the dispute concerns the interpretation by an agency of its own rules, one should apply only these standards: Whether the delegation of power was valid; whether the

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regulation was within that delegation; and if so, whether it was a reasonable regulation under a due process test. Requisites of Valid Administrative Regulations

Authorized by Congress - must have Constitutional or statutory basis Within the scope of authority (must not be ultra vires) - must be in harmony with the spirit and the letter of law Q: Is there a valid administrative rule that conforms only to the spirit of the law but not to its letter? If yes, how do you reconcile this with the rule that administrative issuances should be construed liberally? A: No matter how wise a rule may be, if it is not in harmony with the law, it is invalid. Thus, in People vs. Maceren, the rule was held invalid for the reason that it made punishable an act which the law did not specify as punishable even as the rule conformed to the legislative policy of protecting marine life. This case is peculiar as it involved an administrative issuance which contained a penal provision. As a rule, laws with penal provisions are strictly construed for they subject a person to punishment and sanctions. Anent the rule that administrative issuances should be construed liberally, issuances with penal provisions can be said to be an exception by their very nature. Moreover, while it is true that administrative issuances enjoy the presumption of legality and accorded great respect, it is likewise true the courts may declare them invalid based on grounds such as grave abuse of discretion, lack of jurisdiction, error of law, abuse of power, and clear conflict between the statute and the issuance.

Boie-Takeda Chemicals, Inc. vs. de la Serna, 228 SCRA 329

It is a fundamental rule that implementing rules cannot add to or detract from the provisions of the law it is designed to implement. Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law they are intended to carry into effect. They cannot widen its scope. An administrative agency cannot amend an act of Congress.

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Romulo, Mabana, Buenaventura, Sayoc & de los Angeles vs. Home Development Mutual Fund, 333 SCRA 777 The HDMF cannot, in the exercise of its rule-making power, issue a regulation not consistent with the law it seeks to apply. Indeed, administrative issuances must not override, supplant or modify the law, but must remain consistent with the law they intend to carry out. Only Congress can repeal or amend the law. A department zeal may not be permitted to outrun the authority conferred by the statute.

Observance of Prescribed Procedure: Notice and Hearing Hon. Executive Secretary vs. Southwing Heavy Industries, G.R. No. 164171, Feb. 20, 2006

In order to determine whether the rule has been issued or promulgated in accordance with the prescribed procedure, it is necessary that the nature of the administrative issuance is properly determined. As in the enactment of laws, the general rule is that, the promulgation of administrative issuances requires previous notice and hearing, the only exception being where the legislature itself requires it and mandates that the regulation shall be based on certain facts as determined at an appropriate investigation. This exception pertains to the issuance of legislative rules as distinguished from interpretative rules which give no real consequence more than what the law itself has already prescribed; and are designed merely to provide guidelines to the law which the administrative agency is in charge of enforcing. A legislative rule, on the other hand, is in the nature of subordinate legislation, crafted to implement a primary legislation. When an administrative rule goes beyond merely providing for the means that can facilitate or render less cumbersome the implementation of the law and substantially increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter, to be duly informed, before the issuance is given the force and effect of law.

Philippine Consumers Foundation, Inc. v. Secretary of Education, Culture and Sports, 153 SCRA 622 (1987)

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The function of prescribing rates by an administrative agency may be either a legislative or an adjudicative function. If it were a legislative function, the grant of prior notice and hearing to the affected parties is not a requirement of due process. As regards rates prescribed by an administrative agency in the exercise of its quasi-judicial function, prior notice and hearing are essential to the validity of such rates. QUASI-LEGISLATIVE v. QUASI-JUDICIAL: When the rules and/or rates laid down by an administrative agency are meant to apply to all enterprises of a given kind throughout the country, they may partake of a legislative character. Where the rules and the rates imposed apply exclusively to a particular party, based upon a finding of fact, then its function is quasi-judicial in character. Fair and Reasonable

It is an axiom in administrative law that administrative authorities should not act arbitrarily and capriciously in the issuance of rules and regulations. To be valid, such rules and regulations must be reasonable and fairly adapted to secure the end in view. If shown to bear no reasonable relation to the purposes for which they were authorized to be issued, then they must be held to be invalid. (Hon. Executive Secretary vs. Southwing Heavy Industries) Publication file with UP Law Center 3 certified copies of the rule file or publish with the National Administrative Register

Penal Regulations; Requisites for Validity the law itself must make the violation punishable the law itself must impose and specify the penalty the regulation must be published

Q: What cannot be delegated to the administrative body as regards penal regulations?

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A: The Legislature cannot delegate to the administrative body (1) what acts should constitute a criminal offense and (2) how they shall be punished. Quasi-Judicial Power Meaning and Characteristics of Quasi-Judicial or Adjudicatory Power adjudicatory power involves specific parties exercise of the power is done in a judicial manner exercised by a person or body other than a judge requires notice and hearing set different requirements before going to court when a body is exercising quasi-judicial function, it is co-equal with the RTC

Sanado vs. Court of Appeals, 356 SCRA 546

The action of an administrative agency in granting or denying, or in suspending or revoking, a license, permit, franchise, or certificate of public convenience and necessity is administrative or quasi-judicial. The act is not purely administrative but quasi-judicial or adjudicatory since it is dependent upon the ascertainment of facts by the administrative agency, upon which a decision is to be made and rights and liabilities determined.

PCGG vs. Pena, 159 SCRA 556

FACTS: This is a case about the Presidential Commission on Good Government, created through E.O. 1, charging it with the task of assisting the President in regard to the recovery of all ill-gotten wealth accumulated by the Marcoses, including the power to issue freeze orders or sequestration of all business enterprises owned by them upon showing of a prima facie case.

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March 25, 1986 PCGG issued an order freezing the assets, effects, documents and records of two export garment manufacturing firms: American Inter-fashion Corporation and De Soleil Apparel Manufacturing Corporation. June 27, 1986 PCGG designated the OIC, Saludo, and Yeung Chun Ho as authorized signatories to effect deposits and withdrawals of the funds of the two corporations. Sept. 4, 1986 PCGG designated Yim Kam Shing as cosignatory, in the absence of Yeung Chun Ho and Marcelo de Guzman, in the absence of Saludo. Feb. 3, 1987 Saludo, in a memorandum, revoked the authorizations previously issued upon finding that Mr. Yim Kam Shing was a Hong Kong Chinese national staying in the country on a mere tourist visa. The PCGG Commissioner approved the memorandum. Shortly, thereafter, Saludo withdrew funds from Metrobank against the accounts of the two corporations for payment of the salaries of the stuff. Yeung Chung Kam, Yeung Chun Ho and Archie Chan instituted through Yim Kam Shing an action for damages with prayer for a writ of preliminary injunction against the said bank, PCGG, the Commissioner and OIC Saludo with the RTC, questiong the aforesaid revocation of the authorization as signatory previously granted to Yim Kam Shing. RTC issued TRO. PCGG filed a motion to dismiss with opposition to Yims prayer for a writ of preliminary injunction on the ground that the trial court has no jurisdiction over the Commission or over the subject of the case. RTC judge denied PCGGs motion to dismiss and granted Yims prayer for a writ of preliminary injunction. Hence this petition. ISSUE: Whether or not the RTC has jurisdiction over the PCGG

HELD: The Supreme Court held that RTC and the CA for that matter have no jurisdiction over the PCGG in the exercise of its powers under the applicable Executive Orders and Art. XVIII, sec. 26 of the Constitution and therefore may not interfere with and restrain or set aside the orders and actions of the Commission. Under section 2 of the President's Executive Order No. 14 issued on May 7, 1986, all cases of the Commission regarding "the Funds, Moneys, Assets, and Properties Illegally Acquired or Misappropriated by Former

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President Ferdinand Marcos, Mrs. Imelda Romualdez Marcos, their Close Relatives, Subordinates, Business Associates, Dummies, Agents, or Nominees" 1 whether civil or criminal, are lodged within the "exclusive and original jurisdiction of the Sandiganbayan" 2 and all incidents arising from, incidental to, or related to, such cases necessarily fall likewise under the Sandiganbayan's exclusive and original jurisdiction, subject to review on certiorari exclusively by the Supreme Court. Powers of the PCGG E.O. 1 created PCGG, charging it to assist the President in the recovery of all ill-gotten wealth accumulated by the Marcoses, including sequestration and provisional takeover of all business enterprises owned by them as well as conduct investigations, require submission of evidence by subpoena, administer oaths, punish for contempt. Freedom Constitution (Proc. No. 3) mandated the President to recover ill-gotten properties amassed by the leaders and supporters of the previous regime. Quasi-Judicial Function As can be readily seen, PCGG exercises quasi-judicial functions. In the exercise of quasijudicial functions, the Commission is a co-equal body with regional trial courts and coequal bodies have no power to control the other. However, although under B.P. 129, the CA has exclusive appellate jurisdiction over all final judgmentof regional trial courts and quasi-judicial bodies, E.O. 14 specifically provides in section 2 that "The Presidential Commission on Good Government shall file all such cases, whether civil or criminal, with the Sandiganbayan which shall have exclusive and original jurisdiction thereof." Necessarily, those who wish to question or challenge the Commission's acts or orders in such cases must seek recourse in the same court, the Sandiganbayan, which is vested with exclusive and original jurisdiction. The Sandiganbayan's decisions and final orders are in turn subject to review on certiorari exclusively by this Court. Primary Administrative Jurisdiction and Exhaustion of Administrative Remedies The Court recently had occasion to stress once more, in G.R. No. 82218, Reyes vs. Caneba March 17, 1988, that "(T)he thrust of the related doctrines of primary administrative jurisdiction and exhaustion of administrative remedies is that courts must allow administrative agencies to carry out their functions and discharge their responsibilities within the specialized areas of their respective competence. Acts of an administrative agency must not casually be overturned by a court, and a court should as a rule not

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substitute its judgment for that of the administrative agency acting within the perimeters of its own competence." Applying these fundamental doctrines to the case at bar, the questions and disputes raised by respondents seeking to controvert the Commission's finding of prima facie basis for the issuance of its sequestration orders as well as the interjection of the claims of the predecessor of American Inter-fashion and De Soleil Corporations, viz. Glorious Sun Phil., headed by Nemesis Co are all questions that are within the primary administrative jurisdiction of the Commission that cannot be prematurely brought up to clog the court dockets without first resorting to the exhaustion of the prescribed administrative remedies. The administrative procedure and remedies for contesting orders of sequestration issued by the Commission are provided for in its rules and regulations. Thus, the person against whom a writ of sequestration is directed may request the lifting thereof, in writing; after due hearing or motu proprio for good cause shown, the Commission may lift the writ unconditionally or subject to such conditions as it may deem necessary, taking into consideration the evidence and the circumstances of the case. The resolution of the Commission is appealable to the President of the Philippines. The Commission conducts a hearing, after due notice to the parties concerned to ascertain whether any particular asset, property or enterprise constitutes ill-gotten wealth. The Commission's order of sequestration is not final, at the proper time, the question of ownership of the sequestered properties shall be exclusively determined in the Sandiganbayan, whose own decisions in turn are subject to review exclusively by the Supreme Court. It should be emphasized here, as again stressed by the Court in the recent case of Republic, et al. vs. De los Angeles, et al., G.R. No. L-30240, March 25, 1988, that "it is well-recognized principle that purely administrative and discretionary function may not be interfered with by the courts. In general, courts have no supervising power over the proceedings and actions of the administrative departments of government. This is generally true with respect to acts involving the exercise of judgment or discretion, and findings of fact. There should be no thought of disregarding the traditional line separating judicial and administrative competence, the former being entrusted with the determination of legal questions and the latter being limited as a result of its expertise to the ascertainment of the decisive facts." This is specially true in sequestration cases affected by the Commission for the recovery of the nation' s plundered wealth that may affect the nation's very survival, in the light of the constitutional mandate that such sequestration or freeze orders "shall be issued only upon showing of a prima facie case" 17 and the settled principle that findings by administrative or quasi-judicial agencies like the Commission are entitled to the greatest respect and are practically binding and conclusive, like the factual findings of the trial and appellate courts, save where they are patently arbitrary or capricious or are not supported

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by substantial evidence. United Residents of Dominican Hills vs. Commission on Settlement of Land Problems, 353 SCRA 782 Quasi-judicial function is a term which applies to the actions, discretion, etc. of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature. However, it does not depart from its basic nature as an administrative agency, albeit one that exercises quasi-judicial functions. Still, administrative agencies are not considered courts; they are neither part of the judicial system nor are they deemed judicial tribunals. FACTS: Some 800 public school teachers undertook mass concerted actions to protest the alleged failure of public authorities to act upon their grievances. The mass actions consisted in staying away from their classes, converging at the Liwasang Bonifacio, gathering in peacable assemblies, etc. The Secretary of Education served them with an order to return to work within 24 hours or face dismissal. For failure to heed the return-to-work order, eight teachers at the Ramon Magsaysay High School were administratively charged, preventively suspended for 90 days pursuant to sec. 41, P.D. 807 and temporarily replaced. An investigation committee was consequently formed to hear the charges. When their motion for suspension was denied by the Investigating Committee, said teachers staged a walkout signifying their intent to boycott the entire proceedings. Eventually, Secretary Carino decreed dismissal from service of Esber and the suspension for 9 months of Babaran, Budoy and del Castillo. In the meantime, a case was filed with RTC, raising the issue of violation of the right of the striking teachers to due process of law. The case was eventually elevated to SC. Also in the meantime, the respondent teachers submitted sworn statements to Commission on Human Rights to complain that while they were participating in peaceful mass actions, they suddenly learned of their replacement as teachers, allegedly without notice and consequently for reasons completely unknown to them. While the case was pending with CHR, SC promulgated its resolution over the cases filed with it earlier, upholding the Sec. Carinos act of issuing the return-to-work orders. Despite

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this, CHR continued hearing its case and held that the striking teachers were denied due process of law;they should not have been replaced without a chance to reply to the administrative charges; there had been violation of their civil and political rights which the Commission is empowered to investigate. ISSUE: Whether or not CHR has jurisdiction to try and hear the issues involved

HELD: The threshold question is whether or not the Commission on Human Rights has the power under the Constitution to do so; whether or not, like a court of justice, 19 or even a quasijudicial agency, it has jurisdiction or adjudicatory powers over, or the power to try and decide, or hear and determine, certain specific type of cases, like alleged human rights violations involving civil or political rights. The Court declares the Commission on Human Rights to have no such power; and that it was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter. The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the Commission does not have. Power to Investigate The Constitution clearly and categorically grants to the Commission the power to investigate all forms of human rights violations involving civil and political rights. It can exercise that power on its own initiative or on complaint of any person. It may exercise that

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power pursuant to such rules of procedure as it may adopt and, in cases of violations of said rules, cite for contempt in accordance with the Rules of Court. In the course of any investigation conducted by it or under its authority, it may grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth. It may also request the assistance of any department, bureau, office, or agency in the performance of its functions, in the conduct of its investigation or in extending such remedy as may be required by its findings. But it cannot try and decide cases (or hear and determine causes) as courts of justice, or even quasi-judicial bodies do. To investigate is not to adjudicate or adjudge. Whether in the popular or the technical sense, these terms have well understood and quite distinct meanings. Investigate vs. Adjudicate "Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically. "to search or inquire into: . . . to subject to an official probe . . .: to conduct an official inquiry." The purpose of investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the law to the facts established by the inquiry. The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an investigation," "investigation" being in turn describe as "(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or matters." "Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to a court case) on the merits of issues raised: . . . to pass judgment on: settle judicially: . . . act as judge." And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: . . . to award or grant judicially in a case of controversy . . . ." In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To

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determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn. . . . Implies a judicial determination of a fact, and the entry of a judgment." Hence it is that the Commission on Human Rights, having merely the power "to investigate," cannot and should not "try and resolve on the merits" (adjudicate) the matters involved in Striking Teachers HRC Case No. 90-775, as it has announced it means to do; and it cannot do so even if there be a claim that in the administrative disciplinary proceedings against the teachers in question, initiated and conducted by the DECS, their human rights, or civil or political rights had been transgressed. More particularly, the Commission has no power to "resolve on the merits" the question of (a) whether or not the mass concerted actions engaged in by the teachers constitute and are prohibited or otherwise restricted by law; (b) whether or not the act of carrying on and taking part in those actions, and the failure of the teachers to discontinue those actions, and return to their classes despite the order to this effect by the Secretary of Education, constitute infractions of relevant rules and regulations warranting administrative disciplinary sanctions, or are justified by the grievances complained of by them; and (c) what where the particular acts done by each individual teacher and what sanctions, if any, may properly be imposed for said acts or omissions. Who has Power to Adjudicate? These are matters within the original jurisdiction of the Sec. of Education, being within the scope of the disciplinary powers granted to him under the Civil Service Law, and also, within the appellate jurisdiction of the CSC. Manner of Appeal Now, it is quite obvious that whether or not the conclusions reached by the Secretary of Education in disciplinary cases are correct and are adequately based on substantial evidence; whether or not the proceedings themselves are void or defective in not having accorded the respondents due process; and whether or not the Secretary of Education had in truth committed "human rights violations involving civil and political rights," are matters which may be passed upon and determined through a motion for reconsideration addressed to the Secretary Education himself, and in the event of an adverse verdict, may be reviewed by the Civil Service Commission and eventually the Supreme Court.

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Quasi-judicial power distinguished from judicial power and quasi-legislative power Philippine Consumers Foundation, Inc. vs. Secretary of Education Culture and Sports, 153 SCRA 622 QUASI-LEGISLATIVE v. QUASI-JUDICIAL: When the rules and/or rates laid down by an administrative agency are meant to apply to all enterprises of a given kind throughout the country, they may partake of a legislative character. Where the rules and the rates imposed apply exclusively to a particular party, based upon a finding of fact, then its function is quasi-judicial in character.

Requirements for Valid Exercise (1) Jurisdiction Q: How is jurisdiction determined? A: Jurisdiction is conferred by law and by the Constitution. Thus, in order to determine who has jurisdiction to take cognizance of a case, one only needs to look at the law whether or not it confers jurisdiction on the body. Q: How do you resolve a conflict of jurisdiction between a quasi-judicial body and the court? A: First, determine what the controversy is all about. Is the plaintiff questioning whether an administrative body has a certain power? Or is he questioning how said power was exercised? In the first, the particular law creating the body must be considered in order to determine whether or not the administrative body has authority. If the law has been entrusted to that body for its implementation and such law vests authority in said body, then it has jurisdiction. Upon the other hand, if the case puts in issue, not whether the body has authority, but the questionable manner it is exercised, then the courts have jurisdiction to determine whether or not in the exercise of such powers rights and obligations have been impaired.

Globe Wireless Ltd vs. Public Service Commission, 147 SCRA 269

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Too basic in administrative law to need citation of jurisprudence is the rule that the jurisdiction and powers of administrative agencies are limited to those expressly granted or necessarily implied from those granted in the legislation creating such body; and any order without or beyond such jurisdiction is void and ineffective.

Syquia vs. Board of Power and Water Works, 74 SCRA 212

FACTS: Ruiz, Enriquez and Moses filed 3 separate complaints with Board of Power and Waterworks charging Syquia as administrator of the South Syquia Apartments with the offense of selling electricity without permit or franchise and alleging that Syquia billed them for their electricity consumption in excess of the Meralco rates. In her answer, Syquia questioned the jurisdiction of the Board, saying that she is not engaged in the sale of electric power but merely passes to the apartment tenants as the endusers their legitimate electric current bills in accordance with their lease contracts. ISSUE: Whether or not the Board has jurisdiction

HELD: Respondent board as a regulatory board manifestly exceeded its jurisdiction in taking cognizance of and adjudicating the complaints filed by respondents against petitioner. Respondent board acquired no jurisdiction over petitioner's contractual relations with respondents-complainants as her tenants, since petitioner is not engaged in a public service nor in the sale of electricity without permit or franchise. Respondents' complaints against being charged the additional cost of electricity for common facilities used by the tenants (in addition to those registered in their respective apartment meters) give rise to a question that is purely civil in character that is to be adjudged under the applicable provisions of the Civil Code (not the Public Service Act) and not by the respondent regulatory board which has no jurisdiction but by the regular courts

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of general jurisdiction. Respondent board in resolving the complaints against petitioner and requiring her to absorb the additional rising costs of electricity consumed for the common areas and elevator service even at a resultant loss of P15,000.00 a year arrogated the judicial function. Its orders were beyond its jurisdiction and must be set aside as null and void.

Marino, Jr. vs. Gamilla, G.R. No. 132400, Jan. 31, 2005

HOW JURISDICTION IS DETERMINED: Jurisdiction over a subject matter is conferred by law and determined by the allegations in the complaint and the character of the relief sought, irrespective of whether the plaintiff is entitled to all or some of the claims asserted therein. LIMITED JURISDICTION OF AGENCIES: Administrative agencies are tribunals of limited jurisdiction and as such, can exercise only those powers which are specifically granted to them by their enabling statutes. Consequently, matters over which they are not granted authority are beyond their competence. While the trend is towards vesting administrative bodies with the power to adjudicate matters coming under their particular specialization, to ensure a more knowledgeable solution of the problems submitted to them, this should not deprive the courts of justice their power to decide ordinary cases in accordance with the general laws that do not require any particular expertise or training to interpret and apply.

(2) Due Process Q: What is meant by opportunity to be heard? A: It is the essence of due process. Due process in administrative proceedings includes the opportunity to be heard OR the opportunity to explain ones side OR the opportunity to seek reconsideration UNLESS administrative rules on proceeding do not allow such motion for reconsideration. Thus, an opportunity to be heard does not require physical presence; for as long as the party is provided a remedy with which he can appeal his case or seek relief from an adverse judgment, then due process is complied with.

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Utto vs. COMELEC, 375 SCRA 523 In administrative proceedings, the essence of due process is simply an opportunity to be heard, or an opportunity to explain ones side or opportunity to seek a reconsideration of the action or ruling complained of.

Rivera vs. Civil Service Commission, 240 SCRA 43

MUST NOT ONLY BE IMPARTIAL BUT MUST ALSO APPEAR IMPARTIAL: In order that the review of the decision of a subordinate officer might not turn out to be a face, then reviewing officer must perforce be other than the officer whose decision is under review; otherwise, there could be no different view or there would be no real review of the case. The decision of the reviewing officer would be a biased view; inevitably, it would be the same view since being human, he would not admit that he was mistaken in his first view of the case.

Exceptions to requirements of notice and hearing Summary abatement of nuisance per se Preventive suspension Padlocking of filthy restaurants, theaters, etc. Cancellation of passport of accused Summary distraint and levy Grant of provisional authority

Related Powers Power to promulgate own Rules of Procedures Subpoena Power Contempt Power

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Q: Does an administrative agency have the power to issue subpoena or hold a person in contempt for failure to comply with its order? A: It depends on whether or not the particular administrative agency has the authority to take testimony or evidence under the law it is entrusted to implement. Under the Revised Administrative Code, an agency that has been vested with the authority to take testimony or evidence likewise has the power to subpoena witnesses and require them to submit documents under a subpoena duces tecum. When a witness disregards its orders, the administrative body may also apply for a contempt of court with the court of first instance which has jurisdiction over the case, provided that such body has the burden of proof in showing that it has authority to take testimony or evidence. Q: Does an administrative agency authorized to investigate likewise have the power to issue subpoena and contempt? How do you reconcile this with the rule that administrative agencies can exercise powers expressly provided in the law as well as all those that are necessarily incidental in the exercise thereof? A: It depends. It is true that administrative agencies can exercise powers expressly provided in the law as well as all those necessarily implied in the exercise thereof. However, this rule admits of certain limitations, such as when the administrative agency is only a sub-delegate, in which case, the agency must never go beyond the limits of the function subdelegated upon it by the authority vested by law. Another limitation is where the liberty and property of persons are sought to be brought within the operation of a power claimed to be impliedly granted by an act because it is necessary to its due execution, the case must be clearly seen to be within those intended to be reached. In other words, in order to determine whether the power to investigate includes the subpoena and contempt power, the law or rule vesting such authority must be examined in order to determine the nature and character of the delegation. If it is in the nature of subordinate delegation, then the general rule applies. But if it is merely a sub-delegation of a function by the authority directly vested by law, then it is necessary that the body must not exercise a power beyond that which has been sub-delegated. And finally, the circumstances of the case must be taken in consideration, for where it involves the liberty and property of persons there must be a clear showing that the case is within the scope of the authority vested.

Quantum of Proof Lameyra vs. Pangilinan, 322 SCRA 117

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While it is settled doctrine that findings of fact of an administrative agency must be respected and this Court should not be tasked to weigh once more the evidence submitted before the administrative body, it is axiomatic that such findings of fact should be supported by substantial evidence. PLDT vs. Tiamson, G.R. No. 164684-85, Nov. 11, 2005

FACTUAL FINDINGS BINDING UPON COURTS: It is a settled rule that factual findings of labor officials, who are deemed to have acquired expertise in matters within their respective jurisdictions, are generally accorded not only respect but even finality. Moreover, in a petition for review on certiorari under Rule 45, the Supreme Court reviews only errors of law and not errors of facts. However, where there is divergence in the findings and conclusions of the NLRC, on the one hand, from those of the Labor Arbiter and the Court of Appeals, on the other, the Court is constrained to examine the evidence. BURDEN OF PROOF: In termination cases, the burden of proof rests upon the employer to show that the dismissal is for just and valid cause; failure to do so would necessarily mean that the dismissal was illegal. The employers case succeeds or fails on the strength of its evidence and not on the weakness of the employees defense. If doubt exists between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter. Moreover, the quantum of proof required in determining the legality of an employees dismissal is only substantial evidence. Substantial evidence is more than a mere scintilla of evidence or relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise.

Enforcement and Execution Lapid vs. CA, 174 SCRA 258

Appeal will not stay the award, judgment, final order or resolution unless the law directs otherwise.

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Res judicata in administrative decisions Ocho vs. Calos, 345 SCRA 478 The doctrine of res judicata applies to both judicial and quasi-judicial proceedings. The doctrine actually embraces two concepts: the first is bar by prior judgment and the second is conclusiveness of judgment. The second concept is explained thus: The general rule precluding the relitigation of material facts or questions which were in issue and adjudicated in former action are commonly applied to all matters essentially connected with the subject matter of litigation. Thus it extends to questions necessarily involved in an issue, and necessarily adjudicated, or necessarily implied in the final judgment, although no specific finding may have been made in reference thereto, and although such matters were directly referred to in the pleadings and were not actually or formally presented. Under this rule, if the record of the former trial shows that the judgment could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties, and if a judgment necessarily presupposes certain premises, they are as conclusive as the judgment itself. Reasons for the rule are that a judgment is an adjudication on all the matters which are essential to support it, and that every proposition assumed or decided by the court leading up to the final conclusion upon which such conclusion is based is as effectually passed upon as the ultimate question which is solved.

Quasi-Judicial Power Meaning and Characteristics of Quasi-Judicial or Adjudicatory Power adjudicatory power involves specific parties exercise of the power is done in a judicial manner exercised by a person or body other than a judge requires notice and hearing set different requirements before going to court

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when a body is exercising quasi-judicial function, it is co-equal with the RTC Sanado vs. Court of Appeals, 356 SCRA 546 The action of an administrative agency in granting or denying, or in suspending or revoking, a license, permit, franchise, or certificate of public convenience and necessity is administrative or quasi-judicial. The act is not purely administrative but quasi-judicial or adjudicatory since it is dependent upon the ascertainment of facts by the administrative agency, upon which a decision is to be made and rights and liabilities determined.

PCGG vs. Pena, 159 SCRA 556

FACTS: This is a case about the Presidential Commission on Good Government, created through E.O. 1, charging it with the task of assisting the President in regard to the recovery of all ill-gotten wealth accumulated by the Marcoses, including the power to issue freeze orders or sequestration of all business enterprises owned by them upon showing of a prima facie case. March 25, 1986 PCGG issued an order freezing the assets, effects, documents and records of two export garment manufacturing firms: American Inter-fashion Corporation and De Soleil Apparel Manufacturing Corporation. June 27, 1986 PCGG designated the OIC, Saludo, and Yeung Chun Ho as authorized signatories to effect deposits and withdrawals of the funds of the two corporations. Sept. 4, 1986 PCGG designated Yim Kam Shing as cosignatory, in the absence of Yeung Chun Ho and Marcelo de Guzman, in the absence of Saludo. Feb. 3, 1987 Saludo, in a memorandum, revoked the authorizations previously issued upon finding that Mr. Yim Kam Shing was a Hong Kong Chinese national staying in the country on a mere tourist visa. The PCGG Commissioner approved the memorandum. Shortly, thereafter, Saludo withdrew funds from Metrobank against the accounts of the two corporations for payment of the salaries of the stuff. Yeung Chung Kam, Yeung Chun Ho and Archie Chan instituted through Yim Kam Shing an action for damages with prayer for a writ of preliminary injunction against the said bank, PCGG, the Commissioner and OIC Saludo with the RTC, questiong the aforesaid

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revocation of the authorization as signatory previously granted to Yim Kam Shing. RTC issued TRO. PCGG filed a motion to dismiss with opposition to Yims prayer for a writ of preliminary injunction on the ground that the trial court has no jurisdiction over the Commission or over the subject of the case. RTC judge denied PCGGs motion to dismiss and granted Yims prayer for a writ of preliminary injunction. Hence this petition. ISSUE: Whether or not the RTC has jurisdiction over the PCGG

HELD: The Supreme Court held that RTC and the CA for that matter have no jurisdiction over the PCGG in the exercise of its powers under the applicable Executive Orders and Art. XVIII, sec. 26 of the Constitution and therefore may not interfere with and restrain or set aside the orders and actions of the Commission. Under section 2 of the President's Executive Order No. 14 issued on May 7, 1986, all cases of the Commission regarding "the Funds, Moneys, Assets, and Properties Illegally Acquired or Misappropriated by Former President Ferdinand Marcos, Mrs. Imelda Romualdez Marcos, their Close Relatives, Subordinates, Business Associates, Dummies, Agents, or Nominees" 1 whether civil or criminal, are lodged within the "exclusive and original jurisdiction of the Sandiganbayan" 2 and all incidents arising from, incidental to, or related to, such cases necessarily fall likewise under the Sandiganbayan's exclusive and original jurisdiction, subject to review on certiorari exclusively by the Supreme Court. Powers of the PCGG E.O. 1 created PCGG, charging it to assist the President in the recovery of all ill-gotten wealth accumulated by the Marcoses, including sequestration and provisional takeover of all business enterprises owned by them as well as conduct investigations, require submission of evidence by subpoena, administer oaths, punish for contempt. Freedom Constitution (Proc. No. 3) mandated the President to recover ill-gotten properties amassed by the leaders and supporters of the previous regime.

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Quasi-Judicial Function As can be readily seen, PCGG exercises quasi-judicial functions. In the exercise of quasijudicial functions, the Commission is a co-equal body with regional trial courts and coequal bodies have no power to control the other. However, although under B.P. 129, the CA has exclusive appellate jurisdiction over all final judgmentof regional trial courts and quasi-judicial bodies, E.O. 14 specifically provides in section 2 that "The Presidential Commission on Good Government shall file all such cases, whether civil or criminal, with the Sandiganbayan which shall have exclusive and original jurisdiction thereof." Necessarily, those who wish to question or challenge the Commission's acts or orders in such cases must seek recourse in the same court, the Sandiganbayan, which is vested with exclusive and original jurisdiction. The Sandiganbayan's decisions and final orders are in turn subject to review on certiorari exclusively by this Court. Primary Administrative Jurisdiction and Exhaustion of Administrative Remedies The Court recently had occasion to stress once more, in G.R. No. 82218, Reyes vs. Caneba March 17, 1988, that "(T)he thrust of the related doctrines of primary administrative jurisdiction and exhaustion of administrative remedies is that courts must allow administrative agencies to carry out their functions and discharge their responsibilities within the specialized areas of their respective competence. Acts of an administrative agency must not casually be overturned by a court, and a court should as a rule not substitute its judgment for that of the administrative agency acting within the perimeters of its own competence." Applying these fundamental doctrines to the case at bar, the questions and disputes raised by respondents seeking to controvert the Commission's finding of prima facie basis for the issuance of its sequestration orders as well as the interjection of the claims of the predecessor of American Inter-fashion and De Soleil Corporations, viz. Glorious Sun Phil., headed by Nemesis Co are all questions that are within the primary administrative jurisdiction of the Commission that cannot be prematurely brought up to clog the court dockets without first resorting to the exhaustion of the prescribed administrative remedies. The administrative procedure and remedies for contesting orders of sequestration issued by the Commission are provided for in its rules and regulations. Thus, the person against whom a writ of sequestration is directed may request the lifting thereof, in writing; after due hearing or motu proprio for good cause shown, the Commission may lift the writ unconditionally or subject to such conditions as it may deem necessary, taking into consideration the evidence and the circumstances of the case. The resolution of the Commission is appealable to the President of the Philippines. The Commission conducts a hearing, after due notice to the parties concerned to ascertain

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whether any particular asset, property or enterprise constitutes ill-gotten wealth. The Commission's order of sequestration is not final, at the proper time, the question of ownership of the sequestered properties shall be exclusively determined in the Sandiganbayan, whose own decisions in turn are subject to review exclusively by the Supreme Court. It should be emphasized here, as again stressed by the Court in the recent case of Republic, et al. vs. De los Angeles, et al., G.R. No. L-30240, March 25, 1988, that "it is well-recognized principle that purely administrative and discretionary function may not be interfered with by the courts. In general, courts have no supervising power over the proceedings and actions of the administrative departments of government. This is generally true with respect to acts involving the exercise of judgment or discretion, and findings of fact. There should be no thought of disregarding the traditional line separating judicial and administrative competence, the former being entrusted with the determination of legal questions and the latter being limited as a result of its expertise to the ascertainment of the decisive facts." This is specially true in sequestration cases affected by the Commission for the recovery of the nation' s plundered wealth that may affect the nation's very survival, in the light of the constitutional mandate that such sequestration or freeze orders "shall be issued only upon showing of a prima facie case" 17 and the settled principle that findings by administrative or quasi-judicial agencies like the Commission are entitled to the greatest respect and are practically binding and conclusive, like the factual findings of the trial and appellate courts, save where they are patently arbitrary or capricious or are not supported by substantial evidence.

United Residents of Dominican Hills vs. Commission on Settlement of Land Problems, 353 SCRA 782 Quasi-judicial function is a term which applies to the actions, discretion, etc. of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature. However, it does not depart from its basic nature as an administrative agency, albeit one that exercises quasi-judicial functions. Still, administrative agencies are not considered courts; they are neither part of the judicial system nor are they deemed judicial tribunals. FACTS:

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Some 800 public school teachers undertook mass concerted actions to protest the alleged failure of public authorities to act upon their grievances. The mass actions consisted in staying away from their classes, converging at the Liwasang Bonifacio, gathering in peacable assemblies, etc. The Secretary of Education served them with an order to return to work within 24 hours or face dismissal. For failure to heed the return-to-work order, eight teachers at the Ramon Magsaysay High School were administratively charged, preventively suspended for 90 days pursuant to sec. 41, P.D. 807 and temporarily replaced. An investigation committee was consequently formed to hear the charges. When their motion for suspension was denied by the Investigating Committee, said teachers staged a walkout signifying their intent to boycott the entire proceedings. Eventually, Secretary Carino decreed dismissal from service of Esber and the suspension for 9 months of Babaran, Budoy and del Castillo. In the meantime, a case was filed with RTC, raising the issue of violation of the right of the striking teachers to due process of law. The case was eventually elevated to SC. Also in the meantime, the respondent teachers submitted sworn statements to Commission on Human Rights to complain that while they were participating in peaceful mass actions, they suddenly learned of their replacement as teachers, allegedly without notice and consequently for reasons completely unknown to them. While the case was pending with CHR, SC promulgated its resolution over the cases filed with it earlier, upholding the Sec. Carinos act of issuing the return-to-work orders. Despite this, CHR continued hearing its case and held that the striking teachers were denied due process of law;they should not have been replaced without a chance to reply to the administrative charges; there had been violation of their civil and political rights which the Commission is empowered to investigate. ISSUE: Whether or not CHR has jurisdiction to try and hear the issues involved

HELD: The threshold question is whether or not the Commission on Human Rights has the power under the Constitution to do so; whether or not, like a court of justice, 19 or even a quasijudicial agency, it has jurisdiction or adjudicatory powers over, or the power to try and decide, or hear and determine, certain specific type of cases, like alleged human rights violations involving civil or political rights.

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The Court declares the Commission on Human Rights to have no such power; and that it was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter. The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the Commission does not have. Power to Investigate The Constitution clearly and categorically grants to the Commission the power to investigate all forms of human rights violations involving civil and political rights. It can exercise that power on its own initiative or on complaint of any person. It may exercise that power pursuant to such rules of procedure as it may adopt and, in cases of violations of said rules, cite for contempt in accordance with the Rules of Court. In the course of any investigation conducted by it or under its authority, it may grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth. It may also request the assistance of any department, bureau, office, or agency in the performance of its functions, in the conduct of its investigation or in extending such remedy as may be required by its findings. But it cannot try and decide cases (or hear and determine causes) as courts of justice, or even quasi-judicial bodies do. To investigate is not to adjudicate or adjudge. Whether in the popular or the technical sense, these terms have well understood and quite distinct meanings. Investigate vs. Adjudicate "Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on, study. The dictionary definition of "investigate" is "to observe or study

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closely: inquire into systematically. "to search or inquire into: . . . to subject to an official probe . . .: to conduct an official inquiry." The purpose of investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the law to the facts established by the inquiry. The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an investigation," "investigation" being in turn describe as "(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or matters." "Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to a court case) on the merits of issues raised: . . . to pass judgment on: settle judicially: . . . act as judge." And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: . . . to award or grant judicially in a case of controversy . . . ." In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn. . . . Implies a judicial determination of a fact, and the entry of a judgment." Hence it is that the Commission on Human Rights, having merely the power "to investigate," cannot and should not "try and resolve on the merits" (adjudicate) the matters involved in Striking Teachers HRC Case No. 90-775, as it has announced it means to do; and it cannot do so even if there be a claim that in the administrative disciplinary proceedings against the teachers in question, initiated and conducted by the DECS, their human rights, or civil or political rights had been transgressed. More particularly, the Commission has no power to "resolve on the merits" the question of (a) whether or not the mass concerted actions engaged in by the teachers constitute and are prohibited or otherwise restricted by law; (b) whether or not the act of carrying on and taking part in those actions, and the failure of the teachers to discontinue those actions, and return to their classes despite the order to this effect by the Secretary of Education, constitute infractions of relevant rules and regulations warranting administrative disciplinary

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sanctions, or are justified by the grievances complained of by them; and (c) what where the particular acts done by each individual teacher and what sanctions, if any, may properly be imposed for said acts or omissions. Who has Power to Adjudicate? These are matters within the original jurisdiction of the Sec. of Education, being within the scope of the disciplinary powers granted to him under the Civil Service Law, and also, within the appellate jurisdiction of the CSC. Manner of Appeal Now, it is quite obvious that whether or not the conclusions reached by the Secretary of Education in disciplinary cases are correct and are adequately based on substantial evidence; whether or not the proceedings themselves are void or defective in not having accorded the respondents due process; and whether or not the Secretary of Education had in truth committed "human rights violations involving civil and political rights," are matters which may be passed upon and determined through a motion for reconsideration addressed to the Secretary Education himself, and in the event of an adverse verdict, may be reviewed by the Civil Service Commission and eventually the Supreme Court.

Quasi-judicial power distinguished from judicial power and quasi-legislative power Philippine Consumers Foundation, Inc. vs. Secretary of Education Culture and Sports, 153 SCRA 622

QUASI-LEGISLATIVE v. QUASI-JUDICIAL: When the rules and/or rates laid down by an administrative agency are meant to apply to all enterprises of a given kind throughout the country, they may partake of a legislative character. Where the rules and the rates imposed apply exclusively to a particular party, based upon a finding of fact, then its function is quasi-judicial in character.

Requirements for Valid Exercise (1) Jurisdiction

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Q: How is jurisdiction determined? A: Jurisdiction is conferred by law and by the Constitution. Thus, in order to determine who has jurisdiction to take cognizance of a case, one only needs to look at the law whether or not it confers jurisdiction on the body. Q: How do you resolve a conflict of jurisdiction between a quasi-judicial body and the court? A: First, determine what the controversy is all about. Is the plaintiff questioning whether an administrative body has a certain power? Or is he questioning how said power was exercised? In the first, the particular law creating the body must be considered in order to determine whether or not the administrative body has authority. If the law has been entrusted to that body for its implementation and such law vests authority in said body, then it has jurisdiction. Upon the other hand, if the case puts in issue, not whether the body has authority, but the questionable manner it is exercised, then the courts have jurisdiction to determine whether or not in the exercise of such powers rights and obligations have been impaired.

Globe Wireless Ltd vs. Public Service Commission, 147 SCRA 269

Too basic in administrative law to need citation of jurisprudence is the rule that the jurisdiction and powers of administrative agencies are limited to those expressly granted or necessarily implied from those granted in the legislation creating such body; and any order without or beyond such jurisdiction is void and ineffective.

Syquia vs. Board of Power and Water Works, 74 SCRA 212

FACTS: Ruiz, Enriquez and Moses filed 3 separate complaints with Board of Power and Waterworks charging Syquia as administrator of the South Syquia Apartments with the offense of selling electricity without permit or franchise and alleging that Syquia billed them for their electricity consumption in excess of the Meralco rates. In her answer, Syquia questioned the jurisdiction of the Board, saying that she is not engaged in the sale of electric power but merely passes to the apartment tenants as the end-

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users their legitimate electric current bills in accordance with their lease contracts. ISSUE: Whether or not the Board has jurisdiction HELD: Respondent board as a regulatory board manifestly exceeded its jurisdiction in taking cognizance of and adjudicating the complaints filed by respondents against petitioner. Respondent board acquired no jurisdiction over petitioner's contractual relations with respondents-complainants as her tenants, since petitioner is not engaged in a public service nor in the sale of electricity without permit or franchise. Respondents' complaints against being charged the additional cost of electricity for common facilities used by the tenants (in addition to those registered in their respective apartment meters) give rise to a question that is purely civil in character that is to be adjudged under the applicable provisions of the Civil Code (not the Public Service Act) and not by the respondent regulatory board which has no jurisdiction but by the regular courts of general jurisdiction. Respondent board in resolving the complaints against petitioner and requiring her to absorb the additional rising costs of electricity consumed for the common areas and elevator service even at a resultant loss of P15,000.00 a year arrogated the judicial function. Its orders were beyond its jurisdiction and must be set aside as null and void.

Marino, Jr. vs. Gamilla, G.R. No. 132400, Jan. 31, 2005

HOW JURISDICTION IS DETERMINED: Jurisdiction over a subject matter is conferred by law and determined by the allegations in the complaint and the character of the relief sought, irrespective of whether the plaintiff is entitled to all or some of the claims asserted therein. LIMITED JURISDICTION OF AGENCIES:

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Administrative agencies are tribunals of limited jurisdiction and as such, can exercise only those powers which are specifically granted to them by their enabling statutes. Consequently, matters over which they are not granted authority are beyond their competence. While the trend is towards vesting administrative bodies with the power to adjudicate matters coming under their particular specialization, to ensure a more knowledgeable solution of the problems submitted to them, this should not deprive the courts of justice their power to decide ordinary cases in accordance with the general laws that do not require any particular expertise or training to interpret and apply.

(2) Due Process Q: What is meant by opportunity to be heard? A: It is the essence of due process. Due process in administrative proceedings includes the opportunity to be heard OR the opportunity to explain ones side OR the opportunity to seek reconsideration UNLESS administrative rules on proceeding do not allow such motion for reconsideration. Thus, an opportunity to be heard does not require physical presence; for as long as the party is provided a remedy with which he can appeal his case or seek relief from an adverse judgment, then due process is complied with.

Utto vs. COMELEC, 375 SCRA 523

In administrative proceedings, the essence of due process is simply an opportunity to be heard, or an opportunity to explain ones side or opportunity to seek a reconsideration of the action or ruling complained of.

Rivera vs. Civil Service Commission, 240 SCRA 43

MUST NOT ONLY BE IMPARTIAL BUT MUST ALSO APPEAR IMPARTIAL: In order that the review of the decision of a subordinate officer might not turn out to be a face, then reviewing officer must perforce be other than the officer whose decision is under review; otherwise, there could be no different view or there would be no real review of the case. The decision of the reviewing officer would be a biased view; inevitably, it would be the same view since being human, he would not admit that he was mistaken in his first view of the case.

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Exceptions to requirements of notice and hearing Summary abatement of nuisance per se Preventive suspension Padlocking of filthy restaurants, theaters, etc. Cancellation of passport of accused Summary distraint and levy Grant of provisional authority

Related Powers Power to promulgate own Rules of Procedures Subpoena Power Contempt Power

Q: Does an administrative agency have the power to issue subpoena or hold a person in contempt for failure to comply with its order? A: It depends on whether or not the particular administrative agency has the authority to take testimony or evidence under the law it is entrusted to implement. Under the Revised Administrative Code, an agency that has been vested with the authority to take testimony or evidence likewise has the power to subpoena witnesses and require them to submit documents under a subpoena duces tecum. When a witness disregards its orders, the administrative body may also apply for a contempt of court with the court of first instance which has jurisdiction over the case, provided that such body has the burden of proof in showing that it has authority to take testimony or evidence. Q: Does an administrative agency authorized to investigate likewise have the power to issue subpoena and contempt? How do you reconcile this with the rule that administrative agencies can exercise powers expressly provided in the law as well as all those that are necessarily incidental in the exercise thereof? A: It depends. It is true that administrative agencies can exercise powers expressly

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provided in the law as well as all those necessarily implied in the exercise thereof. However, this rule admits of certain limitations, such as when the administrative agency is only a sub-delegate, in which case, the agency must never go beyond the limits of the function subdelegated upon it by the authority vested by law. Another limitation is where the liberty and property of persons are sought to be brought within the operation of a power claimed to be impliedly granted by an act because it is necessary to its due execution, the case must be clearly seen to be within those intended to be reached. In other words, in order to determine whether the power to investigate includes the subpoena and contempt power, the law or rule vesting such authority must be examined in order to determine the nature and character of the delegation. If it is in the nature of subordinate delegation, then the general rule applies. But if it is merely a sub-delegation of a function by the authority directly vested by law, then it is necessary that the body must not exercise a power beyond that which has been sub-delegated. And finally, the circumstances of the case must be taken in consideration, for where it involves the liberty and property of persons there must be a clear showing that the case is within the scope of the authority vested.

Quantum of Proof Lameyra vs. Pangilinan, 322 SCRA 117 While it is settled doctrine that findings of fact of an administrative agency must be respected and this Court should not be tasked to weigh once more the evidence submitted before the administrative body, it is axiomatic that such findings of fact should be supported by substantial evidence.

PLDT vs. Tiamson, G.R. No. 164684-85, Nov. 11, 2005

FACTUAL FINDINGS BINDING UPON COURTS: It is a settled rule that factual findings of labor officials, who are deemed to have acquired expertise in matters within their respective jurisdictions, are generally accorded not only respect but even finality. Moreover, in a petition for review on certiorari under Rule 45, the Supreme Court reviews only errors of law and not errors of facts. However, where there is divergence in the findings and conclusions of the NLRC, on the one hand, from those of the Labor Arbiter and the Court of Appeals, on the other, the Court is constrained to examine the evidence.

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BURDEN OF PROOF: In termination cases, the burden of proof rests upon the employer to show that the dismissal is for just and valid cause; failure to do so would necessarily mean that the dismissal was illegal. The employers case succeeds or fails on the strength of its evidence and not on the weakness of the employees defense. If doubt exists between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter. Moreover, the quantum of proof required in determining the legality of an employees dismissal is only substantial evidence. Substantial evidence is more than a mere scintilla of evidence or relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise.

Enforcement and Execution Lapid vs. CA, 174 SCRA 258

Appeal will not stay the award, judgment, final order or resolution unless the law directs otherwise.

Res judicata in administrative decisions Ocho vs. Calos, 345 SCRA 478

The doctrine of res judicata applies to both judicial and quasi-judicial proceedings. The doctrine actually embraces two concepts: the first is bar by prior judgment and the second is conclusiveness of judgment. The second concept is explained thus: The general rule precluding the relitigation of material facts or questions which were in issue and adjudicated in former action are commonly applied to all matters essentially connected with the subject matter of litigation. Thus it extends to questions necessarily involved in an issue, and necessarily adjudicated, or necessarily implied in the final judgment, although no specific finding may have been made in reference thereto, and although such matters were directly referred to in the pleadings and were not actually or formally presented. Under this rule, if the record of the former trial shows that the judgment could not have been rendered without deciding the

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particular matter, it will be considered as having settled that matter as to all future actions between the parties, and if a judgment necessarily presupposes certain premises, they are as conclusive as the judgment itself. Reasons for the rule are that a judgment is an adjudication on all the matters which are essential to support it, and that every proposition assumed or decided by the court leading up to the final conclusion upon which such conclusion is based is as effectually passed upon as the ultimate question which is solved.

Mar 23, 2010 Elections: Certificates of Candidacy and Campaign Period Certificates of Candidacy

WHO MAY FILE: citizen registered voter read/write Filipino 1-yr. residence

WHEN TO FILE: not later than the day before the date legally fixed for the beginning of the campaign period (90-45-15) WHERE FILED: Comelec (5 legible copies) HOW FILED: personally filed or by duly authorized representative EFFECT OF FILING (Comelec Resolution No. 6520, Jan. 6, 2004; RA 9006) Prior to Reso. 6520, any elective official running for public office other than the one he is currently holding in permanent capacity is considered ipso facto resigned from his office

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upon filing of the certificate of candidacy. However, after the COMELEC Resolution was passed, elective officials are now no longer deemed resigned should they run for office RA 9006 repealed Sec. 67 but maintained Sec. 66 of the Omnibus Election Code so that now, only appointive officials running for elective office are deemed resigned upon filing of certificate of candidacy

Waiver of permanent resident status in a foreign country

Gayo vs. Verceles, G.R. No. 150477, Feb. 28, 2005

Verceles is running for mayor and was subsequently proclaimed as the winner in that election. Her proclamation was however questioned for the reason that she is a greencard holder and has not complied with the residence requirement. Supreme Court held that when Verceles abandoned her greencard holder status when she surrendered her alien registration receipt card before the Immigration and Naturalization Service of the American Embassy in Manila prior to her filing for certificate of candidacy. Thus, when Verceles filed her certificate of candidacy, she was no longer disqualified to run as an elective official because of such waiver of permanent resident status in a foreign country.

Residence - imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention ELEMENTS OF ACQUISITION OF NEW DOMICILE: residence or bodily presence in the new locality intention to remain there intention to abandon the old domicile - animus manendi + animus non revertendi

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NOTA BENE: The purpose to remain at the domicile of choice must be for an indefinitive period of time; change of residence must be voluntary; and residence at the place chosen for the new domicile must be actual. En Masse Filipinization under the Philippine Bill 1902

Tecson vs. COMELEC, G.R. No. 161434, March 3, 2004

This is a petition to deny due course or to cancel the certificate of candidacy of Fernando Poe Jr. (Ronald Allan Kelley Poe) on ground that he is not a natural-born citizen of the Philippines because his parents were foreigners: Bessie Kelley Poe (American) and Allan Poe (Spanish national, son of Lorenzo Pou who was a Spanish subject). It is their contention that FPJ, being an illegitimate child, follows the citizenship of his mother, who was an American. The Supreme Court held that Lorenzo Pou would have benefited from the en masse Filipinization that the Philippine Bill had effected in 1902; that such citizenship, if acquired, would thereby extend to his son, Allan F. Poe. FPJ, having been born during the effectivity of 1953 Constitution, follows the citizenship of his father who is a Filipino citizen, the law not having made any distinction as to legitimacy of the child.

A beach house is not a place of residence

Tess Dumpit-Michelena vs. Boado, G.R. No. 163619-20, Nov. 17, 2005

Dumpit-Michelena is running for mayor in the municipality of Agoo, La Union. Her disqualification was sought on the claim that she is a resident and was a registered voter of Naguilian and not Agoo, La Union. Dumpit-Michelena countered that she already acquired a new domicile in Agoo when she purchased a residential lot there, designating a caretaker of her house. Supreme Court held that Dumpit-Michelena failed to comply with the 1-yr. residency requirement in the place where she intends to be elected.

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REQUIREMENTS FOR A CHANGE OF DOMICILE: (1) an actual removal or an actual change of domicile; (2) a bona fide intention of abandoning the former place of residence and establishing a new one (3) acts which correspond with the purpose Dumpit-Michelena failed to establish that she has abandoned her former domicile. Evidence shows that her house in Agoo is beach house and a beach house is at most a place of temporary relaxation. It can hardly be considered a place of residence. Moreover, her designation of a caretaker only shows that she does not regularly reside in the place.

DISQUALIFICATIONS (Sec. 68, BP 881) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions committed acts of terrorism to enhance his candidacy spent in his election campaign an amount in excess of that allowed by law solicited, received, or made any prohibited contributions permanent resident of or an immigrant to a foreign country, UNLESS he waives such status

Effect of disqualification: no proclamation of the second placer

Trinidad vs. COMELEC, 315 SCRA 175, G.R. No. 135716

Sunga and Trinidad are both running for mayor in Iguig, Cagayan. Trinidad won so Sunga filed a letter-complaint for disqualification against Trinidad, accusing him of using 3 local government vehicles in his campaign and committing acts of terrorism, threats, intimidation, and other forms of coercion. Sunga also moved that, on account of Trinidads disqualification, he be declared as Mayor. While case is pending final resolution, Trinidads mayoralty term has expired.

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Supreme Court held that the issue has been rendered moot and academic by the expiration of petitioners challenged term of office. Also, Sunga cannot claim any right to the office even if Trinidad was disqualified for the reason that to simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. xxx To allow the private respondent, a defeated and repudiated candidate, to take over the mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the peoples right to elect officials of their choice.

Petition to Deny Due Course or Cancel Certificate of Candidacy (Sec. 78, BP 881; Sec. 5 & 7, RA 6646)

WHO CAN FILE: any party HOW: petition to deny due course or cancel certificate of candidacy under oath WHEN: any time not later than 25 days from filing of certificate of candidacy WHERE: COMELEC must decide the case not later than 15 days before election (period is not mandatory however) EXCLUSIVE GROUND: material misrepresentation

What constitutes material misrepresentation

Salcedo II vs. COMELEC, 312 SCRA 447

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Neptali Salcedo married Agnes Celiz. Without dissolving his first marriage, he married Ermelita Cacao. In the May 11, 1998 elections. Ermelita and Salcedo II both ran for mayor of Sara, Iloilo. Salcedo II filed a petition for cancellation of Cacaos certificate of candidacy on ground of false representation because Ermelita, not being legally married to Neptali, still used the surname Salcedo. The Supreme Court held that the material misrepresentation contemplated by sec. 78 refers to qualifications for elective office, such as citizenship, legal age, residence. The misrepresentation must be so grave that it would prevent the candidate from running, or if elected, from serving, or enough to prosecute him for violation of election laws.

False Representation - deliberate intent to mislead, misinform or hide a fact which would otherwise render a candidate ineligible to run for elective office; intention to deceive the electorate ELEMENTS FALSE REPRESENTATION: Materiality Intention to mislead

REMEDIES AGAINST DISQUALIFIED CANDIDATES Before Election (sec. 78) - petition to deny due course or cancel certificate of candidacy After Election (sec. 253) - petition for quo warranto on ground of ineligibility or disloyalty to the Philippine Republic

Q: What is the effect if the petition to deny due course has been granted? A: If it has already attained final judgment, the election of that candidate is suspended and the votes cast in his favor are not counted. However, if after the election is finished pending resolution of the case, the votes cast in his favor are counted but the COMELEC may suspend the proclamation.

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Nuisance Candidate - a candidate whose filing of the certificate of candidacy has been shown to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrated the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate (Sec. 69, BP 881)

WHO MAY FILE DISQUALIFICATION CASE AGAINST NUISANCE CANDIDATE: Motu propio by the Comelec Verified petition by any registered candidate PROCEDURE (sec. 5, RA 6646) file verified petition within 5 days from last day of filing of certificate of candidacy upon receipt, within 3 days, COMELEC issues summons verified answer within 3 days from receipt of summons hearing (summary in character) - by COMELEC official who is a lawyer; RECOMMENDATION: within 5 days from submission of evidence; DECISION: within 5 days from receipt of recommendation Final and executory after 5 days from receipt by parties of the decision, UNLESS stayed by Supreme Court DISSEMINATION: within 24 hours through the fastest available means

Equal access to opportunity for public service is a privilege subject to limitations

Pamatong vs. COMELEC, G.R. No. 161872, April 13, 2004

Rev. Elly Velez Pamatong ran for president. COMELEC denied due course on ground that

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he is a nuisance candidate: he cannot wage a nationwide campaign and/or not nominated by a political party or not supported by a registered by a political party with a national constituency. Pamatong contended that his right to equal access to opportunity for public service was violated. Supreme Court held that equal access to opportunity for public service is not a constitutional right but a privilege subject to limitations imposed by law. Sec. 26, Art. II neither bestows such a right nor elevates the privilege to an enforceable right. The aforesaid provision forms part of the Declaration of Principles of State Policies, which is generally considered non- self-executing and are merely guidelines for legislative or executive action, and not operative because in the absence of legislation, it lacks proper definition of its effective means and reach. As long as limitations are applied equally without discrimination, the equal access clause is not violated. The rationale is that the State has a compelling interest to ensure that its electoral exercises are rational, objective and orderly. The poll would be bogged by irrelevant minutae covering every step of the electoral process, most probably posed at the instance of these nuisance candidates. Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and need not indulge in their trips to the moon on gossamer wings.

Substitution

Sec. 77, BP 881: Candidates in case of death, disqualification or withdrawal of another If after the last day for the filing of certificate of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. xxxx

Q: Can independent candidates be substituted in any of the instances mentioned above? A: While the law specifically mentions that candidates who are party members may be substituted, the law nevertheless does not expressly prohibit the substitution of independent candidates. The law being silent on the matter, this cannot be perceived as a

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prohibition. Substitution is allowed in barangay elections

Rulloda vs. COMELEC, G.R. No. 154198, Jan. 20, 2003

Romeo Rolluda and Remegio Placido are contending candidates for barangay chairman. Romeo died and his wife (Betty) makes a letter-request to substitute her husband. Betty won but Remegio was declared the barangay captain because Bettys votes were not counted on the ground that her substitution was invalid. The Supreme Court held it is non sequitor to say that sec. 77 allows only substitution in partisan elections. It is Rolludas contention that barangay elections being non-partisan, substitution does not apply. But the Supreme Court said that this would be tantamount to ignoring the purpose of election laws which is to give effect to, rather than frustrate, the will of the voters. In case of doubt, political laws must be so construed as to give life and spirit to the popular mandate freely expressed through the ballot. The absence of provision governing substitution of candidates in barangay elections cant be inferred as a prohibition.

Substitution not allowed when certificate was denied due course

Ong vs. Alegre, G.R. No. 163295, Jan. 23, 2006 Ong (incumbent) and Alegre are both running for mayor. Ongs certificate of candidacy was denied due course on ground of violation of three-term rule. Thus, he was substituted by Romeo Ong. Was the substitution valid? The Supreme Court held that while there is no dispute as to whether or not a nominee of a

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registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under sec. 78 of the Code. Expression unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of sec. 78 of the Code.

NOTA BENE: A person without a valid certificate of candidacy cannot be considered as a candidate, much the same as one who has no certificate of candidacy. And because Ong is not a candidate, then he cannot be substituted because substitution presupposes that the person to be substituted is a candidate.

Campaign and Election Propaganda

Q: What is the campaign period? A: For President, Vice-President and Senators, the period begins 90 days before the day of election. For Congress and other elective officials, it begins 45 days before the day of election. Violation of the period constitutes an election offense.

NOTA BENE: This presupposes that the person is already a candidate i.e. he has filed his certificate of candidacy. But if the person has not yet filed his certificate of candidacy and has started campaigning for votes even though the campaign period has yet to start, this cannot be considered an election offense.

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Automated Election Law, or Republic Act 8436, provides that a person who has filed a certificate of candidacy is not a candidate until the campaign period starts. Penera vs. COMELEC, G.R. No. 181613, November 25, 2009: What the law (RA 8436) says is any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period. The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful.

Q: What is the importance of having a campaign period? A: To provide the candidates with a chance to prepare for the election through partisan political activities that promote the election or defeat of a candidate. Q: What are the limitations as to the manner or conduct of an election campaign? A: Authorized expenses, observance of truth in advertising, and prohibited forms under Sec. 85, BP 881. Q: Do these limitations run counter to freedom of expression? A: Distinguish between the two kinds of limitation of freedom of expression. If the restriction is content-neutral, then the measure of the restriction is some government interest. If the restriction is content-based, then the measure of the restriction is the clearand-present-danger rule. Q: What are the limitations as to extent? A: The amount of money you can spend for the campaign is limited. Each candidate is required to submit a sworn statement of expenses and contribution to the COMELEC within 30 days after the day of the election. If the candidate does not submit, sec. 111 of BP 881 shall stand (the candidate cannot enter into office)

Elections and the Right to Vote Constitutional Basis ART. II, Sec. 1, 1987 Constitution: The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.

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Q:Why make a distinction between democratic and republican? A: There are two kinds of democracy: direct democracy (pure) and indirect democracy (representative/republican). The Philippines follows both forms of democracy republican because the people express their sovereignty through the ballot, voting for candidates who will represent them in government, but also democratic because of initiative and referendum, which express the direct will of the people through plebiscite.

People vs. San Juan, 22 SCRA 505 Each time the enfranchised citizen goes to the polls to assert this sovereign will, that abiding credo of republicanism is translated into living reality. If that will must remain undefiled at the starting level of its expression and application, every assumption must be indulged in and every guarantee adopted to assure the unmolested exercise of the citizens free choice. For to impede, without authority valid in law, the free and orderly exercise of the right of suffrage is to inflict the ultimate indignity on the democratic process. As numerous as they are insidious are long-standing techniques of terror and intimidation that have been conceived by man in derogation of the right of suffrage which we have repeatedly and unqualifiedly condemned. When the legislature provided in section 133 of the Revised Election Code an explicit and unequivocal guarantee of a voters free access to the polling place, it could have intended no purpose other than to maintain inviolate the right to vote by safeguarding the voter against all manner of unauthorized interference and travesty that surveyors of fear can devise. Every unlawful obstacle, by whatever means or method, interposed to the free entry of a voter into the polling place to cast his vote, strikes at the very heart of the right of suffrage.

Philosophical Bases

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Punos Separate Opinion, Macalintal vs. COMELEC, G.R. No. 157013, July 10, 2003 PLATO - rejected democracy as tyranny of the majority (numerical superiority) and supported the philosopher-king rule ARISTOTLE - democracy is desirable but only under certain conditions and of the upper class; will of the enlightened many INDUSTRIAL REVOLUTION - social contract theory; the people exercise their sovereignty and creates a government to which they consent

Who May Exercise the Right to Vote

ART. V, Sec. 1, 1987 Constitution: Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.

Qualifications

Punos Dissenting Opinion, Tolentino v. COMELEC, G.R. No. 148334, Jan. 21, 2004

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Citizenship - Suffrage is a political right appertaining to citizenship; reserved only to Filipinos whose allegiance to the country are undivided; each individual qualified to vote is a particle of popular sovereignty Age (18 years) - Voting is an act of choice and involves prescience; familiarity and maturity Residence - For the vote to be more meaningful, more than a passing acquaintance with the countrys problems and prospects is required One year residence in the Philippines - refers to domicile, the place to which whenever absent for business or for pleasure, one intends to return ELEMENTS OF DOMICILE: Physical presence Animus manendi (intent to return permanently) Six months residence in the place where one intends to vote - refers to temporary domicile PURPOSE OF 6-MONTH RESIDENCY: Determine the place where the voter will register Determine the place where voter will vote

CLASSES OF DOMICILE: Domicile of Origin - place of birth Domicile of Choice - replace the domicile of origin Domicile by Operation of Law - applies to infants, incompetents and other persons under disabilities that prevent them from acquiring a domicile of choice

Electoral System

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- free and open party system; distinguished from a multi-party system because in free and open party system, a unicameral or bicameral system is possible (ART. IX (c) (6), Sec. 6, 1987 Constitution) OTHER MODES OF DEMOCRACY

Plebiscite - a system by which the people exercise their sovereignty by approving or rejecting any amendments or revisions of the Constitution prepared by the legislative Initiative - power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose REQUISITES FOR AMENDMENTS TO THE CONSTITUTION BY INITIATIVE: The people must author and thus sign the entire proposal As an initiative upon a petition, the proposal must be embodied in a petition

Referendum - power of the electorate to approve or reject legislation Amendment - changing a few provisions of the Constitution WHO MAY AMEND THE CONSTITUTION: Constitutional convention Constitutional assembly (Congress) People on Initiative

Revision - a total overhaul of the Constitution; changing the substance

Peoples initiative: the amendment must be directly proposed by the people

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Lambino vs. COMELEC, G.R. No. 174153, Oct. 25, 2006 (read digest) An initiative petition is filed to change the 1987 Constitution, among such proposed changes is to shift the present Bicameral-Presidential system to Unicameral-Parliamentary form of government. The Supreme Court denied the petition on ground of failure to comply with the basic requirements of the Constitution for conducting a peoples initiative: the amendment must be directly proposed by the people through initiative upon a petition. Clearly, the framers of the Constitution intended that the draft of the proposed constitutional amendment should be ready and shown to the people before they sign such proposal. xxx The framers also envisioned that the people should sign on the proposal itself because the proponents must prepare that proposal and pass it around for signature. 2 ELEMENTS: (1) The people must author and thus sign the entire proposal. (2) As an initiative upon a petition, the proposal must be embodied in a petition. xxx Thus, an amendment is directly proposed by the people through initiative upon a petition only if the people sign on a petition that contains the full text of the proposed amendments.

ELECTION PROCESS AND/OR PROCEEDINGS

Registration of Voters (System of Continuing Registration) WHEN: daily during office hours; at the office of the Election Officer; personally file application to register as voter; no registration 120 days before regular elections and 90 days before special elections (Sec. 1, RA 8189) WHO MAY REGISTER: (Sec. 8, RA 8189) citizens not otherwise disqualified by law

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1-yr. Residence in the Philippines 6-mo. Residence in the place where one will vote DISQUALIFICATIONS: Sentenced by final judgment to suffer imprisonment of not less than 1 yr. (Auto-reacquire right to register upon expiration of 5 yrs. after service) Sentenced by final judgment of crime involving disloyalty to the duly constituted government (rebellion, sedition, violation of firearms laws, crimes against national security, etc.; auto-reacquire upon expiration of 5 yrs. after service) Insane or incompetent person

Challenges to Right to Register (sec. 18, RA 8189) Q: Are there limitations to a persons right to register? A: Yes. The right to register to vote is not an absolute right but more of a privilege with limitations imposed by law. The COMELEC may motu propio or upon application of any voter challenging the right to register deny a persons registration application. The Court (MTC), through inclusion or exclusion proceedings, may also limit a persons right to register. WHO CAN CHALLENGE: any voter, candidate or representative of a registered political party WHAT: challenge to right to register in writing, under oath, attached to the application together with proof of notice of hearing to the challenger and applicant

Exclusion and Inclusion Proceedings (Sec. 33) WHERE: MTC (EOJ), who shall determine the right of voter to be included or excluded in the list; decide within 10 days APPEAL: within 5 days from judgment to the RTC who shall decide the issue within 10

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days NO MOTION FOR RECONSIDERATION (Summary) PROCEDURE: (Sec. 32) file during office hours notice of place, date, time of hearing to the Board and the challenged voter refer to one precinct and Board impleaded as respondent no costs, EXCEPT: if it is found that the case was filed to harass the adverse party if the ground for challenging right to register is the person is fictitious, the non-appearance of such person said to be fictitious shall be considered as prima facie evidence decide within 10 days for both MTC and RTC upon appeal; should not be later than 15 days before the election

Nature and effect of proceedings: No Res Judicata

Domino vs. COMELEC, G.R. No. 134015, July 19, 1999

Domino is running for representative of Province of Sarangani but is disqualified for lack of compliance with the 1-yr. residence requirement. Before this, Domino was declared by the Metropolitan Trial Court of Quezon City in an exclusion proceedings that he was a resident of Sarangani and not of Quezon City. Domino contends that the MTC decision is conclusive upon the COMELEC. But the Supreme Court held otherwise because any fact established in an inclusion or exclusion proceedings only applies to that election and not to elections thereafter held. The decision of the MTC does not preclude the COMELEC, in the determination of the candidates qualification, to pass upon the issue of compliance with the residency requirement. The proceedings for the exclusion or inclusion of voters in the list of voters are summary in

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character. xxx Although the court in inclusion or exclusion proceedings may pass upon any question necessary to decide the issue raised including the question of citizenship and residence of the challenged voter, the authority to order the inclusion or exclusion from the list of voters necessarily carries with it the power to inquire into and settle all matters essential to the exercise of said authority. However, except for the right to remain in the list of voters or for being excluded therefrom for the particular election in relation to which the proceedings had been held, a decision in an exclusion or inclusion proceeding, even if final and unappealable, does not acquire the nature of res judicata. In this sense, it does not operate as a bar to any further action that a party may take concerning the subject passed upon in the proceeding. Thus, a decision in an exclusion proceeding would neither be conclusive on the voters political status, nor bar subsequent proceedings on his right to be registered as a voter in any other election.

Mar 24, 2010 Elections: Pre-Proclamation Controversy

Sec. 241, B.P. 881: A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233 (delayed lost or destroyed), 234 (material defects), 235 (tampering or falsification) and 236 (discrepancies in election returns) in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.

Q: When is a pre-proclamation case allowed? A: It is allowed in cases involving elective provincial, city or municipal officers. Preproclamation cases in elections for President, Vice-, Senator, Congressman and Party-List are not allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or certificates of canvass. But the canvassing board may correct manifest errors in the Certificates of Canvass or Election Returns, motu propio or

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upon verified petition of an interested person. (sec. 15, R.A. 7166) WHO CAN FILE: candidate, registered political party or coalition WHERE FILED: Board of Canvassers or COMELEC in division

Is the COMELEC in a pre-proclamation case allowed to go beyond the face of the election returns?

Belac v. COMELEC, G.R. No. 145802, April 4, 2001 The Supreme Court held that Diasens petition pertains to a pre-proclamation controversy. Specifically, it alleges that the votes for petitioner Belac were all padded through Operation Dagdag; the election returns for him (Diasen) was tampered, falsified and manufactured; and that the election returns were already prepared even before the counting of votes. But Diasen did not say that the alleged irregularities appear on the face of the election returns. Obviously, they came from external sources and, therefore, not manifest on the election returns. In a pre-proclamation controversy, the COMELEC, as a rule, is restricted to an examination of the election returns and is without jurisdiction to go beyond or behind them and investigate election irregularities. The prevailing doctrine is that as long as the returns appear to be authentic and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting or the counting of the votes. The reason is that determination of the result of the election must be arrived at as quickly as possible on the basis of the canvass. A party seeking to raise issues resolution of which would compel or necessitate COMELEC to pierce the veil of election returns, which appear prima facie regular on their face, has his proper remedy in a regular election protest. By their very nature, and given the obvious public interest in the speedy determination of the results of elections, pre-proclamation controversies are to be resolved in summary proceedings without the need to present

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evidence aliunde and certainly without having to go through voluminous documents and subjecting them to meticulous technical examinations which take up considerable time. Issues That May Be Raised

Sec. 243, B.P. 881: The following shall be proper issues that may be raised in a preproclamation controversy: Illegal composition or proceedings of the board of canvassers: When majority or all members of the canvassing Board do not hold legal appointments or are in fact usurpers When the canvassing has been a mere ceremony that was pre-determined and manipulated to result in nothing but a sham canvassing as were: (1) there was convergence of circumstances of precipitate canvassing; (2) there was terrorism; (3) there was lack of sufficient notice to the members of the canvassing Board; (4) disregard of manifest irregularities on the face of the questioned returns/certificates in appropriate cases The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235, and 236 of this Code The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.

Q: May there be other issues which may be properly subjects of a pre-proclamation controversy? A: No, because the enumeration under sec. 243 is restrictive and exclusive. NEVERTHELESS, the Commission has authority to correct manifest errors in the tabulation or tallying of the results during the canvassing and such errors could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of the winning candidate had already been made (filed directly with the COMELEC en banc not later than 5 days from date of proclamation, impleading all

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candidates who may be adversely affected). HOWEVER if the manifest error was discovered before proclamation during canvassing, then its correction may be filed with the canvassing Board. Q: What issues must be raised with the Board at the first instance and not directly with the COMELEC? A: Matters raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the elections returns.

WHEN PRE-PROCLAMATION CONTROVERSIES FILED DIRECTLY WITH COMELEC Canvassing Board begins to act as such At the time of the appointment of the member whose capacity to sit as such is objected to if it comes after the canvassing of the board Immediately at the point where the proceedings are or begin to be illegal. In which case, the canvassing board shall not commence, proceed or resume the canvass unless otherwise ordered by the COMELEC

WHEN TO FILE WITH THE BOARD Canvassing board begins to act as such Immediately at the point where the proceedings are or begin to be illegal

NOTA BENE: If an appeal from the ruling of the Board is taken to the COMELEC, the canvass shall be immediately suspended during pendency of appeal until the COMELEC orders continuation or resumption.

PROCEDURE BEFORE CANVASSING BOARD ON GROUND OF ILLEGAL COMPOSITION/PROCEEDING: Make a ruling, with notice to the petitioner, within 24 hours from the filing of the petition

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Appeal to the COMELEC within 3 days after the ruling with proper notice to the canvassing Board Hearing by COMELEC en banc with due notice to the parties Decide the case within 5 days from filing thereof

Defects in form not a ground for pre-proclamation controversy

Bandala vs. COMELEC, G.R. No. 159369, March 7, 2000

The absence of inner paper seals, although illegal, the paper seals being required in the conduct of proper canvassing of election returns, is not a proper subject of preproclamation controversies because such absence does not affect the authenticity or genuineness of the subject election returns. They are merely defects in form which do not warrant the exclusion of the questioned returns.

Excluded Issues No exclusion if returns are regular on its face

Ocampo vs. COMELEC, G.R. No. 136282, Feb. 15, 2000 To check and double check if it were true that the contested election returns were tampered with, altered or falsified, the COMELEC en banc examined two separate copies of the election returns: (1) the copy for the Municipal Board of Canvassers and (2) the COMELEC copy, and found that the defects alleged are merely formal defects. Specifically, the findings are as follows:

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no number of registered voters in the precinct, actual number of votes cast and number of valid votes cast: formal defect is not a ground for exclusion no thumb mark of the chairman on page 4 and of members of the board of election inspectors on page 3 of the election returns: a mere oversight that did not vitiate the validity of the votes nor destroy the integrity of the election return one missing vote with 153 voters who actually voted and one candidate receiving 152 votes but zero for the other candidate: this does not necessarily mean that 1 vote is missing because it could also mean that one voter desisted from casting his vote or may have voted but his vote was not credited because it was stray or just illegible; not a ground for exclusion

That the election returns were obviously manufactured must be evident from the face of said documents. In the absence of strong evidence establishing spuriousness of the returns, the basic rule that the election returns shall be accorded prima facie status as bona fide reports of the results of the count of the votes for canvassing and proclamation purposes must perforce prevail. The bare fact that candidates for public office had received zero votes is not enough to make the returns statistically improbable. For as long as the election returns which on their face appear regular and wanting of any physical signs of tampering, alteration or other similar vice, such election returns cannot just be unjustifiably excluded. To look beyond or behind these returns is not a proper issue in a pre-proclamation controversy as in the case at bar.

Comelec may rule on manner of preparation of the returns, but no exclusion, just recounting if integrity of ballots was violated

Dagloc vs. COMELEC, G.R. No. 154442-47, Dec. 10, 2003

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Dagloc is questioning the ruling of the COMELEC en banc to exclude certain election returns for being spurious due in part to the alleged disqualification of some members of the board of election inspectors (BEI) and that the BEI committed illegal acts, such that the votes reported in the subject returns do not reflect the true will of the electorate. However, in arriving at the resolution, the COMELEC en banc also gave great weight to the affidavit of the BEI members which were supposed to prove the regularity of the BEIs assigned task. The COMELEC en banc found that these affidavits lacked signatures of the BEI members. The Supreme Court held that pre-proclamation controversies are limited to: (1) challenges directed against the composition or proceedings of the board of canvassers (not the BEI), or (2) challenges related to election returns to which a party must have made specific objections. This case falls under the second category (2) and that the COMELEC en bancs findings on the nine election returns are anchored on the manner of their preparation, which it found to be a sham. This ground is a pre-proclamation issue under sec. 241 and 243 in relation to sec. 235. Furthermore, the doctrine that as long as the returns appear to be authentic, and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting and counting of the votes, is not applicable in this case due to the following reasons: (1) the COMELEC has authority to review the rulings of the Board of Canvassers in a pre-proclamation controversy; (2) the COMELEC en banc found that the nine election returns are fraudulent in the manner of their preparation; and (3) the allegations of irregularity is not in the casting and counting of votes but in the preparation of the election returns (tampered, falsified and were prepared under duress, threats, coercion and intimidation). Given this factual finding, doubt is cast on the authentic appearance of said returns. Hence, the subject election returns cannot be accorded prima facie status as genuine reports of the results of the counts of votes. However, the proper remedy in case of spurious election returns is not outright exclusion on the ground that they were fraudulently prepared by some members or non-members of the BEI. Doing so would disenfranchise the voters. What the COMELEC should have done is to ascertain whether the integrity of the ballots was violated. If it was not, then a recounting of ballots is in order and Board will use new returns. If it was violated, then the COMELEC need not recount but should seal the ballot box and order its safekeeping.

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COMELEC has no jurisdiction over pre-proclamation controversies in presidential, vicepresidential, senatorial and congressional elections; Correction of Manifest Error in the Statement of Votes may be filed directly with COMELEC en banc

Sandoval vs. COMELEC, G.R. No. 133842, Jan. 26, 2000

The case involves the elective office of congressman of one legislative district, which is contested on the ground of manifest error arising from the non-inclusion of 19 election returns in the canvass, thus making the same incomplete. While the COMELEC has exclusive jurisdiction over all pre-proclamation controversies, the exception to the general rule can be found under sec. 15 of RA 7166 which prohibits candidates in the presidential, vice-presidential, senatorial and congressional elections from filing pre-proclamation cases. The prohibition aims to avoid delay in the proclamation of the winner in the election, which delay might result in a vacuum in these sensitive posts. The law, nonetheless, provides an exception to the exception. The second sentence of Sec. 15 allows the filing of petitions for correction of manifest errors in the certificate of canvass or election returns even in elections for president, vice-president and members of the House for the simple reason that the correction of manifest error will not prolong the process of canvassing nor delay the proclamation of the winner in the election. Correction of a manifest error in the Statement of Votes may be filed directly with the COMELEC en banc (rule 27, sec. 5, 1993 Rules of the COMELEC). This is another exception to the rule that pre-proclamation controversies must first be heard and decided by a division of the Commission. In determination of the case, the COMELEC must observe due process of law since this involves the exercise of its quasi-judicial power.

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GROUNDS FOR CORRECTION OF MANIFEST ERRORS IN THE TABULATION/TALLYING OF RESULTS DURING CANVASSING: Where a copy of the election returns or certificate of canvass was tabulated more than once Where two or more copies of the election returns of one precinct were tabulated separately Where there was a mistake in the copying of the figures from the election returns to the statement of votes by precinct or from the municipal/city Certificate of Canvass to the Statement of Votes by municipality; or from the Provincial/City Certificate of Canvass to the Statement of Votes by province/city Where there was a mistake in the addition of the votes of any candidate

PROCEDURE BEFORE THE CANVASSING BOARD: Correct the manifest errors motu propio or upon verified petition by any candidate, political party, organization, coalition, after due notice and hearing Order of promulgation which must be in writing Appeal to the COMELEC within 24 hours from the promulgation No proclamation of winning candidate during pendency of appeal, UNLESS the votes are not affected by the appeal Appeal must implead as respondents the canvassing Board and all parties who may be adversely affected Clerk of Court of COMELEC issues summons, with copy of the appeal to the respondents Clerk sets appeal for hearing COMELEC decides en banc

Distinguished from Other Remedies

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Pre-proclamation controversy vs. Failure of Election Ampatuan vs. COMELEC, G.R. No. 149803, Jan. 31, 2002 This case involves the election of provincial officials which are claimed to be completely sham and farcical. The ballots were filled up en masse by a few persons the night before election day, and in some precincts, the ballot boxes, official ballots and other election paraphernalia were not delivered at all. There was also an allegation of massive fraud and terrorism. Consequently, a petition with the COMELEC for the annulment of election results and/or declaration of failure of elections was filed. The question is whether or not declaration of failure of elections is the proper remedy. The Supreme Court ruled that a pre-proclamation controversy is not the same as an action for annulment of election results or failure of elections. While, however, the COMELEC is restricted, in pre-proclamation cases, to an examination of the election returns on their face and is without jurisdiction to go beyond or behind them and investigate election irregularities, the COMELEC is duty bound to investigate allegations of fraud, terrorism, violence, and other analogous causes in actions for annulment of election results or for declaration of failure of elections. Thus, the COMELEC, in the case of actions for annulment of election returns or declaration of failure of elections, may conduct technical examination of election documents and compare and analyze voters signature and thumbprints in order to determine whether or not the elections had indeed been free, honest and clean. In this case, the proper remedy was annulment of election results and/or declaration of failure of elections which is cognizable under the exclusive jurisdiction of the COMELEC.

Pre-proclamation Controversy vs. Election Contest

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Sarangani vs. COMELEC, G.R. No. 155560-62, Nov. 11, 2003 This case involves two rulings of the Provincial Board of Canvassers, signed by only two of its members. The rulings excluded Certificates of Canvass from the municipalities of Wao and Bubong on the ground that they were manufactured and falsified. Consequently, the COMELEC directed an investigation to be conducted on the two members of the Provincial Board of Canvassers for any culpable violation of the election laws which they might have committed by the following acts: (1) their failure to appear on the scheduled hearings/meetings in the instant cases after the suspension of the canvass despite their assurances and legal duty to do so; (2) their having issued the alleged written rulings excluding the COCs from Wao and Bubong without giving the Vice-Chairman the opportunity to participate and take part in the deliberations; and (3) their unprecedented act of deliberating and/or issuing the written rulings by themselves and of clandestinely submitting or turning over the said rulings to the Office of the COMELEC Secretary for promulgation without setting any hearing or giving notice to the Vice-Chairman and/or to the herein parties. The Supreme Court upheld the findings of the COMELEC during its investigation that the alleged tampering and falsification in the Certificates of Canvass were duly accounted for and did not affect the integrity of the ballot. In a pre-proclamation controversy, the board of canvassers and the COMELEC are not required to look beyond or behind the election returns which are on their face regular and authentic. Where a party seeks to raise issues the resolution on which would necessitate the COMELEC to pierce the veil of election returns which are prima facie regular, the proper remedy would be a regular election protest and not a pre-proclamation controversy.

Pre-proclamation Controversy is summary in nature

Lucman vs. COMELEC, G.R. No. 166229, June 29, 1995

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In this case, the objections initially raised before the Municipal Board of Canvassers were proper in a pre-proclamation controversy, i.e. the election returns are obviously manufactured and/or falsified, it is not authentic, it contains alterations. However, in the appeal to the COMELEC, it was further alleged that the elections held in the precincts were tainted with massive election irregularities, such as massive substitution of voters, snatching of ballots from the voters and filling them (ballots) up against the will of the voters by force or coercion, threats, intimidation, casting of votes by double registrants in the same precincts and flying voters. These allegations pertain not only to the preparation, transmission, receipt, custody and appreciation of the election returns, but to the conduct of the elections as well. Pre-proclamation controversies are limited to challenges directed against the Board of Canvassers and proceedings before said Board relating to particular election returns to which private respondent should have made specific verbal objections subsequently reduced to writing. A pre-proclamation controversy is limited to an examination of the election returns on their face. It is beyond the COMELECs jurisdiction to go beyond the face of the returns or investigate election irregularities. The proceedings in a pre-proclamation controversy are summary in nature. Reception of evidence aliunde is proscribed. Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular, on their face, are anathema to a pre-proclamation controversy. Such issues should be posed and resolved in a regular election protest, which is within the original jurisdiction of the Regional Trial Court. In a regular election protest, the parties may litigate all the legal and factual issues raised by them inasmuch detail as they may deem necessary or appropriate.

Procedure for Raising Objections

Sec. 20, RA 7166: Procedure in Disposition of Contested Election Returns. (a) Any candidate, political party or coalition of political parties contesting the inclusion or exclusion in the canvass of any election returns on any of the grounds authorized under Article XX or Sections 234, 235 and 236 of Article XIX of the Omnibus Election Code shall

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submit their oral objection to the chairman of the board of canvassers at the time the questioned return is presented for inclusion in the canvass. Such objection shall be recorded in the minutes of the canvass. (b) Upon receipts of any such objection, the board of canvassers shall automatically defer the canvass of the contested returns (also indicate the date and time of receipt) and shall proceed to canvass the returns which are not contested by any party (i.e. the votes for President, Vice-, Senators, Congressmen and party-list). (c) Simultaneous with the oral objection, the objecting party shall also enter his objection in the form for written objections to be prescribed by the Commission. Within twenty-four (24) hours from and after the presentation of such an objection, the objecting party shall submit the evidence in support of the objection, which shall be attached to the form for written objections. Within the same period of twenty-four (24) hours after presentation of the objection, any party may file a written and verified opposition to the objection in the form also to be prescribed by the Commission, attaching thereto supporting evidence, if any. The board shall not entertain any objection or opposition unless reduced to writing in the prescribed forms. The evidence attached to the objection or opposition, submitted by the parties, shall be immediately and formally admitted into the records of the board by the chairman affixing his signature at the back of each and every page thereof. (d) Upon receipt of the evidence, the board shall keep up the contested returns, consider the written objections thereto and opposition, if any, and summarily and immediately rules thereon. The board shall enter its ruling on the prescribed form and authenticate the same by the signatures of its members. (e) Any part adversely affected by the ruling of the board shall immediately inform the board if he intends to appeal said ruling. The board shall enter said information in the minutes of the canvass, set aside the returns and proceed to consider the other returns. (f) After all the uncontested returns have been canvassed and the contested return ruled upon by it, the board shall suspend the canvass. Within forty-eight (48) hours, therefrom, any party adversely affected by the ruling may file with the board a written and verified notice of appeal; and within an unextendible period of five (5) days thereafter an appeal may be taken to the Commission.

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(g) Immediately upon receipt of the notice of appeal, the board shall make an appropriate report to the Commission, elevating therewith the complete records and evidence submitted in the canvass, and furnishing the parties with copies of the report. (h) On the basis of the record and evidence elevate to it by the board, the Commission shall decide summarily the appeal within seven (7) days from receipt of said record and evidence. Any appeal brought before the Commission on the ruling of the board, without the accomplished forms and the evidence appended thereto, shall be summarily dismissed. The decision of the Commission shall be executory after the lapse of seven (7) days from receipts thereof by the losing party. (i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the object brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election.

Q: What remedy does one have if a proclamation is made pending pre-proclamation petition/appeal? A: A petition to annul proclamation filed with the COMELEC. Q: What is the remedy if the pre-proclamation petition/appeal is finally dismissed by the COMELEC and the opposing candidate is proclaimed? A: Election protest filed within 10 days from the date of proclamation.

Oct 15, 2008 Jurisdiction in Labor Cases SOLE

- OJ:

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Industry indispensable to national interest (Art. 263(g), LC) Subsumed LA cases requiring expeditious resolution (Sec. 3(c), Rule VIII, NLRC Rules) Visitorial and Enforcement Power (compliance order) (Art. 128) - AJ: RD Visitorial and Enforcement Power (compliance order) (Art. 128, LC) MA Petition for Certification Election (Art. 259, LC) BLRD (EOJ) Registration and cancellation of registration of labor organization (Sec. 6, Rule IV, D.O. No. 40-03) SC (Review 45 [15d]) CA (Certiorari 65 [60d]) MFR

NLRC - OJ: Cases certified by the SOLE TRO/Injunction against prohibited acts (Art. 218(e), LC) or enjoining acts in labor disputes (Art. 264, LC) - AJ: RD/AHO Small money claims not exceeding P5,000 without claim for reinstatement (Art. 129, LC) LA (Art. 217 (b) and Art. 233, LC)

SC (Review 45 [15d]) CA (Certiorari 65 [60d]) MFR

VA - EOJ: Grievances arising from interpretation and implementation of CBA

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Grievances arising from the interpretation and implementation of company personnel policies - OTHER: All other disputes submitted by both parties for voluntary arbitration CA (Appeal 43 [15d])

LA Unfair labor practice Termination disputes When accompanied by a claim for reinstatement, all controversies filed by workers concerning wages, rates of pay, hours of work and other terms and conditions of employment All claims for actual, moral, exemplary and other forms of damages arising out of an employer-employee relationship Except Employees Compensation, social security, medicare and maternity benefits, all money claims arising from an employer-employee relationship, including household and domestic services, in an amount exceeding P5,000, regardless of whether or not it is accompanied by a claim for reinstatement Cases involving the violation of Art. 264 or the commission of prohibited acts, including the legality of strikes and lockout (except if certified/assumed by SOLE) Money claims and termination disputes of Overseas Filipino Workers (RA 8042, July 15, 1995) NO MFR (any MFR filed shall be treated as an appeal) NLRC (Appeal [10cd]) but reinstatement is self-executory

BLRD - OJ: Registration of labor federation (Art. 231, LC)

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Cancellation of registration of labor federation (Art. 231, LC) SOLE (Appeal [10d]) - AJ: RD Registration and cancellation of registration of labor organization (Sec. 6, Rule IV, D.O. No. 40-03) RD Registration and deregistration of CBA (Sec. 5, Rule XVII, D.O. No. 40-03) MA inter-union and intra-union disputes (Sec. 16, Rule XI, D.O. No. 40-03) Final and executory

RD Visitorial and Enforcement Power (compliance order) (Art. 128, LC) SOLE (Appeal [10cd]) (if appeal by employer, post surety or cashMFR (7cd) bond)

Small money claims not exceeding P5,000 without claim for reinstatement (Art. 129, LC) SC (Review 45 CA (Certiorari 65 [60d]) NLRC (Appeal [5cd]) [15d])

Registration and cancellation of registration of labor organization (Art. 235, LC; Sec. 4, Rule IV and Sec. 5, Rule XI, D.O. No. 40-03) BLRD (Appeal [10d])

Registration and deregistration of CBA (Sec. 1, Rule XVII, D.O. No. 40-03) BLRD (Appeal [10d])

MA

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Petition for certification election (Arts. 256, 257 and 258, LC) SOLE (Appeal [10d]) Inter-union and intra-union disputes (Sec. 5, Rule XI, D.O. No. 40-03) concurrent with RD when no MA available BLRD (Appeal [10d])

AHO Small money claims not exceeding P5,000 without claim for reinstatement (Art. 129, LC) NLRC (Appeal [5cd]) (appeal fee of P150 and employer post surety or cash bond)

Grievance Machinery and Voluntary Arbitration Grievance Machinery and Voluntary Arbitration machinery for the adjustment and resolution of grievances arising from the interpretation and implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies (Art. 260) Grievance a feeling of discontent before it is manifested into verbal or written complaint Collective Bargaining Agreement (CBA) contract between legitimate labor union and the employer concerning wages, hours of work, and all other terms and conditions of employment in a bargaining unit 2 COMPONENTS OF GRIEVANCE MACHINERY: 1. grievances arising from the interpretation and implementation of CBA parties shall name and designate in advance a voluntary arbitrator or a procedure for the selection of voluntary arbitrators organized establishments only since there is a CBA

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GRIEVANCE COMMITTEE: if parties dont agree; created within 10d from signing of CBA 2. grievances arising from the interpretation or enforcement of company personnel policies PROCEDURE (organized establishments): Grievance machinery as agreed in the CBA if the grievance remains unresolved, automatic referral to voluntary arbitration within 7 calendar days as prescribed in the CBA if CBA does not provide VA or procedure for selection of VA, the NCMB shall designate the VA

NOTA BENE: The CBA is the law between the parties so if there is a grievance, the parties may be compelled to submit the case to voluntary arbitration, pursuant to the contract stipulation. There is no inconsistency. Zipper Clause a stipulation in a CBA indicating that issues that could have been negotiated upon but not contained in the CBA cannot be raised for negotiation when the CBA is already in effect; the CBA is complete agreement Substitutionary Doctrine employees cannot revoke the validly executed CBA with their employer by the simple expedient of changing their bargaining agent Benguet Consolidated, Inc. vs. Employees & Workers Union-PAFLU, G.R. No. L-24711, April 30, 1968

SUBSTITUTIONARY DOCTRINE: The doctrine only provides that the employees cannot revoke the validly executed collective bargaining contract with their employer by the simple expedient of changing their bargaining agent. And it is in the light of this that the phrase said new agent would have to respect said contract must be understood. It only means that the employees, thru their new bargaining agent, cannot renege on their collective bargaining contract, except of course to negotiate with management for the shortening thereof. Voluntary Arbitration

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2 PRIMARY FUNCTIONS: to orderly dispose of disputes to provide a foundation for stable labor-management relations

QUALIFICATIONS OF VA (accredited by NCMB): Filipino citizen residing in the Philippines Bachelors Degree at least 5 yrs. experience in labor-management relations completion of a training course on voluntary arbitration conducted by the Board good moral character, noted for impartiality, probity and has not been civilly, criminally and administratively adjudged guilty of any offense involving moral turpitude as evidenced by a duly sworn affidavit

JURISDICTION OF VA: 1. EOJ (Art. 261) all unresolved grievance arising from the interpretation or implementation of the CBA and those arising from the interpretation or enforcement of company personnel policies EXCEPTION (LA): if both parties dont submit to the VA members of minority union religious objectors non-union members those excluded by the closed-shop agreement 2. OTHER (Art. 262) upon agreement of parties, all other labor disputes, including ULP and bargaining deadlocks

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NOTA BENE: Violations of the CBA, except those gross in character, are not ULP. Gross violations of CBA mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. ADDENDUM: Termination disputes are under the jurisdiction of the LA. However, termination disputes related to the interpretation/implementation of the CBA (e.g. closedshop agreement) or company personnel policies are cognizable by the VA. PROCEDURE (Art. 262-A): 20 calendar days to decide from submission of dispute to voluntary arbitration 10 calendar days from receipt of copy of award, decision is final and executory writ of execution upon motion of any interested party no motion for recon, but may be appealed by certiorari to CA within 60d under Rule 65 (grave abuse of discretion) VAs FEE, HOW DETERMINED (Art. 262-B): nature of the case time consumed in hearing the case professional standing of the VA capacity to pay of the parties fees provided for in the Revised Rules of Court Strikes and Lockouts Kinds of Concerted Activities (Art. 263) 1. strikes temporary stoppage of work by the concerted action of employees as a result of a labor or industrial dispute General Strike extends over a whole community, province, state or country; an extended form of sympathy strike, intended to put pressure upon the government or to paralyze present economic and social systems Local Strike undertaken by workers in a particular enterprise, locality or occupation

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Sit-down Strike when a group of employees or others interested in obtaining a certain objective in a particular business forcibly take over possession of the property of such business, establish themselves within the plant, stop its production and refuse access to the owners or to the others desiring to work Slowdown willful reduction in the rate of work by a group of employees for the purpose of restricting the output of the employer Partial Strike quickie strike; takes the form of intermittent, unannounced work stoppage, including slowdowns, unauthorized extension of rest period and walkouts for portions of a shift or for entire shifts Primary Strike declared by the employees who have a direct and immediate interest, whether economic or otherwise Secondary Strike coercive measures adopted by workers against an employer connected by product or employment with alleged unfair labor conditions or practices Economic Strike to force wage and other concessions from the employer, which he is not required by law to grant ULP Strike against the ULP of the employer, usually for the purpose of making him desist from further committing such practices Sympathetic Strike the strike employees have no demands or grievances of their own, but strike for the purpose of directly or indirectly aiding others, without direct relation to the advancement of the interest of the strikers 2. picketing presence of striking workers or their union brothers who pace back and forth before the place of business of an employer - not generally subject to injunction because a part of exercise of freedom of speech, EXCEPT if blocking the ingress to and egress from the workplace or public thoroughfare 3. lockout temporary refusal of an employer to furnish work as a result of a labor or industrial dispute Assumption of Jurisdiction by SOLE (Art. 263 (g)) applicable when strikes or lockout occur or is likely to occur in an industry indispensable to the national interest; SOLE may decide it or certify the same to the NLRC for compulsory arbitration; within 24 hours from knowledge

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2 EFFECTS OF ASSUMPTION OF JURISDICTION: enjoin the strike (automatic) if there are prohibited acts committed, SOLE may issue injunction

PROCEDURE: 1. notice of strike or lockout at least 30d prior to the DOLE - EXCEPT: if ULP, notice of 15d is sufficient; if union-busting, then no 15d cooling-off period 2. during cooling-off period, DOLE shall exert all efforts at mediation and conciliation to effect a voluntary settlement 3. 7-day strike ban is mandatory - if the strike vote was arrived at within the 30-day period, add the 7 days after the termination of such period; if it was after the 30-day period, then wait 7 days from the time strike vote was reported before going on strike 4. after lapse of period, strike or lockout may be declared - STRIKE: approved by majority of union members by secret ballot - LOCKOUT: approved by majority of BOD members by secret ballot Prohibited Activities (Art. 264) strikes or lockout declared without first having bargained collectively or notice no strike or lockout after assumption of jurisdiction or after certification to the NCMB reinstatement with full backwages if worker is terminated as a consequence of unlawful lockout union officer who knowingly participates in an illegal strike or knowingly participates in commission of illegal acts during strike worker who knowingly participates in commission of illegal acts during strike may be terminated; but mere participation in illegal strike, no termination of worker obstruct, impede or interfere with by force, violence, coercion or threats or intimidation any peaceful picketing by employees, not allowed

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no strike-breakers police force shall keep out of the picket lines UNLESS actual violence or other criminal acts occur therein no acts of violence, coercion or intimidation or obstruct the free ingress to or engress from the employers premises for lawful purposes, or obstruct public thoroughfares

NOTA BENE: Third parties who are affected by commission of any prohibited acts may go to the regular courts for relief of injunction. This is the only time when the regular court may issue injunction in a labor dispute. ADDENDUM: If the union members and employer have both committed prohibited acts during strike, they are in pari delicto and therefore, no termination but only suspension of employment. 6 FACTORS OF AN ILLEGAL STRIKE: statutory prohibition procedural requirements purpose of strike (economic strikes not allowed) means and methods violation of injunction agreement of the parties - no-strike provision in CBA - But stipulation is only valid as to economic provisions, not to ULP STRIKEABLE GROUNDS: collective bargaining deadlock employers ULP NOTA BENE: ULP under Art. 248 is strikeable. ULP under Art. 249 is not strikeable, since it results in intra/inter-union dispute, EXCEPT termination of employee as a result of the enforcement of the closed-shop provision of the CBA.

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3 KINDS OF DEADLOCKS: when theres no CBA yet - bargaining deadlock with management is strikeable when theres CBA and 3 yrs. has expired bargaining deadlock on economic provisions is not strikeable, but ULP is strikeable 5 yrs. after CBA is entered into bargaining deadlock is strikeable since theres no CBA

Arrest and Detention (Art. 266) - no union members or union organizers may be arrested or detained for union activities without previous consultation with the SOLE - EXCEPT: national security public peace commission of a crime

- prosecutors must first secure clearance from the DOLE or Office of the President before taking cognizance of complaints for preliminary investigation and filing in court of corresponding information - criminal cases should be suspended until the completion of the compulsory arbitration proceedings in the NLRC

Termination of Employment Security of Tenure (Art. 279) right of employees to be secure in their employment and not to be removed except for a just or authorized cause WHO ARE ENTITLED: under the Constitution all workers under the Labor Code regular employees

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but even project, seasonal or contract employees are entitled to security of tenure for the duration of the project, season or contract EFFECTS OF ILLEGAL DISMISSAL: reinstatement no loss of seniority rights and other privileges full backwages, inclusive of allowances other benefits or monetary equivalent computed from time his compensation was withheld from him up to the time of his actual reinstatement

Q: When is reinstatement no longer possible? A: Reinstatement may no longer be possible if due to strained relations between the worker and the employer, reinstatement is not practicable. In that case, worker is entitled to separation pay in lieu of reinstatement. Another instance is if employee suffers from a disability which impairs his earning capacity or he has attained the age of retirement. When the position has already been abolished, reinstatement is no longer possible. Other such reasons are closure of department or section or of the entire business, sale, bankruptcy, insolvency, etc. Kinds of Employment 1. Regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer (Art. 280, par. 1) - reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer 2 KINDS OF REGULAR EMPLOYEES: by nature of work by years of service 2. Project employment is fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee (Art. 280, par. 1)

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3. Seasonal where work or services to be performed is seasonal in nature and the employment is for the duration of the season (Art. 280, par. 1) 4. Fixed-Term employment is only for a specified period of time; he is not regular but is deemed regular in two senses: (a) nature of his work is necessary or desirable in the principal business of the employer; and (b) he enjoys security of tenure during the limited time of his employment 5. Casual not covered by the preceding paragraph; employee who has rendered at lease one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists (Art. 280, par. 2) - principle of repeated hiring 6. Probationary not exceeding six months from the date the employee started working (Art. 281) - EXCEPTION: apprenticeship agreement stipulating a longer period employees in private schools - FULL-TIME TEACHER: 3 consecutive years of satisfactory service (primary to high school); 6 consecutive years of satisfactory service (tertiary level) Full-time Teacher one whose total working days is devoted to the school, has no other regular remunerative employment, and is paid on a regular monthly basis regardless of the number of teaching hours; and that in college, the normal teaching load of a full-time teacher shall be 18 hrs/month - REQUIREMENTS: the employee must be informed of his probationary status at the time of engagement, otherwise he is considered regular from the beginning the employee must be informed of the reasonable standards at the time of his engagement, otherwise he is considered regular from the beginning if allowed to work beyond the probationary period, he shall be considered regular

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Just Causes for Termination (Art. 282) and Procedure GROUNDS: (code: SW2GF CO) 1. serious misconduct Misconduct improper or wrongful conduct; transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment - to be serious, must be of such grave and aggravated character and not merely trivial and unimportant and must be in connection with the employees work to constitute a just cause for his separation 2. willful disobedience - insubordination - REQUISITES: reasonable and lawful order sufficiently known to the employee in connection with his duties

3. gross and habitual neglect Gross Negligence want or absence of or failure to exercise slight care or diligence or the entire absence of care 4. fraud 5. willful breach of the employers trust 6. commission of a crime or offense 7. other analogous causes - e.g. dangerous drugs law, closed-shop agreement, illegal acts during strike, knowingly participating in illegal strike, defiance of RTWO, sexual harassment PROCEDURE (2-notice Rule):

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written notice to worker, specifying ground for termination with opportunity to be heard hearing or conference; investigation written notice of termination NOTA BENE: Non-compliance with the 2-notice rule will make the employer liable for nominal damages in the amount of P30,000. Authorized Causes and Procedure 1. closure of establishment and reduction of personnel (Art. 283) installation of labor-saving device redundancy where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise retrenchment to prevent losses - cost-cutting measure made immediately necessary by business reduction or reverses closing or cessation of operation

SEPARATION PAY: - INSTALLATION/REDUNDANCY: 1 mo pay/1 mo pay for every yr of service, whichever is higher - RETRENCHMENT/CLOSURE: 1 mo pay/1/2 mo pay for every yr of service, whichever is higher NOTA BENE: A fraction of at least 6 mos is equivalent to 1 mo. 2. disease (Art. 284) - employee suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees - REQUISITE: certification by competent public health authority that disease is of such nature or at such a stage that it cannot be cured within a period of 6 mos even with proper medical treatment

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- 1 mo pay/1/2 mo pay for every year of service, whichever is higher PROCEDURE: written notice to employee 30d prior to date written notice to regional office of DOLE 30d prior to date

NOTA BENE: Non-compliance with the notice, there is violation of due process, even if the dismissal is valid because it is for an authorized cause. The employer is liable to pay nominal damages of P50,000. Consequence of Termination by Employer 1. if employer does not comply with due process, liable to pay nominal damages 2. employer must pay separation pay 4 KINDS OF SEPARATION PAY: separation pay under Art. 283 and Art. 284 separation pay as financial assistance, as an act of social justice, even in cases of legal dismissal under Art. 282 separation pay in lieu of reinstatement separation pay as an employment benefit

Termination by Employee (Art. 285) 1. without just cause 30d written notice; if without notice, employer may hold employee for damages 2. just causes serious insult inhuman and unbearable treatment commission of a crime or offense other causes analogous

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Constructive Dismissal a quitting because continued employment is rendered impossible, unreasonable or unlikely, as, an offer involving a demotion in rank and a diminution in pay; amounts to illegal dismissal - distinguish from floating status or suspension of employment under Art. 286 because it is temporary in nature; if the suspension is for more than 6 mos, then it amounts to constructive dismissal Art. 286 WHEN EMPLOYMENT NOT DEEMED TERMINATED The bona fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty. NOTA BENE: A case for illegal dismissal within the 6-month period is premature. The employee must wait until the period expires before filing a case for illegal dismissal. RIGHTS OF POSSESSOR IN GOOD FAITH (BONA FIDE) AND BAD FAITH (MALA FIDE) Arts. 544-552, New Civil Code

FRUITS

POSSESSOR IN GOOD FAITH (art. 544) entitled to all fruits received BEFORE legal interruption (through service of judicial summons)

NATURAL or INDUSTRIAL - gathered or severed BEFORE such interruption CIVIL - accrue daily; amount is proportionate to the time of possession

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(art. 545) WHEN GOOD FAITH CEASES: entitled to part of the expenses of cultivation and part of the net harvest, amount proportionate to the time of possession CHARGES: divided between the two (owner and possessor) on the same basis OWNER'S OPTION: let the possessor in good faith to finish the cultivation as an indemnity for his part of the cultivation and net harvest; if the latter refuses for whatever reason, he loses right to be indemnified

POSSESSOR IN BAD FAITH (art. 549) reimburse the fruits received and those which the legitimate possessor could have received

NECESSARY EXPENSES

(art. 546) refunded whether possessor in bad faith or good faith ADDITIONAL RIGHTS OF POSSESSOR IN GOOD FAITH: right of rentention until reimbursement

USEFUL EXPENSES

refunded only to possessor in good faith with right of retention until reimbursement SUBJECT TO OWNER'S OPTION: retain the improvement but must refund the amount of expenses or pay the increase in value which the thing may have acquired possessor in bad faith is not entitled to any right regarding useful expenses

USEFUL IMPROVEMENTS

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(art. 547) POSSESSOR IN GOOD FAITH: right of removal if done without damage to the principal SUBJECT TO OWNER'S OPTION: retain the improvement but must refund the amount of expenses or pay the increase in value which the thing may have acquired

LUXURIOUS/ORNAMENTAL EXPENSES

POSSESSOR IN GOOD FAITH (art. 548) no right of reimbursement but right of removal if done without damage to the principal SUBJECT TO OWNER'S OPTION: allow the possessor to remove or owner retains the improvement but must refund the amount spent

POSSESSOR IN BAD FAITH (art. 549) no right of reimbursement but right of removal if done without damage to the principal SUBJECT TO OWNER'S OPTION: allow the possessor to remove or owner retains the improvement but must pay the value of improvement at the time he enters into possession CO-OWNERSHIP Art. 484-501, Civil Code

Co-ownership - when the ownership of an undivided thing or right belongs to different

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persons (art. 484) CO-OWNER'S RIGHT CONSISTS OF: (1) right or interest in a spiritual/ideal part of a thing (portion) (2) right or interest over the physical thing itself (whole) REQUISITES OF CO-OWNERSHIP: (1) plurality of subjects (2) unity of object (3) recognition of the ideal/intellectual shares of co-owners - shares of co-owners shall be proportional to their respective interests (art. 485); interests presumed equal Right to Use Property Owned in Common (art. 486) - each co-owner has right to use - use must be in accordance with the purpose for which it is intended and does not injure the interest of the co-ownership or prevent other co-owners from using Right in Ejectment (art. 487) - each co-owner has right to bring action in ejectment Expenses for Preservation (art. 488) - compel each co-owner to contribute for preservation or for taxes - EXEMPT: renounce his undivided interest; but waiver not allowed if prejudicial to the co-ownership Repairs for Preservation (art. 489) - may be made by one co-owner but must first notify other co-owners - improvements or embellishments shall be decided by majority (art. 492) MAJORITY - approved by the co-owner who represent the controlling interest

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- if no majority or resolution of majority is prejudicial, court shall order proper measures, including appointment of administrator Perpendicular Co-ownership (art. 490) - whenever the different stories of a house belong to different owners: (1) terms under the agreement (2) if no agreement, then: MAIN AND PARTY WALLS, ROOF AND OTHER THINGS USED IN COMMON: all owners in proportion to value of the story belonging to them INDIVIDUAL FLOOR: individual owner... FLOOR OF THE ENTRANCE, FRONT DOOR, COMMON YARD, SANITARY WORKS: all owners pro rata STAIRS FROM ENTRANCE TO THE FIRST STORY: all owners except owner of ground floor... STAIRS FROM ENTRANCE OF SECOND STORY: all owners except owner of ground and first floor

Condominium (R.A. No. 4726) - co-owner only if owner of unit Right to Make Alterations (art. 491) - need consent of other co-owners - if withholding of consent is prejudicial to co-ownership, court may provide relief REQUISITES OF ALTERATION: (1) change that is more or less permanent (2) changes the use of the thing (3) prejudices the use of the thing or its enjoyment by others

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Right with Respect to the Ideal or Proportionate Share (art. 493) - each co-owner has full ownership of his ideal share and may alienate, encumber, assign, mortgage it or substitute another person in its enjoyment, EXCEPT: personal rights - effect of mortgage, etc. shall only affect the portion owned by that co-owner allotted to him upon termination of co-ownership Partition - (art. 494) co-owners may demand partition any time, UNLESS: agreement prohibits partition for period not exceeding ten years...extendible by new agreement donor or testator prohibits partition for period not exceeding twenty years law prohibits partition

- PRESCRIPTION: does not run against co-owners and co-heirs when there is express or implied recognition of co-ownership - (art. 495) partition not allowed if it would render the propert unserviceable, e.g. division of a car owned in common; co-ownership may be terminated HOW PARTITION DONE: (art. 496) (1) extrajudicial - by agreement (2) judicial - judicial proceedings; apply Civil Code and suppletorily Rule 69 of the Rules of Court - (art. 497) creditors or assignees may take part in division and may object to it if without their concurrence; if there is already division, cannot impugn, UNLESS: fraud made notwithstanding formal opposition without prejudice to right of debtor or assignor to maintain its validity

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- (art. 498) indivisible thing: a) co-owners will allot one of them to indemnify the others; b) if cannot decide, then sell the thing and distribute the proceeds to all - (art. 499) third persons shall not be prejudiced by partition UPON PARTITION: (1) mutual accounting of benefits received (art. 500) (2) mutual reimbursement for expenses (art. 500) (3) indemnity for damages in case of negligence or fraud (art. 500) (4) (art. 501) reciprocal warranty for: defects of title or eviction quality or hidden defects (5) each co-owner is deemed to have had exclusive possession of the part allotted for the entire period of co-possession (art. 543) (6) exclusive title over each respective share (art. 1091) HOW CO-OWNERSHIP TERMINATED: (1) judicial partition (2) extrajudicial partition (3) when, by prescription, one co-owner acquires by adverse possession and repudiates unequivocally the co-ownership (4) when a stranger acquires by prescription (5) merger in one co-owner (6) loss or destruction (7) expropriation (proceeds distributed accordingly)

Property Rights of Riparian Owners (Art. 457-465, Civil Code)

RIPARIAN OWNER - owner of land adjoining banks of river; right based on accession

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natural Right of Riparian Owner as regards Alluvium (Art. 457): - soil deposit in lands adjoining riverbanks, and gradually formed by effect of the current of river waters - the riparian owner becomes the owner of such soil deposit NOTA BENE (Elements): a) deposit is gradual and imperceptible b) caused by the current of the river c) current must be that of a river d) river must still exist e) increase must be comparatively little

- if accretion on banks of lake, not alluvium but same rule applies - if accretion on banks of sea, the soil deposit belongs to the public domain Right of Landowner adjoining Ponds or Lagoons (Art. 458): - land inundated by extraordinary floods still belongs to the landowner - land left dry by the natural decrease of waters does not belong to the landowner Right of Riparian Owner as regards Avulsion (Art. 459): - when current of river/creek/torrent ("force of the river") segragates from an estate a piece of land and transfers it to another estate - owner of segregated portion still owns if he removes the same within 2 years - after two years and no removal, the owner of the other estate owns Right of Landowner as regards Uprooted Trees (Art. 460): - the uprooted trees are carried away by the current of the waters and deposited to another estate - the owner of land where uprooted tree came from still owns and pay for expenses of gathering or putting them in a safe place

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- after six months and no claim was made on uprooted tree, the owner of the other estate owns Right of Riparian Owner as regards Abandoned River Beds (Art. 461): - natural change in course of river - ipso facto belongs to the owner of land currently occupied by new river bed - owner of land adjoining old river bed has right to acquire if: pays value thereof the value does not exceed the value of area occupied by new river bed - the new river bed belongs to the State (art. 462) - if the river divides leaving an isolated portion in the middle or if a portion is separated from estate, landowner retains ownership (art. 463) - islands formed on the seas within Philippine jurisdiction, on lakes, and on navigable and floatable rivers belong to the State - islands formed through successive accumulation of alluvial deposits on NON-navigable and NON-floatable rivers: belong to the owners of nearest banks belong to both owners if found in the middle

Apr 19, 2008 Effects of Good Faith and Bad Faith on Property Rights (Articles 448-456, Civil Code)

If improvement on land added by builder in good faith If improvement on land added by builder in bad faith If both landowner and builder are in bad faith If landowner is in bad faith If owner of materials for improvement is in good faith

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If Improvement on Land added by Builder in Good Faith (1) Rights of Landowner - has option to elect: appropriate the improvement after payment of indemnity (necessary, useful, and luxurious expenses) oblige the builder to buy land or the sower/planter to pay rent (art. 448)

(2) Rights of Builder right to retain land until payment of indemnity if value of land is considerably more than the value of improvement, builder is not obliged to buy the land, instead, may pay rent (art. 448)

NOTA BENE: - if no agreement is made as to lease of land, then court may fix the terms - if, after opting to sell land to builder and builder, after agreeing, fails to pay, landowner may: a) remove the improvement; b) sell both land and improvement in a public auction and apply the proceeds thereof first to the value of land and send the rest, if any, to the builder If Improvement on Land added by Builder in Bad Faith (1) Rights of Landowner - three options: becomes owner of improvement by virtue of the "principle of accession" without paying indemnity, PLUS damages (art. 449 and art. 451) demolish/remove the improvement at the expense of the builder PLUS damages compel the builder to buy land w/n the value of land is considerably more than value of improvement PLUS damages (art. 450 and art. 451)

(2) Rights of Builder/Planter/Sower - no right of retention (art. 449), only to reimbursement for expenses necessary for preservation of land (art. 452)

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NOTA BENE: (Regarding Gathered and Growing Crops) - if the crops have already been gathered, planter/sower must return the value of crops or the crops themselves but minus the necessary expenses (for production, gathering and preservation) - if the crops have not yet been gathered, planter/sower must completely forfeit them to landowner without right to indemnity If Both Landowner and Builder are in Bad Faith - treated as though both are in good faith (art. 453) If only Landowner is in Bad Faith - apply art. 447: a) landowner must pay for value of improvement PLUS damages; b) builder may remove/demolish the improvement and landowner must pay for damages If Owner of Materials for Improvement is in Good Faith (1) Rights of Landowner - same; subsidiarily liable for value of materials if he compels the builder to purchase land (2) Rights of Builder - same; principally liable for value of materials; demand from landowner the value of materials if latter appropriates the improvement (3) Rights of Owner of Materials (Third Person) - demand from builder; if builder cannot pay, demand from landowner if latter appropriates the improvement

COMMODATUM NATURE, PURPOSE AND CHARACTERISTICS

Simple Loan (Mutuum) Defined Art. 1933: By a contract of loan, one of the parties delivers to another xxx money or other

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consumable thing, upon the condition that the same amount of the same kind and quality shall be paid, in which case the contract is simply called a loan or mutuum. Tolentino vs. Gonzalez Sy Chiam 50 Phil 558 Tolentino purchased land from Luzon Rice Mills for Php25,000 payable in three installments. Tolentino defaulted on the balance so the owner sent a letter of demand to him. To pay, Tolentino applied for loan from Gonzalez on condition that he would execute a pacto de retro sale on the property in favor of Gonzalez. Upon maturation of loan, Tolentino defaulted so Gonzalez is demanding recovery of the land. Tolentino contends that the pacto de retro sale is a mortgage and not an absolute sale. The Supreme Court held that upon its terms, the deed of pacto de retro sale is an absolute sale with right of repurchase and not a mortgage. Thus, Gonzalez is the owner of the land and Tolentino is only holding it as a tenant by virtue of a contract of lease. **LOAN: A contract of loan signifies the giving of a sum of money, goods or credits to another, with a promise to repay, but not a promise to return the same thing. It has been defined as an advancement of money, goods, or credits upon a contract or stipulation to repay, not to return, the thing loaned at some future day in accordance with the terms of the contract. The moment the contract is completed, the money, goods or chattels given cease to be the property of the former owner and become the property of the obligor to be used according to his own will, unless the contract itself expressly provides for a special or specific use of the same. At all events, the money, goods or chattels, the moment the contract is executed, cease to be the property of the former owner and become the sole property of the obligor.

Commodatum Defined Art. 1933: By the contract of loan, one of the parties delivers to another something not consumable so that the latter may use the same for a certain time and return it, in which case the contract is called a commodatum. xxx - the bailee acquires the use of the thing loaned but not its fruits (Art. 1935), EXCEPT if the parties stipulate use of fruits (Art. 1940)

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Pajuyo v. CA, G.R. No. 146364, June 3, 2004 Pajuyo purchased the rights over a property from Pedro Perez. Thereafter, he constructed a house and he and his family lived there. Later, Pajuyo agreed to let Guevarra live in the house for free provided that Guevarra maintain cleanliness and orderliness of the house. They also agreed that Guevarra should leave upon demand. But when Pajuyo later told Guevarra that he needed the house, Guevarra refused, hence an ejectment case was filed. Supreme Court held that the contract is not a commodatum. In a contract of commodatum, one of the parties delivers to another something not consumable so that the latter may use the same for a certain time and return it. An essential feature of commodatum is that it is gratuitous. Another feature of commodatum is that the use of the thing belonging to another is for a certain period. Thus, the bailor cannot demand the return of the thing loaned until after expiration of the period stipulated, or after accomplishment of the use for which the commodatum is constituted. If the bailor should have urgent need of the thing, he may demand its return for temporary use. If the use of the thing is merely tolerated by the bailor, he can demand the return of the thing at will, in which case the contractual relation is called a precarium. Under the Civil Code, precarium is a kind of commodatum. Distinctions RENT v. LOAN (Tolentino v. Gonzalez Sy Chiam, supra): A contract of lease of property is not a loan. A loan signifies the giving of a sum of money, goods or credit to another, with a promise to repay, but not a promise to return the same thing. In a contract of rent, the owner of the property does not lose his ownership. He simply loses his control over the property rented during the period of the contract. In a contract of rent the relation between the contractors is that of landlord and tenant. In a contract of loan of money, goods, chattels, or credits, the relation between the parties is that of obligor and obligee. COMMODATUM v. MUTUUM As to parties commodatum: bailor and bailee; mutuum: obligor and obligee As to object commodatum: non-consumable or non-fungible thing; mutuum: money or any consumable or fungible thing

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As to consideration commodatum: use of the thing and return it; mutuum: use and own the thing and pay the same amount of the same kind and quality commodatum: gratuitous; mutuum: may be gratuitous or onerous commodatum: ownership of the thing is retained by the bailor; mutuum: ownership is transferred to the obligee commodatum: real or personal property; mutuum: personal property As to purpose commodatum: use or temporary possession of the thing; mutuum: consumption of the thing commodatum: bailor may demand the return of the thing before expiration of term in case of urgent need or precarium; mutuum: no demand before lapse of the term commodatum: bailor suffers the loss of the thing; mutuum: obligee suffers the loss of the thing

Purpose - to transfer either the use or possession of the thing loaned; for safekeeping of the thing delivered and returning it Characteristics of Commodatum perfected upon delivery of the thing loaned (real contract) Q: Is there a perfected contract of commodatum before delivery? A: No. A contract of commodatum is a real contract and therefore requires delivery for its perfection. There can be no perfected contract of commodatum but there can be a binding accepted promise to deliver by the bailor. In which case, commodatum is a unilateral contract in that only one party, the bailor, has the obligation to deliver the object. accepted promise to deliver by commodatum or mutuum is binding (unilateral contract) purely personal in character: a) death of bailor or bailee extinguishes contract; b) bailee cannot lend or lease the object loaned to third parties EXCEPT if members of his household, UNLESS there is a stipulation against or the use is prohibited by nature of the thing (art. 1949)

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Q: If there are two or more borrowers, would the commodatum be extinguished upon the death of one? A: The contract is not extinguished in the absence of a contrary stipulation. The borrowers are considered solidary debtors (art. 1945) and for this reason, the bailor or creditor has the right to demand from either one of them the thing loaned. This is an exception the general rule that the concurrence of two or more debtors gives rise only to a joint obligation. The reason is that in a commodatum, it is presumed that the bailor took into account the character of each of the bailees in lending the thing and that therefore he would not have constituted the contract if there were only one bailee. Q: Even if death of the parties extinguishes a contract of commodatum, is it possible for the heirs to acquire rights to the obligation? A: Ordinarily in a contract of commodatum, the death of the parties extinguishes the contract. That is because commodatum, being essentially gratuitous, takes into account the character, credit and conduct of the bailee. However, there can be a valid stipulation stating that the contract be transmitted to the heirs of the parties. bailor has the right to demand the thing at will if: he has urgent need, demand the return or its temporary use (art. 1946) (art. 1947) PRECARIUM: (1) if neither the duration or the use of thing has been stipulated; (2) if the use of the thing is by mere tolerance of the owner essentially gratuitous (art. 1933)

PARTIES AND REQUIREMENTS FOR VALIDITY AND PERFECTION

Parties - bailor and bailee Requirements for Validity and Perfection CONSENT

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Art. 1315: Contracts are perfected by mere consent, and from that moment the parties are bound not only to the fulfillment of what has been expressly stipulated but also to all the consequences which, according to their nature, may be in keeping with good faith, usage and law. OBJECT Art. 1937: Movable or immovable property may be the object of commodatum. - MOVABLE: non-consumable or non-fungible EXCEPT that consumable thing may be the object if the purpose is only for exhibition Mina v. Pascual, 25 Phil 540

Francisco is the owner of land and he allowed his brother, Andres, to erect a warehouse in that lot. Both Francisco and Andres died and their children became their respective heirs: Mina for Francisco and Pascual for Andres. Pascual sold his share of the warehouse and lot. Mina opposed because the lot is hers because her predecessor (Francisco) never parted with its ownership when he let Andres construct a warehouse, hence, it was a contract of commodatum. What is the nature of the contract between Francisco and Andres? The Supreme Court held that it was not a commodatum. It is an essential feature of commodatum that the use of the thing belonging to another shall be for a certain period. The parties never fixed a definite period during which Andres could use the lot and afterwards return it. NOTA BENE: It would seem that the Supreme Court failed to consider the possibility of a contract of precardium between Francisco and Andres. Precardium is a kind of commodatum wherein the bailor may demand the object at will if the contract does not stipulate a period or use to which the thing is devoted. Producers Bank of the Philippines v. CA, 397 SCRA 651

Doronilla is in the process of incorporating his business and to comply with one of the requirements of incorporation, he caused Vives to issue a check which was then deposited in Doronillas savings account. It was agreed that Vives can withdraw his money in a months time. However, what Doronilla did was to open a current account and instructed

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the bank to debit from the savings account and deposit it in his current account. So when Vives checked the savings account, the money was gone. Is the contract a mutuum or commodatum? Supreme Court held that the contract is a commodatum. Although in a commodatum, the object is a non-consumable thing, there are instances where a consumable thing may be the object of a commodatum, such as when the purpose is not for consumption of the object but merely for exhibition (Art. 1936). Thus, if consumable goods are loaned only for purposes of exhibition, or when the intention of the parties is to lend consumable goods and to have the very same goods returned at the end of the period agreed upon, the loan is a commodatum and not a mutuum.

CONSIDERATION Art. 1933: xxx Commodatum is essentially gratuitous. Art. 1935: xxx if any compensation is to be paid by him who acquires the use, the contract ceases to be a commodatum. DELIVERY - perfects the contract Central Bank of the Philippines v. CA, 139 SCRA 46 (1985)

Tolentino made a loan from Island Savings Bank secured by a mortgage. The Bank did not release the whole amount but only a portion thereof. Later, the Bank experienced liquidity problems and the Monetary Board of Central Bank prohibited it from making new loans and much later, from doing business in the Philippines. Thereafter, the Acting Superintendent of Central Bank took charge of its assets. Upon expiration of the loan term, the Bank filed extrajudicial foreclosure of the mortgage. Was there a perfected contract of loan when only a portion of the amount was delivered? The Supreme Court held that there was only partial delivery. As such, the contract is deemed perfect only in so far as what has been delivered. The mortgage cannot be entirely foreclosed, except for up to the amount of the actual amount released, but the Bank can recover the interest of the partial loan. Tolentino cannot anymore demand the remaining amount of the loan from the Bank because he defaulted on his payment. His liability offsets

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the liability of the Bank to him. RIGHTS AND OBLIGATIONS OF THE PARTIES Obligations of the Bailee - to return the object pay for the ordinary expenses for the use and preservation of the thing loaned - no reimbursement for ordinary expenses liable for loss of the thing even if fortuitous if: he devotes the thing for a different purpose he keeps it longer than the period stipulated or after the accomplishment of the use for which the commodatum has been constituted thing loaned has been delivered with appraisal of its value, unless there is a stipulation exempting bailee from fortuitous event lends or leases the thing to a third person not a member of the household being able to save either the thing borrowed or his own thing, he chose to save his not answer for the deterioration of the thing loaned due to use thereof and without fault bailee cannot retain on ground that the bailor owes him something, even if expenses - but if bailor knew of defect and did not advise the bailee about it, then bailee has the right of retention but only to recover damages bailee is not entitled to the fruits of the thing loaned, EXCEPT if there is a stipulation to the contrary bailee must take care good care of the thing with the diligence of a good father of the family (art. 1163)

Q: If the parties in a commodatum can stipulate that the bailee may make use of the fruits, wouldnt that make the contract one of usufruct?

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A: A usufruct is a contract by which the usufructuary is allowed by the owner to enjoy the fruits. By that, it means that the main cause of the usufruct is to enjoy the fruits. In a contract of commodatum, the consideration is the use of the thing and if there is a stipulation for the enjoyment of the fruits, it must only be incidental to the use of the thing itself. Republic v. Bagtas, 6 SCRA 262 (1962)

Bagtas borrowed three bulls from the Bureau of Animal Industry for a period of one year with breeding charge at 10% of book value. After one year, the contract was renewed only for one bull but Bagtas did not return the two, one of which died because of gunshot wound during the Huk raid. Is Bagtas liable for the loss of the bull? Supreme Court held that Bagtas was liable for the loss of the bull even though it was caused by a fortuitous event. If the contract was one of lease, then the 10% breeding charge is compensation (rent) for the use of the bull and Bagtas, as lessee, is subject to the responsibilities of a possessor. He is also in bad faith because he continued to possess the bull even though the term of the contract has already expired. If the contract was one of commodatum, he is still liable because: (1) he kept the bull longer than the period stipulated; and (2) the thing loaned has been delivered with appraisal of its value (10%).

Obligations of the Bailor respect the duration of the loan, EXCEPT if there is urgent need or precarium demand immediate return if the bailee commits acts of ingratitude - Art. 765: a) bailee commits offenses against the person, honor or property of the bailor or that of his wife and children under his parental authority; b) bailee imputes any criminal offense or any act involving moral turpitude on the bailor, even if he should prove it, EXCEPT if the act was committed against the bailee or his family; and c) bailee unduly refuses to give support to the bailor when he was morally bound to do so refund extraordinary expenses - provided that the bailee informs the bailor about it before incurring them, EXCEPT if the need is urgent; HOWEVER, if extraordinary expenses arise on the occasion of actual use of the thing, whether bailee is at fault or not, they shall be borne by both bailor and bailee EXCEPT if there is a contrary stipulation (art. 1949)

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no right of abandonment for expenses and damages - because the expenses and damages may exceed the value of the thing loaned liable for damages if he knew of the flaws of the thing loaned and did not inform the bailee, who incurs damages by reason thereof - REQUISITES: there is a flaw or defect in the thing loaned the flaw or defect is hidden the bailor is aware thereof he does not advise the bailee of the same the bailee suffers damages by reason of such flaw or defect - liability is by reason of bailors bad faith so if bailor is not aware of the defect, he is not liable Quasi-Delict Negligence Defined Negligence conduct that creates undue risk of harm to another. It is the failure to observe that degree of care, precaution and vigilance that the circumstances justly demand, whereby that other person suffers injury. (Smith Bell Dodwell Shipping Agency Corp. v. Borja, G.R. No. 143008, June 10, 2002) - want of care required by the circumstances. It is a relative or comparative, not an absolute term, and its application depends upon the situation of the parties, and the degree of care and vigilance which the circumstances reasonably impose. Where the danger is great a high degree of care is necessary, and the failure to observe it is a want of ordinary care under the circumstances. (US v. Juanillo, G.R. No. 7255, Oct. 3, 1912) Elements: Reasonable foresight of harm Failure to take necessary precaution

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(1) Test of Negligence Picart v. Smith, 37 PHIL 809 (1918) The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet pater familias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that. WHAT CONSTITUTES CONDUCT OF A PRUDENT MAN: Must be always determined in the light of human experience and in view of the facts involved in the particular case

(2) Application Ylarde v. Aquino, G.R. No. L-33722, July 29, 1988

TEN-YEAR OLD CHILD: We cannot agree with the finding of the lower court that the injuries which resulted in the death of the child Ylarde were caused by his own reckless imprudence. It should be remembered that he was only ten years old at the time of the incident. As such, he is expected to be playful and daring. His actuations were natural to a boy his age. Xxx The degree of care required to be exercised must vary with the capacity of the person endangered to care for himself. A minor should not be held to the same degree of care as an adult, but his conduct should be judged according to the average conduct of persons of his age and experience. The standard of conduct to which a child must conform for his own protection is that degree of care ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience under the same or similar circumstances.

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US v. Juanillo, G.R. No. 7255, Oct. 3, 1912 SIMPLE RURAL FOLK: Two native farmers who all their lives have seen nothing that moves faster than a bull cart, except on the two or three occasions on which they testify they have visited Iloilo, cannot be expected to give an intelligent idea of speed of an automobile, train, or even a fast horse. Xxxfinding himself alone on the right hand side, which had been the most accessible to him at the moment, it would be perfectly natural for an ignorant farmer at such a, to him, hazardous moment to decide suddenly to cross and join his companions on the other side. And it is not surprising if such a man should miscalculate the time necessary for an automobile, even running at only a very slow pace, to cover an intervening distance. DRIVER OF AN AUTOMOBILE: A driver of an automobile,under such circumstances, is required to use a greater degree of care than drivers of animals, for the reason that the machine is capable of greater destruction, and furthermore, it is absolutely under the power and control of the driver; whereas, a horse or other animal can and does to some extent aid in averting an accident. It is not pleasant to be obliged to slow down automobiles to accommodate persons riding, driving, or walking. It is probably more agreeable to send the machine along and the let the horse or person get out of the way in the best manner possible; but it is well to understand, if this course is adopted and accident occurs, that the automobile driver will be called upon to account for his acts. An automobile driver must at all times use all the care and caution which a careful and prudent driver would have exercised under the circumstances.

Associated Bank v. Tan, G.R. No. 156940, Dec. 14, 2004

BANK: The degree of diligence required of banks is more than that of a good father of the family where the fiduciary nature of their relationship with their depositors is concerned. Did petitioner treat respondents account with the highest degree of care? From all indications, it did not.

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It is undisputed nay, even admitted that purportedly as an act of accommodation to a valued client, the petitioner allowed the withdrawal of the face value of the deposited check prior to its clearing. That act certainly disregarded the clearance requirement of the banking system. Such a practice is unusual, because a check is not legal tender or money; and its value can properly be transferred to depositors account only after the check has been cleared by the drawee bank.

Pangonorom v. People, G.R. No. 143380, April 11, 2005

FACTORS TO CONSIDER: The issue of whether a person is negligent is a question of fact. Xxx Article 356 of the Revised Penal Code states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or omitting to perform such act, taking into consideration: (1) his employment or occupation; (2) his degree of intelligence; (3) his physical condition; and (4) other circumstances regarding persons, time and place.

Elements of Quasi-delict Damages suffered by the plaintiff; Fault or negligence of the defendant, or some other person for whose acts he must respond; and The connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff

Proximate Cause Proximate Cause that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred. Proximate cause is determined by the facts of each case upon mixed considerations of logic, common sense, policy and precedent. (American Express

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International Inc. v. Cordero, G.R. No. 138550, Oct. 14, 2005) Phil. Bank of Commerce v. CA, G.R. No. 97626, March 14, 1997 FACTS: Rommels Marketing Corporation (RMC) maintained two separate current accounts with PBC in connection with its business of selling appliances. The RMC General Manager Lipana entrusted to his secretary, Irene Yabut, RMC funds amounting to P300,000+ for the purpose of depositing the same to RMCs account with PBC. However, it turned out that Yabut deposited the amounts in her husbands account instead of RMC. Lipana never checked his monthly statement of accounts regularly furnished by PBC so that Yabuts modus operandi went on for the span of more than one year. ISSUE: What is the proximate cause of the loss Lipanas negligence in not checking his monthly statements or the banks negligence through its teller in validating the deposit slips?

HELD: The bank teller was negligent in validating, officially stamping and signing all the deposit slips prepared and presented by Yabut, despite the glaring fact that the duplicate copy was not completely accomplished contrary to the self-imposed procedure of the bank with respect to the proper validation of deposit slips, original or duplicate. The bank tellers negligence, as well as the negligence of the bank in the selection and supervision of its bank teller, is the proximate cause of the loss suffered by the private respondent, not the latters entrusting cash to a dishonest employee. Xxx Even if Yabut had the fraudulent intention to misappropriate the funds, she would not have been able to deposit those funds in her husbands current account, and them make plaintiff believe that it was in the latters accounts wherein she had deposited them, had it not been for the bank tellers aforesaid gross and reckless negligence. Doctrine of Last Clear Chance where both parties are negligent, but the negligent act of one is appreciably later in time than that of the other, or when it is impossible to determine whose fault or negligence should be attributed to the incident, the one who had the last

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clear opportunity to avoid the impending harm and failed to do so is chargeable with the consequences thereof. It means that the antecedent negligence of a person does not preclude the recovery of damages for the supervening negligence of, or bar a defense against liability sought by another, if the latter, who had the last fair chance, could have avoided the impending harm by exercise of due diligence. (Phil. Bank of Commerce v. CA, supra) - the contributory negligence of the party injured will not defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. In such cases, the person who had the last clear chance to avoid the mishap is considered in law solely responsible for the consequences thereof. (McKee v. IAC, G.R. No. 68102, July 16, 1992)

Q: When may a person be held liable for his negligent act? A: A person may be held liable for his negligent act if such is the proximate cause of the injury, even though it is merely one of many concurring efficient causes.

Far Eastern Shipping Co. v. CA, G.R. No. 130068, Oct. 1, 1998

As a general rule, negligence in order to render a person liable need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes other than plaintiffs, is the proximate cause of the injury. Accordingly, where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that the negligence of the person charged with injury is an efficient cause without which the injury would not have resulted to as great an extent, and that such cause is not attributable to the person injured. CONCURRENT NEGLIGENCE: It is no defense to one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone, without the negligence or wrongful acts of the other concurrent tortfeasor. Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not

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the same. No actors negligence ceases to be a proximate cause merely because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury. Contributory Negligence where both the plaintiff and the defendant are negligent, the damages to be awarded may be reduced by the courts (Thermochem Inc. v. Naval, G.R. No. 131541, Oct. 20, 2000)

Burden of Proof Q: Who has the burden of proving that the defendant was negligent? A: As a general rule, the person alleging negligence has the burden of proving the same. But there are two notable exceptions to the rule: (1) where the law itself provides for instances where negligence is presumed; and (2) when the thing speaks for itself (res ipsa loquitor). Exceptions (1) Presumption of Negligence Art. 2184: It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months. Art. 2185: Unless there is proof to the contrary, it is presumed that person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.

Kapalaran Bus Line v. Coronado, G.R. No. 85331, Aug. 25, 1989 Kapalarans driver had become aware that some vehicles ahead of the bus and traveling in the same direction had already stopped at the intersection obviously to give way either to pedestrians or to another vehicle about to enter the intersection. The bus driver, who was driving at a speed too high to be safe and proper at or near an intersection on the highway, and in any case too high to be able to slow down and stop behind the cars which had preceded it and which had stopped at the intersection, chose to swerve to the left lane and

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overtake such preceding vehicles, entered the intersection and directly smashed into the jeepney within the intersection. Immediately before the collision, the bus driver was actually violating the following traffic rules and regulations, among others, in the Land Transportation and Traffic Code, Republic Act No. 4136, as amended. Thus, a legal presumption arose tha the bus driver was negligent, a presumption that Kapalaran was unable to overthrow.

Anonuevo v. CA, G.R. No. 130003, Oct. 20, 2004

The applicability of Art. 2185 is expressly qualified to motor vehicles only, and there is no ground to presume that the law intended a broader coverage. NEGLIGENCE PER SE: The generally accepted view is that the violation of a statutory duty constitutes negligence, negligence as a matter of law, or negligence per se. The mere fact of violation of a statute is not sufficient basis for an inference that such violation was the proximate cause of the injury complained. However, if the very injury has happened which was intended to be prevented by the statute, it has been held that violation of the statute will be deemed to be the proximate cause of the injury. The non-observance of what the legislature has prescribed as a suitable precaution is failure to observe that care which an ordinarily prudent man would observe, and, when the state regards certain acts as so liable to injure others as to justify their absolute prohibition, doing the forbidden act is a breach of duty with respect to those who may be injured thereby; or, as it has been otherwise expressed, when the standard of care is fixed by law, failure to conform to such standard is negligence, negligence per se, or negligence in and of itself, in the absence of a legal excuse. According to this view it is immaterial, where a statute has been violated, whether the act or omission constituting such violation would have been regarded as negligence in the absence of any statute on the subject or whether there was, as a matter of fact, any reason to anticipate that injury would result from such violation. WHEN THERE IS AN ORDINANCE: But the existence of an ordinance changes the situation. If a driver causes an accident by exceeding the speed limit, for example, we do not inquire whether his prohibited conduct

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was unreasonably dangerous. It is enough that it was prohibited. Violation of an ordinance intended to promote safety is negligence. If by creating the hazard which the ordinance was intended to avoid it brings about the harm which the ordinance was intended to prevent, it is a legal cause of the harm. xxx The general principle is that the violation of a statute or ordinance is not rendered remote as the cause of an injury by the intervention of another agency if the occurrence of the accident, in the manner in which it happened, was the very thing which the statute or ordinance was intended to prevent. QUALIFICATION: Causal connection between the injury and the violation of the traffic rule should be established for liability to attach. Art. 2188: There is prima facie presumption of negligence on the part of the defendant if the death or injury results from his possession of dangerous weapons or substances, such as firearms and poison, except when the possession or use thereof is indispensable in his occupation or business.

(2) Res Ipsa Loquitur Elements: arises when no direct evidence is available applicable to pure (non-contractual) torts CAVEAT: no contributory negligence in the one invoking Inferences: instrumentality is within the management and exclusive control of the defendant the injury would have happened in the ordinary course of things if the defendant was not negligent

Layugan v. IAC, G.R. No. 73998, Nov. 14, 1988

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DOCTRINE OF RES IPSA LOQUITUR: Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of any explanation by the defendant, that the accident arose from want of care. AS DEFINED UNDER BLACKS LAW DICTIONARY: Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof that instrumentality causing injury was in defendants exclusive control, and that the accident was one which ordinarily does not happen in the absence of negligence. RULE OF EVIDENCE: The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine is not a rule of substantive law but merely a mode of proof or a mere procedural convenience. It merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. The doctrine can only be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available.

Sps. Africa v. Caltex (Phil) Inc., G.R. No. L-12986, March 31, 1966 BURDEN OF PROOF; EXCEPTION RES IPSA LOQUITUR: While it is the rule that in case of non-contractual negligence or culpa aquiliana, the burden of proof is on the plaintiff to establish that the proximate cause of his injury was the negligence of the defendant, it is also a recognized principle that where the thing which caused injury, without fault of the injured person, is under the exclusive control of the defendant and the injury is such as in the ordinary course of things does not occur if those having such control use proper care, it affords reasonable evidence, in the absence of

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the explanation that the injury arose from defendants want of care. FGU Insurance Corp v. G.P. Sarmiento Trucking Corp., G.R. No. 141910, Aug. 6, 2002 WHEN RESORT TO THE DOCTRINE IS ALLOWED: a) the event is of a kind which does not ordinarily occur in the absence of negligence; b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and c) the indicated negligence is within the scope of the defendants duty to the plaintiff. Res ipsa loquitur generally finds relevance whether or not a contractual relationship exists between the plaintiff and the defendant, for the inference of negligence arises from the circumstances and nature of the occurrence and not from the nature of the relation of the parties. Nevertheless, the requirement that responsible causes other than those due to defendants conduct must first be eliminated, for the doctrine to apply, should be understood as being confined only to cases of pure tort (non-contractual) since obviously the presumption of negligence in culpa contractual immediately attaches by a failure of the covenant or its tenor.

Q: When there is no direct proof of negligence, does res ipsa loquitur automatically apply? A: No, the doctrine of res ipsa loquitur does not automatically apply. The party invoking the doctrine must first establish that there is no direct proof of negligence AVAILABLE. Only after establishing that may he rely upon the inferences under res ipsa loquitur. Q: Why is the doctrine inapplicable in culpa contractual? A: Because in culpa contractual, the breach of the contract is already an act of presumed negligence. The contract governs the conduct of the parties so that if there is a breach, all that the plaintiff needs to prove is the existence of the contract and the breach thereof.

Special Torts Concept intentional acts

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transgressions on the chapter on Human Relations of the Civil Code Coverage (1) Abuse of Right Art. 19: Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith.

Q: How is Article 19 reconciled with the theory that he who uses a right injures no one? A: The principle of abuse of right is a departure from the theory that he who uses a right injures no one. In the said article, even if the act is merely an exercise of a right and therefore is not illegal per se, the plaintiff is given recourse in indemnity for damages as a consequence of defendants abuse of such right.

Sea Commercial Company vs. CA, G.R. No. 122823, Nov. 25, 1999

CONCEPT: The principle of abuse of rights stated in the above article, departs from the classical theory that "he who uses a right injures no one". The modern tendency is to depart from the classical and traditional theory, and to grant indemnity for damages in cases where there is an abuse of rights, even when the act is not illicit. RATIONALE: Art. 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to provide specifically in statutory law. If mere fault or negligence in one's acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make him liable. The absence of good faith is essential to abuse of right. Good faith is an honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of the law, together with an absence of all information or belief of fact which would render the transaction unconscientious. In business relations, it means

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good faith as understood by men of affairs. ELEMENTS OF AN ABUSE OF RIGHT: While Article 19 may have been intended as a mere declaration of principle, the "cardinal law on human conduct" expressed in said article has given rise to certain rules, e.g. that where a person exercises his rights but does so arbitrarily or unjustly or performs his duties in a manner that is not in keeping with honesty and good faith, he opens himself to liability. The elements of an abuse of rights under Article 19 are: (1) there is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. Even if the dealership agreement was amended to make it on a non-exclusive basis, SEACOM may not exercise its right unjustly or in a manner that is not in keeping with honesty or good faith; otherwise it opens itself to liability under the abuse of right rule embodied in Article 19 of the Civil Code above-quoted. This provision, together with the succeeding article on human relation, was intended to embody certain basic principles "that are to be observed for the rightful relationship between human being and for the stability of the social order." What is sought to be written into the law is the pervading principle of equity and justice above strict legalism.

Gashem Shookat Baksh vs. CA, G.R. No. 97336, Feb. 19, 1993

Article 21 (which) is designed to expand the concept of torts or quasi-delict in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically enumerate and punish in the statute books. where a mans promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entire or inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed thereafter. It is essential, however, that such injury should have been committed in a manner contrary to morals, good customs or public

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policy. Albenson Enterprises Corp vs CA, G.R. No. 88694, Jan. 11, 1993 STANDARDS IN THE EXERCISE OF RIGHT: Article 19, known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which may be observed not only in the exercise of one's rights but also in the performance of one's duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore, recognizes the primordial limitation on all rights: that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. Although the requirements of each provision is different, these three (3) articles are all related to each other. As the eminent Civilist Senator Arturo Tolentino puts it: "With this article (Article 21), combined with articles 19 and 20, the scope of our law on civil wrongs has been very greatly broadened; it has become much more supple and adaptable than the Anglo-American law on torts. It is now difficult to conceive of any malevolent exercise of a right which could not be checked by the application of these articles" (Tolentino, 1 Civil Code of the Philippines 72). ELEMENTS: The elements of an abuse of right under Article 19 are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction (Tolentino, supra, p. 71). Thus, anyone who, whether willfully or negligently, in the exercise of his legal right or duty, causes damage to another, shall indemnify his victim for injuries suffered thereby. Article 21 deals with acts contra bonus mores, and has the following elements: 1) There is an act which is legal; 2) but which is contrary to morals, good custom, public order, or public policy; 3) and it is done with intent to injure. Thus, under any of these three (3) provisions of law, an act which causes injury to another

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may be made the basis for an award of damages. There is a common element under Articles 19 and 21, and that is, the act must be intentional. However, Article 20 does not distinguish: the act may be done either "willfully", or "negligently".

DBP vs. CA, G.R. No. 137916, Dec. 8, 2004

MALICE MUST BE PROVEN: Malice or bad faith is at the core of said provision (Article 19). Good faith is presumed and he who alleges bad faith has the duty to prove the same. GOOD FAITH DEFINED: Good faith refers to the state of the mind which is manifested by the acts of the individual concerned. It consists of the intention to abstain from taking an unconscionable and unscrupulous advantage of another. BAD FAITH DEFINED: Bad faith does not simply connote bad judgment or simple negligence, dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of known duty due to some motives or interest or ill-will that partakes of the nature of fraud. Malice connotes ill-will or spite and speaks not in response to duty. It implies an intention to do ulterior and unjustifiable harm. Malice is bad faith or bad motive.

(2) Emotional Distress MVRS Publications vs. Islamic Dawah Council of the Philippines, G.R. No. 135306, Jan. 28, 2003 FACTS: Islamic DaWah Council of the Philippines, Inc., a local federation of more than 70 Muslim religious organizations, filed a complaint for damages against MVRS Publications, Inc., arising from an article, which reads:

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"ALAM BA NINYO? Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga Muslim? Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang 'Ramadan'." ISSUE: W/N this is an action for defamation (libel) or an emotional distress tort action

HELD: The Supreme Court held that there is no cause of action for defamation. DEFAMATION DEFINED: Defamation, which includes libel and slander, means the offense of injuring a person's character, fame or reputation through false and malicious statements. It is that which tends to injure reputation or to diminish the esteem, respect, good will or confidence in the plaintiff or to excite derogatory feelings or opinions about the plaintiff. It is the publication of anything which is injurious to the good name or reputation of another or tends to bring him into disrepute. Defamation is an invasion of a relational interest since it involves the opinion which others in the community may have, or tend to have, of the plaintiff. GROUP LIBEL/DEFAMATION: where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be. The statements published by petitioners in the instant case did not specifically identify nor

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refer to any particular individuals who were purportedly the subject of the alleged libelous publication. Respondents can scarcely claim to having been singled out for social censure pointedly resulting in damages. The action likewise is not for emotional distress. EMOTIONAL DISTRESS v. DEFAMATION: Primarily, an "emotional distress" tort action is personal in nature, i.e., it is a civil action filed by an individual to assuage the injuries to his emotional tranquility due to personal attacks on his character. It has no application in the instant case since no particular individual was identified in the disputed article of Bulgar. Also, the purported damage caused by the article, assuming there was any, falls under the principle of relational harm which includes harm to social relationships in the community in the form of defamation; as distinguished from the principle of reactive harm which includes injuries to individual emotional tranquility in the form of an infliction of emotional distress. In their complaint, respondents clearly asserted an alleged harm to the standing of Muslims in the community, especially to their activities in propagating their faith in Metro Manila and in other nonMuslim communities in the country. It is thus beyond cavil that the present case falls within the application of the relational harm principle of tort actions for defamation, rather than the reactive harm principle on which the concept of emotional distress properly belongs. WHEN PLAINTIFF MAY RECOVER: To recover for the intentional infliction of emotional distress the plaintiff must show that: (a) The conduct of the defendant was intentional or in reckless disregard of the plaintiff; (b) The conduct was extreme and outrageous; (c) There was a causal connection between the defendant's conduct and the plaintiff's mental distress; and, (d) The plaintiff's mental distress was extreme and severe. "Extreme and outrageous conduct" means conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society. The defendant's actions must have been so terrifying as naturally to humiliate, embarrass or frighten the plaintiff. "Emotional distress" means any highly unpleasant mental reaction such as extreme grief, shame, humiliation, embarrassment, anger, disappointment, worry, nausea, mental

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suffering and anguish, shock, fright, horror, and chagrin. "Severe emotional distress," in some jurisdictions, refers to any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so, including posttraumatic stress disorder, neurosis, psychosis, chronic depression, or phobia. The plaintiff is required to show, among other things, that he or she has suffered emotional distress so severe that no reasonable person could be expected to endure it; severity of the distress is an element of the cause of action, not simply a matter of damages. Any party seeking recovery for mental anguish must prove more than mere worry, anxiety, vexation, embarrassment, or anger. Liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities. In determining whether the tort of outrage had been committed, a plaintiff is necessarily expected and required to be hardened to a certain amount of criticism, rough language, and to occasional acts and words that are definitely inconsiderate and unkind; the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.

(3) Interferences with Contractual Relations Art. 1314: Any third person who induces another to violate his contract shall be liable for damages to the other contracting party.

Lagon vs CA, G.R. No. 119107, March 18, 2005

ELEMENTS: The Court, in the case of So Ping Bun v. Court of Appeals, laid down the elements of tortuous interference with contractual relations: (a) existence of a valid contract; (b) knowledge on the part of the third person of the existence of the contract and (c) interference of the third person without legal justification or excuse. In that case, petitioner So Ping Bun occupied the premises which the corporation of his grandfather was leasing from private respondent, without the knowledge and permission of the corporation. The corporation, prevented from using the premises for its business, sued So Ping Bun for tortuous interference. FIRST ELEMENT, VALID CONTRACT:

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As regards the first element, the existence of a valid contract must be duly established. To prove this, private respondent presented in court a notarized copy of the purported lease renewal. While the contract appeared as duly notarized, the notarization thereof, however, only proved its due execution and delivery but not the veracity of its contents. Nonetheless, after undergoing the rigid scrutiny of petitioners counsel and after the trial court declared it to be valid and subsisting, the notarized copy of the lease contract presented in court appeared to be incontestable proof that private respondent and the late Bai Tonina Sepi actually renewed their lease contract. Settled is the rule that until overcome by clear, strong and convincing evidence, a notarized document continues to be prima facie evidence of the facts that gave rise to its execution and delivery. SECOND ELEMENT, KNOWLEDGE: The second element, on the other hand, requires that there be knowledge on the part of the interferer that the contract exists. Knowledge of the subsistence of the contract is an essential element to state a cause of action for tortuous interference. A defendant in such a case cannot be made liable for interfering with a contract he is unaware of. While it is not necessary to prove actual knowledge, he must nonetheless be aware of the facts which, if followed by a reasonable inquiry, will lead to a complete disclosure of the contractual relations and rights of the parties in the contract. In this case, petitioner claims that he had no knowledge of the lease contract. His sellers (the heirs of Bai Tonina Sepi) likewise allegedly did not inform him of any existing lease contract. After a careful perusal of the records, we find the contention of petitioner meritorious. He conducted his own personal investigation and inquiry, and unearthed no suspicious circumstance that would have made a cautious man probe deeper and watch out for any conflicting claim over the property. An examination of the entire propertys title bore no indication of the leasehold interest of private respondent. Even the registry of property had no record of the same. Assuming ex gratia argumenti that petitioner knew of the contract, such knowledge alone was not sufficient to make him liable for tortuous interference. Which brings us to the third element. THIRD ELEMENT, LACK OF LEGAL EXCUSE:

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According to our ruling in So Ping Bun, petitioner may be held liable only when there was no legal justification or excuse for his action or when his conduct was stirred by a wrongful motive. To sustain a case for tortuous interference, the defendant must have acted with malice or must have been driven by purely impious reasons to injure the plaintiff. In other words, his act of interference cannot be justified. Furthermore, the records do not support the allegation of private respondent that petitioner induced the heirs of Bai Tonina Sepi to sell the property to him. The word induce refers to situations where a person causes another to choose one course of conduct by persuasion or intimidation. The records show that the decision of the heirs of the late Bai Tonina Sepi to sell the property was completely of their own volition and that petitioner did absolutely nothing to influence their judgment. Private respondent himself did not proffer any evidence to support his claim. In short, even assuming that private respondent was able to prove the renewal of his lease contract with Bai Tonina Sepi, the fact was that he was unable to prove malice or bad faith on the part of petitioner in purchasing the property. Therefore, the claim of tortuous interference was never established. LEGAL JUSTIFICATION, EXPLAINED: As a general rule, justification for interfering with the business relations of another exists where the actors motive is to benefit himself. Such justification does not exist where the actors motive is to cause harm to the other. Added to this, some authorities believe that it is not necessary that the interferers interest outweigh that of the party whose rights are invaded, and that an individual acts under an economic interest that is substantial, not merely de minimis, such that wrongful and malicious motives are negatived, for he acts in self-protection. Moreover, justification for protecting ones financial position should not be made to depend on a comparison of his economic interest in the subject matter with that of the others. It is sufficient if the impetus of his conduct lies in a proper business interest rather than in wrongful motives.

Medical Malpractice Medical Malpractice Defined - failure of a physician to apply to his practice of medicine that degree of care and skill

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which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances Reyes vs. Sisters of Mercy Hospital, G.R. No. 130547, Oct. 3, 2000 CONCEPT: Petitioners action is for medical malpractice. This is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would have done, or that he or she did something that a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient. There are thus four elements involved in medical negligence cases, namely: duty, breach, injury, and proximate causation. Elements of Medical Malpractice duty the existence of a physician-patient relationship breach of duty injury caused causal connection between the breach of duty and the injury caused

Evidentiary Rule TWO-PRONGED EVIDENCE: evidence of the recognized standards the physician negligently departed from these standards

EXPERT TESTIMONY ESSENTIAL: In the present case, there is no doubt that a physician-patient relationship existed between

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respondent doctors and Jorge Reyes. Respondents were thus duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances. It is breach of this duty which constitutes actionable malpractice. As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is essential. Inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation. (Reyes vs. Sisters of Mercy Hospital, supra) EXCEPTION: There is a case when expert testimony may be dispensed with, and that is under the doctrine of res ipsa loquitur. As held in Ramos v. Court of Appeals: Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitor is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitor is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress

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for injury suffered by him. (Reyes vs. Sisters of Mercy Hospital, supra) Standard of Diligence Required - the standard of care in the locality (Locality Rule) - a physician is not liable for error in judgment (Error in Judgment Rule), provided he applied reasonable skill and care STANDARD OF DILIGENCE REQUIRED: Indeed, the standard contemplated is not what is actually the average merit among all known practitioners from the best to the worst and from the most to the least experienced, but the reasonable average merit among the ordinarily good physicians. STANDARD IS NOT EXTRAORDINARY DILIGENCE: The standard of extraordinary diligence is peculiar to common carriers. The Civil Code provides: "Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to the circumstances of each case. . . ." The practice of medicine is a profession engaged in only by qualified individuals. It is a right earned through years of education, training, and by first obtaining a license from the state through professional board examinations. Such license may, at any time and for cause, be revoked by the government. In addition to state regulation, the conduct of doctors is also strictly governed by the Hippocratic Oath, an ancient code of discipline and ethical rules which doctors have imposed upon themselves in recognition and acceptance of their great responsibility to society. Given these safeguards, there is no need to expressly require of doctors the observance of extraordinary diligence. As it is now, the practice of medicine is already conditioned upon the highest degree of diligence. And, as we have already noted, the standard contemplated for doctors is simply the reasonable average merit among ordinarily good physicians. That is reasonable diligence for doctors or, as the Court of Appeals called it, the reasonable skill and competence . . . that a physician in the same or similar locality . . . should apply. (Reyes vs. Sisters of Mercy Hospital, supra) Responsibility of the Hospital Ramos vs. CA, G.R. No. 124354, Dec. 29, 1999

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RESPONSIBILITY OF THE HOSPITAL: The unique practice (among private hospitals) of filling up specialist staff with attending and visiting "consultants," who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more apparent than real. In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are required to submit proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. This is particularly true with respondent hospital. After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physician's performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated. In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant" staff. While "consultants" are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patient's condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This being the

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case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioner's condition. Introduction to Conflict of Laws Private International Law - that branch of international law which regulates the comity of states in giving effect in one to the municipal laws of another relating private persons, or concerns the rights of persons within the territory and dominion of one state or nation, by reason of acts, private or public, done within the dominion of another, and which is based on the broad general principle that one country will respect and give effect to the laws of another so far as can be done consistently with its own interests Foreign element - a factual situation that cuts across territorial lines and is thus affected by the diverse laws of two or more states Comity - the recognition which one state allows within its territory to the legislative, executive, or judicial acts of another state, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws Lex situs - the applicable law regarding the acquisition, transfer and devolution of the title to property is the law where the property is located Lex fori - the law of the forum, where the case if filed Lex loci actus - the law of the place where the act is done Lex loci celebrationis - the law of the place where the contract is entered into Lex loci contractus - the proper law applicable in deciding the rights and liabilities of the contracting parties Lex loci delictus - the law of the place where the offense or wrong took place Lex loci domicilii - the law of the place of the domicile of the person Lex loci rei sitae (lex situs) - the law of the place where a thing is situated

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Kilberg doctrine - a rule to the effect that the forum is not bound by the law of the place of injury or death as to the limitation on damages for wrongful act because such rule is procedural and hence the law of the forum governs the issue Center of gravity doctrine (most significant relationship theory; grouping of contacts) choice of law problems in conflict of laws are resolved by the application of the law of the jurisdiction which has the most significant relationship to or contact with event and parties to litigation and the issue therein

GENERAL RULE: Law of one country has no application and force in another country. Philippine laws have no extraterritorial effect. EXCEPTION: Consent: when our laws provide extraterritorial effect to our laws with respect to citizens and nationals (e.g. extraterritoriality principle of RPC)

**But now in PRIL, foreign laws and foreign judgments may be given force and effect in our country, because of the growing inter-dependence of states and on basis of the principle of comity.

2 REMEDIES INVOLVED: Enforcement of rights Recognition and enforcement of foreign judgment

**Conflict of laws presupposes two or more conflicting laws, between a local law and a foreign law involving a foreign element or elements, which requires a determination of which law should apply. Is there a conflicts case? A factual situation that cuts across territorial lines and is affected by the diverse laws of two or more states is said to contain a foreign element. The presence of a foreign element

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is inevitable since social and economic affairs of individuals and associations are rarely confined to the geographic limits of their birth or conception. (Saudi Arabia Airlines vs. CA, G.R. No. 122191, Oct. 8, 1998) The forms in which this foreign element may appear are many. The foreign element may simply consist in the fact that one of the parties to a contract is an alien or has a foreign domicile, or that a contract between nationals of one State involves properties situated in another State. In other cases, the foreign element may assume a complex form. (Saudi Arabia Airlines vs. CA, supra) In the instant case, the foreign element consisted in the fact that private respondent Morada is a resident Philippine national, and that petitioner SAUDIA is a resident foreign corporation. Also, by virtue of the employment of Morada with the petitioner SAUDIA as a flight stewardess, events did transpire during her many occasions of travel across national borders, particularly from Manila, Philippines to Jeddah, Saudi Arabia, and vice versa, that caused a conflicts situation to arise.(Saudi Arabia Airlines vs. CA, supra)

3 WAYS OF SOLVING CONFLICT OF LAWS PROBLEM: Court might refuse to hear the case and dismiss it on ground of lack of jurisdiction or forum non conveniens Court might decide the case by its own local law Court might decide the case by special rules formulated to address the problem

A. Choice of Law Principles GENERAL RULE: Foreign laws and judgments have no effect in the Philippines EXCEPTION: Consent, express (there is a law) or implied (comity)

B. Characterization and Points of Contact Characterization (Doctrine of Qualification) - process of deciding whether or not the facts relate (refer to the connecting factors) to the kind of question specified in a conflicts rule; to

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enable the forum to select the proper law ELEMENTS OF CHARACTERIZATION: Foreign element Points of contact Proper law applicable

TEST FACTORS / POINTS OF CONTACT / CONNECTING FACTORS: Nationality of a person, his domicile, his residence, his place of sojourn, or his origin The seat of a legal or juridical person, such as a corporation The situs of a thing, that is, the place where a thing is, or is deemed to be situated. In particular, the lex situs is decisive when real rights are involved The place where an act has been done, the locus actus, such as the place where a contract has been made, a marriage celebrated, a will signed or a tort committd. The lex loci actus is particularly important in contracts and torts The place where an act is intended to come into effect, e.g. the place of performance of contractual duties, or the pace where a power of attorney is to be exercised The intention of the contracting parties as to the law that should govern their agreement, the lex loci intentionis The place where judicial or administrative proceedings are instituted or done. The lex fori the law of the forum - is particularly important because, as we have seen earlier, matters of procedure not going to the substance of the claim involved are governed by it; and because the lex fori applies whenever the content of the otherwise applicable foreign law is excluded from application in a given case for the reason that it fails under one of the exceptions to the application of foreign law The flag of the ship, which in many cases, is decisive of practically all legal relationships of the ship and of its master or owner as such. It also covers contractual relationships particularly contracts of affreightment.

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CONFLICTS PROBLEM; JURISDICTION; CHARACTERIZATION; POINTS OF CONTACT; STATE OF THE MOST SIGNIFICANT RELATIONSHIP Saudi Arabia Airlines vs. CA, G.R. No. 122191, Oct. 8, 1998

FACTS: Morada, a Filipina flight stewardess for SAUDIA, was a attempted raped by Saudia Arabian national crewmembers in Indonesia. She returned to Manila and while there, she was convinced by SAUDIA manager to go to Jeddah and sign some papers, purporting to be release forms in favor of her fellow crewmembers. It turned out that the documents were court summons and orders, trying and finding her guilty of adultery and other violations of Islamic tradition. Upon her release and return to Manila, she filed a case for damages based on Art. 19 and 21 of the Civil Code. HELD: There is a conflicts problem as there is a foreign element involved -- Morada is employed by a resident foreign corporation, an international carrier, and some of the acts complained of occurred in Jeddah. The trial court has jurisdiction over the subject matter -- damage suit based on Art. 19 and 21 -- and over the persons of Morada (plaintiff) and SAUDIA (voluntary submission by filing answer). For characterization, the point of contact considered is the lex loci actus or the place where the tortuous act causing the injury occurred -- Manila, Philippines since this is where SAUDIA deceived Morada. The State of the Most Significant Relationship rule was also applied, SC holding that the Philippines is where the over-all harm of the injury to the person, reputation, social standing and human rights of Morada had lodged. IN SUM: Morada is entitled to recovery for damages.

C. Choice of Applicable Law

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2 IMPORTANT QUESTIONS IN A CHOICE-OF-LAW PROBLEM: What legal system should control a given situation where some of the significant factors occurred in two or more states - solved by characterization To what extent should the chosen legal system regulate the situation

PHILIPPINE STATUTORY DIRECTIVES ON CHOICE OF LAW: 1. Personal law - nationality rule Family rights and duties - those which arise from family relations, and include those between husband and wife, and between parent and child, among other ascendants and their descendants and among brothers and sisters Status - birth, marriage death, legal separation, annulment of marriage, judgment declaring the nullity of marriage, legitimation, adoption, acknowledgment of natural children, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation, voluntary emancipation of a minor and change of name Condition Legal capacity 2. Property - lex rei sitae

PERSONAL LAW: NATIONALITY RULE; RENVOI DOCTRINE; DOCTRINE OF PROCESSUAL PRESUMPTION

Bellis vs. Bellis, G.R. No. L-23678, June 6, 1967

FACTS: Amos Bellis, a US citizen, died a resident of Texas. He left two wills -- one devising a certain amount of money to his first wife and three illegitimate children and another, leaving the rest of his estate to his seven legitimate children. Before partition, the illegitimate children who are Filipinos opposed on the ground that they are deprived of their legitimes.

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ISSUE: Whether the applicable law is Texas law or Philippine laws HELD: Applying the nationality rule, the law of Texas should govern the intrinsic validity of the will and therefore answer the question on entitlement to legitimes. But since the law of Texas was never proven, the doctrine of processual presumption was applied. Hence, SC assumed that Texas law is the same as Philippine laws, which upholds the nationality rule. Renvoi doctrine is not applicable because there is no conflict as to the nationality and domicile of Bellis. He is both a citizen and a resident of Texas. So even if assuming the law of Texas applies the domiciliary rule, it is still Texas law that governs because his domicile is Texas.

LEGAL CAPACITY: LAW OF THE PLACE WHERE CONTRACT WAS ENTERED INTO

Government vs. Frank, G.R. No. 2935, March 23, 1909

FACTS: In Chicago, Ill., USA, Frank entered into an employment contract as stenographer with the Government. The contract is to be performed in the Philippines. However, upon arrival in the Philippines, Frank left the service. Government thus sued him for the breach. Frank raised the defense of minority, contending that by Philippine laws, he does not have legal capacity to enter into contracts. ISSUE: Whether or not Frank has legal capacity to enter into contracts HELD: It is not disputed that at the time and place of the making of the contract in question, the defendant had full capacity to make the same. No rule is better settled in law than that

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matters bearing upon the execution, interpretation and validity of a contract are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting a remedy, such as the bringing of suit, admissibility of evidence, and statutes of limitations, depend upon the law of the place where the suit is brought. The plaintiff (defendant) being fully qualified to enter into the contract at the place and time the contract is made, he cannot implead infancy as a defense at the place where the contract is being enforced.

GENERAL RULE: No foreign law may or should interfere with the operation and application of Philippine laws. EXCEPTIONS: When the Philippine Legislature has, by law, given its consent to the extension of a specific foreign law to the Philippines (e.g. COGSA) When Congress enacts a law adopting or copying a specific foreign statute When State enters into a treaty or convention When parties themselves stipulate that foreign law governs their relationship Borrowing Statute - a statute which directs the court of the forum to apply the foreign statute to the pending claims based on a foreign law When Philippine conflict of laws rule refer to foreign law as applicable law (e.g. nationality principle)

EXCEPTION TO THE BORROWING STATUTE

Cadalin vs. POEA, G.R. No. L-104776, Dec. 5, 1994

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FACTS: Cadalin et al. are OCWs deployed to various Middle Eastern countries, including Bahrain. Under the contracts, the choice of applicable law is Bahrain law in case of contractual disputes. The contracts were later pre-terminated so Cadalin et al. filed with RTC a case for recovery of unpaid wages, etc. Under Bahrain law, the action has already prescribed. ISSUE: Whether or not Bahrain law should be applied on the question of prescription of action HELD: Statute of limitations is sui generis -- it may be procedural or substantive, depending on the characterization given such a law. This distinction, however, becomes irrelevant when there is a borrowing statute, as in the case of our Rules of Court, which provides that any action barred under the law of the country where the cause of action arose is also barred in the Philippines. But, in this case, SC did not apply our Rules of Court on the ground that doing so would contravene the constitutional provision on protecting the rights of labor. The courts of the forum will not enforce an foreign claims obnoxious to the forums public policy.

D. Agreement on Applicable Law GENERAL RULE: Parties are free to stipulate as to the applicable foreign law to govern their dispute arising from the contract. EXCEPTIONS: Where there is some basis for applying law of the forum (minimum contact) Where plaintiff and defendant are both residents of the forum Where a reasonable reading of the choice of law and forum agreement does not preclude the filing of the action in the residence of the plaintiff or the defendant

BUT if there is no agreement as to applicable law governing contract --

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Apply the law of the State of the Most Significant Relationship, taking into account the following CONTACTS: Place of contracting Place of negotiation of the contract Place of performance Location of the subject matter of the contract Domicile, residence, nationality, place of incorporation and place of business of the contracting parties

CHOICE OF LAW ON JURISDICTION TREATED AS CHOICE OF VENUE

HSBSC vs. Sherman, G.R. No. 72494, Aug. 11, 1989

FACTS: A Singaporean company applied with and was granted by the Singapore branch of HSBC an overdraft facility, secured by a Joint and Several Guarantee executed by the formers directors (Filipino residents). In the Guarantee, there is a clause stipulating that jurisdiction over any dispute arising from the transaction is vested with the Singaporean courts. When the Singaporean company defaulted, HSBC filed suit against the directors in the Philippines. ISSUE: Whether or not the choice of law clause should be upheld HELD: Jurisdiction, which finds its source in sovereignty, cannot be bargained away by the parties. The State can assume jurisdiction when there is a reasonable basis of exercising it. To be reasonable, the jurisdiction must be based on some minimum contacts that will not offend traditional notions on fair play and substantial justice. In the present case, the minimum contact considered is the Philippine residence of the

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private respondents. In assuming jurisdiction, SC held that the parties did not stipulate that only the courts of Singapore, to the exclusion of all the rest, has jurisdiction. (Because jurisdiction cannot be stipulated upon, the choice of jurisdiction was treated as a choice of venue. And applying thus, the choice of venue is only permissive, in the absence of restrictive words to lend exclusivity to the chosen forum.)

NOTA BENE: When faced with a case that potentially involves the application of Conflict of Laws principles: 1. First, determine jurisdiction of the forum No jurisdiction - dismiss Has jurisdiction but refuse to exercise it (forum non conveniens) Has jurisdiction and exercises it - move to second step 2. Second, determine the foreign element/s involved (factual) No foreign element - apply local law Has foreign element - move to third step 3. Third, determine existence of conflict of laws No conflict - apply foreign or local law, as case may be Has conflict - move to fourth step 4. Fourth, determine choice of law (law applicable) Local law Foreign law

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Conflict of Laws: Application of Foreign Law HOW FOREIGN LAW IS GIVEN APPLICATION IN THE PHILIPPINES: By statutory directives (consent of the State) By agreement of the parties By treaty or convention By conflict of laws rule

In their absence -A. Principles governing Conflict of Law Cases 1. Substance vs. Procedural Principles All matters of procedure are governed by the law of the forum where the case is filed, while matters of substance are governed by the law of the country where the cause of action arose. PROBLEM: Some laws may be treated by one country as procedural and by another country as substantive (e.g. statute of limitations) SOLUTIONS: Government Interest Analysis - the law of the country whose interest is most impaired by failure to apply its statute should be applied Borrowing Statute - the law of the country has a statute borrowing the prescriptive period provided in the foreign statute; EXCEPTION: when contrary to public policy or prohibitive laws

2. Center of Gravity Doctrine (Grouping of Contacts Principle or State of the Most Significant Relationship Theory)

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Law of the state which has the most significant relationship with the occurrence and with the parties determines their rights and liabilities in tort or in contract 3. Renvoi Doctrine (Table Tennis Theory) The conflict of law rule of the forum resorts to the foreign law, which in turn refers back to the law of the forum.

RENVOI DOCTRINE APPLIED

Aznar vs. Garcia, G.R. No. L-16749, Jan. 3, 1963

FACTS: Edward Christensen, who at his death was a US citizen but domiciled in the Philippines, left a will, devising unto Maria Helen a certain amount of money and giving the rest of his estate to Maria Lucy. Helen opposed the partition on the ground that she is deprived of her legitime. Her contention is that the law of California directs that the law of the domicile (Philippines) should govern the will. ISSUE: Whether or not the national law or the domiciliary law should apply HELD: The intrinsic validity of wills is governed by the national law of the decedent. In the present case, the national law of Edward is the laws of California. However, there were two conflicting California laws regarding succession. One is enunciated in In Re Kaufman (which does not provide for legitimes) and another is Art. 946 of the California Civil Code (which provides that the law of the domicile applies). SC held that the national law is Art. 946, which is the conflict of laws rule of California. The reason is that In Re Kaufman applies only to residents while Art. 946 is specific to non-residents. Thus, since Art. 946

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contains a refer-back to Philippine laws (the law of the domicile), then Maria Helen is entitled to her legitime. 4. Lex Fori The law of the forum governs all matters pertaining to procedural or remedial rights.

B. Applicability of Foreign Laws and its Exceptions WHEN FOREIGN LAW, EVEN THOUGH APPLICABLE, MAY NOT BE GIVEN APPLICATION: Foreign law contravenes prohibitive law or public policy of the forum Relationship of the parties affects public interest Real property is involved (apply lex rei sitae) Foreign law, judgment or contract is contrary to a sound and established public policy of the forum Foreign law is procedural in nature (lex fori governs procedural matters) Foreign law is penal in nature

EXCEPTION: CONTRARY TO SOUND PUBLIC POLICY

Bank of America, NT vs. American Realty Corporation, .G.R No. 133876, Dec. 29, 1999

FACTS: Bank of America, duly licensed to do business in the Philippines and existing under the laws of California, USA, granted US Dollar loans to certain foreign corporate borrowers.

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These loans were secured by two real estate mortgages by American Realty, a domestic corporation. When the borrowers defaulted, Bank of America sued them before English courts. While these cases were pending, Bank of America likewise judicially foreclosed the real estate mortgages in the Philippines. Thus, American Realty sued for damages against Bank of America. ISSUE: Whether or not Bank of America can judicially foreclose the real estate mortgages despite pendency of the civil suits before English courts HELD: English law purportedly allows the filing of judicial foreclosure of mortgage despite pendency of civil suit for collection. But English law was never properly impleaded and proven. Thus, the doctrine of processual presumption applies. SC further held that even assuming arguendo that English laws were proven, said foreign law would still no find applicability. When the foreign law, judgment or contract is contrary to a sound and established public policy of the forum, the said foreign law, judgment or order shall not be applied. Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective b laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the splitting of a single cause of action. Moreover, the foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum.

C. Authentication, Electronic Evidence and Judicial Cognizance of Foreign Judgments **To be recognized by Philippine courts, foreign laws and judgments must be alleged and proved.

HOW FOREIGN PUBLIC DOCUMENTS ARE PROVED:

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Official publication Certified true copy or one attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has custody The certificate must be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept Authenticated by his seal of office

**If the foreign law or judgment does not comply with the above requirements, it will not be recognized and the Doctrine of Processual Presumption will apply (Philippine courts will assume the foreign law is the same as Philippine laws).

GENERAL RULE: Philippine courts are not authorized to take judicial notice of foreign laws. EXCEPTIONS: Where there are exceptional circumstances when the foreign laws are already within the actual knowledge of the court (generally known or actually ruled upon in a prior case) Where the courts are familiar with the specific foreign laws (e.g. Spanish civil law) Where the adverse party did not dispute the application of foreign law Where the tribunal is a quasi-judicial body which is not bound by strict rules of technicality

Conflict of Laws: Application of Foreign Law HOW FOREIGN LAW IS GIVEN APPLICATION IN THE PHILIPPINES: By statutory directives (consent of the State) By agreement of the parties By treaty or convention

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By conflict of laws rule In their absence -A. Principles governing Conflict of Law Cases 1. Substance vs. Procedural Principles All matters of procedure are governed by the law of the forum where the case is filed, while matters of substance are governed by the law of the country where the cause of action arose. PROBLEM: Some laws may be treated by one country as procedural and by another country as substantive (e.g. statute of limitations) SOLUTIONS: Government Interest Analysis - the law of the country whose interest is most impaired by failure to apply its statute should be applied Borrowing Statute - the law of the country has a statute borrowing the prescriptive period provided in the foreign statute; EXCEPTION: when contrary to public policy or prohibitive laws

2. Center of Gravity Doctrine (Grouping of Contacts Principle or State of the Most Significant Relationship Theory) Law of the state which has the most significant relationship with the occurrence and with the parties determines their rights and liabilities in tort or in contract 3. Renvoi Doctrine (Table Tennis Theory) The conflict of law rule of the forum resorts to the foreign law, which in turn refers back to the law of the forum.

RENVOI DOCTRINE APPLIED

Aznar vs. Garcia, G.R. No. L-16749, Jan. 3, 1963

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FACTS: Edward Christensen, who at his death was a US citizen but domiciled in the Philippines, left a will, devising unto Maria Helen a certain amount of money and giving the rest of his estate to Maria Lucy. Helen opposed the partition on the ground that she is deprived of her legitime. Her contention is that the law of California directs that the law of the domicile (Philippines) should govern the will. ISSUE: Whether or not the national law or the domiciliary law should apply HELD: The intrinsic validity of wills is governed by the national law of the decedent. In the present case, the national law of Edward is the laws of California. However, there were two conflicting California laws regarding succession. One is enunciated in In Re Kaufman (which does not provide for legitimes) and another is Art. 946 of the California Civil Code (which provides that the law of the domicile applies). SC held that the national law is Art. 946, which is the conflict of laws rule of California. The reason is that In Re Kaufman applies only to residents while Art. 946 is specific to non-residents. Thus, since Art. 946 contains a refer-back to Philippine laws (the law of the domicile), then Maria Helen is entitled to her legitime.

4. Lex Fori The law of the forum governs all matters pertaining to procedural or remedial rights.

B. Applicability of Foreign Laws and its Exceptions WHEN FOREIGN LAW, EVEN THOUGH APPLICABLE, MAY NOT BE GIVEN APPLICATION: Foreign law contravenes prohibitive law or public policy of the forum Relationship of the parties affects public interest Real property is involved (apply lex rei sitae) Foreign law, judgment or contract is contrary to a sound and established public policy of the forum

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Foreign law is procedural in nature (lex fori governs procedural matters) Foreign law is penal in nature EXCEPTION: CONTRARY TO SOUND PUBLIC POLICY

Bank of America, NT vs. American Realty Corporation, .G.R No. 133876, Dec. 29, 1999

FACTS: Bank of America, duly licensed to do business in the Philippines and existing under the laws of California, USA, granted US Dollar loans to certain foreign corporate borrowers. These loans were secured by two real estate mortgages by American Realty, a domestic corporation. When the borrowers defaulted, Bank of America sued them before English courts. While these cases were pending, Bank of America likewise judicially foreclosed the real estate mortgages in the Philippines. Thus, American Realty sued for damages against Bank of America. ISSUE: Whether or not Bank of America can judicially foreclose the real estate mortgages despite pendency of the civil suits before English courts HELD: English law purportedly allows the filing of judicial foreclosure of mortgage despite pendency of civil suit for collection. But English law was never properly impleaded and proven. Thus, the doctrine of processual presumption applies. SC further held that even assuming arguendo that English laws were proven, said foreign law would still no find applicability. When the foreign law, judgment or contract is contrary to a sound and established public policy of the forum, the said foreign law, judgment or order shall not be applied. Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective b laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the splitting of a single cause of action.

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Moreover, the foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum. C. Authentication, Electronic Evidence and Judicial Cognizance of Foreign Judgments **To be recognized by Philippine courts, foreign laws and judgments must be alleged and proved.

HOW FOREIGN PUBLIC DOCUMENTS ARE PROVED: Official publication Certified true copy or one attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has custody The certificate must be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept Authenticated by his seal of office

**If the foreign law or judgment does not comply with the above requirements, it will not be recognized and the Doctrine of Processual Presumption will apply (Philippine courts will assume the foreign law is the same as Philippine laws).

GENERAL RULE: Philippine courts are not authorized to take judicial notice of foreign laws. EXCEPTIONS: Where there are exceptional circumstances when the foreign laws are already within the actual knowledge of the court (generally known or actually ruled upon in a prior case) Where the courts are familiar with the specific foreign laws (e.g. Spanish civil law) Where the adverse party did not dispute the application of foreign law Where the tribunal is a quasi-judicial body which is not bound by strict rules of technicality

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Income and Income Taxation
A. Income all wealth that flows into the taxpayer other than as mere return of capital a.1. Income v. Capital capital is fund while income is flow capital is wealth while income is service of wealth capital is the tree while income is the fruit return of capital is not subject to income tax while income is subject to income tax

a.2. Income Tax Systems adopted in the Philippines Global Tax System all items of income earned during a taxable period is paid under a single set of income tax rate Schedular Tax System different types of incomes are subject to different sets of graduated or flat income tax rates, thus requiring separate tax returns; tax is computed on a per return or per schedule basis Semi-Schedular or Semi-Global Tax System the compensation income, business or professional income, capital gain and passive income not subject to final tax, and other income are added together to arrive at the gross income, and after deducting the sum of allowable deductions from business or professional income, capital gain and passive income not subject to final tax, and other income, in the case of corporations, as well as personal and additional exemptions, in the case of individual taxpayers, the taxable income is subjected to one set of graduated tax rates; method of taxation under the NIRC

a.3. Characteristics of Philippine Income Tax Law Direct tax is imposed on the income-earner Progressive tax base increases as the tax rate increases Comprehensive - the Philippines adopts the citizenship principle, residence principle, and the source principle

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Semi-schedular more schedular with respect to individual taxpayers but more global treatment on corporations American origin a.4. Criteria of Imposing Income Tax Citizenship Principle Residence Principle Source Principle

a.5. Test for Determination that Income is Earned (and therefore taxable) There is income, gain or profit The income, gain or profit is received, realized, or accrued during the taxable year; and The income, gain or profit is not exempt from income tax

a.6. Taxable Income defined the pertinent items of gross income specified in this Code, less the deductions and/or personal and additional exemptions, if any, authorized for such types of income by this Code or other special laws NOTA BENE: Capital contribution is capital investment and therefore not income as contemplated by the NIRC. Partnership contribution given by a partner to a general partnership fund is another form of capital investment, not part of the taxable income. B. Persons Subject to Income Tax b.1. Taxpayer defined person subject to tax b.2. Person defined individual, estate, corporation, or trust b.3. Classification of Taxpayers

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Individuals 1. Citizens Resident Citizens all sources inside and outside; net income. Engaged in trade or business or profession entitled to deductions on his business income and personal and additional exemptions Purely compensation income earners not entitled to deductions; only personal and additional exemptions Non-resident Citizens all sources inside 2. Aliens gross income Resident Aliens all sources inside Non-resident Aliens all sources inside Engaged in trade or business in the Philippines 180 days Not engaged in trade or business in the Philippines

NOTA BENE: For purposes of income tax, an overseas contract worker who is a Filipino citizen and deriving income from abroad is deemed a non-resident citizen and therefore taxed only on income sourced within the Philippines. However, in order to qualify as a non-resident citizen, the worker must be physically present abroad most of the time or at least 183 days (continuous or not) during the calendar year. ADDENDUM: Certain aliens are entitled to preferential tax rates if they are employed by: (1) regional or area headquarters and regional operating headquarters of multinational companies in the Philippines; (2) offshore banking units established in the Philippines; and (3) foreign service-contractor or sub-contractor engaged in petroleum operations in the Philippines. This is provided that their Filipino counterparts are also afforded the same preferential tax rate. These Filipinos have the option to be taxed under the preferential tax rate or under the graduated tax rates. 3. Estates and Trusts entitled to personal exemption of P20,000

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NOTA BENE: Co-ownership is considered a separate taxable entity like estates and trusts. The co-owners are subject to income tax on their individual distributive share only. However, if the co-owners, after partition of property invest the income of co-ownership in any incomeproducing properties, this constitutes an unregistered partnership and subject to income tax as a corporation. But if it is merely an isolated transaction, then it cannot be said that a partnership has been formed. Corporations net taxable income Domestic all sources inside and outside the Philippines Foreign a. Resident Foreign Corporations engaged in trade or business in the Philippines; ex. a Philippine branch of a foreign corporation ENTITLED TO PREFERENTIAL TAX RATES (Engaged in trade or business in the Philippines): regional operating headquarters of multinational corporations in the Philippines offshore banking units and foreign currency deposit units of Philippine branches of foreign banks international air carriers whether online or offline and international shipping lines foreign service-contractors or sub-contractors engaged in petroleum operations in the Philippines registered enterprises with the PEZA and SBMA

b. Non-resident Foreign Corporations not engaged in trade or business in the Philippines; gross income from sources within the Philippines paid to NRFC subject to final withholding tax (withheld by payor) 3. Partnerships Taxable Partnership treated as corporations NOTA BENE: The principle of constructive receipt of income is applied in partnerships. This means that the partners are taxable on their distributive shares in the taxable year that the profit was made, regardless of whether or not such has already been distributed and received by the partners.

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Exempt Partnership General professional partnership partnerships formed by persons for the sole purpose of exercising their common profession; exempt from income tax but must still file an income tax return - the partners are the ones liable for income tax based on their respective distributive shares Joint venture or consortium undertaking construction activity, or engaged in petroleum operations with operating contract with the government

QUESTIONS: (1) Why is it important to distinguish between resident and non-resident citizens? (2) Why is it important to distinguish between a person engaged in trade or business or exercises of profession and salaried employees? (3) What are the three types of non-resident citizens? b.4. General Principles of Income Taxation C. Gross Income Gross Income income, gain or profit subject to tax, including compensation for personal and professional services, business income, profits and income derived from any source, UNLESS exempt from tax under the Constitution, tax treaty or statute, and other or miscellaneous income of the corporation such as gain from non-recurring sale of equipment Net Income gross income less statutory deductions and exemptions; taxable income Taxable Year for individual taxpayers, period is twelve months ending Dec. 31 of every year; corporations are taxed on a fiscal year basis c.1. Sources of Income Gross Income from Sources within the Philippines (Sec. 42, NIRC)

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Interests derived from sources within the Philippines, and interests on bonds, notes or other interest-bearing obligation of residents, corporate or otherwise; residence of the debtor Dividends from a) domestic corporations; and b) foreign corporations, UNLESS less than 50% of the gross income of FC for the 30-year period ending with the close of its taxable year preceding the declaration of dividends was derived from sources within the Philippines; residence of the corporation paying dividend Services compensation for labor or personal services performed in the Philippines; place of performance of the service Rentals and Royalties property located in the Philippines Sale of Real Property property located in the Philippines Sale of Personal Property if purchased in the Philippines and sold abroad or vice versa; includes gains from sale of shares of stock of a domestic corporation, regardless of where the shares were sold

c.2. Gross Income in General Items of Gross Income (Sec. 32, NIRC) (code: C G2IP3 R2AD) Compensation for services in whatever form paid, including, but not limited to fees, salaries, wages, commissions and similar items; Gross income derived from the conduct of trade or business or the exercise of a profession; Gains derived from dealings in property; Interests; Pensions; Prizes and winnings; Partners distributive share from the net income of a GPP; Rents

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Royalties Annuities; and Dividends

c.2.1. COMPENSATION FOR SERVICES (Sec. 78, NIRC) Compensation all remuneration for services performed by an employee for his employer under an employer-employee relationship, unless specifically excluded Compensation Income all remuneration for services performed by an employee for his employer, including the cash value of all remuneration paid in any medium other than cash Q: What items are not included as compensation income? A: Compensation shall not include remuneration paid (1) for agricultural labor paid entirely in products of the farm where the labor is performed; or (2) for domestic service in a private home; or (3) for casual labor not in the course of the employers trade or business; or (4) for services by a citizen or resident of the Philippines for a foreign government or an international organization. Q: Who is liable to pay compensation income? A: As a general rule, the income recipient is the person liable to pay the income tax. But for convenience, the law mandates that employers withhold the tax upon payment of the compensation income so that employees do not pay the tax at the end of the year but merely file a return, the tax liability having already been withheld. c.2.2. FRINGE BENEFITS (Sec. 33, NIRC) - although considered as part of wages, fringe benefits are taxed differently - not subject to compensation income tax, but fringe benefit tax Fringe Benefits any good, service or other benefit furnished or granted in case or in kind by an employer to an individual employee (except rank and file employees), such as, but not limited to, the following: (code: HEV HIM HEEL) housing

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expense account vehicle of any kind household personnels, such as maid, driver and others interest on loan for less than market rate to the extent of the difference between the market rate and the actual rate granted membership fees, dues and other expenses paid by employer for the employee in social or athletic clubs or other similar organizations holiday and vacation expenses expenses for foreign travel educational assistance to employees dependents life or health insurance and other non-life insurance premiums or similar amounts in excess of what the law allows

CIR v. CA, 203 SCRA 72

FACTS: Efren Castaneda retired from the government service as Revenue Attache in the Philippine Embassy in London, England, under the provisions of Sec. 12(c), CA 186. Among the retirement benefits he received is terminal leave pay. The CIR withheld P12,557.13 of the terminal leave pay, alleging that it represented income tax. ISSUE: W/N terminal leave pay is subject to withholding (income) tax HELD: The Court has already ruled that the terminal leave pay received by a government official or employee is not subject to withholding (income) tax. The rationale behind the employees entitlement to an exemption from withholding (income) tax on his terminal leave pay is as follows:

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commutation of leave credits, more commonly known as terminal leave, is applied for by an officer or employee who retires, resigns or is separated from the service through no fault of his own. In the exercise of sound personnel policy, the Government encourages unused leaves to be accumulated. The Government recognizes that for most public servants, retirement pay is always less generous if not meager and scrimpy. A modest nest egg which the senior citizen may look forward to is thus avoided. Terminal leave payments are given not only at the same time but also for the same policy considerations governing retirement benefits. In fine, not being part of the gross salary or income of a government official or employee but a retirement benefit, terminal leave pay is not subject to income tax.

Q: Why would an employer give fringe benefits instead of increasing the wages of employees? A: Wage of an employee is used as basis for retirement, separation pay, etc. while fringe benefits are generally not considered as part of the employees wage. Moreover, fringe benefits may be reported by the employer as business expense and hence he is allowed to deduct it from his gross income. - granted to managerial and supervisory employees; subject to fringe benefit tax (32%), not income tax - if granted to rank-and-file employees, they are considered as part of their wages (compensation for services) and part of their gross income, subject to income tax Q: What fringe benefits are exempted from fringe benefit tax? A: (1) Those exempted under the law; (2) those contributions made by the employer for the benefit of the employee to retirement, insurance and hospitalization benefit plan; (3) those given to rank-and-file employees (subject to income tax instead); (4) de minimis benefits (also exempted from income tax); and (5) those given for the convenience of the employer. Q: What are de minimis benefits? A: De minimis benefits are benefits given in cash or in kind to employees (whether managerial, supervisory or rank-and-file) but are not subject to fringe benefit tax or

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considered part of compensation income because of their small amounts. These are: (1) Housing allowance within 50-meter radius of the workplace (2) Motor vehicle purchased by employer for the employee (3) Expense account for the employers business (4) Loans interest less than 12% interest (5) Membership fees and dues in social and athletic clubs or other similar organizations (6) Expenses for travel average of $300; business or economy class plane ticket (7) Educational assistance for employees dependents if it is the subject of a contract between the employee and employer, then not subject to fringe benefit tax (8) Insurance premium paid by employer for employee group insurance NOTA BENE: If the benefits, including facilities or privileges, are furnished by the employer to the employee for the benefit of the employer, they are not considered income and are not subject to income tax.

c.2.3. GROSS INCOME FROM BUSINESS Business Income generally comes from sales of goods, properties or services; (1) Manufacturing, merchandising and mining - total sales, less the cost of goods sold, plus any income from investments and from incidental or outside operations or sources - beginning inventory + purchases + ending inventory = cost of goods sold (2) Long-Term Contracts - building, installation or construction contracts covering a period in excess of one year Q: What are the two methods of accounting used to compute taxes on long term contracts? Explain. A: (1) Completed Contract Method taxable in the year the construction is completed; (2) Percentage of Completion Method as used by the NIRC; [(contract price x percentage of completion in a given tax year) (cost of construction)] income tax paid = taxable income for that year. In effect, the contract is taxed for every year for the entire duration of the contract.

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(3) Professional Income - fees received by professionals from practice of profession; no employer-employee relationship - distinguish from compensation income: deductions are allowed in professional income - in the nature of a business (4) Gross Income from Farming - paid on cash basis (amount of cash received from the sale of livestock raised in the farm) or crop basis - inventory value end + sales of livestock and farm products + miscellaneous receipts from rents of machinery beginning inventory - livestock and farm products raised in the farm livestock and farm products in previous year + cost of livestock purchased during the year = net income (5) Lease of Real Property - rental income from lease of property is treated as business income of the lessor (subject allowable deductions) c.2.4. GAINS DERIVED FROM DEALINGS IN PROPERTY Sale of patents and copyright Sale of good will Sales or exchanges of real property - subject to capital gains tax based on the FMV

c.2.5. Interest Income Interest payment for the use of money; subject to final tax and normal income tax; passive investment income Q: What are the guidelines to consider in taxing interest income? A: First, determine whether it is taxable in the Philippines (source rules apply). If so, what kind of income tax and what rate of tax shall apply to it? Deposit Substitutes an alternative form of obtaining funds from the public, other than deposits, through the issuance, endorsement, or acceptance of debt instruments for the

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borrowers own account, for the purpose of relending or purchasing the receivables and other obligations, or financing their own needs or the needs of their agent or dealer; e.g. promissory notes; subject to 20% final withholding tax (as with other loans) Foreign Currency Deposits with an offshore banking unit in the Philippines, subject to 7.5% final withholding tax Long-term Deposits five years or more; individuals (citizens, resident aliens and nonresident aliens engaged in trade or business in the Philippines) are exempt from income tax, provided that the long-term deposit is evidenced by a certificate in the form prescribed by the BSP and provided further that the taxpayer does not pre-terminate the deposit. In case of pre-termination, income tax shall be imposed on the entire income. CIR v. Mitsubishi, G.R. No. L-54908, Jan. 22, 1990

FACTS: Atlas entered into a Loan and Sales Contract with Mitsubishi for the installation of a new concentrator for copper production. Atlas, in turn, undertook to sell to Mitsubishi all the copper concentrates produced from said machine for a period of 15 years. To provide Atlas the loan money needed, Mitsubishi borrowed from a consortium of Japanese banks as well as Eximbank. Pursuant to the contract, Atlas made interest payments to Mitsubishi for the years 1974 and 1975, the corresponding 15% tax thereon withheld pursuant to Sec. 24(b)(1) and Sec. 53(b)(2) of the NIRC, and duly remitted to the Government. On March 5, 1976, Atlas and Mitsubishi applied for tax credit to be applied against their existing and future tax liabilities. But on Aug. 27, 1976, Mitsubishi executed a waiver and disclaimer of its interest in the claim for tax credit in favor of Atlas. Thus, Atlas filed a petition grounded on the claim that Mitsubishi was a mere agent of Eximbank, which is a financing institution owned and controlled by the Japanese Government. Atlas claimed that because of Eximbanks governmental status, it is exempt from paying tax on the interest payments on the loan. ISSUE: W/N the interest income from the loans extended to Atlas by Mitsubishi is excludible

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from gross income taxation pursuant to Sec. 29(b)(7)(A) of the tax code and, therefore, exempt from withholding tax HELD: The loan and sales contract between Mitsubishi and Atlas does not contain any direct or inferential reference to Eximbank whatsoever. The agreement is strictly between Mitsubishi as creditor in the contract of loan and Atlas as the seller of the copper concentrates. Surely, Eximbank had nothing to do with the sale of the copper concentrates since all that Mitsubishi stated in its loan application with the former was that the amount being procured would be used as a loan to and in consideration for importing copper concentrates from Atlas. There was no contract of agency established. The contract between Eximbank and Mitsubishi is entirely different. It is complete in itself, does not appear to be suppletory or collateral to another contract and is, therefore, not to be distorted by other considerations aliunde. The allegation that the interest paid by Atlas was remitted in full by Mitsubishi to Eximbank, assuming the truth thereof, is too tenuous and conjectural to support the proposition that Mitsubishi is a mere conduit. Furthermore, the remittance of the interest payments may also be logically viewed as an arrangement in paying Mitsubishis obligation to Eximbank. Whatever arrangement was agreed upon by Eximbank and Mitsubishi as to the manner or procedure for the payment of the latters obligation is their own concern. It should also be noted that Eximbanks loan to Mitsubishi imposes interest at a rate of 75% per annum, while Mitsubishis contract with Atlas merely states that the interest on the amount of the loan shall be the actual cost beginning from and including other dates of releases against loan. Laws granting exemption from tax are construed strictissimi juris against the taxpayer and liberally in favor of the taxing power. Taxation is the rule and exemption is the exception. The burden of proof rests upon the party claiming exemption to prove that it is in fact covered by the exemption so claimed. This CIR failed to discharge. Significantly, private respondents (Mitubishi and Atlas) are not even among the entities which, under Sec. 29(b)(7)(A) are entitled to exemption.

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c.2.6. Prizes and Winnings - prizes less than P10,000 are not subject to 20% final withholding tax but only to normal income tax - winnings, regardless of amount, are subject to 20% final withholding tax, EXCEPT PCSO and lotto winnings 2 KINDS (excluded): In recognition of religious, charitable, scientific, educational, artistic, literary, or civic achievement but only if: a) the recipient was selected without any action on his part to enter the contest or proceeding; and b) the recipient is not required to render substantial future service as a condition to receiving the prize or award In sports competition granted to athletes in local and international sports competitions and tournaments whether held in the Philippines or abroad and sanctioned by their national sports association (accredited by the Philippine Olympic Committee)

c.2.7. Rental Income - passive income and subject to normal income tax - rental income from lease of property is treated as business income of the lessor and entitles him to allowable deductions Q: What constitutes rent income? A: (1) Real property tax borne by the lessor but if shouldered by lessee, then it is rent income of the lessor; (2) advance payment if consumable, then it is taxable as rent income in the year it is received (provided that: in case of pre-termination, it is taxable as rent income in the year it is pre-terminated); (3) rent in cash; and (4) leasehold improvement. - advance payment is in the form of security deposit for faithful performance of the obligation and if there is no breach, then it is not taxable as rent income of the lessor since the amount shall be returned to the lessee at the end of the lease Q: How are leasehold improvements taxed? A: There are two methods used at the option of the taxpayer: (1) Outright Method taxed at the time of completion, based on the market value of the construction; and (2) Spread-Out Method spread over the life of the lease the estimated depreciated value of the

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construction at termination of the lease and report as income for each year of the lease an aliquot part thereof. This applies when a building is erected by a lessee in the leased premises in the pursuance of an agreement with the lessor that the building becomes the property of the lessor at the end of the lease. ESTIMATED DEPRECIATED VALUE (book value) = cost accumulated depreciation ACCUMULATED DEPRECIATION = cost / estimated useful life c.2.8. Royalty Income (1) Royalty Paid by a Domestic Corporation a. To a C, RA, NRA engaged, DC, RFC: 20% final withholding tax, except royalty on books, other literary works and musical compositions which are subject to 10% final tax b. To a NRA not engaged: 25% final withholding tax, unless a lower tax rate is allowed c. To a NRFC: 32% final withholding tax, unless a lower rate is allowed (2) Royalty Paid by a Foreign Corporation a. To a RC, DC: graduated rates of tax ranging from 5% to 32% (RC) or at 32% (DC) b. To a NRC, A, FC: exempt

c.2.9. Annuities - including insurance policies - any excess of the return of premiums is taxable - return of insurance premiums are not taxable because they are considered as return of capital and not income Annuities payments to the annuitant after a certain period (maturity) has lapsed NOTA BENE: Corporate sinking funds, which are used by corporations as a form of trust fund or insurance fund, are not deductible as business expense since they are not considered as an ordinary expense. They are part of the taxable income of the corporation. c.2.10. Dividend Income (Sec. 73, NIRC) Dividend any distribution made by a corporation to its shareholders out of its earnings or

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profits and payable to its shareholders, whether in money or in other property - corporate profit set aside, declared, and ordered by the directors to be paid to the stockholders on demand or at a fixed time; GR: included in the gross income of shareholder KINDS: Cash Dividend disbursement to the stockholder of the accumulated earnings of a corporation; subject to income tax Property Dividend dividend payable in property, which may be investments in shares of stocks of a corporation, or real property, or some other property owned by the corporation, paying the dividend; subject to income tax Stock Dividend dividend payable in the shares of stock of the corporation declaring such stock dividend; generally income tax exempt because it represents capital; in a loose sense, it is unrealized gain and cannot be subjected to income tax until that gain has been realized - EXCEPTION: the redemption or cancellation of stock dividends, depending on the time and manner it was made, is essentially equivalent to a distribution of taxable dividends, making the proceeds thereof taxable income to the extent it represents profits (see CIR v. A. Soriano Corp., G.R. No. 108576, Jan. 20, 1999) PROPERTY DIVIDEND v. STOCK DIVIDEND PD declared by one corporation is actually shares of stock of another corporation to which the corporation paying the dividend has investments and is shown as assets in its balance sheet. SD is a dividend payable in the shares of stock of the corporation declaring such stock dividend. PD may be investments in shares of stocks or real property. SD is merely a certificate of stock which evidences the interest of the stockholder in the increased capital of the corporation.

CASH DIVIDEND v. STOCK DIVIDEND As to manner of disbursement: CD is disbursement to the stockholder of the accumulated earnings, and the corporation parts irrevocably with al interest therein. SD involves no disbursement, and the corporation parts with nothing to the stockholders who receive, not an actual dividend but a certificate of stock.

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As to ownership/execution: When CD is declared and paid to the stockholders and such cash becomes the absolute property of the stockholders and cannot be reached by creditors of the corporation in the absence of fraud. SD, still being the property of the corporation and not of the stockholder, may be reached by an execution against the corporation and may be sold as a part of the corporate property. As to taxability: CD is subject to income tax. SD is generally not subject to income tax.

CIR v. Wander Philippines, Inc. 160 SCRA 573

FACTS: Wander, a domestic corporation, is a wholly-owned subsidiary of Glaro, a Swiss corporation not engaged in trade or business in the Philippines. Twice, BIR withheld 35% withholding tax on the dividends paid to Glaro by Wander. Later, Wander filed a claim for refund and/or tax credit, contending that it is liable only to 15% withholding tax in accordance with Sec. 24(b)(1) of the tax code. ISSUE: W/N Wander is entitled to the preferential rate of 15% withholding tax on dividends declared and remitted to its parent corporation, Glaro HELD: Is Wander the proper party to claim the refund? Wander, first and foremost, is a wholly-owned subsidiary of Glaro. The fact that it became a withholding agent of the government which was not by choice but by compulsion cannot by any stretch of the imagination be considered as an abdication of its responsibility to its mother company. Therefore, as the Philippine counterpart, Wander is the proper entity who should file for refund or credit of overpaid withholding tax on dividends paid or remitted by Glaro. Does Switzerland allow as tax credit the deemed paid 20% Philippine Tax on such dividends?

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Under Sec. 24(b)(1) of the tax code, the tax shall be 15% of the dividends received, subject to the condition that the country in which the non-resident foreign corporation is domiciled shall allow a credit against the tax due from the non-resident foreign corporation taxes deemed to have been paid in the Philippines equivalent to 20% which represents the difference between the regular tax (35%) on corporations and the tax (15%) dividends. In the case, the fact that Switzerland did not impose any tax on the dividends received by Glaro from the Philippines should be considered as a full satisfaction of the given condition. Marubeni Corp. v. CIR, G.R. No. 76573, March 7, 1990

FACTS: AG&P of Manila has been paying cash dividends and withheld 10% final dividend tax thereon to Marubeni Corporation of Japan. AG&P, as withholding agent, directly remitted cash dividends to Marubenis head office in Tokyo, not only of the 10% final dividend tax but also of the withheld 15% profit remittance tax based on the remittable amount after deducting the final withholding tax of 10%. Marubeni is claiming for refund or tax credit, alleging that the dividends remitted were not subject to the 15% profit remittance tax as they are not income arising from sources within the Philippines. CIR denied the claim on the ground that since Marubeni is a non-resident foreign corporation, it is nevertheless subject to 25% tax pursuant to Art. 10(2) of the Philippines-Japan Tax Treaty. Marubeni now claims that it is a resident foreign corporation because of its principal-agent relationship with its Philippine Branch and, therefore, subject only to 10% intercorporate final tax on dividends. ISSUE: W/N Marubeni is a resident or a non-resident foreign corporation HELD: The general rule is that a foreign corporation is the same juridical entity as its branch office, so that it is understood that the branch becomes its agent in the Philippines. However, when the foreign corporation transacts business in the Philippines independently of its branch, the

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principal-agent relationship is set aside. The transaction becomes one of the foreign corporation, not of the branch. Consequently, the taxpayer is the foreign corporation, not the branch or the resident foreign corporation. Corollarily, if the business transaction is conducted through the branch office, the latter becomes the taxpayer, and not the foreign corporation. In other words, Marubeni cannot now avail itself of the lower tax rate of 10% by pushing its principal-agent relationship with the Philippine branch (and hence claim the increments as ordinary consequences of its trade or business in the Philippines) when it has made this independent investment attributable only to the head office. Marubeni Japan and Marubeni Philippines are separate and distinct income taxpayers.

Q: What is the tax-sparing rule? A: This is otherwise known as the tax sparing credit. Under this rule, the foreign taxes paid by the non-resident foreign corporation are deemed paid and deducted (in short, credited) from the domestic taxes that would have been paid by that corporation. This rule only applies if the foreign country likewise provides the same tax sparing credit to the Philippines under a treaty. Q: What are the rules on taxation of dividends? A: (1) From DC to C or RA 10% final withholding tax; (2) From DC to NRAeB 20% final withholding tax; (3) DC to NRAneB 25% final withholding tax; (4) DC to DC or RFC exempt; (4) DC to NRFC 15% final withholding tax

c.2.11. Other Income (1) Income from whatever source - all income not expressly exempted within the class of taxable income under our laws, irrespective of the voluntary or involuntary action of the taxpayer in producing the gains (2) Liquidating dividends - distributions to shareholders after dissolution and liquidation; they are returns of the capital contributions

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- 2 VIEWS: (1) any excess of the original contributions are subject to normal income tax; (2) the contributions are capital assets and subject to capital gains tax (3) Tax refund - under the Tax Benefit Rule, if there is a tax benefit (i.e., the tax liability of the taxpayer is reduced), then the tax refund shall form part of the gross income in the year that it is received (4) Forgiveness of indebtedness - if purely out of liberality of the creditor, then it is in the nature of a gift and subject to donors tax not income tax - if actually made because of some service performed, then it is compensation for service

Tax Bases and Tax Rates, IAET TAX BASES

CATEGORIES: compensation income, business and professional income, capital gains not subject to final tax, passive income not subject to final tax, and other income capital gains subject to final tax at preferential tax rates passive income subject to final tax at preferential tax rates

a.1. Compensation income, business and professional income, capital gain not subject to final tax, passive income not subject to final tax and other income - the Philippines follows the Global Tax System insofar as compensation income, business and professional income, capital gains not subject to final tax, passive incomes, and other income not subject to final tax - for individuals: TAXABLE INCOME = taxable gross income (allowable deductions + personal exemptions + additional personal exemptions)

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- GR: no deductions allowed from gross compensation income - EXCEPTION: taxable base of aliens (and Filipinos) employed by regional or area headquarters, regional operating headquarters, offshore banking units, and foreign petroleum service contractors and sub-contractors is their gross compensation income (no deductions); subject to preferential tax rate of 15% a.2. Gain from sale of real property - GAIN/LOSS = proceeds adjusted basis - ADJUSTED BASIS = (original cost + cost of improvements) accumulated depreciation up to date of sale BASIS OF PROPERTY: Cost if acquired by purchase FMV if acquired by inheritance if acquired by gift, the same as if it would be in the hands of the donor or last preceding owner (who did not acquire it by gift); if greater than FMV, FMV shall be used for purposes of determining loss amount paid by transferee for the property if acquired for less than adequate consideration (arms length transaction)

NOTA BENE: In determining the gain or loss, it does not matter whether the property sold is an ordinary or capital asset. But, in the case of sale or exchange of SHARES OF STOCK of domestic corporation or real property that is considered as capital asset, the CIR determines the gross selling price or FMV on the date of sale, whichever is higher, to determine gain or loss. a.3. Nature of asset or property - income tax is imposed only if there is gain; but the law presumes there is gain whenever there is sale or exchange of property, even if the seller actually incurred a loss

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KINDS: Ordinary asset CORP: NCIT (32%) of net taxable income; IND: GIT (5%) of net taxable income Capital asset CGT (6%) of the actual consideration or FMV, whichever is higher

- shares of stock (DC): if un/listed but not traded in the local stock exchange, CGT at 5% on the first P100,000 of net capital gain and CGT at 10% on the amount in excess of P100,000 a.4. Passive investment incomes - passive investment incomes subject to final withholding tax are taxed on the gross amount, without any deduction of cost and expenses of sale TAX RATES

b.1. Individuals Graduated income tax rates on taxable income RC: from all sources within and without NRC: from all sources within RA/NRAeB: from all sources within Capital Gains - GR: gain is presumed in sale of real property, subject to CGT (6%) - EXCEPTION: if the buyer is the government, then there are two options: a) graduated tax rates applied on taxable income; or b) 6% final tax based on gross selling price or FMV, whichever is higher (this is not available to alien sellers) - EXEMPTION FROM CGT: when real property sold or disposed by RC, NRC or RA is capital asset and used as principal residence, then exempted from CGT (6%) on the following conditions:

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proceeds of sale is fully utilized in acquiring or constructing a new principal residence within 18 calendar months from the date of sale or disposition; CIR is duly notified by the taxpayer within 30d from date of sale through a prescribed return of his intention to avail of the tax exemption; and tax exemption is availed of only once every 10 years Passive Income Subject to Final Tax and Preferential Tax Rates b.2. Corporations Domestic corporations NCIT 32% on net taxable income MCIT 2% on gross income as of the end of the taxable year - this applies when the minimum income tax is greater than the NCIT for the taxable year - excess of the MCIT over the NCIT shall be carried forward and credited against the normal income tax for the 3 immediately succeeding taxable years - applies only to domestic corporations subject to NCIT - RFC: only income from sources within the Philippines MCIT DOES NOT APPLY TO: international carriers subject to 2.5% tax on their GBP offshore banking units regional operating headquarters foreign contractors and sub-contractors engaged in petroleum operations firms registered with PEZA, SBMA, CDA, CJHDA and other similar ecozones and Freeport zones

NOTA BENE: Banks that re-opened after cessation of business is entitled to four-year leeway. Preferential Tax Rates

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DC ENTITLED TO PREFERENTIAL TAX RATES: 1. proprietary educational institutions and hospitals - 10% on their taxable income - EXCEPT: interest income from deposits and yield or any other monetary benefit from deposit substitutes and from trust funds and similar arrangements; capital gains from sale of shares of stock not traded in the stock exchange; tax on income derived under the expanded foreign currency deposit system; inter-corporate dividends; and capital gains realized from the sale, exchange or disposition of lands and/or buildings

2. foreign currency deposit unit of a local universal or commercial bank - 10% final tax 3. firms that are taxed under a special income tax regime - (i.e. PEZA-registered enterprises): 5% final tax on gross income earned from their registered activities, AFTER expiration of income tax holiday - other income not related to registered activities are subject to normal internal revenue taxes - NON-STOCK, NON-PROFIT EDUCATIONAL INSTITUTION: exempt from tax, provided revenue and assets are used directly, exclusively and actually for educational purposes - hospitals owned and operated by such educational institution are exempt from income tax on their revenues and assets, provided the hospitals are an indispensable requirement in the operation and maintenance of its medical school or college - but passive investments income are subject to 20% final tax - OTHER EXEMPTIONS: income from school canteens, cafeterias, dormitories, hospitals and bookstores if owned and operated by the school and located within school premises; miscellaneous school-related operations like car stickers Resident Foreign Corporations - income from sources within the Philippines subject to income tax (32%) of its net taxable income

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- income from sources without the Philippines is exempt RFC EXEMPT FROM INCOME TAX: Regional or area headquarters branch established in the Philippines by multinational companies and which headquarters do not earn or derive income from the Philippines; supervisory, communications or coordination centers only Representative office branch in the Philippines of a foreign multinational corporation whose activities are limited to information dissemination, product promotion, and the performance of quality control of goods for export to its head office or affiliates

NOTA BENE: These RFCs are exempt because they not engaged in business in the Philippines or derive income from sources within the Philippines. But their passive investments income, like interest income on bank deposits or deposit substitutes in the Philippines, are subject to final withholding tax. RFC SUBJECT TO PREFERENTIAL TAX RATES: 1. International carrier - foreign airline corporation doing business in the Philippines having been granted landing rights in any Philippine port to perform international air transportation services/activities or flight operations anywhere in the world - 2 % on its Gross-Philippine Billings (GBP) - OFF-LINE AIRLINE (international air carrier having no flight operations to and from the Philippines): considered not engaged in business but may still be subject to GBP tax if it has flights originating from any port or point in the Philippines, irrespective of where the passage documents were sold 2. Offshore banking units - subject to 10% final income tax - authorized by BSP 3. Regional operating headquarters - subject to 10% tax of net taxable income from sources within the Philippines 4. Foreign currency deposit unit in the Philippines of a foreign bank

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5. Branch of foreign corporations registered with PEZA, SBMA, CDA, CJHDA, etc. - after the income tax holiday, PEZA-registered enterprises are subject to 5% final tax 6. Qualified service contractor and sub-contractor engaged in petroleum operations in the Philippines Branch profit remittance tax to equalize the tax burden on foreign corporations maintaining, on one hand, local branch offices, and organizing, on the other hand, a subsidiary domestic corporation where at least a majority of all the latters shares of stock are owned by such foreign corporations (15% on the profit actually remitted by the Philippines branch to its head office)

IMPROPERLY ACCUMULATED EARNINGS TAX (IAET)

c.1. Concept - IAET at 10% of the improperly accumulated taxable income of corporations, which improperly accumulated income is formed for the purpose of avoiding the income tax with respect to its shareholders or the shareholders of any other corporation - instead of dividing the earnings of the corporation and declaring them as dividends, the corporation allows the earnings to accumulate so the shareholders are spared the burden of paying dividend tax c.2. Rationale - as a form of deterrence to this kind of tax avoidance scheme - if earnings are distributed as dividends, shareholders are liable for dividend tax - to prevent this, the corporation makes no distribution of its earnings and instead allows them to accumulate - this is also in the nature of a penalty to the corporation c.3. How Determined - accumulation of earnings or profits is unreasonable if it is not necessary for the purpose of the business - reasonable needs of the business is determined by the immediacy test (immediate needs of the business, including reasonably anticipated needs

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- there should be PROOF of immediacy or direct correlation of anticipated needs - REASONABLE NEEDS OF THE BUSINESS: up to 100% of the paid up capital of the corporation for reserve purposes For definite corporate expansion projects as approved by the BOD for building, plants or equipment acquisition as approved by the BOD for compliance with any loan covenant or pre-existing obligation established under a legitimate business agreement required by law or applicable regulations to be retained by the corporation or in respect of which there is legal prohibition against its distribution SUBSIDIARIES OF FC: investments in the Philippines as proven by corporate records

ENTITIES EXEMPT FROM IAET: (code BIPNGET) banks and other non-bank financial intermediaries insurance companies publicly-held corporations non-taxable joint ventures general professional partnerships enterprises duly registered with the PEZA and other companies registered under special economic zones taxable partnerships

Closely-held Corporations at least 50% in value of the outstanding capital stock or at least 50% of the total combined voting power of all classes of stock entitled to vote is owned directly or indirectly by or for not more than 20 individuals NOTA BENE: Domestic corporations that do not fall under the definition for closely-held corporations are publicly-held corporations. But a branch of a foreign corporation is a RFC,

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not domestic, therefore it is not covered under the regulation. c.4. Tax Base - taxable income + the following: income exempt from tax income excluded from gross income income subject to final tax amount of NOLCO deducted

- IMPROPERLY ACCUMULATED TAXABLE INCOME = above sum the sum of: income tax paid/payable for the taxable year dividends actually or constructively paid/issued from the applicable years taxable income amount reserved for the reasonable needs of the business

- IAET = improperly accumulated taxable income x 10% NOTA BENE: Once IAET has been imposed, that part of the profit subjected to IAET shall no longer be subject to IAET in later years. ADDENDUM: Notwithstanding the imposition of IAET, if the improperly accumulated earnings are subsequently declared as dividends, the same shall still be subject to dividend tax. c.5. Period for payment of dividend and/or IAET - DIVIDENDS: must be declared and issued not later than one year following the close of the taxable year - if not, then IAET should be paid within 15d thereafter c.6. Determination of purpose to avoid income tax - a mere holding company or investment company shall be prima facie evidence of a purpose to avoid the tax upon shareholders - the fact that the corporate earnings or profits are permitted to accumulate beyond the

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reasonable needs of the business shall be determinative of the purpose to avoid tax upon shareholders Holding or investment company corporation having practically no activities except holding property and collecting income therefrom or investing the same PRIMA FACIE EVIDENCE: investment of substantial earnings and profits of the corporation in UNRELATED BUSINESS or in stock or securities of unrelated business investment in bonds and other LONG-TERM SECURITIES accumulation of earnings in EXCESS OF 100% PAID UP CAPITAL, not otherwise intended for the reasonable needs of the business Tax Remedies: Remedies of the Government IMPORTANCE OF TAX REMEDIES to enhance the governments tax collection efforts to safeguard against arbitrary action

NON-INJUNCTION OF TAX STATUTES Sec. 218, NIRC: No court shall have the authority to grant injunction to restrain the collection of any national internal revenue tax, fee or charge imposed by this Code.

EXCEPTION: a decision of the CIR appealed to the CTA does not suspend payment, levy or distraint of taxpayers property; but if the CTA finds that collection may jeopardize the interest of the taxpayer or the government, then CTA may suspend or restrain the collection of tax and require the taxpayer to either deposit the amount claimed or to file a surety bond for more than double the amount with the court

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Q: During pendency of the appeal in the CTA, the BIR files a civil action for collection of tax in the RTC, what is the remedy of the taxpayer? A: The taxpayer may file a motion to dismiss in the RTC on the ground that the collection of tax has no basis where the assessment thereof is still under dispute with CTA. REMEDIES OF THE GOVERNMENT - these remedies may be pursued singly or simultaneously 1. Tax Lien - from the moment the tax is due, not from the service of the warrant of distraint - not valid against a mortgage purchaser or judgment creditor until NOTICE has been filed by CIR with the RD of the province or city where property is located (the tax lien shall be annotated on the title) 2. Compromise - allowed when: a reasonable doubt as to validity of the claim against the taxpayer exists financial position of the taxpayer demonstrates a clear inability to pay the assessed tax (minimum compromise rate equivalent to 10% of the basic assessed tax and the taxpayer must waive in writing his privilege under the Banking Secrecy Law, such waiver constituting authority of the CIR to inquire into his bank deposits)

Compromise v. ABATEMENT: As Effect C: reduce tax liability; A: cancel the entire tax liability As to when proper C: when there is reasonable doubt as to validity of tax assessment or the taxpayer is financially incapacitated to pay; A: when there is unjust assessment (excessive) or when administration and collection cost do not justify the amount of tax due

GR: compromise of criminal violations is allowed, EXCEPT: those already filed in court

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those involving fraud GR: power to compromise is a non-delegable power of CIR, EXCEPT that regional evaluation board may compromise: basic taxes less than P500,000 minor criminal violations

NOTA BENE: A compromise penalty is in lieu of a criminal prosecution. If the taxpayer fails to abide by the compromise arrangement, the government has two options: collect the compromised sum; or disregard the compromise and collect the original tax due.

ADDENDUM: But if the taxpayer does not agree to the compromise, a collection action by the government for the compromise penalty does not lie. This is because, by its nature, a compromise is entered into by mutual agreement between parties and the proposed compromise penalty is neither tax nor an administrative penalty for tax delinquency.

Q: May a case still be compromised after final judgment? A: No, because by virtue of the final judgment, the government had already acquired a vested right. Q: Can withholding tax be compromised? A: No. Taxpayer constituted as withholding agent who deducted and withheld at source the tax on income payment made by him holds the taxes as trust funds for the government. He is obligated to remit them to the BIR. His subsequent inability to pay or remit the tax withheld is not a ground for compromise because the withholding tax is not a tax upon the withholding agent but is only a procedure for collection of tax.

3. Distraint and Levy - summary, extra-judicial or administrative enforcement remedies

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DISTRAINT v. LEVY: distraint is to personal property while levy is to real property KINDS OF DISTRAINT: Actual when delinquency of the payment sets in; there is actual seizure and distraint Constructive no actual delinquency ; the owner is prohibited from disposing of his property; preventive remedy to forestall a possible dissipation of the taxpayers assets when delinquency takes place

CONSTRUCTIVE DISTRAINT PROPER IF: taxpayer is retiring from any business subject to tax he intends to leave the Philippines he removes his property therefrom he performs any act tending to obstruct the proceedings for collecting the tax due or which may be due from him

PROCEDURE: Actual Distraint Procedure commencement of distraint proceedings by CIR (P1M+) or RDO (P1M or less) service of warrant of distraint notice of sale of distrained property to the owner or possessor not less than 20 days from date of sale, and osting in not less than 2 public places in municipality or city where distraint is made sale of property distrained by public auction, highest bidder for cash, or with approval of CIR through duly licensed commodity or stock exchange EQUITY OF REDEMPTION: payment of all proper charges any time prior to sale

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NOTA BENE: A person in possession or having control of property under actual distraint (or levy) may be penalized if upon demand he fails or refuses to surrender the goods, EXCEPT in case of judicial attachment or execution. Constructive Distraint Procedure commencement of distraint proceedings service of warrant of constructive distraint taxpayer is required to sign a receipt covering the property distrained and obligate himself to preserve the same; if taxpayer refuses to sign the receipt, the revenue officer shall prepare a list of property distrained and in the presence of two witnesses leave a copy thereof in the premises

Procedure on Levy of Real Property service of warrant of levy after the expiration of time required to pay the delinquent tax duly authenticated certificate showing the name of the taxpayer and the amounts of the tax and penalty due from him (operate with the force of a legal execution) written notice of levy to the Register of Deeds and the delinquent taxpayer, his agent or manager (if TP is absent), occupant of the property (if no agent/manager); in case government first effected distraint and it is not enough to cover the tax, then CIR shall, within 30d after execution of the distraint, proceed with levy advertisement of the sale within 20d after levy for a period of at least 30d at the main entrance of the municipal building and other public, conspicuous places and publication once a week for 3wks in a newspaper of general circulation public sale of the property under levy at main entrance of the municipal building or on the premises to be sold return of sale within 5d after sale issue certificate of sale; taxpayer is entitled to any residue

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in case of no bidder, the property shall be declared forfeited to the government EQUITY OF REDEMPTION: any time prior to sale RIGHT OF REDEMPTION: within 1yr from date of sale or forfeiture 4. Civil Action WHEN: when a tax is assessed and the assessment becomes final and unappealable (because TP failed to file administrative protest with BIR within 30d from receipt of assessment) when an administrative protest is denied or is not acted upon within 180d from submission of documents and TP fails to appeal to the CTA

WHERE: regular courts, with approval of CIR except if express delegation to Regional Director; motion to dismiss the complaint should also be filed in the regular courts HOW: the complaint must be brought in the name of the Government and conducted by a legal officer of the BIR 5. Criminal Action WHEN: before lapse of 5 years (prescription period) WHERE: DOJ HOW: complaint approved by CIR brought in the name of the Government and conducted by a legal officer of the BIR GROUND: prima facie showing of failure to file a required tax return or a willful attempt to evade taxes; no need for assessment 6. Other Remedies Available Forfeiture

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Suspension of Business Operations Enforcement of Administrative Sanctions Tax Remedies: Remedies of the Taxpayer REMEDIES OF THE TAXPAYER

BEFORE PAYMENT administrative protest request for reconsideration request for reinvestigation judicial protest

AFTER PAYMENT claim for tax refund claim for tax credit

1. Administrative Protest (Protest against Assessment) WHEN: within 30 days from receipt of final assessment notice (FAN) WHERE: BIR HOW: written protest, stating facts, applicable law, rules and regulations or jurisprudence o which his protest is based; if only portions of FAN are disputed, must pay the deficiency tax on undisputed portion

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PROCEDURE: protest against pre-assessment notice (PAN) within 15 days from receipt protest against FAN within 30 days from receipt submit relevant documents within 60 days from filing of protest CIR has 180 days to decide in case of denial or lapse of 180-day period, taxpayer has 30 days to bring his protest to the CTA en division

WHEN PAN IS NOT REQUIRED: finding for any deficiency tax is the result of mathematical error in computation of tax as appearing on face of return a discrepancy has been determined between the tax withheld and the amount actually remitted taxpayer who opted to claim a refund or credit of excess creditable withholding tax for at taxable period was determined to have carried over and automatically applied the same amount claimed against the estimated tax liabilities for the taxable quarter/s for the succeeding taxable year/s excise tax due on excisable articles have not been paid article locally purchased or imported by an exempt person

2. Request for Reconsideration a plea for re-evaluation of an assessment on the basis of EXISTING RECORDS without need of additional evidence (question of law or fact or both) 3. Request for Reinvestigation a plea for reinvestigation of an assessment on the basis of NEWLY-DISCOVERED EVIDENCE that a taxpayer intends to present in the reinvestigation (question of law or fact or both) - in either case, the request must be accompanied by a WAIVER of the statute of limitations in

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favor of the government 4. Judicial Protest PROCEDURE Within 30 days from denial of protest by CIR or from lapse of 180-day period, appeal to CTA division if CTA division denies, motion for reconsideration within 15 days from receipt within 15 days from denial of motion, appeal to CTA en banc appeal to SC within 15 days by petition for review (Rule 45)

5. Refund/Credit - based on the legal principle of quasi-contract or solutio indebiti - in the nature of an exemption, which cannot be allowed unless granted in the most explicit and categorical language - strictly construed against the claimant (proof of claim must be established) - partial payment of a tax cannot be the basis for a tax refund - interest on taxes refunded may not be paid by the Government to the taxpayer, UNLESS: (a) the CIR acted with patent arbitrariness (inexcusable or obstinate disregard for legal provision); and (b) in the case of income taxes withheld on the wages of employees, which must be refunded within 3 mos from April 15 Tax Refund vs. Tax Credit R: takes place when there is actually a reimbursement of the tax C: the Government issues a tax certificate or tax credit memo covering the amount determined to be reimbursable, which can be applied after proper verification against any sum that may be due and collectible from the taxpayer

Requisites for Recovery there was an actual collection and receipt by the Government of the tax sought to be recovered (factual proof)

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legal basis for the granting of refund or credit, including verification of compliance with the statutory requirements relative to the filing of claims within the reglementary 2-yr period in case of corporations, must signify whether to avail of tax refund or tax credit in the corporate income tax return

Q: Are income tax returns actionable documents which must be specifically denied by the Government, otherwise it would constitute an admission to the allegation that payment has in fact already been made and therefore the taxpayer no longer has to submit proof of claim of refund? A: Income tax returns are not actionable documents because the action is not based on the income tax returns but on the entitlement of the taxpayer to tax refund. Therefore, his claim for refund must be supported by proof.

NOTA BENE: If proof of claim for refund is established, the BIR should refund without any unreasonable delay

Q: Is tax deficiency assessment a bar to tax refund or credit claim? A: Yes. The deficiency assessment creates a doubt as to the truth and accuracy of the return. Said return cannot therefore be the basis of refund or credit. Statutory Requirements for Refund/Credit Claims written claim for refund or tax credit must be filed by the taxpayer with the CIR the claim must be a categorical demand for reimbursement both administrative and judicial claims for refund/credit must be filed within 2 years from date of payment regardless of any supervening cause (in case of corporations, the 2-year period is counted from the date final adjusted return was filed at end of taxable year)

Q: Suppose A filed his claim for tax refund with the BIR within the 2-yr reglementary period but it is only after two years have lapsed before BIR rendered a decision and it is one of denial. A now files an appeal of the BIRs decision with the CTA within the 30-day period to appeal. Will As action prosper?

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A: No, As action will not prosper. Although A filed his claim for refund with the BIR within the 2-yr prescriptive period, he failed to file the same within the same period with the CTA. The rule is that the taxpayer need wait for the action of CIR on his claim for refund before he can take his claim to the CTA. The 2-yr period must be complied with in both the BIR and CTA, regardless of any supervening cause. WHEN 2-YR PRESCRIPTIVE PERIOD SUSPENDED there is a pending litigation between the two parties the CIR in that litigated case agreed to abide by the decision of the SC

WHY WRITTEN CLAIM IS NECESSARY: to afford CIR an opportunity to correct action of subordinates to notify Government that taxes sought to be refunded are under question and that, therefore, such notice should be borne in mind in estimating the revenue available for expenditure

GR: Government is not liable for interest on tax refund, UNLESS: CIR acted with patent arbitrariness int eh case of income taxes withheld on wages of employees, which must be refunded within 3 months from April 15

PRINCIPLE OF EQUITABLE RECOUPMENT allows a taxpayer whose claim for a refund has been barred due to prescription (lapse of more than 2yrs counted from date of payment) to recover said tax by setting off the prescribed refund against a tax that may be due and collectible from him; NOT ALLOWED in the Philippines because it puts a premium on the taxpayers neglect to enforce or assert his rights under the law

Mar 17, 2010

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Taxation: Statute of Limitations FOR ASSESSMENT: within 3 years after last day for filing of return or if after deadline, then from actual filing; or 10 years from date of discovery if ITR is fraudulent, false or no ITR was filed

NOTA BENE:

The fraud must be proved as a fact. When the CIR fails to impute fraud in the assessment notice or demand for payment, or for failure to allege it in his answer to the taxpayers petition for review, fraud is negated and precludes the application of the 10-yr period. Mere understatement of income in itself does not constitute fraud. To justify the application of the 10-yr prescriptive period, fraud must be the product of a deliberate intent to evade taxes. But proof of fraud may be dispensed with when the court takes judicial notice of fraud assessments which have become final and executory in collection cases

ADDENDUM: If return was substantially amended, count the period from filing of amended return.

PRIMA FACIE EVIDENCE OF FRAUD taxpayer substantially underdeclares his taxable sales, receipts or income -- amount that he failed to report exceeds 30% taxpayer substantially overdeclared his deductions -- amount of deduction exceeds 30%

INFORMER'S REWARD, REQUISITES (on Fraudulent Tax Returns)

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voluntarily filed confidential information under oath with the Law Division of the BIR alleging therein specific violations constituting fraud information must not yet be in possession of BIR or refer to a case already pending or previously investigated by BIR informer must not be a government employee or a relative of the government employee within the 6th degree of consanguinity information must result to collection of revenues and/or fines and penalties

FOR COLLECTION: within 5 years following the assessment of the tax; or within 10 yrs if the Governments action is on a BOND which the taxpayer executes in order to secure the payment of his tax obligation FOR CRIMINAL ACTIONS: within 5 yrs from the day of the commission of the violation, or from the discovery thereof and the institution of judicial proceedings for investigation and punishment or from time assessment became final and unappealable

NOTA BENE: period does not run if the person is absent from the Philippines interrupted when the proceedings are instituted, to run again once proceedings are dismissed for reasons constituting jeopardy may be raised even on appeal

Extension of Prescriptive Periods Government and the taxpayer may enter into mutual agreement in writing PROVIDED THAT: the agreement must be entered into before the lapse of the 5-yr period but if the agreement provides that the taxpayer is not merely extending the prescriptive period but renouncing his right to invoke the defense of prescription, then even if the agreement was entered into beyond the 5-yr period, it is still binding

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Q: If the 5-yr period has already lapsed and the BIR official failed to collect the tax, may he set-off the tax against a claim for tax refund filed by the taxpayer? A: Set-off is not allowed in this case. The collecting officer should not be encouraged to be negligent in collecting taxes within the prescriptive period. Interruption of Prescriptive Period when the CIR is prohibited from making the assessment or beginning distraint and levy or a proceeding in court and for 60d thereafter when the taxpayer requests for the reinvestigation which is granted by the CIR when the taxpayer cannot be located in the address given by him in his return when the warrant of distraint and levy is duly served upon the taxpayer or his authorized representative or a member of his household with sufficient discretion and no property could be located when the taxpayer is out of the Philippines

FAQs on International Copyright Laws 1. What are the applicable laws? The two main international laws that govern the use and distribution of copyright are the Berne Convention and TRIPS Agreement. There is also the WIPO Internet Treaty which specifically applies to copyrights in the Internet. 2. What works are protected under international copyright laws? Copyright is intellectual property that includes all literary, scientific and artistic works no matter the mode or form of expression that is, original intellectual creations in the literary, scientific and artistic domain. Under Art. 2(7), Berne Convention, copyright shall include in particular: (1) books, pamphlets and other writings; (2) lectures, addresses, sermons and other works of the same nature;

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(3) dramatic or dramatico-musical works; (4) choreographic works and entertainments in dumb show; (5) musical compositions with or without words; (6) cinematographic works to which are assimilated works expressed by a process analogous to cinematography; (7) works of drawing, painting, architecture, sculpture, engraving and lithography; (8) photographic works to which are assimilated works expressed by a process analogous to photography; (9) works of applied art; Art. 2(7), Berne Convention: Subject to the provisions of Article 7(4) of this Convention, it shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected. Works protected in the country of origin solely as designs and models shall be entitled in another country of the Union only to such special protection as is granted in that country to designs and models; however, if no such special protection is granted in that country, such works shall be protected as artistic work.

(10) illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science. (11) Computer programs Art. 10, TRIPS: 1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention. (1971)

*NOTE: This list is not exhaustive. The national laws of countries must be considered as well customs and traditions of the specific locality. 3. Should the work be original for it to be copyrightable?

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The general rule is that the work must be ORIGINAL in order to be qualified for copyright protection. EXCEPTIONS: (1) Derivative Works e.g. dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works Art. 2(3), Berne Convention: Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright of the original work. Art. 2(5), Berne Convention: Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.

(2) Compilations collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents (Art. 2, TRIPS) 4. When is a work considered eligible for copyright? When can one say that a work is copyrightable? An original work is copyrightable by the mere fact of its creation. From the moment it is created, it is already protected by copyright. Registration of the work in an intellectual property office is NOT REQUIRED. Copyright must be distinguished from Patents and Trademarks where registration is a prerequisite in order for the patent or trademark owner to enjoy the protection afforded by the law. Art. 5(2), Berne Convention: The enjoyment of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work.

5. What are the different rights of a copyright owner? These are: (1) Economic rights i.e. reproduction, transformation (dramatization, translation, etc.), FIRST public distribution, rental, public display, public performance, other communication to the public of the work (including Internet and webcasting; see WIPO Internet Treaty), distribution

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(2) Moral rights i.e. attribution, alteration, the right to object to any modification of the work, and the right to claim ownership (3) Rights to proceeds in subsequent transfers Art. 14, Berne Convention: Droit de suite in Works of Art and Manuscripts: (1) The author, or after his death the persons or institutions authorized by national legislation, shall, with respect to original works of art and original manuscripts of writers and composers, enjoy the inalienable right to an interest in any sale of the work subsequent to the first transfer by the author of the work. (2) The protection provided by the preceding paragraph may be claimed in a country of the Union only if legislation in the country to which the author belongs so permits, and to the extent permitted by the country where this protection is claimed. (3) The procedure for collection and the amounts shall be matters for determination by national legislation.

(4) Ownership right As a general rule, the author of the work is the owner of the copyright (this is a legal presumption) but there are cases where joint ownership may arise out of agreement between parties. The rule may also be different as regards employees works (if the creation of the work is part of the employees regular duties, then copyright of the work is attributed to the employer) or as regards independent contractors (where there is no employer-employee relationship, the creator is the owner). (5) Right to assign copyright this is inherent in ownership of property (the right to own includes the right to freely dispose or assign such right) 6. What are the different rights of a copyright user? These rights are more commonly referred to as fair use. They are also considered as the limitations on copyright. Both the Berne Convention and TRIPS Agreement adopted a liberal policy on the limitations of copyright that countries should impose. In other words, the limitations are a matter of legislation in countries to determine the conditions for FAIR USE of copyright. Art. 9(2), Berne Convention: It shall be a matter for legislation in the countries of the Union to permit the reproduction of works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. Art. 13, TRIPS: Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

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However, some guidelines have been laid down: (1) PERFORMANCE: the work must have been lawfully made accessible to the public and the use must only be made in private and free of charge (2) QUOTATIONS: the work must have been lawfully made accessible to the public; the source and name of author must be named (Art. 10(1), Berne Convention) (3) REPRODUCTION OF NEWS, etc.: if only for information purposes with source clearly indicated (Art. 10bis(1), Berne Convention) (4) INCLUSION BY WAY OF ILLUSTRATION: for teaching purposes with source and name of author clearly indicated (Art. 10(2), Berne Convention) (5) CRITICISM, COMMENT, NEWS REPORTING, TEACHING, SCHOLARSHIP, RESEARCH 7. What are the factors to be considered in order to determine if the use made of a work in any particular case is fair use? The factors are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work

8. How long can a work be protected by copyright? Under Art. 7(1), Berne Convention and Art. 12, TRIPS, the term of protection is the life of the author and fifty years after his death. Note that there are qualifications to the term of protection, depending on the type of ownership (whether it is joint or sole) as well as the nature of the copyrighted work.

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9. What are the remedies available to a copyright owner against copyright infringers? Copyright infringement is a criminal offense. National legislation should be considered in determining the penalties and fines to be meted out. The copyright owner shall also have the right to apply for a cease and desist order from the proper court or office as well as seizure of copyright infringement goods. 10. In case of copyright infringement over international borders, where may the copyright owner file his case in his country or the country where the crime was committed? Since copyright infringement is a criminal offense, then the Doctrine of Territoriality of Criminal Law should generally apply. That means that jurisdiction over the subject matter should generally pertain to the country where the crime was committed, without prejudice to any contrary provision in international treaties or conventions to which the country is a signatory.

Quickie Notes on Maritime Law GENERAL CONCEPTS

A. Real and Hypothecary Nature limitation of liability of agents (and owners) to the actual value of the vessel and freight money abandonment of the vessel is required EXCEPT if the vessel is totally lost right to retain the cargo and the embargo and detention of vessel B. Acts and Conduct of Captain - the common carrier and/or ship agent (solidary) are liable to third persons EXCEPT when there is abandonment (no liability) - co-owner also liable to third persons UNLESS he renounces, before a notary, his interest in the vessel C. Loss of Vessel - all rights are extinguished - if partial loss of vessel only, captain and crew on wages have a right to salvage the ship and goods. HOWEVER, sailors on shares have a right to the cargo only EXCEPT if they worked for salvage, in which case they are entitled to compensation for their salvage service.

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D. Collisions - Liability of ship owner is limited to the value of the vessel and its appurtenances and freight. E. Exceptions to Limited Liability Rule injury or death to passenger due to fault of shipowner or concurring negligence of shipowner and captain vessel is insured workmen's compensation claims expenses for repairs and provisioning of the ship prior to departure VESSELS A. Protest - a condition precedent to make owner of the vessel liable in case of collision B. Type of Property - Vessels are personal property but they partake of the nature of real property because of their value and importance to world commerce. - The person registered as owner is presumed the owner of the vessel. - The sale of vessels must be registered to the Maritime Industry Authority in order to affect third persons. C. Manifest - a declaration of the entire cargo - distinguish from a bill of lading, which is only a declaration of particular cargo D. Ship Mortgage (1) PURPOSE: construction, acquisition, purchase of vessels, initial operatio of vessels (2) PREFERRED MORTGAGE Requisites:

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mortgage recorded with the Coast Guard affidavit of good faith no stipulation that the mortgagee waives preferred status of the mortgage Exceptions - not covered by preferred mortgage court fees and taxes crew's wages general averages maritime lien prior to the registration of mortgage salvage damages for tort preferred mortages registered prior in time

(3) JUDICIAL FORECLOSURE - suit in rem in admiralty - vessel is arrested (replevin to recover possession) and made a party - applicant files a bond - filed with the Regional Trial Court (4) MARITIME LIEN FOR NECESSARIES - suit in rem - allege credit and prove it Requisites for the benefit of the vessel necessary for the continuation of the voyage credit is extended to the vessel necessity of such extension of credit

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the extension of credit is ordered by authorized persons Determine if Maritime Lien Exists depends on the law of the country where the supplies were furnished which must be pleaded and proved Lauritzen-Romero-Rhobitis trilogy of cases - multiple-contact test: place of wrongful act law of the flag allegiance or domicile of the injured person allegiance of the owner place of contract inaccessibility of foreign forum law of the forum factors provided in the Restatement of Conflict of Laws - if no choice of law: place of contracting place of negotiation place of performance location domicile or residence of parties

PERSONS WHO TAKE PART IN MARITIME COMMERCE

A. Ship Owner - primarily liable

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B. Ship Agent - solidarily liable with ship owner capacity to trade recorded in the merchant's registry of the province - POWERS: discharge duties of the captain - LIMITATION ON POWERS: needs resolution of the majority of the co-owners UNLESS previously this authority is included in the certificate of appointment - If the ship agent enters into contract of insurance without authority, he shall be held subsidiarily liable with the insurer. - DUTY TO ACCOUNT - REIMBURSEMENT AND LIABILITIES: accion ejectuva (expenses or profits) -- resolution of majority and signatures of persons who voted C. Part Owners - if more than one, presumed partners - vote of majority; if none, the owner with the largest interest; if equal, then divided by lot D. Sale - by public auction UNLESS owners unanimously agree otherwise - owner of vessel is preferred E. Discharge of Captain and Crew Before Voyage: salary earned, no indemnity EXCEPT express and specific agreement During Voyage: salaries until return to port UNLESS cause of discharge Contract for Definite Period: no discharge EXCEPT subordination in serious matters, robbery, theft, habitual drunkenness, damage to ship caused by malice or manifest/proven negligence Captain is Owner: no discharge UNLESS return his interest F. Captains and Masters Qualifications: Filipinos legal capacity

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skill, capacity, and qualifications necessary to perform their jobs not disqualified Roles: general agent of shipowner commander and technical director of the vessel representative of the country under whose flag he navigates G. Pilotage - reponsible for damages/injuries due to his fault EXCEPT force majeure - COLLISIONS: colliding vessel deemed prima facie responsible so burden of proof is on it CHARTER PARTIES

A. Bareboat - whole vessel is chartered but the charterer provides the crew - becomes a private carrier - charterer is the owner pro hac vice and therefore liable to third persons B. Contract of Affreightment - the vessel, together with its crew, is leased - common carrier - liability to third persons rests with the shipowner Kinds: Time Voyage Requisites of a Valid Charter Party consent existing vessel which should be placed at the disposition of the shipper freight drawn in duplicate and signed by the parties

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C. Demurrage - charterer is responsible for sum of money in case vessel is detained in port beyond the period allowed in the contract D. Dead Freight - charterer failed to occupy the leased portion of the vessel LOANS ON BOTTOMRY AND RESPONDENTIA

Distinguish from Simple Loan RATE OF INTEREST: Bottomry is not subject to Usury Law while Simple Loan is subject to a fixed ceiling rate in the Usury Law. EXISTENCE OF MARINE RISK: This is required in Bottomry but not in Simple Loan. REGISTRATION: Bottomry must be registered in the registry of vessels in order to affect third persons while Simple Loan needs no registration. REQUISITES: Bottomry is govered by the Code of Commerce while Simple Loan by obligations and contracts. PREFERENCE: In Bottomry, last lender is given preference while Simple Loan, the first lender.

AVERAGE

A. Simple Average - not inured to the common benefit of all persons interested - shipowner bears loss B. General Average - all damages are deliberately caused to save the vessel or the cargo Requisites: common danger which must be imminent and real for the common safety, part of the vessel or cargo is deliberately sacrificed successful saving of the vessel or cargo

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taking of legal steps and authority - those who benefited bears the loss - owners of goods sacrificed are entitled to indemnity EXCEPT: goods carried on deck goods not recorded in the books fuel for the vessel if there is more than enough for the voyage

COLLISIONS - even owner of a third vessel liable if it forced a vessel to hit another - no applicability of "last clear chance" rule: if both parties are negligent, both must answer for the damage- no applicability of "contributory negligence" rule A. Third Person at Fault - indemnify others - ship captain is civilly liable to the owner - abandonment and limited liability rules apply B. Doctrine of Inscrutable Fault - if cannot determine who is at fault: both vessels bear the loss - but shipper may go after the owner and captain if both have been negligent C. Protest - required of the captain only, not the passenger ARRIVAL UNDER STRESS AND SHIPWRECK

Steps: captain must determine if there is a well-founded fear of seizure, etc. assemble the officers summon all persons interested if present but they shall have no vote officers determine danger and vote on it. The captain has the deciding vote.

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enter into agreement and all protests/objections entered into logbook Crimes Against National Security: Treason (RPC) Art. 114. Treason. Any person who, owing allegiance to (the United States or) the Government of the Philippine Islands, not being a foreigner, levies war against them or adheres to their enemies, giving them aid or comfort within the Philippine Islands or elsewhere, shall be punished by reclusion temporal to death and shall pay a fine not to exceed P20,000 pesos. No person shall be convicted of treason unless on the testimony of two witnesses at least to the same overt act or on confession of the accused in open court. Likewise, an alien, residing in the Philippine Islands, who commits acts of treason as defined in paragraph 1 of this Article shall be punished by prision mayor to death and shall pay a fine not to exceed P20,000 pesos. (As amended by E.O. No. 44, May 31, 1945).

**PARAGRAPH 1**

ELEMENTS: 1. Filipino citizen or resident alien 2. State of war 3. (a) levies war against the Government (b) adheres to the enemy, giving aid and comfort

DEFINITION OF TERMS TREASON - a breach of allegiance to a government committed by a person who owes allegiance to it ALLEGIANCE - the obligation of fidelity and obedience which individuals owe to a sovereign in return for their protection; permanent or temporary "LEVIES WAR" - actual assembling of men (not just enlistment) for the purpose of executing a treasonable design by force; with the intent to overthrow the government, not just a person in government; deliver the country to the enemy; must be done in collaboration with a foreign enemy ADHERENCE TO THE ENEMY intent to betray; intellectually or emotionally favors the enemy

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AID OR COMFORT an act which tends to strengthen the enemy in the conduct of war; e.g. furnishing the enemy with arms, troops, supplies, information, or means of transportation; being a Makapili (psychological support) DISCUSSION - the offender is either a Filipino citizen (commit crime in the Phils. or elsewhere; prove by prison records or two witnesses) or a resident alien (commit crime in the Phils.) - Anglo-American origin - a war crime but formal declaration of a state of war is not required; actual hostilities - both adherence and aid or comfort must go hand-in-hand, otherwise it wont amount to treason Q: Does acceptance of public office and discharge of official duties under the enemy constitute treason? A: Not necessarily. The act of acceptance is not treasonous per se. But if the position is highly responsible and also policy-determining, then it becomes treasonous. Mere governmental work during the Japanese regime is not an act of treason, so being a member of the police force during the occupation is not treasonous. However, if as a member, the person directly participates in killing guerillas or pointing out suspected members, then it is treason. Q: Is there a complex crime of treason with murder, physical injuries, etc.? A: In People vs. Prieto, it was held that murder and physical injuries were inherent in the crime of treason characterized by the giving of aid and comfort to the enemy. When the crimes are merely alleged not as specific crimes committed but as elements of treason, then they are merged in the crime of treason. But this rule would not preclude the punishment of murder or other common crimes, if the prosecution should elect to prosecute the culprit specifically for these crimes, instead of relying on them as an element of treason.

**PARAGRAPH 2 **

- cannot be proved by circumstantial evidence or by the extra-judicial confession of the accused; only by testimony of at least 2 witnesses to the same overt act and confession of the accused in open court (must be a confession of guilt, not stating defense of uncontrollable fear, etc.) TWO-WITNESS RULE the same act, the same place, same moment of time; if the court believes only one of the witnesses, defendant should be acquitted

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EXCEPTION: When proving adherence. It requires only one witness, from the nature of the act itself, and the circumstances surrounding the act. This is because adherence is essentially a disloyal state of mind, which is hard to prove. AGGRAVATING CIRCUMSTANCES IN TREASON: Cruelty and ignominy, such as rape, wanton robbery, and brutality with which the killing or physical injuries are carried out - to determine penalty, what is considered is the gravity or seriousness of the acts of treason DEFENSE: duress (coercion) and lawful obedience to a de facto Government

RULE 16 MOTION TO DISMISS Q: When should a motion to dismiss be filed? A: Within the time for or before the filing of the answer, which is 15 days from receipt of summons. Sec. 1: Grounds lack of jurisdiction over the person of the defendant EXCEPTIONS: waiver voluntary appearance improper service but defendant nevertheless received the summon so no reliance on rules of technicality improper service but the fault is with the sheriff, an officer of the court, not with the defendant Q: How does court acquire jurisdiction over defendant? A: By service of summons. Thus, if there is absence or improper service of summons, court has acquired no jurisdiction over the his person. Q: If, aside from lack of jurisdiction over the person, defendant includes in his motion to dismiss other grounds, would that constitute as voluntary appearance? A: Some jurisprudence held that the inclusion of other grounds for a motion to dismiss aside from lack of jurisdiction over the person is considered as voluntary appearance. However, recent rulings, and more particularly Sec. 20, Rule 4 provides that the inclusion in a motion to dismiss of other grounds

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aside from lack of jurisdiction over the person of the defendant shall not be deemed as voluntary appearance. lack of jurisdiction over the subject matter - fixed by law therefore no waiver; can be raised at any time before or during trial, even for the first time on appeal Q: How is lack of jurisdiction over the subject matter determined? A: By the allegations in the complaint. NOTA BENE: When the defendant files a motion to dismiss, he hypothetically admits all the allegations contained in the complaint, but even so, the plaintiff cannot prosecute because the court has no jurisdiction over the subject matter. Q: What is the rule on adherence of jurisdiction? A: Once the court acquires jurisdiction over the case, the court retains it, regardless of any subsequent legislation, EXCEPT if the new law passed has a curative effect. Tijam vs. Sibonghanoy, 23 SCRA 29 (1968)

The court had no jurisdiction over the subject matter but the defendant never filed a motion to dismiss and the case was tried. The court ruled in favor of the plaintiff so defendant appealed but still he did not raise the issue of lack of jurisdiction. The appellate court affirmed the decision of the lower court. The defendant appealed again to the Court of Appeals and this time he raised the issue of lack of jurisdiction. The Supreme Court found that ten years had already lapsed before the defendant raised the question of whether or not the original court had jurisdiction over the case. He can no longer raise the issue because under the equitable doctrine of estoppel by laches, he is already estopped to raise the ground. Although the general rule is that the issue of lack of jurisdiction over the subject matter can be raised at any stage of the trial, even for the first time on appeal, to follow such rule would mean declaring as null and void everything, from the city court to the Court of Appeals. Everything a judicial work which lasted for 10 years will all be thrown in the waste basket. That is practically compelling the plaintiff to undergo a second calvary. NOTA BENE: This ruling is an exception and should not be taken as a rule. improper venue

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- waivable so if the defendant fails to raise this in a motion to dismiss or in an answer then it is deemed waived Q: Defendant files a motion to dismiss but the court denied the motion. What is the remedy of the defendant? A: Defendant cannot appeal the decision of the court denying the motion to dismiss because it is an interlocutory order. However, he can resort to the special civil action of prohibition under Rule 65 on ground of grave abuse of discretion amounting to lack or excess of jurisdiction. plaintiff has no legal capacity to sue 2 POSSIBLE INSTANCES: plaintiff lacks the necessary qualifications to appear at trial (e.g. minor, insane) plaintiff does not have the character or representation which he claims (e.g. claiming to be a guardian when in fact he is not) Q: Distinguish lack of legal capacity to sue from lack of legal personality to sue. A: Lack of legal capacity to sue refers to the disability of the plaintiff to sue because he lacks certain qualifications to appear at trial or he does not have the representation which he claims. Lack of personality to sue, on the other hand, means that the plaintiff is not the real party in interest, in which case the ground for dismissal is that the complaint states no cause of action. litis pendentia - when there is another action pending between the same parties for the same cause; not waivable ELEMENTS: identity of parties (or identity of interest represented) between the two actions identity of rights asserted and reliefs prayed for identity of facts identity in these particulars should be that any judgment rendered, regardless of which party is successful, amounts to res judicata Q: Between the two identical actions filed, which one should be dismissed the first or second on ground of litis pendentia? A: As a general rule, the second one should be dismissed, following the principle of priority of time and the maxim of qui prior estempore ochor estiore (priority in time gives preference in law). But

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there is an EXCEPTION as when the court determines what is the more appropriate action to remain or which court is in a better position to serve the interests of justice. Another EXCEPTION is whether the party in any of the actions is in bad faith or good faith. Q: Distinguish litis pendentia from forum-shopping (splitting a cause of action under sec. 4, Rule 2). A: The two share the same concepts in that both contemplate two or more suits filed by the same parties on the basis of the same cause of action. The difference is in the effect because in litis pendentia, only one action will be dismissed, while in forum-shopping both actions will be dismissed without prejudice to any disciplinary action taken by the court against the lawyer. There is no contempt of court in litis pendentia. res judicata or prescription (statute of limitations) - not waivable Q: Distinguish res judicata from litis pendentia. A: Although the two are related in that they both contemplate two or more actions filed by the same parties on the basis of the same action, the difference is that in res judicata, one of the suits has already been settled. Adjudication in one suit bars the filing of another suit with identical parties and based on identical causes of action. claim states no cause of action ELEMENTS OF A CAUSE OF ACTION: existence of a right of plaintiff corollary obligation of defendant to the plaintiff violation of the right of plaintiff resulting to damage. NOTA BENE: If any of these requisites are missing, the case must be dismissed for lack of cause of action. - determined by the allegations in the pleading, which the defendant must hypothetically admit; EXCEPTION: where evidence has already been presented in the main cause of action because of the application for preliminary injunction or any provisional remedy payment, waiver, abandonment, or extinguishment statute of frauds

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- ART. 1403, N.C.C. non-compliance with a condition precedent - e.g. failure to exhaust administrative remedies, or failure to undergo barangay conciliation Sec. 2: Hearing of Motion

- presentation of arguments and evidence to prove grounds for dismissal, EXCEPT if the ground is lack of jurisdiction over the subject matter and no cause of action Sec. 3: Resolution of Motion

grant the motion - case is dismissed without prejudice to its refiling, EXCEPT if the ground is res judicata or prescription, payment, waiver, abandonment, or extinguishment, and statute of frauds (sec. 5) deny the motion - defendant must then file an answer within the remainder of the reglementary period (15 days), which should not be less than 5 days from notice of denial (sec. 4) order an amendment of the pleading (which is really the same as dismissing the motion and allowing the plaintiff to amend the complaint in order to correct any defect) - the amendment is a matter of right because a motion to dismiss is neither a responsive pleading nor even a pleading; amendment still a matter of right if the resolution over the motion to dismiss has not yet achieved finality NOTA BENE: The court cannot defer resolution of the motion because the ground relied upon is not indubitable. Sec. 6: Pleading Grounds as Affirmative Defense 2 OPTIONS: file a motion to dismiss, if denied, then ANSWER file an ANSWER and raise the grounds for dismissal in the form of a special affirmative defense and then ask the court to hear over the matter first (purpose: so plaintiff can no longer amend the

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pleading as a matter of right in order to cure any defects that would have been raised in a motion to dismiss) RULE 17: Dismissal of Action Dismissal upon NOTICE by plaintiff (sec. 1)

- before service of answer or of a motion for summary judgment - ministerial duty of court to issue order confirming the dismissal - without prejudice, EXCEPT: where notice states otherwise where plaintiff has previously dismissed case in court of competent jurisdiction where the dismissal is premised on the fact that the defendant has already paid the claim Dismissal upon MOTION by plaintiff (sec. 2) - after the defendant has served his answer to the plaintiff - Motion for Leave of Court to Withdraw the Complaint - if defendant filed a counterclaim before service of motion for dismissal by plaintiff, the dismissal shall not affect the counterclaim and only dismiss the main complaint 2 REMEDIES OF DEFENDANT (within 15 days from notice of motion): prosecute his counterclaim in a separate action opt to have it resolved in the same action

Dismissal due to FAULT of plaintiff (sec. 3) - motu propio of the court or upon motion of the defendant - dismissal is with prejudice, UNLESS otherwise declared by court or ground is lack of jurisdiction - GROUNDS non-appearance on the date plaintiff is to present his evidence in chief without justifiable reason limited to the date of presentation of evidence in chief only; plaintiffs failure to appear, not absence of lawyer, that warrants dismissal

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failure to prosecute for an unreasonable length of time - applies to pre-trials and appeals; if plaintiff has already presented his evidence, his failure to appear in subsequent proceedings is not failure to prosecute but a waiver of right to cross-examine and object to the admissibility of evidence non-compliance with the Rules or any court order - e.g. plaintiff fails to amend complaint even after court orders him to do so

NOTA BENE: This also applies to dismissal of any counterclaim

RULE 18: Pre-Trial - plaintiffs duty to move ex parte that the case be set for trial - WHEN: after the last pleading (normally a reply) has been served, or the period to file it has expired (10 days if reply, 15 days if answer) - held on a date separate from that of the trial on the merits Sec. 2: Nature and Purpose amicable settlement or other alternative modes of dispute resolution simplification of issues amendments to the pleadings stipulations or admissions of facts and of documents limitation of the number of witnesses preliminary reference of issues to a commissioner proprietary of rendering judgment on the pleadings, or summary judgment, or dismissing the case if there is a ground suspending the proceedings other matters that would ensure a speedy disposition of the case - notice of pre-trial served on counsel, or on the party who has no counsel (sec. 3) - counsel will notify his client; if he does not, he will be subject to administrative disciplinary action - parties are required to appear - EXCUSABLE NON-APPEARANCE:

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valid cause representative with authority to: enter into amicable settlement submit to alternative modes of dispute resolution enter into stipulations or admissions of facts and of documents NOTA BENE: Authority of the representative need not be in writing if it is established by competent evidence or subsequently ratified by the party concerned. Q: What if the party is a corporation, can the president authorize another person to appear in behalf of the corporation? A: The presidents authorization is not sufficient. If party is a corporation, the authority must be made with an appropriate resolution by its board of directors. Q: Is it sufficient to appear as authorized representative? A: No, because the authorization must be complemented by a showing of a valid cause for nonappearance of the party. Q: What if no one appeared during the trial, not the defendant or his counsel and not the plaintiff? Only the plaintiffs counsel appeared but he does not have authority to represent his client. A: It is proper to declare the plaintiff non-suited and the court may dismiss the case without motion by the defendant. Q: What is the remedy of the plaintiff? A: He can appeal from the order of the dismissal by ordinary appeal. The order is already final and not interlocutory. Q: What is the effect of defendants non-appearance during pre-trial? A: The court will allow the plaintiff to present evidence ex parte and render judgment based on such evidence presented. Defendant is not technically in default because no party can be held in default after he has filed his pleading, but the effect is substantially the same in that the defendant is no longer allowed to actively participate during the proceedings. (Sec. 5) Q: What is the remedy of the defendant? A: He can file a motion for reconsideration without need for affidavits of merits regarding fraud, accident, mistake or excusable negligence (FAME) because these grounds are already raised in his

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answer. If still denied, he can resort to certiorari under Rule 65 for grave abuse of discretion amounting to lack or excess of jurisdiction. Sec. 6: Pre-trial Brief - WHEN: at least 3 days before the date of pre-trial - mandatory duty of parties to file it with court and serve it to the adverse party; failure to file it will result in plaintiff declared non-suited or ex parte proceedings against defendant, whichever may be the case - CONTENTS: statements expressing their willingness to submit to amicable settle or other alternative modes of dispute resolution summary of admitted facts and proposed stipulation of facts issues to be tried or resolved documents or exhibits to presented and purpose manifestation that they have availed of or intended to avail of discovery procedures or referral to commissioners number and names of witnesses and substance of their testimony - after pre-trial, court shall issue an order, which explicitly define and limit the issues to be tried

RULE 117: Motion to Quash Sec. 1. Time to Move to Quash

WHEN: at any time before entering plea even before jurisdiction over his person has been acquired even during preliminary investigation (PI) if during PI, the investigating judge finds the accused has not committed the crime, he may order his discharge EXCEPTIONS:

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When the complaint or information does not charge an offense When the court lacks jurisdiction When the offense or penalty had been extinguished When there is double jeopardy NOTA BENE: Absent these exceptions and he does not move to quash, he is deemed to have waived his objections which are grounds for a motion to quash. MOTION TO QUASH - a special pleading filed by defendant before entering his plea wherein he hypothetically admits the truth of the facts spelled out in the information or complaint at the same time that he sets up a matter which, if duly proved, would preclude further proceedings - interlocutory in character so if dismissed, the remedy is generally not to appeal on certiorari (except when judge committed grave abuse of discretion or acted in excess of jurisdiction) but to appeal after trial. - if granted, it is a final order so therefore immediately appealable, provided no double jeopardy attaches MOTION TO QUASH VS. DEMURRER TO EVIDENCE Q: before entry of plea; D: after prosecution rests Q: based not on merits but anchored on matters not directly related on the question of guilt or innocence; D: based on inadequacy of evidence adduced by the prosecution in support of the accusation Q: governed by Rule 117; D: governed by Sec. 23, Rule 119 Sec. 2. Form and Contents

- must be in writing signed by either the accused or his counsel - must distinctly specify all factual and legal grounds NOTA BENE: Any ground not alleged shall not be taken cognizance of by the court (deemed waived), except lack of jurisdiction over the offense charged.

Sec. 3. Grounds

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The facts charged do not constitute an offense - no waiver The court has no jurisdiction over the offense charged - no waiver The court has no jurisdiction over the person of the accused - waivable The investigating officer who filed the complaint or information has no authority to do so - waivable It does not conform substantially to the prescribed form - waivable The information or complaint charges more than one offense - waivable The criminal action or liability has already been extinguished - no waiver It contains averments that, if proven, constitute a legal excuse or justification - waivable The accused has been convicted or acquitted of the offense charged, or his case has been otherwise terminated without his express consent - waivable NOTA BENE: If the facts alleged do not constitute a punishable offense, the court, instead of dismissing the case, should allow the prosecution to amend the information. No first jeopardy if case is dismissed because information is defective or void or does not charge a proper offense.

ELEMENTS OF JURISDICTION OVER SUBJECT MATTER: Nature of the offense and/or the penalty attached thereto; The fact that the offense has been committed within the territorial jurisdiction of the court

NOTA BENE: If lack of jurisdiction is alleged and case is dismissed because of that, but it turns out that the court has jurisdiction, the party who alleged lack of jurisdiction is estopped from assuming the inconsistent position that court had jurisdiction. Jurisdiction over subject matter and territorial jurisdiction are conferred by law so cannot be waived. However, jurisdiction over person of accused is generally waivable.

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The courts jurisdiction is determined at the first instance from the facts alleged in the information or complaint. So even if the complaint alleges an offense cognizable by the RTC but after trial, the crime proven is really cognizable by a lower court, the RTC retains jurisdiction for the purpose of imposing penalty. If lack of conformity to prescribed form, this can be cured by amendment. f multiplicity of offenses, EXCEPTIONS are (1) complex and compound crimes, and (2) specific crime set forth in various counts.

HOW CRIMINAL LIABILITY IS EXTINGUISHED: Death of the convict for personal liabilities; for pecuniary liabilities, only when the death of the offender happens before final conviction Service of sentence Amnesty Absolute Pardon Prescription of the crime Prescription of the penalty Marriage of the offended woman with the accused in case of rape

NOTA BENE: Absence of preliminary investigation is not a ground for motion to quash. Sec. 4. Amendment of Complaint or Information

- if defective information, remedy is amendment (no jeopardy) - motion to quash is granted, if prosecution fails to make amendment, or the complaint or information still suffers the same defect despite amendment Sec. 5. Effect of Sustaining the Motion to Quash

- if motion to quash is sustained, court may order another complaint or information to be filed, EXCEPT: If the criminal action or liability has already been extinguished

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If the accused has already been convicted or acquitted for the offense charged, or his case has been terminated without his express consent - if order to file new information or complaint is made, the accused in custody shall not be discharged, UNLESS admitted to bail - if no order is made, or having been made, no amendment was made within specified time, the accused in custody shall be set free, UNLESS if in custody for another crime

NOTA BENE: If ground is lack of jurisdiction over subject matter, better practice is to remand or forward the case to the proper court instead of quashing the information or complaint. Refile information or complaint if the ground is: (1) facts charged do not constitute an offense; (2) investigating officer who filed has no authority; (3) no conformity to prescribed form; and (4) more than one offense is charged

Sec. 6. Order Sustaining a Motion to Quash not a Bar to Another Prosecution; EXCEPTION

Criminal liability has been extinguished Accused has already been convicted or acquitted for the offense charged, or his case has been terminated without his express consent Sec. 7. Former Conviction or Acquittal; DOUBLE JEOPARDY

ELEMENTS: Valid information or complaint (in form and substance) Competent court Arraignment and plea Conviction, acquittal, or dismissal on the merits or terminated without express consent of the accused

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Second offense charged is the same as the first, or is an attempt to commit or a frustration thereof; The second offense necessarily includes or is necessarily included in the first NOTA BENE: If the case was dismissed after trial on ground that information was insufficient to sustain a conviction when said information is in fact sufficient, re-filing the case is barred by double jeopardy. If the case was dismissed after trial on ground of lack of jurisdiction when in fact court has jurisdiction, the party who alleged lack of jurisdiction is estopped from appealing case based on the inconsistent position that it had jurisdiction. If accused pleaded guilty and allowed to prove mitigating circumstance but instead proves complete self-defense, the plea of guilty is deemed withdrawn. If no new plea is entered and the court acquits, no double jeopardy because no standing plea. An order of dismissal made by court motu propio based on merits or failure of prosecution witnesses to appear has the effect of judgment so there is double jeopardy. For jeopardy to attach, the dismissal must be without express consent of the accused, EXCEPT: (so double jeopardy attaches even if it was accused who made the motion) Where the dismissal is based on a demurrer to evidence after prosecution rests (EFFECT: acquittal) Where the dismissal is based on violation of accuseds right to speedy trial (EFFECT: failure to prosecute) A dismissal for lack of due process of law does not constitute a proper basis for double jeopardy.

EXCEPTIONS TO THE IDENTITY RULE: When the graver offense is due to supervening facts arising from the same act or omission constituting the offense charged; When the facts constituting the graver offense were only discovered after plea was entered When the plea of guilty for the lesser offense was done without the consent of the trial prosecutor and the offended party, EXCEPT when the offended party was duly notified but failed to appear during arraignment for no justifiable reason

Sec. 8. Provisional Dismissal

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REQUISITES: Express consent of accused Notice to the offended party Court grants motion for provisional dismissal Public prosecutor is served a copy of the court order

PRESCRIPTION - if offense is punishable with imprisonment not exceeding 6 years, then order of provisional dismissal becomes final after one year from issuance - if offense is punishable with imprisonment for more than 6 years, then order of provisional dismissal becomes final after 2 years from issuance - but State can still file even after expiration of these prescription periods if there is justifiable necessity for the delay Sec. 9. Failure to Move to Quash or Allege Any Ground Therefor

- constitute waiver; EXCEPT: If facts alleged do not constitute an offense Court lacks jurisdiction over the offense charged Criminal action or liability has been extinguished Double jeopardy

RULE 119: Trial Sec. 1. Time to Prepare for Trial

- after plea of not guilty, accused has 15 days to prepare for trial - trial commences within 30 days from receipt of pre-trial order Sec. 2. Continuous Trial until Terminated; POSTPONEMENTS

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- entire trial period shall not exceed 180 days from first day of trial, EXCEPT: Otherwise authorized by Supreme Court Special laws Supreme Court circulars - discretionary on court so it may not be compelled by mandamus or by appeal, UNLESS there is grave abuse of discretion Sec. 3. Exclusions

- delays that are to be excluded in computing the time within which trial must commence Sec. 4. Factors for Granting Continuance When continuation of proceeding would become impossible or result in miscarriage of justice Novelty of the case, complexity or unusualness, or unreasonable to expect adequate preparation within the period

- no granting of continuance for the following REASONS: Congestion of the courts calendar Lack of diligent preparation by prosecutor Failure to obtain available witnesses by prosecutor Sec. 5. Time Limit Following an Order for New Trial

- new trial shall commence within 30 days from notice of order - court may extend but not to exceed 180 days from notice of order Sec. 6. Extended Time Limit

- arraignment can be made anytime after 80 days Sec. 7. Public Attorneys Duties where Accused is Imprisoned

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Obtain presence of the accused for trial, or notify the prison custodian to advise the accused of his right to demand trial Upon receipt of notice, the prison custodian shall promptly advise the accused of the same and inform the public attorney of such advice made Upon receipt of notice by prison custodian, the prosecutor shall request the availability of the accused for purposes of trial Sec. 8. Sanctions

- administrative, criminal, and contempt of court for the following ACTS: Knowingly allows trial to proceed even though a material witness is unavailable Files a motion solely for delay, frivolous and without merit Makes statements for purpose of obtaining continuance, knowing them to be false and are material to the granting of continuance Sec. 9. Remedy where Accused is not brought to Trial within the Time Limit

- accused may file motion to dismiss on ground of denial of his right to speedy trial; he has burden of proving the same - prosecution has burden of going forward with the evidence to establish the exclusion of time NOTA BENE: If accused fails to move to dismiss prior to trial, it shall constitute a waiver. Sec. 10. Law on Speedy Trial not a Bar to Provision on Speedy Trial in the Constitution

- the Constitution prevails Sec. 11. Order of Trial

Prosecution presents evidence Accused may present evidence to prove his defense Both prosecution and defense may present rebuttal and sur-buttal evidence, but court may allow them to present additional evidence

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Upon admission of evidence, case is submitted for decision, but court may allow oral argument or submission of written memoranda - reverse trial if accused interposes a lawful defense Sec. 12. Application for Examination of Witness for Accused before Trial

Name and residence of the witness Substance of his testimony Witness is sick or infirm in such a manner as to afford reasonable ground for believing that he may not be able to attend the trial, or he lives more than 100 kilometers away from place of trial - motion shall be supported by affidavit of the accused and any other evidence Sec. 13. Examination of Defense Witness; HOW MADE

- order made, containing specific date, time, and place - a copy shall be sent to the prosecutor at least 3 days before scheduled examination - WHO MAY EXAMINE: judge, member of the Bar in good standing so designated by the judge, or judge of inferior court NOTA BENE: If the prosecutor fails to appear for examination despite due notice, the examination shall proceed. - a written record of the testimony Sec. 14. Bail to Secure Appearance of Material Witness

- if material witness refuses to appear, court may order him to post bail - if material witness still refuses to post bail, court may commit him to prison until he complies or is legally discharged after giving testimony Sec. 15. Examination of Witness for the Prosecution

- conditional examination by judge of the court where case is pending REASONS:

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Witness is too sick or infirm Has to leave the Philippines with no definite date of returning - accused should be notified; failure to appear despite due notice shall constitute a waiver Sec. 16. Trial of Several Accused

- tried jointly, UNLESS court orders otherwise Sec. 17. Discharge of Accused to be State Witness

Absolute necessity for his testimony No other direct evidence available except his testimony Testimony can be substantially corroborated in its material points Does not appear to be the most guilty Has not been convicted of a crime involving moral turpitude NOTA BENE: If court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence against him. - file before prosecution rests its case - with the consent of the accused who is going to become witness - prosecution must prove that discharge satisfies the above conditions Sec. 18. Discharge of the Accused Operates as Acquittal

- a bar to future prosecution for the same offense, UNLESS accused fails or refuses to testify in accordance with his sworn statement - if proven that one of the conditions for discharge do not exist, the court cannot recall the discharge, EXCEPT if the accused fails or refuses to testify as promised EFFECT OF FAILURE TO TESTIFY: He may be prosecuted for the same offense His confession may be used against him

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Sec. 19. When Mistake Has Been Made in Charging the Proper Offense - DURING TRIAL: accused shall not be discharged; court will instead dismiss the original case and order refiling of the proper information Sec. 20. Appointment of Acting Prosecutor Sec. 21. Exclusion of the Public

- GENERAL RULE: accused is entitled to a public trial - EXCEPTION: if the evidence to be produced is offensive to decency or public morals; if the accused, on motion, requests exclusion of public Sec. 22. Consolidation of Trials of Related Offenses

- tried jointly Sec. 23. Demurrer to Evidence

- court may dismiss the case on ground of insufficiency of evidence (1) on its own initiative after giving prosecutor opportunity to be heard; and (2) upon demurrer to evidence by accused with or without leave of court WITH LEAVE OF COURT: (file this within non-extendible period of 10 days after prosecution rests) - if demurrer to evidence is denied, accused may adduce evidence in his defense - if leave of court is granted, accused shall file demurrer to evidence within non-extendible period of 10 days from notice...prosecution also has same period from receipt to oppose the demurrer WITHOUT LEAVE OF COURT: - if denied, accused waives right to present evidence in his defense and submits the case for judgment relying only on the evidence of the prosecution NOTA BENE: Denial of motion for leave of court or demurrer to evidence is not reviewable by appeal or certiorari before judgment.

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If court dismisses the case based on demurrer to evidence, this is tantamount to acquittal, so bar against a subsequent prosecution (double jeopardy). Sec. 24. Reopening

- before finality of judgment - motu propio or upon motion, with hearing in both cases - proceedings shall terminate within 30 days from order of reopening

RULE 120: Judgment Sec. 1. Judgment; DEFINITION AND FORM

- adjudication of the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any - written in the official language, prepared and signed by the judge, and contain the facts and law on which it is based

Sec. 2. Contents of the Judgment

CONVICTION: Legal qualifications, aggravating and mitigating circumstance Participation of the accused, whether principal, accomplice, or accessory after the fact Penalty Civil liability and damages, if any, UNLESS civil liability has been expressly reserved or waived

ACQUITTAL: - state whether the evidence absolutely failed to prove guilt or failed to prove guilt beyond reasonable doubt - determine if the act or omission from which the civil liability might arise did not exist

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- if accused is acquitted based on reasonable doubt, civil liability is not extinguished (because only preponderance of evidence is needed in civil cases) Sec. 3. Judgment of Two or More Offenses - WAIVER: if the accused did not object before trial (motion to quash), court may sentence for as many offenses as has been charged and proved and impose on him the penalty for each offense - but penalty should not exceed three-fold the severest penalty imposed or 40 years of imprisonment

Sec. 4. Judgment in Case of Variance between Allegation and Proof

- accused can be convicted of the offense proved if it is necessarily included in the offense charged - accused can be convicted of the offense charged if it is necessarily included in the offense proved - only when it is both charged and proved, UNLESS either is included in the other NOTA BENE: What determines the nature and cause of the accusation is the actual recital of facts stated in the information or complaint and not the caption or preamble of the information or complaint nor the specification of the provision of law alleged to have been violated they being conclusions of law.

Sec. 5. When an Offense Includes or is Included in Another

- when some of the essential elements or ingredients are present in both - based on greater offense includes the lesser offense - but accused cannot be convicted for a greater offense

Sec. 6. Promulgation of Judgment

- reading it in the presence of the accused and any judge of the court where judgment is rendered PRESENCE OF JUDGE; EXCEPTION: Clerk of Court if judge is absent or outside the province or city

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If the accused is confined or detained in another place, executive judge of the Regional Trial Court with jurisdiction over place of confinement or detention - the trial court who promulgated judgment has authority to receive notice of appeal and approve bail bond pending appeal; PROVIDED: if change from bailable to non-bailable, the authority to approve bail bond is with appellate court PRESENCE OF ACCUSED - clerk of court shall notify accused, or his bondsman, warden, or counsel EXCEPTION: Trial in absentia because accused jumped bail or escaped from prison (notice to his last known address) - if despite due notice, accused fails to appear without justifiable cause, then promulgation in absentia done through recording of the judgment in the criminal docket and serving him a copy at last known address FAILURE TO APPEAR; CONSEQUENCES: Promulgation in absentia Accused loses his entitlement to all remedies available against judgment Court shall order his arrest

NOTA BENE: But if within 15 days from promulgation, accused surrenders and gives justifiable reasons for absence, he may file leave of court to avail of the remedies. Court shall allow him 15 days to avail of the remedies from notice. - judgment is rendered after presentation of evidence - 90-day period for rendering judgment shall be reckoned from date of submission of case for decision - render judgment with or without transcript of stenographic notes ADDENDUM: Where there is no promulgation of judgment, no right to appeal accrues.

Sec. 7. Modification of Judgment

- motion to modify or set aside judgment is allowed before appeal is perfected or judgment becomes final

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WHEN JUDGMENT BECOMES FINAL: (except death penalty because it is automatically reviewable) After the lapse of period to perfect appeal Sentence has been partially or totally satisfied or served Waiver in writing Application for probation (not exceed imprisonment of 6 years)

GENERAL RULE: Judgment ipso facto becomes final and executory after lapse of 15 days from date of promulgation. But trial court may lose jurisdiction over the case even before lapse of 15 days, PROVIDED: Accused voluntarily submits to the execution of judgment Accused perfects an appeal Accused waives his right to appeal in writing Accused applies for probation

Sec. 8. Entry of Judgment

- entered by the clerk - recorded in the book of entries of judgment CONTENTS: Dispositive part of judgment order Signed by clerk Certificate that judgment has become final and executory

* Mittimus - process in writing issuing to the sheriff or officer directing him to deliver the accused to jail, and to the jailer commanding him to receive and safely keep such person

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Sec. 9. Existing Provisions Governing Suspension of Sentence, Probation, and Parole not Affected by this Rule RULE 121: New Trial or Reconsideration Sec. 1. New Trial or Reconsideration

- after judgment is rendered but before the judgment of conviction becomes final (before perfection of appeal) WHO MAY FILE: The accused The court motu propio but with consent of accused

NEW TRIAL/RECONSIDERATION vs. MODIFICATION OF JUDGMENT - NT: new proceeding, new evidence; MJ: proceed on the evidence on record NEW TRIAL vs. REOPENING - NT: after judgment is rendered but before it becomes final; RO: before rendering of judgment but after submission of case for decision NOTA BENE: The moment appeal is perfected, trial court loses jurisdiction over the case and therefore can no longer set aside its judgment and grant new trial. But a mere oral notice by the accused of his intention to appeal does not count to cause trial court to lose jurisdiction. EXCEPT: if he also posts bail bond for his provisional release

- discretionary on the court - suspends the period from promulgation of judgment to its finality

Sec. 2. Grounds for New Trial

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Errors of law or irregularities prejudicial to the substantial rights of the accused Newly discovered evidence - irregularity must be committed during the trial REQUISITES OF NEWLY DISCOVERED EVIDENCE: Discovered after trial Evidence could not have been discovered or introduced during trial even with reasonable diligence Material, not merely cumulative, corroborative or impeaching, and one that can probably change the outcome of the judgment

RULE ON RECANTING WITNESSES: - is not a ground for granting of new trial, UNLESS: no evidence is available except the testimony of that recanting witness, or if the circumstances changes the conclusion arrived at by the trial judge

Sec. 3. Grounds for Reconsideration

Errors of law Errors of fact in the judgment

Sec. 4. Form of Motion and Notice to the Prosecution

- in writing, containing the specific grounds - if based on NEWLY DISCOVERED EVIDENCE: supporting affidavits of new witnesses or duly authenticated copies of new documents to be introduced - prosecutor should be notified

Sec. 5. Hearing on Motion

- QUESTION OF FACT: court may hear evidence by affidavits or otherwise

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- purpose is to determine whether new trial should be granted or not Sec. 6. Effects of Granting a New Trial or Reconsideration 1. ERRORS OF LAW OR IRREGULARITIES: proceedings and evidence affected thereby shall be set aside and taken anew; additional evidence 2. NEWLY DISCOVERED EVIDENCE: evidence on record shall stand and taken together with the newly discovered evidence - original judgment shall be vacated or set aside and a new one be rendered accordingly - waiver of double jeopardy

Affidavit of Loss Republic of the Philippines ) City of ___________________ ) S.S.

AFFIDAVIT OF LOSS

I, ________, of legal age, single, Filipino and resident of ___________, Philippines, after having been duly sworn in accordance with law, do hereby depose and say:

That I am a bona fide student of the University of ______________; That as such, I was issued a Student Identification Card with I.D. No. _______; That some time on _________, (state the circumstances of the loss); That, despite diligent efforts to locate the said I.D., the same could not be found; That my Student Identification Card is now lost and beyond recovery; That I am executing this affidavit to attest to the truth of the foregoing and to facilitate the replacement of my lost Student Identification Card.

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IN WITNESS WHEREOF, I have hereunto affixed my signature this ____th day of ______, in _____, Philippines. _____________ Affiant

SUBSCRIBED AND SWORN to before me, this _____th day of _________ in ______, Philippines, affiant exhibiting to me his (personal identification) issued on _______ at ___________, Philippines.

_______________ Notary Public

(NOTA BENE: The portion in blue font is referred to as the "Jurat." It often accompanies affidavits but is not considered part of it.)