LMT Poli - Hagen PDF

Last Minute Tips for Political Law Bar 2019, Page 1 of 121
1. DAP Constitutionality
Lifted from: https://ibpmakatilegaleducation.wordpress.com/2014/07/03/ma-carolina-p-
araullo-et-al-v-benigno-simeon-c-aquino-iii-et-al-g-r-no-209287-july-1-2014/
MA. CAROLINA P. ARAULLO ET AL. v. BENIGNO SIMEON C. AQUINO III ET AL., G.R.
NO. 209287, July 1, 2014
In a Decision dated July 1, 2014, the Supreme Court partially granted the consolidated
petitions for certiorari and prohibition and declared the following acts and practices under
the Disbursement Acceleration Program (DAP), National Budget Circular No. 541 and related
executive issuances unconstitutional for violating Section 25(5), Article VI of the 1987
Constitution and the doctrine of separation of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the
declaration of the withdrawn unobligated allotments and unreleased appropriations as
savings prior to the end of the fiscal year and without complying with the statutory definition
of savings contained in the General Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to augment the appropriations
of other offices outside the Executive; and
(c) The funding of projects, activities and programs that were not covered by any
appropriation in the General Appropriations Acts.
The Court further declared void the use of unprogrammed funds despite the absence of a
certification by the National Treasurer that the revenue collections exceeded the revenue
targets for non-compliance with the conditions provided in the relevant General
Appropriations Acts (GAAs).
Remedial law; Certiorari and prohibition. The remedies of certiorari and prohibition are

necessarily broader in scope and reach, and the writ of certiorari or prohibition may
be issued to correct errors of jurisdiction committed not only by a tribunal, corporation,
board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right,
undo and restrain any act of grave abuse of discretion amounting to lack or excess
of jurisdiction by any branch or instrumentality of the Government, even if the latter does not
exercise judicial, quasi-judicial or ministerial functions. Thus, petitions for certiorari and
prohibition are appropriate remedies to raise constitutional issues and to review and/or
prohibit or nullify the acts of legislative and executive officials.
Remedial law; Locus standi. Citing De Castro v. Judicial and Bar Council, the Supreme Court
ruled that the assertion of a public right as a predicate for challenging a supposedly illegal or
unconstitutional executive or legislative action rests on the theory that the petitioner
represents the public in general. Although such petitioner may not be as adversely affected
by the action complained against as are others, it is enough that he sufficiently demonstrates
in his petition that he is entitled to protection or relief from the Court in the vindication of a
public right. The Court likewise cited Agan, Jr. v. Philippine International Air Terminals Co.,
Inc., to explain that “[s]tanding is a peculiar concept in constitutional law because in

some cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act but by concerned citizens, taxpayers or
voters who actually sue in the public interest.”
Transcendental importance as a ground to waive locus standi. Each of the petitioners

has established sufficient interest in the outcome of the controversy as to confer locus
standi on each of them. In addition, considering that the issues center on the extent of
the power of the Chief Executive to disburse and allocate public funds, whether appropriated
by Congress or not, these cases pose issues that are of transcendental importance to the
entire Nation, the petitioners included. As such, the determination of such important issues
call for the Court’s exercise of its broad and wise discretion “to waive the requirement and so
remove the impediment to its addressing and resolving the serious constitutional questions
raised.”
Administrative law; Budget process; Implementation and funding of the Disbursement

Allocation Program (DAP). Four phases comprise the Philippine budget process, specifically:
(1) Budget Preparation; (2) Budget Legislation; (3) Budget Execution; and (4) Accountability.
The DAP was to be implemented and funded (1) by declaring “savings” coming from the
various departments and agencies derived from pooling unobligated allotments and
withdrawing unreleased appropriations; (2) releasing unprogrammed funds; and (3)
applying the “savings” and unprogrammed funds to augment existing [program, activity or
project] or to support other priority PAPs.
Administrative law; Nature of the DAP. The DAP was a government policy or strategy
designed to stimulate the economy through accelerated spending. In the context of the
DAP’s adoption and implementation being a function pertaining to the Executive as the main
actor during the Budget Execution Stage under its constitutional mandate to faithfully
execute the laws, including the GAAs, Congress did not need to legislate to adopt or to
implement the DAP.
Constitutional law; The DAP is not an appropriation measure and does not contravene
Section 29(1), Article VI. The President, in keeping with his duty to faithfully execute the laws,
had sufficient discretion during the execution of the budget to adapt the budget to changes
in the country’s economic situation. He could adopt a plan like the DAP for the purpose. He
could pool the savings and identify the PAPs to be funded under the DAP. The pooling of
savings pursuant to the DAP, and the identification of the PAPs to be funded under the DAP
did not involve appropriation in the strict sense because the money had been already set
apart from the public treasury by Congress through the GAAs. In such actions, the Executive
did not usurp the power vested in Congress under Section 29(1), Article VI of the
Constitution [that no money shall be paid out of the Treasury except in pursuance of
an appropriation made by law].
Requisites of a valid transfer of appropriated funds under Section 25(5), Article VI. The
transfer of appropriated funds, to be valid under Section 25(5), [Article VI of the Constitution],
must be made upon a concurrence of the following requisites, namely: (1) There is a law
authorizing the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional
Commissions to transfer funds within their respective offices; (2) The funds to be transferred
are savings generated from the appropriations for their respective offices; and (3) The
purpose of the transfer is to augment an item in the general appropriations law for their
respective offices.
It is then indubitable that the power to augment was to be used only when the purpose for
which the funds had been allocated were already satisfied, or the need for such funds
had ceased to exist, for only then could savings be properly realized. This interpretation
prevents the Executive from unduly transgressing Congress’ power of the purse.
Savings, defined. The definition of “savings” under the 2011, 2012 and 2013 GAAs refer to
portions or balances of any programmed appropriation in this Act free from any obligation or
encumbrance which are: (i) still available after the completion or final discontinuance
or abandonment of the work, activity or purpose for which the appropriation is authorized;
(ii) from appropriations balances arising from unpaid compensation and related costs
pertaining to vacant positions and leaves of absence without pay; and (iii)
from appropriations balances realized from the implementation of measures resulting in
improved systems and efficiencies and thus enabled agencies to meet and deliver the
required or planned targets.
The Court agreed with petitioners that respondents were forcing the generation of savings in
order to have a larger fund available for discretionary spending. Respondents, by
withdrawing unobligated allotments in the middle of the fiscal year, in effect deprived funding
for PAPs with existing appropriations under the GAAs.
The mandate of Section 28, Chapter IV, Book VI of the Administrative Code is to revert to the
General Fund balances of appropriations that remained unexpended at the end of the fiscal
year. The Executive could not circumvent this provision by declaring unreleased
appropriations and unobligated allotments as savings prior to the end of the fiscal year.
Augmentation is valid only when funding is deficient. The GAAs for 2011, 2012 and 2013 set
as a condition for augmentation that the appropriation for the PAP item to be augmented
must be deficient, to wit: – x x x Augmentation implies the existence in this Act of a
program, activity, or project with an appropriation, which upon implementation,
or subsequent evaluation of needed resources, is determined to be deficient. In no case shall
a non-existent program, activity, or project, be funded by augmentation from savings or by
the use of appropriations otherwise authorized in this Act.
The President cannot substitute his own will for that of Congress. The Court held that the
“savings” pooled under the DAP were allocated to PAPs that were not covered by any
appropriations in the pertinent GAAs. Although the [Office of the Solicitor General] rightly
contends that the Executive was authorized to spend in line with its mandate to faithfully
execute the laws (which included the GAAs), such authority did not translate to unfettered
discretion that allowed the President to substitute his own will for that of Congress. He was
still required to remain faithful to the provisions of the GAAs, given that his power to spend
pursuant to the GAAs was but a delegation to him from Congress. Verily, the power to spend
the public wealth resided in Congress, not in the Executive. Moreover, leaving the spending
power of the Executive unrestricted would threaten to undo the principle of separation of
powers.
Cross-border transfers or augmentations are prohibited. By providing that the President, the
President of the Senate, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, and the Heads of the Constitutional Commissions may be authorized to
augment any item in the GAA “for their respective offices,” Section 25(5) has delineated
borders between their offices, such that funds appropriated for one office are prohibited from
crossing over to another office even in the guise of augmentation of a deficient item or items.
Thus, we call such transfers of funds cross-border transfers or cross-border augmentations.
Regardless of the variant characterizations of the cross-border transfers of funds, the plain
text of Section 25(5) disallowing cross-border transfers was disobeyed. Cross-border
transfers, whether as augmentation, or as aid, are prohibited under Section 25(5).
No violation of equal protection. Petitioners claim that the Executive discriminated against

some legislators on the ground alone of their receiving less than the others could not of itself
warrant a finding of contravention of the Equal Protection Clause. The denial of equal
protection of any law should be an issue to be raised only by parties who supposedly suffer
it, and, in these cases, such parties would be the few legislators claimed to have been
discriminated against in the releases of funds under the DAP. The reason for the requirement
is that only such affected legislators could properly and fully bring to the fore when and how
the denial of equal protection occurred, and explain why there was a denial in their situation.
The requirement was not met here.
Operative fact doctrine. The doctrine of operative fact recognizes the existence of the law or
executive act prior to the determination of its unconstitutionality as an operative fact that
produced consequences that cannot always be erased, ignored or disregarded. In short, it
nullifies the void law or executive act but sustains its effects. It provides an exception to the
general rule that a void or unconstitutional law produces no effect. But its use must be
subjected to great scrutiny and circumspection, and it cannot be invoked to validate an
unconstitutional law or executive act, but is resorted to only as a matter of equity and fair
play. It applies only to cases where extraordinary circumstances exist, and only when the
extraordinary circumstances have met the stringent conditions that will permit its application.
The operative fact doctrine applies to the implementation of the DAP. To declare the
implementation of the DAP unconstitutional without recognizing that its prior implementation
constituted an operative fact that produced consequences in the real as well as juristic
worlds of the Government and the Nation is to be impractical and unfair. Unless the doctrine
is held to apply, the Executive as the disburser and the offices under it and elsewhere as the
recipients could be required to undo everything that they had implemented in good faith
under the DAP. That scenario would be enormously burdensome for the Government. Equity
alleviates such burden.
Understanding the SC ruling on the DAP
https://www.rappler.com/newsbreak/63267-understanding-supreme-court-ruling-dap
By Chay F. Hofileña (@chayhofilena)
Published 3:30 PM, July 14, 2014
Updated 9:51 AM, July 17, 2014
What are the main points and highlights of the Supreme Court decision on the controversial
Disbursement Acceleration Program?
MANILA, Philippines – On July 1, 2014, the Supreme Court ruled on the controversial

Disbursement Acceleration Program (DAP).
Voting 13-0-1, excluding retired justice Roberto Abad, the High Court ruled 3 schemes under
the DAP unconstitutional. Justice Lucas P. Bersamin penned the main decision, with 6
Justices writing separate opinions – Antonio Carpio, Presbitero Velasco Jr, Arturo Brion,
Mariano del Castillo, Estela Perlas-Bernabe, and Marvic Leonen. (Read the ruling and
separate opinions here.)
Justice Teresita de Castro inhibited from the voting, while Velasco, who was on official leave,
gave his vote to Chief Justice Maria Lourdes Sereno.
The High Tribunal ruled as unconstitutional the following:
• the creation of savings prior to the end of the fiscal year and the withdrawal of these
funds for implementing agencies
• the cross-border transfers of the savings from one branch of government to another
• the allotment of funds for projects, activities, and programs not outlined in the
General Appropriations Act
Here are highlights of the 92-page ruling in Question and Answer format:
What is the issue that the Supreme Court addressed in its resolution pertaining to the
Disbursement Acceleration Program (DAP)?
Petitioners challenged the constitutionality of DAP, which was intended by the Aquino
administration to accelerate government spending. They also questioned National Budget
Circular 541 which, in effect, characterized unreleased appropriations and unobligated or
unused allotments as savings. The question brought to the Court was whether the Executive
exceeded his powers to augment items in the budget within the executive branch of
government.
When exactly did the DAP start?
The closest indication is a memorandum dated October 12, 2011 from Budget Secretary
Butch Abad seeking approval from the President to implement DAP. The memo listed funding
sources that amounted to P72.11 billion (about $1.7 billion) which could be used for other
proposed priority projects – among them, National Housing Authority programs,
capitalization of the Bangko Sentral, and peace and development interventions in the
Autonomous Region in Muslim Mindanao.
How was DAP supposed to be implemented and funded?
There were 3 ways identified: (1) by declaring savings from various departments and
agencies derived from pooling unobligated allotments and withdrawing unreleased
approprirations; (2) by releasing unprogrammed funds; (3) by applying the “savings” and
unprogrammed funds to augment existing programs, activities or projects (PAPs) or to
support other priority PAPs.
Can the President transfer funds?
With limits. While the power to transfer funds from one item to another within the executive
branch existed since 1909, during the time of American Governors-General, this power was
reduced to merely augmenting items from savings. The 1987 Constitution put limits on the
President’s discretion over appropriations during the budget execution phase (when the
budget law is being implemented). The Constitution authorizes the President, the Senate
President, the Speaker, the Chief Justice, and heads of Constitutional Comissions to transfer
funds “within their respective offices”; when these funds involve savings generated from
appropriations also for their respective offices; and when the purpose of the transfer is to
augment items in the Appropriations Law again for their respective offices.
How is "savings" defined? How did this issue make DAP problematic?
The Court defined savings as funds that remain unspent after the completion or
discontinuance of a project. Congress provided that appropriated funds are available for a
period of one fiscal year. But in a May 20, 2013 memo, Budget Secretary Butch Abad sought
omnibus authority to consolidate savings and unused funds to finance the DAP on a
quarterly basis. This shortened the period that funds were supposed to be available for,
giving rise to questions about the budget department’s own definition of savings.
How were funds under DAP spent? What are related issues?
According to the Department of Budget and Management (DBM), as of 2013, P144.4 billion
(about $3.3 billion) was released to implement programs, activities, projects (PAPs). In 2011,
P82.5 billion (about $1.8) was released, while P54.8 billion (about $1.2 billion) was released in
2012. About 9% of the total DAP applied to PAPs were identified by lawmakers.
The DBM also said that 116 PAPs were financed by DAP, each of which had existing
appropriations in the budget. The Office of the Solicitor-General submitted 7 evidence
packets in support of this claim, but the Court found that there were projects not covered by
an existing appropriation – for example, items under the P1.6-billion DREAM project under
the Department of Science and Technology. DREAM refers to Disaster Risk, Exposure,
Assessment and Mitigation.
Are “cross-border” transfers or augmentations of the budget allowed?
No. Cross-border transfers refer to the movement of funds from one branch of government
to another. These are allowed only within respective offices – thus the use of DAP funds to
augment funds of the Commission on Audit (for its IT infrastructure program and the hiring of
litigation experts in the amount of P143.7 million, or about $3.2 million) and the House of
Representatives (for a legislative library and archives building/e-library in the amount of P250
million, or about $5.6 million) violate the Constitution.
What is the operative fact doctrine and why is it relevant to DAP?
In effect, it says let it be, because the consequences resulting from DAP could no longer be
undone. For instance, the positive results of DAP funding could include roads, bridges,
homes for the homeless, hospitals, classrooms.
Not applying the operative fact doctrine would require the physical undoing and destruction
of these infrastructure – a considerable waste. The application of the doctrine, however, does
not exonerate the proponents and implementors of the DAP – unless it is established that
they acted in good faith.
2. JBC Ruling on appointment of SC JUSTICE not included in JbC sortlist submitted to

Pres
Source: officialgazette.gov.ph/about/gov/judiciary/sc/briefer-jbc/
IV. HOW ARE CANDIDATES NOMINATED?

A VACANCY OPENS 
The Constitution provides that a vacancy for the positions of Chief Justice, Associate
Justice, Ombudsman, Deputy Ombudsman, and judges of other courts must be filled within
90 days (by virtue of Article VIII, Sec. 4 of the Constitution and Rule 1, Sec. 1 of the Rules of
the JBC). As soon as a vacancy opens in the Supreme Court and the Office of the
Ombudsman, the position is “ipso facto” open to applications.
THE JBC CONVENES
The JBC convenes and prescribes specific dates for deadlines for the filing of nominations
and the form in which applications should be submitted. They then send out a call for
applicants or recommendations.
It must be noted that since the ratification of the 1987 Constitution, every Chief Justice left
office by virtue of retirement at the age of 70 years old. In such cases wherein the retirement
of a Chief Justice is anticipated, the JBC convenes months in advance to anticipate the
upcoming retirement of Justices and submits its list before the date of retirement.
APPLICATIONS/RECOMMENDATIONS ARE FILED
Applicants may file applications themselves or be recommended by other persons.

Applications must be filed personally or by registered mail sent to the Secretariat of the
Council. A recommended applicant must manifest acceptance either in the recommendation
paper itself or in a separate document. His or her acceptance must be filed before the
deadline set by the Council.
A LIST OF APPLICANTS IS PUBLISHED
A long list of candidates shall be published in a Philippine newspaper of general circulation

and in a newspaper of local circulation in the province or city where the vacancy is located.
Copies of the list shall likewise be posted on three conspicuous places in the said area.
Copies thereof shall be furnished to major nongovernmental organizations in the city or
municipality where such vacancy is located, including the Integrated Bar of the Philippines
and its corresponding local chapter.
The long list shall contain an invitation to the public to inform the Council, within ten days, of
any complaint or derogatory information against the applicants. The Council may choose to
direct a discreet background check on the applicant or require the nominee to comment in
writing or during the interview.{{2}}
APPLICANTS ARE SCREENED BY THE JBC
Applicants and recommendees shall be screened based on set qualifications from the 1987
Constitution (a member of the Judiciary must be a citizen of the Philippines, a member of the
Philippine Bar, and a person of proven competence, integrity, probity, and independence) as
well as by office-specific qualifications set by the rules of the JBC (see sidebar).
They shall also be evaluated according to
1. Competence, to be measured by
• Educational preparation
• Experience
• Performance
• Other accomplishments
2. Integrity, by means of
• Evidence of integrity
• Background check
• Testimony of parties
• Anonymous testimonies
3. Probity and independence
4. Sound physical, mental, and emotional condition, by means of
• Medical documents
• Psychological/psychiatric tests
In addition, the following are disqualified from becoming nominees (see JBC Rule 4, Sec.
5 and Sec. 6):
• Those with pending criminal or regular administrative cases;
• Those with pending criminal cases in foreign courts or tribunals; and
• Those who have been convicted in any criminal case; or in an administrative case,
where the penalty imposed is at least a fine of more than P10,000, unless he has been
granted judicial clemency.
• Members of the Judiciary facing administrative complaints under informal preliminary

investigation by the Court Administrator.
PUBLIC INTERVIEWS ARE HELD
The JBC will prepare a short list of candidates they wish to interview. The Council, en banc
or any authorized set of members of the Council, shall interview the candidates to “observe
their personality, demeanor, deportment, and physical condition; assess their ability to
express themselves, especially in the language of the law in court trials/proceedings and in
their decisions or rulings; test their mastery of the law and legal principles; inquire into their
philosophies, values, etc.; determine their probity and independence of mind; and evaluate
their readiness and commitment to assume and fulfill the duties and responsibilities of
judgeship.” Only the members of the JBC may ask questions during the interview.
Although media accessibility will be subject to the rules promulgated by the Council, these
interviews shall be conducted in public. For this purpose, the schedule of the interviews shall
be published in local- and general-circulation publications. The reports on the personal
interviews, however, are declared strictly confidential documents upon submission to the
Secretary of Council and shall only be made available to the members of the JBC.
THE JBC VOTES ON THE LIST OF NOMINEES
A list of candidates that passed the screening process is submitted to the members of the
JBC for their final voting and approval. The JBC shall again meet in executive session for the
final deliberation. A majority of the members must approve of a candidate in order for his or
her name to be included in the final list of nominees that will be submitted to the President. A
list of nominees usually consists of five to six names.
THE PRESIDENT APPOINTS SOMEONE FROM THE LIST
The President may appoint anyone included in the list of the JBC with no need of
confirmation by Congress.
3. Archipelagic doctrine-9 dash line
What’s China’s ‘nine-dash line’ and why has it created so much tension in the South
China Sea?
Liu Zhen
Published: 12:00am, 12 Jul, 2016 (https://www.scmp.com/news/china/diplomacy-defence/

article/1988596/whats-chinas-nine-dash-line-and-why-has-it-created-so)
The Permanent Court of Arbitration in The Hague is expected to deliver its ruling on China’s
claims on Tuesday. Illustration: SCMP
At the heart of the South China Sea dispute is the “nine-dash line”, Beijing’s claim that
encircles as much as 90 per cent of the contested waters. The line runs as far as 2,000km
from the Chinese mainland to within a few hundred kilometres of the Philippines, Malaysia
and Vietnam. Beijing maintains it owns any land or features contained within the line, which
confers vaguely defined “historical maritime rights”.
Key rulings to watch out for in South China Sea case
The Philippines is contesting the claims at the Permanent Court of Arbitration in The Hague,
with a ruling expected to be delivered on Tuesday. In its submissions, Manila argues the line
exceeds the limits of maritime entitlements permitted under the UN Convention on the Law
of the Sea (Unclos).
The Philippines also asked the tribunal to classify whether a number of disputed areas are
islands, low-tide coral outcrops or submerged banks to determine the stretch of territorial
waters they are entitled to under the convention. The convention does not deal with
sovereignty questions, which the Philippine government says it did not raise.
What is the origin of the line? 

It appeared on a Chinese map as an 11-dash line in 1947 as the then Republic of China’s
navy took control of some islands in the South China Sea that had been occupied by Japan
during the second world war. After the People’s Republic of China was founded in 1949 and
Kuomintang forces fled to Taiwan, the communist government declared itself the sole -
legitimate representative of China and inherited all the nation’s maritime claims in the region.
But two “dashes” were removed in the early 1950s to bypass the Gulf of Tonkin as a gesture
to communist comrades in North Vietnam.
Beijing intensified its hold in the northern part of the waters in the mid-1970s when it
expelled the South Vietnamese navy from the Paracel Islands after a clash that saw dozens
killed.
Seven out of about 200 reefs in the Spratly Islands came under Chinese control in the 1980s
and 1990s and Scarborough Shoal in 2012. Taiwan still maintains its maritime claims in the
region and has kept a military garrison on Pratas Islands and the largest natural feature in the
Spratlys, Taiping. 
Why is the line so important? 
It serves as the basis of China’s claim to “historical rights” in the region, as neither Beijing
nor Taipei ever held effective control over the entire region encompassing more than 2 million
sq km. Other claimants such as the Philippines, Malaysia and Brunei root their claim in
geographical proximity, while Vietnam, which occupies the largest number of islands and
reefs in the Spratlys, at 29, stresses it actively administers the area. The Philippines is
challenging the legality of the line at the international tribunal under Unclos.
What will guide China’s response to the South China Sea tribunal ruling?
According to the treaty, a nation has sovereignty over waters extending 12 nautical miles
from its land and exclusive control over economic activities 200 nautical miles out. Beijing
maintains it has historical evidence proving its control of territory further out to sea. If the
Philippines wins, China’s claims would be seriously undermined and neighbouring states
would have a legal endorsement for their position.
Boats at Scarborough Shoal in the South China Sea in a handout photo provided by Planet
Labs, and captured on March. Photo: Reuters
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Beijing argues the nine-dash line emerged in the new world order after the second world war
and came well before the 1982 Unclos. Beijing says China accepted the Japanese surrender
and reclaimed the region with legal backing and the authorisation of the Allies. Other
claimants in the region and the US expressed no objections at the time, it argues.
What is Beijing’s strategy with the nine-dash line?
Beijing is a signatory to Unclos, but it has intentionally never defined the legal meaning of the
nine-dash line or what its “rights” are within the boundary. This ambiguity has led to the idea
among many ordinary Chinese people that it marks the nation’s maritime boundary, but
again, Beijing has never made this explicit.
Others say it encircles the area where China demands economic rights. Another
interpretation is the line marks the islands and reefs China wants to control rather than the
waters inside its boundaries. Beijing has long favoured a strategy of ambiguity. It does not
openly go against international law, but prefers to leave space for its more ambitious claims. 
What happens if the tribunal rules against China? 
The consensus among legal experts is that the court is unlikely to rule specifically on the
nine-dash line. The court has said earlier it will not offer a judgment on territorial disputes,
but there is a small chance it may rule on whether there is a legal basis for the line under the
UN convention. If it rules against China, the government may face increased international
pressure to clarify its position on the line’s legal justification. But what is virtually certain is
China will not remove the line from its maps, especially given growing nationalism.
Beijing has also repeatedly said it will ignore any rulings by the tribunal. Taiwan has said it
stands by its position that all South China Sea islands are its territory. The island’s leader,
Tsai Ing-wen, has not mentioned the nine or 11-dash line and has emphasised it will adhere
to international law. If she were to give up the nine-dash line claims following the ruling,
cross-strait relations would likely be further strained.
*On the Archipelagic Doctrine
The Archipelagic Doctrine, as enunciated in the UNCLOS and affirmed in Article I of the 1987

Constitution, pertains to the sovereign state and does not place within the territory of LGUs
the waters between and surrounding its islands. Nowhere in international or domestic law
does it state that said doctrine applies in pari materia to LGUs. 103
5.3. The application of the Archipelagic Doctrine to a political subdivision will encroach on

territories that belong to the State. Section 3 of the Water Code provides that "all waters
belong to the State" and Section 5 of the same law specifies that "seawater belongs to the
State." So also, while the definition of Philippine waters under the Philippine Fisheries Code
acknowledges that waters may exist in political subdivisions, nothing therein implies that
such waters form part of the territory of the LGU. Furthermore, said definition treats the
waters connecting the islands as a separate group from the waters existing in the political
subdivisions, implying that waters between islands are not deemed found in LGUs.
||| (Republic v. Provincial Government of Palawan, G.R. Nos. 170867 & 185941, [December 4,
2018])
The archipelagic doctrine is embodied in Article I of the 1987 Constitution which provides:
The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea,
the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around,
between, and connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines.
||| (Republic v. Provincial Government of Palawan, G.R. Nos. 170867 & 185941, [December 4,
2018])
*ON 9-DASH LINE:
While this Motion for Reconsideration was pending resolution, the United Nations Permanent
Court of Arbitration tribunal constituted under the Convention on the Law of the Sea
(UNCLOS) in Republic of the Philippines v. People's Republic of China released its
monumental decision on the afternoon of 12 July 2016. 42 The findings and declarations in
this decision contextualizes the security requirements of the Philippines, as they indicate an
alarming degree of international law violations committed against the Philippines' sovereign
rights over its exclusive economic zone (EEZ).
Firstly, the tribunal found China's claimed nine-dash line, which included sovereign claims
over most of the West Philippine, invalid under the UNCLOS for exceeding the limits of
China's maritime zones granted under the convention. 43
Secondly, the tribunal found that the maritime features within the West Philippine Sea/South
China Sea that China had been using as basis to claim sovereign rights within the
Philippines' EEZ were not entitled to independent maritime zones. 44
Thirdly, the tribunal found that the actions of China within the EEZ of the Philippines, namely:
forcing a Philippine vessel to cease-and-desist from survey operations, 45 the promulgation
of a fishing moratorium in 2012, 46 the failure to exercise due diligence in preventing Chinese
fishing vessels from fishing in the Philippines' EEZ without complying with Philippine
regulations, 47 the failure to prevent Chinese fishing vessels from harvesting endangered
species, 48 the prevention of Filipino fishermen from fishing in traditional fishing grounds in
Scarborough Shoal, 49 and the island-building operations in various reefs, all violate its
obligations to respect the rights of the Philippines over its EEZ. 50
Fourthly, the tribunal rejected Chinese claims of sovereignty over features within the
Philippine's EEZ, 51 and found that its construction of installations and structures, and later
on the creation of an artificial island, violated its international obligations. 52
Fifthly, the tribunal found that the behaviour of Chinese law enforcement vessels breached
safe navigation provisions of the UNCLOS in respect of near-collision instances within
Scarborough Shoal. 53
Finally, the tribunal found that since the arbitration was initiated in 2013, China has
aggravated the dispute by building a large artificial island on a low-tide elevation located in
the EEZ of the Philippines aggravated the Parties' dispute concerning the protection and
preservation of the marine environment at Mischief Reef by inflicting permanent, irreparable
harm to the coral reef habitat of that feature, extended the dispute concerning the protection
and preservation of the marine environment by commencing large-scale island-building and
construction works at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef,
Hughes Reef, and Subi Reef, aggravated the dispute concerning the status of maritime
features in the Spratly Islands and their capacity to generate entitlements to maritime zones
by permanently destroying evidence of the natural condition of Mischief Reef, Cuarteron
Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi
Reef. 54 TIADCc
Taken as a whole, the arbitral tribunal has painted a harrowing picture of a major world power
unlawfully imposing its might against the Philippines, There are clear indications that these
violations of the Philippines' sovereign rights over its EEZ are continuing. The Philippine state
is constitutionally-bound to defend its sovereignty, and must thus prepare militarily.
No less than the 1987 Constitution demands that the "State shall protect the nation's marine
wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its
use and enjoyment exclusively to Filipino citizens." 55
No less than the 1987 Constitution states that the principal role of the military under the
President as commander-in-chief shall be as protector of the people and the State to secure
the sovereignty of the State and the integrity of the national territory. 56
To recall, the Philippines and the U.S. entered into the MDT in 1951 57 with two things in
mind, first, it allowed for mutual assistance in maintaining and developing their individual and
collective capacities to resist an armed attack; 58 and second, it provided for their mutual
self-defense in the event of an armed attack against the territory of either party. 59 The treaty
was premised on their recognition that an armed attack on either of them would equally be a
threat to the security of the other. 60
The EDCA embodies this very purpose. It puts into greater effect a treaty entered into more
than 50 years ago in order to safeguard the sovereignty of the Philippines, and cement the
military friendship of the U.S. and Philippines that has thrived for decades through multiple
presidents and multiple treaties. While it is a fact that our country is now independent, and
that the 1987 Constitution requires Senate consent for foreign military bases, troops, and
facilities, the EDCA as envisioned by the executive and as formulated falls within the legal
regime of the MDT and the VFA.
In the context of recent developments, the President is bound to defend the EEZ of the
Philippines and ensure its vast maritime wealth for the exclusive enjoyment of Filipinos. In
this light, he is obligated to equip himself with all resources within his power to command.
With the MDT and VFA as a blueprint and guide, EDCA strengthens the Armed Forces of the
Philippines and through them, the President's ability to respond to any potential military
crisis with sufficient haste and greater strength. cSEDTC
The Republic of Indonesia is strengthening its military presence and defences in the South
China Sea. 61 Vietnam has lent its voice in support of the settlement of disputes by peaceful
means 62 but still strongly asserts its sovereignty over the Paracel islands against
China. 63 The international community has given its voice in support of the tribunal's
decision in the UNCLOS arbitration. 64
Despite all this, China has rejected the ruling. 65 Its ships have continued to drive off Filipino
fishermen from areas within the Philippines' EEZ. 66 Its military officials have promised to
continue its artificial island-building in the contested areas despite the ruling against these
activities. 67
In this light, the Philippines must continue to ensure its ability to prevent any military
aggression that violates its sovereign rights. Whether the threat is internal or external is a
matter for the proper authorities to decide. President Rodrigo Roa Duterte has declared, in
his inaugural speech, that the threats pervading society are many: corruption, crime, drugs,
and the breakdown of law and order. 68 He has stated that the Republic of the Philippines
will honor treaties and international obligations. 69 He has also openly supported EDCA's
continuation. 70
Thus, we find no reason for EDCA to be declared unconstitutional. It fully conforms to the

Philippines' legal regime through the MDT and VFA. It also fully conforms to the
government's continued policy to enhance our military capability in the face of various
military and humanitarian issues that may arise. This Motion for Reconsideration has not
raised any additional legal arguments that warrant revisiting the Decision.
WHEREFORE, we hereby DENY the Motion for Reconsideration.
SO ORDERED.
||| (Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444 (Resolution), [July 26, 2016])
4. Valid search subsequent to valid arrest
Having ascertained that petitioners were validly arrested without a warrant pursuant to the
"hot pursuit" doctrine, the Court now examines the two (2) searches made on them,
namely: (a) the body search after the police officers apprehended them; and (b) a "more
thorough" search conducted at the Panabo Police Station where the seized drugs were
allegedly recovered from them, as to whether these may fall within the purview of
a valid search incidental to their lawful arrest.
Searches and seizure incident to a lawful arrest are governed by Section 13, Rule 126 of
the Revised Rules on Criminal Procedure, to wit:
Section 13. Search incident to a lawful arrest. — A person lawfully arrested may be searched

for dangerous weapons or anything which may have been used or constitute proof in the
commission of an offense without a search warrant.
The purpose of allowing a warrantless search and seizure incident to a

lawful arrest is to protect the arresting officer from being harmed by the person arrested, who
might be armed with a concealed weapon, and to prevent the latter from destroying evidence
within reach. It is therefore a reasonable exercise of the State's police
power to protect: (a) law enforcers from the injury that may be inflicted on them by a person
they have lawfully arrested; and (b) evidence from being destroyed by the arrestee. It
seeks to ensure the safety of the arresting officers and the integrity of the evidence under the
control and within the reach of the arrestee. 39 In People v. Calantiao, 40 the Court reiterated
the rationale of a search incidental to a lawful arrest, to wit:
When an arrest is made, it is reasonable for the arresting officer to search the person

arrested in order to remove any weapon that the latter might use in order to resist arrest or
effect his escape. Otherwise, the officer's safety might well be endangered, and
the arrest itself frustrated. In addition, it is entirely reasonable for the arresting
officer to search for and seize any evidence on the arrestee's person in order to prevent its
concealment or destruction.
Moreover, in lawful arrests, it becomes both the duty and the right of the apprehending
officers to conduct a warrantless search not only on the person of the suspect, but also in
the permissible area within the latter's reach. Otherwise stated, a valid arrest allows the
seizure of evidence or dangerous weapons either on the person of the one arrested or within
the area of his immediate control. The phrase "within the area of his immediate control"
means the area from within which he might gain possession of a weapon or destructible
evidence. A gun on a table or in a drawer in front of one who is arrested can be as
dangerous to the arresting officer as one concealed in the clothing of the person
arrested. 41 (Emphasis and underscoring supplied)
On this note, case law requires a strict application of this rule, that is, "to absolutely limit a
warrantless search of a person who is lawfully arrested to his or her person at the time of and
incident to his or her arrest and to 'dangerous weapons or anything which may be used as
proof of the commission of the offense.' Such warrantless search obviously cannot be made
in a place other than the place of arrest." 42
Applying the foregoing parameters to this case, the Court concludes that the
first search made on petitioners, i.e., the cursory body search which, however, did not yield
any drugs but only personal belongings of petitioners, may be considered as
a search incidental to a lawful arrest as it was done contemporaneous to their arrest and at
the place of apprehension. On the other hand, the same cannot be said of the
second search which yielded the drugs subject of this case, considering that a substantial
amount of time had already elapsed from the time of the arrest to the time of the
second search, not to mention the fact that the second search was conducted at a venue

other than the place of actual arrest, i.e., the Panabo Police Station.
In sum, the subsequent and second search made on petitioners at the Panabo Police Station

is unlawful and unreasonable. Resultantly, the illegal drugs allegedly recovered therefrom
constitutes inadmissible evidence pursuant to the exclusionary clause enshrined in the 1987
Constitution. Given that said illegal drugs is the very corpus delicti of the crime charged,
petitioners must necessarily be acquitted and exonerated from criminal liability. 43
||| (Vaporoso v. People, G.R. No. 238659, [June 3, 2019])
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE

SEARCHES AND SEIZURES; EXCEPTIONS TO THE WARRANTLESS SEARCHES AND
SEIZURES. — The general rule is that a search may be conducted by law enforcers only on
the strength of a valid search warrant. Nevertheless, the Constitutional proscription
against warrantless searches and seizures admits of certain exceptions, such as:
1) warrantless searches incidental to a lawful arrest; 2) seizures of evidence in plain view; 3)
searches of a moving vehicle; 4) consented warrantless searches; 5) customs searches; 6)
stop and frisk searches; and 7) searches under exigent and emergency circumstances. The
Court finds that the evidence seized from appellant was the product
of a search incidental to a lawful arrest.||| (People v. Milado, G.R. No. 147677, [December 1,
2003], 462 PHIL 411-418)
2. SEARCH AND SEIZURE; SEARCH INCIDENTAL TO A LAWFUL ARREST;
CONTEMPORANEOUS SEARCH OF A PERSON ARRESTED MAY BE EFFECTED AND MAY
EXTEND TO AREAS THAT ARE WITHIN HIS CUSTODY AND IMMEDIATE CONTROL. — It
cannot be denied that when the policemen saw appellant, and that he matched the
description given to them by the asset, they were certain that he was the person they were
looking for. It was based on this conclusion that appellant was brought to the police station.
Although no "formal arrest" had yet been made, it is clear that appellant had already been
deprived of his liberty and taken into custody after the policemen told him to stay inside the
jeepney and instructed the driver to drive them to the police station. The term "invited" may
have been used by the police, but it was obviously a command coming from three law
enforcers who appellant could hardly be expected to defy. Thus, as a consequence of
appellant's arrest, the policemen were authorized to look at the contents of the black bag, on
the ground that a contemporaneous search of a person arrested may be effected and may
extend to areas that are within his custody and immediate control.||| (People v. Milado, G.R.
No. 147677, [December 1, 2003], 462 PHIL 411-418)
5. Constitutional revision
ARTICLE XVII 
AMENDMENTS OR REVISIONS
Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
1. The Congress, upon a vote of three-fourths of all its Members; or 
2. A constitutional convention. 
Section 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this section shall be
authorized within five years following the ratification of this Constitution nor oftener than
once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional
convention, or by a majority vote of all its Members, submit to the electorate the question of
calling such a convention.
Section 4.Any amendment to, or revision of, this Constitution under Section 1 hereof shall be
valid when ratified by a majority of the votes cast in a plebiscite which shall be held not
earlier than sixty days nor later than ninety days after the approval of such amendment or
revision.
Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days
after the certification by the Commission on Elections of the sufficiency of the petition.
6. Aguinaldo doctrine
The Aguinaldo Condonation Legal Doctrine -- and how it relates to Junjun Binay
(https://www.gmanetwork.com/news/opinion/content/475830/the-aguinaldo-
condonation-legal-doctrine-and-how-it-relates-to-junjun-binay/story/)
Published April 25, 2015 12:48pm
By DEAN PACIFICO AGABIN
The Aguinaldo condonation legal doctrine referred to by the Chief Justice during the oral
arguments in the Binay case is borrowed from American jurisprudence. In the United States,
it dates back to 1887.
In the Philippines, it goes back to 1959 in the case of Pascual vs. Provincial Board of Nueva
Ecija. It was decided on October 31, 1959 where the Supreme Court, citing American cases,
ruled: “The weight of authority, however, seems to incline to the rule denying the right to
remove from office because of misconduct during a prior term, to which we subscribe”.
In the case of Aguinaldo v. Santos, decided in 1992, the Court refused to unseat Aguinaldo
who was removed from office by Sec. Luis Santos for the former’s participation in the
attempted coup against Pres. Cory Aquino.
Aguinaldo was then Governor of Cagayan and he was found guilty and was removed from
office.
He filed a case in the Supreme Court questioning his removal.
While his case was pending, he was reelected Governor by a landslide.
Holding that Aguinaldo’s petition before the Supreme Court was meritorious, the Court held
that “offenses committed, or acts done, during a previous term are generally held not to
furnish cause for removal and this is specially true where the Constitution provides that that
the penalty in the proceeding for removal shall not extend beyond removal from office, and
disqualification from holding office for a term for which the officer was elected or appointed.”

The underlying theory is that each term is separate from other terms, and that reelection to
office operates as a condonation of the officer’s misconduct to the extent of cutting off the
right to remove him therefor.
In later cases, the Supreme Court reiterated this doctrine. It stated that the Court should
never remove from office for acts done prior to his present term. To do otherwise would be to
deprive the people of their right to elect their officers.
When a people have elected a man to office, it must be assumed that they did this with
knowledge of his life and character, and that they disregarded or forgave his fault or
misconduct, if he had any.
It is not for the court, by reason of such fault or misconduct, to practically overrule the will of
the people.
Thereafter, in the Aguinaldo case, the Court ruled that a public official cannot be removed for
administrative misconduct committed during a prior term, since his reelection to office
operates as a condonation to the officer’s previous misconduct to the extent of cutting off
the right to remove him therefor.
This rule, however, finds no application to criminal cases pending against the officer for acts
he may have committed during the prior term.
With reference to the cases against Mayor Erwin "Junjun" Binay, the above rulings apply to
him insofar as these cover acts committed during his prior term.
However, it should be emphasized that this doctrine covers only administrative charges but
not criminal cases. So if there are administrative cases pending against him which include
only acts committed during his prior term, these are considered pardoned by the Makati
electorate.
However, if there are criminal cases pending against him, such cannot be dismissed on the
basis of the Aguinaldo doctrine.
It should be borne in mind that the Aguinaldo doctrine is rationalized on democratic

principles.
The Court does not want to overrule the will of the people who elected the public officer
involved, since the voice of the people is the sovereign will.
However, if the Supreme Court wishes to override the doctrine in the pending case of Mayor
Binay, it can do so on the basis of its judicial power.
Atty. Pacifico Agabin is a former dean of the University of the Philippines College of Law.
RODOLFO E. AGUINALDO, petitioner, vs. HON. LUIS SANTOS, as Secretary of the

Department of Local Government, and MELVIN VARGAS, as Acting Governor of
Cagayan, respondents. [G.R. No. 94115. August 21, 1992.]
1. ADMINISTRATIVE LAW; PUBLIC OFFICERS; AS RULE, CANNOT BE REMOVED FOR

MISCONDUCT COMMITTED DURING A PRIOR TERM; NOT APPLICABLE TO CRIMINAL
CASES PENDING AGAINST HIM. — The rule is that a public official can not be removed for
administrative misconduct committed during a prior term, since his re-election to office
operates as a condonation of the officer's previous misconduct to the extent of cutting off
the right to remove him therefor. The foregoing rule, however, finds no application
to criminal cases pending against petitioner for acts he may have committed during the failed
coup.
2. ID.; ID.; ACTS OF DISLOYALTY TO THE REPUBLIC AS A GROUND FOR REMOVAL

THEREOF; NEED NOT BE PROVED BEYOND REASONABLE DOUBT. — The power of
respondent Secretary to remove local government officials is anchored on both
the Constitution and a statutory grant from the legislative branch. The constitutional basis is
provided by Articles VII (17) and X (4) of the 1987 Constitution which vest in the President the
power of control over all executive departments, bureaus and offices and the power of
general supervision over local governments, and by the doctrine that the acts of the
department head are presumptively the acts of the President unless expressly rejected by
him. The statutory grant found in B.P. Blg. 337 itself has constitutional roots, having been
enacted by the then Batasan Pambansa pursuant to Article XI of the 1973 Constitution,
Section 2. A similar provision is found in Section 3, Article X of the 1987 Constitution. Equally
without merit is petitioner's claim that before he could be suspended or removed from office,
proof beyond reasonable doubt is required inasmuch as he is charged with a penal offense of
disloyalty to the Republic which is defined and penalized under Article 137 of the Revised
Penal Code. Petitioner is not being prosecuted criminally under the provisions of the Revised
Penal Code, but administratively with the end in view of removing petitioner as the duly
elected Governor of Cagayan Province for acts of disloyalty to the Republic where the
quantum of proof required is only substantial evidence.
3. LOCAL GOVERNMENT; POWER OF THE SECRETARY OF THE LOCAL GOVERNMENT TO

REMOVE LOCAL GOVERNMENT OFFICIAL; ANCHORED ON BOTH
THE CONSTITUTION AND A STATUTORY GRANT FROM THE LEGISLATIVE BRANCH. —
Inasmuch as the power and authority of the legislature to enact a local government code,
which provides for the manner of removal of local government officials, is found in the 1973
Constitution as well as in the 1987 Constitution, then it can not be said that B.P. Blg. 337 was
repealed by the effectivity of the present Constitution. Moreover, in Bagabuyo et
al. vs. Davide, Jr., et al., this Court had the occasion to state that B.P. Blg. 337 remained in
force despite the effectivity of the present Constitution, until such time as the proposed Local
Government Code of 1991 is approved.
4. ID.; PERMANENT VACANCY IN THE OFFICE OF GOVERNOR; SHALL BE FILLED BY THE

VICE-GOVERNOR. — As to petitioner's argument of the want of authority of respondent
Secretary to appoint respondent Melvin Vargas as Governor of Cagayan, We need but point
to Section 48 (1) of B.P. Blg. 337 to show the fallacy of the same, to wit — In case a
permanent vacancy arises when a governor .. refuses to assume office, fails to qualify, dies
or is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to
discharge the functions of his office, the vice-governor ...shall assume the office for the
unexpired term of the former.
||| (Aguinaldo v. Santos, G.R. No. 94115, [August 21, 1992], 287 PHIL 851-860)
7. Over breadth vs void for vagueness
I. Defenses based on a Violation of the Due Process Clause (https://batasnatin.com/

law-library/criminal-law/general-provisions/1047-constitutional-defenses.html)
A. The Statute is VOID-FOR- VAGUENESS PRINCIPLE
1. Due Process requires that the terms of a penal statute must be sufficiently explicit to
inform those who are subject to it what conduct on their part will render them liable to its
penalties. 
2. The Doctrine that a penal; statute is unconstitutional if it does not reasonably a person on
notice as to what the person may not do, or what the person is required to do. As a rule a
statue maybe said to be vague when it lacks comprehensible standards that “men of
common intelligence must necessarily guess at its meaning and differ as to its application” It
is repugnant to the constitution in two aspects: (a) it violates due process for failure to
accord persons, especially the parties targeted by it, fair notice of the conduct to avoid and
(b) it leaves law enforcers unbridled discretion in carrying out its provisions and become an
arbitrary flexing of the government muscle.
3. However an act will be declared void and inoperative on the ground of vagueness and
uncertainty, only upon a showing that the defect is such that the courts are unable to
determine, within any reasonable degree of certainty, what the legislature intended 
 
Example: An ordinance of the City of Cincinnati that made it illegal for : “three or more
persons to assemble on any sidewalk and there conduct themselves in a manner annoying to
persons passing by” 
B. VOID FOR OVERBREADTH ( Overbroad) PRINCIPLE
1. A penal statue is unconstitutional if its language is so broad that it unnecessary interferes
with the exercise of constitutional rights, even though the purpose is to prohibit activities that
the government may constitutionally prohibit. 
 
2. A statute is overbroad where it operates to inhibit the exercise of individual freedoms
guaranteed by the constitution, such as the freedom of religion or speech. When it includes
within its coverage not only unprotected activity but also activity protected by the
constitution.
3. This principle applies more to felonies or offenses which conflict with the freedom of
expression and association such as prosecution for libel, inciting to rebellion or sedition, and
violation of the Election Code.
Example: In Adiong s. COMELEC ( 207 SCRA 712) the court declared as void that portion of
the Election Code prohibiting the posting of election propaganda in any place-including
private vehicles- other than in the designated common poster area.
8. International law ratification vs executive agreement
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process
in this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and
exchange of the instruments of ratification. The treaty may then be submitted for registration
and publication under the U.N. Charter, although this step is not essential to the validity of
the agreement as between the parties.
Negotiation may be undertaken directly by the head of state but he now usually assigns this
task to his authorized representatives. These representatives are provided with credentials
known as full powers, which they exhibit to the other negotiators at the start of the formal
discussions. It is standard practice for one of the parties to submit a draft of the proposed
treaty which, together with the counter-proposals, becomes the basis of the subsequent
negotiations. The negotiations may be brief or protracted, depending on the issues involved,
and may even "collapse" in case the parties are unable to come to an agreement on the
points under consideration.
If and when the negotiators finally decide on the terms of the treaty, the same is opened
for signature. This step is primarily intended as a means of authenticating the instrument and
for the purpose of symbolizing the good faith of the parties; but, significantly, it does not
indicate the final consent of the state in cases where ratification of the treaty is required. The
document is ordinarily signed in accordance with the alternat, that is, each of the several
negotiators is allowed to sign first on the copy which he will bring home to his own state.
Ratification, which is the next step, is the formal act by which a state confirms and accepts
the provisions of a treaty concluded by its representatives. The purpose of ratification is to
enable the contracting states to examine the treaty more closely and to give them an
opportunity to refuse to be bound by it should they find it inimical to their interests. It is for
this reason that most treaties are made subject to the scrutiny and consent of a department
of the government other than that which negotiated them.
xxx xxx xxx
The last step in the treaty-making process is the exchange of the instruments of ratification,
which usually also signifies the effectivity of the treaty unless a different date has been agreed
upon by the parties. Where ratification is dispensed with and no effectivity clause is
embodied in the treaty, the instrument is deemed effective upon its signature. 16 [emphasis
supplied]
||| (Pimentel, Jr. v. Office of the Executive Secretary, G.R. No. 158088, [July 6, 2005], 501 PHIL
303-318)
It should be underscored that the signing of the treaty and the ratification are two separate
and distinct steps in the treaty-making process. As earlier discussed, the signature is
primarily intended as a means of authenticating the instrument and as a symbol of the good
faith of the parties. It is usually performed by the state's authorized representative in the
diplomatic mission. Ratification, on the other hand, is the formal act by which a state
confirms and accepts the provisions of a treaty concluded by its representative. It is
generally held to be an executive act, undertaken by the head of the state or of the
government. 17 Thus, Executive Order No. 459 issued by President Fidel V. Ramos on
November 25, 1997 provides the guidelines in the negotiation of international agreements
and its ratification. It mandates that after the treaty has been signed by the Philippine
representative, the same shall be transmitted to the Department of Foreign Affairs. The
Department of Foreign Affairs shall then prepare the ratification papers and forward the
signed copy of the treaty to the President for ratification. After the President has ratified the
treaty, the Department of Foreign Affairs shall submit the same to the Senate for
concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign
Affairs shall comply with the provisions of the treaty to render it effective. Section 7
of Executive Order No. 459 reads: ASTcaE
Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive
Agreement. — The domestic requirements for the entry into force of a treaty or an executive
agreement, or any amendment thereto, shall be as follows:
A. Executive Agreements.
i. All executive agreements shall be transmitted to the Department of Foreign Affairs after
their signing for the preparation of the ratification papers. The transmittal shall include the
highlights of the agreements and the benefits which will accrue to the Philippines arising
from them.
ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency,
shall transmit the agreements to the President of the Philippines for his ratification. The
original signed instrument of ratification shall then be returned to the Department of Foreign
Affairs for appropriate action.
B. Treaties.
i. All treaties, regardless of their designation, shall comply with the requirements provided in
sub-paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the
Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for
concurrence in the ratification by the President. A certified true copy of the treaties, in such
numbers as may be required by the Senate, together with a certified true copy of
the ratification instrument, shall accompany the submission of the treaties to the Senate.
ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall
comply with the provision of the treaties in effecting their entry into force.
||| (Pimentel, Jr. v. Office of the Executive Secretary, G.R. No. 158088, [July 6, 2005], 501 PHIL
303-318)
It should be emphasized that under our Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate. The role of the Senate, however, is
limited only to giving or withholding its consent, or concurrence, to the ratification. 20 Hence,
it is within the authority of the President to refuse to submit a treaty to the Senate or, having
secured its consent for its ratification, refuse to ratify it. 21 Although the refusal of a state to
ratify a treaty which has been signed in its behalf is a serious step that should not be taken
lightly, 22 such decision is within the competence of the President alone, which cannot be
encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions
seeking to enjoin the President in the performance of his official duties. 23 The Court,
therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its
jurisdiction to compel the executive branch of the government to transmit the signed text of
Rome Statute to the Senate. HEAcDC||| (Pimentel, Jr. v. Office of the Executive Secretary,
G.R. No. 158088, [July 6, 2005], 501 PHIL 303-318)
Philippine treaties and the doctrine of incorporation (https://www.bworldonline.com/

philippine-treaties-and-the-doctrine-of-incorporation/)
April 4, 2019 | 10:25 pm
Being Right
By Jemy Gatdula
A topic substantially discussed in law school is international law’s application within our
municipal jurisdiction. In other words, may international law give rise to a demandable cause
of action or defense before our local courts? The answer is in the Constitution.
Article II.2’s relevant part provides: “The Philippines … adopts the generally accepted
principles of international law as part of the law of the land …”
From there, a couple of consequences are discernable. One is we adhere to the “dualist”
theory (as opposed to the “monist”), which says international law is separate and distinct
from municipal law.
Another is the application of the “doctrine of incorporation,” which “mandates that the
Philippines is bound by generally accepted principles of international law which automatically
form part of Philippine law by operation of the Constitution.” (Justice Carpio, in his dissent in
Bayan Muna, 2011; citing Agpalo, International Law, 2006)
This is different from the “doctrine of transformation,” “which holds that the generally
accepted rules of international law are not per se binding upon the State but must first be
embodied in legislation enacted by the lawmaking body and so transformed will they
become binding upon the State as part of its municipal law.” (Isagani Cruz, International Law,
2000)
So far, simple. The complexity comes when it’s broken down to what kind of international law
is being referred to. Generally, textbooks point to the following as “primary” sources of
international law: treaties, customs, and general principles of law.
In relation to UK practice, “as far as international treaties are concerned, the sovereign has
the power to make or ratify treaties so as to bind England under international law, but these
treaties have no effect in municipal law (with the exception of treaties governing the conduct
of war) until enacted by Parliament.” Nevertheless, “it is not altogether clear which view
English law takes with respect to rules of customary international law.” (Oxford Index)
On the other hand, the US seems similar to the UK approach but with a variation regarding
treaties: taking note of their Constitution’s Supremacy clause, distinction is made between
“self-executing” and “non-self-executing” treaties. The former refers to international
agreements that can be made to operate automatically into US domestic law, the latter
requires legislation.
And the Philippines?
The Supreme Court seems to posit that we distinguish between customs and treaties:
incorporation for customs and transformation for treaties.
Thus, in Pharmaceutical and Health Care Association (GR No. 173034, October 9, 2007,
citing Joaquin G. Bernas, S.J., An Introduction to Public International Law, 2002), the
Supreme Court, writing through Justice Austria-Martinez, declared: “Treaties become part of
the law of the land through transformation pursuant to Article VII, Section 21 of the
Constitution which provides that ‘[n]o treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the members of the Senate.’ Thus,
treaties or conventional international law must go through a process prescribed by the
Constitution for it to be transformed into municipal law that can be applied to domestic
conflicts.”
That is an obiter the Supreme Court may want to reconsider.
Several reasons: first is that Article II.2’s “incorporation clause” absolutely makes no
distinction between treaties and custom.
Such then logically instructs us to read Article VII.21’s “effective” in its “ordinary” sense, i.e.,
binding the Philippines to other treaty parties.
Thirdly, laws are not made by the Senate but Congress. Acts of concurrence done by the
former are made in the form of “resolutions.” Resolutions are not laws that effects
transformations.
Finally, the wording of the Senate resolutions themselves makes no mention of

“transforming” treaties as to be part of Philippine law. What is stated is merely that the
Senate “concurs” in the treaty negotiated by the Executive (for example, see Senate
Resolution No. 131, 2008, granting concurrence to the JPEPA).
The point is that Senate concurrence is just the last of a series of acts to make a treaty
“effective” vis-à-vis our treaty co-parties. That effectivity, in turn, lends to the operation of
Article II.2, incorporating that treaty as part “of the laws of the land.”
Rightly, we make a distinction between “self-executing” and non-self-executing” treaties but

this is different from the American conception of it: both are considered already operative
within Philippine law but the latter needing legislation to flesh out required details.
For customs, it is posited here that before incorporation applies for the courts to first
demand evidence of and then rule as to a) the existence of the custom, b) the specific
content of that custom at the time such is presented before the courts in support of a claim
or defense, and c) that the Philippines actually adheres to that custom.
In fine, it is urged that clarification be made either by legislation or Supreme Court ruling: that
as far as the Philippines is concerned, only the doctrine of incorporation applies, both for
treaties and customs.
ID.; INTERNATIONAL LAW; RULE OF PACTA SUNT SERVANDA; CONSTRUED. — The

rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international
law, requires the parties to a treaty to keep their agreement therein in good faith. The
observance of our country's legal duties under a treaty is also compelled by Section 2,
Article II of the Constitution which provides that "[t]he Philippines renounces war as an
instrument of national policy, adopts the generally accepted principles of international law as
part of the law of the land, and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations."
15. ID.; ID.; DOCTRINE OF INCORPORATION; WHEN APPLIED; CASE AT BAR. — Under

the doctrine of incorporation, rules of international law form part of the law of the land and no
further legislative action is needed to make such rules applicable in the domestic sphere
(Salonga & Yap, Public International Law, 1992 ed., p. 12). The doctrine of incorporation is
applied whenever municipal tribunals (or local courts) are confronted with situations in which
there appears to be a conflict between a rule of international law and the
provisions of the constitution or statute of the local state. Efforts should first be exerted to
harmonize them, so as to give effect to both since it is to be presumed that municipal law
was enacted with proper regard for the generally accepted principles of international law in
observance of the Incorporation Clause in the above-cited constitutional provision (Cruz,
Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is
irreconcilable and a choice has to be made between a rule of international law and municipal
law, jurisprudence dictates that municipal law should be upheld by the municipal courts
(Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230
[1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are
organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap,
op. cit., p. 13).
16. ID.; ID.; ID.; NO PRIMACY OF INTERNATIONAL LAW OVER NATIONAL OR MUNICIPAL

LAW. — The fact that international law has been made part of the law of the land does not
pertain to or imply the primacy of international law over national or municipal law in the
municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that
rules of international law are given equal standing with, but are not superior to, national
legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect — a
treaty may repeal a statute and a statute may repeal a treaty. In states where
the constitution is the highest law of the land, such as the Republic of the Philippines, both
statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.).
||| (Secretary of Justice v. Lantion, G.R. No. 139465, [January 18, 2000], 379 PHIL 165-251)
9. Citizenship on election candidates re affidavit of renunciation
Renunciation of Philippine Citizenship (https://www.philippine-embassy.org.sg/

consular/citizenship/renunciation-of-philippine-citizenship/)
Requirements
• Personal appearance of the applicant, when submitting and collecting documents.
• Duly accomplished application form
• Original and one (1) photocopy of the Notice of Approval from the Singapore
Immigration and Checkpoints Authority (ICA)
• Two (2) identical passport size photographs (4.5 cm x 3.5 cm) in color, recently taken,
showing clear front view of the applicant’s face
• Applicant’s current Philippine passport with two (2) photocopies of the identification
page.
• If the applicant’s Philippine passport has been lost, the applicant must submit a PSA-
issued birth certificate and a duly accomplished Affidavit of Loss of Philippine
Passport (https://bit.ly/2C37ufT) An additional notarization fee of S$ 42.50 will be
charged for notarization of the Affidavit.
• Processing Fee of S$85.00, to be paid in cash. (An additional S$ 42.50 will be

charged for Affidavit of Loss, if applicable)
• Two (2) Oath of Renunciation forms will be provided by the Embassy processor upon
application.
The collection of the Oath of Renunciation Form will be after two working days from the date
of application.
Arnado has not yet satisfied the twin 

requirements of Section 5 (2) of RA 
9225 at the time he filed his CoC for the 
May 13, 2013 elections; subsequent 
compliance does not suffice.
Under Section 4 (d) n of the Local Government Code, a person with

"dual citizenship" is disqualified from running for any elective local position.
In Mercado v. Manzano, 44 it was clarified that the phrase "dual citizenship" in
s a i d S e c t i o n 4 ( d ) n m u s t b e u n d e r s t o o d a s re f e r r i n g t o " d u a l
allegiance." 45 Subsequently, Congress enacted RA 9225 allowing natural-born
citizens of the Philippines who have lost their Philippine citizenship by reason of
their naturalization abroad to reacquire Philippine citizenship and to enjoy full
civil and political rights upon compliance with the requirements of the law. They
may now run for public office in the Philippines provided that they: (1) meet the
qualifications for holding such public office as required by the Constitution and
existing laws; and, (2) make a personal and sworn renunciation of any and all
foreign citizenships before any public officer authorized to administer an
oath 46 prior to or at the time of filing of their CoC. Thus: SDAaTC
Section 5. Civil and Political Rights and Liabilities. —

Those who retain or re-acquire Philippine citizenship under
this Act shall enjoy full civil and political rights and be subject
to all attendant liabilities and responsibilities under existing
laws of the Philippines and the following conditions:
xxx xxx xxx
(2) Those seeking elective public office in the

Philippines shall meet the qualification for holding such public
office as required by the Constitution and existing laws and,
at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer
an oath;
In the case at bench, the Comelec Second Division, as affirmed by the

Comelec En Banc, ruled that Arnado failed to comply with the second requisite
of Section 5 (2) of RA 9225 because, as held in Maquiling v. Commission on
Elections, 47 his April 3, 2009 Affidavit of Renunciation was deemed withdrawn
when he used his US passport after executing said affidavit. Consequently, at the
time he filed his CoC on October 1, 2012 for purposes of the May 13, 2013
elections, Arnado had yet to comply with said second requirement. The Comelec
also noted that while Arnado submitted an affidavit dated May 9, 2013, affirming
his April 3, 2009 Affidavit of Renunciation, the same would not suffice for having
been belatedly executed.
The Comelec En Banc did not err, nor did it commit grave abuse of
discretion, in upholding the Resolution of the Comelec Second Division
disqualifying Arnado from running for public office. It is worth noting that the
reason for Arnado's disqualification to run for public office during the 2010
elections — being a candidate without total and undivided allegiance to the
Republic of the Philippines — still subsisted when he filed his CoC for the 2013
elections on October 1, 2012. The Comelec En Banc merely adhered to the ruling
of this Court in Maquiling lest it would be committing grave abuse of discretion
had it departed therefrom.
Moreover, it cannot be validly argued that Arnado should be given the

opportunity to correct the deficiency in his qualification because at the time this
Court promulgated its Decision in Maquiling on April 16, 2013, the period for
filing the CoC for local elective office had already lapsed. Or, as Justice Arturo D.
Brion puts it in his Dissenting Opinion, "[t]o the extent that Arnado was denied
the chance to submit a replacement oath of renunciation in 2013, then there was
an unfair and abusive denial of opportunity equivalent to grave abuse of
discretion." Besides, shortly after learning of the Court's April 16, 2013 ruling
in Maquiling or on May 9, 2013, Arnado substantially complied therewith by
executing an affidavit affirming his April 3, 2009 Affidavit of Renunciation.
The ruling in Maquiling is indeed novel in the sense that it was the first
case dealing with the effect of the use of a foreign passport on the qualification
to run for public office of a natural-born Filipino citizen who was naturalized
abroad and subsequently availed of the privileges under RA 9225. It was settled
in that case that the use of a foreign passport amounts to repudiation or
recantation of the oath of renunciation. Yet, despite the issue being novel and of
first impression, plus the fact that Arnado could not have divined the possible
adverse consequences of using his US passport, the Court in Maquiling did not
act with leniency or benevolence towards Arnado. Voting 10-5, the Court ruled
that matters dealing with qualifications for public elective office must be strictly
complied with. Otherwise stated, the Court in Maquiling did not consider the
novelty of the issue as to excuse Arnado from strictly complying with the
eligibility requirements to run for public office or to simply allow him to correct
the deficiency in his qualification by submitting another oath of renunciation.
Thus, it is with more reason that in this case, we should similarly require strict
compliance with the qualifications to run for local elective office. acEHCD
The circumstances surrounding the qualification of Arnado to run for

public office during the May 10, 2010 and May 13, 2013 elections, to reiterate for
emphasis, are the same. Arnado's use of his US passport in 2009 invalidated his
oath of renunciation resulting in his disqualification to run for mayor of
Kauswagan in the 2010 elections. Since then and up to the time he filed his CoC
for the 2013 elections, Ar nado had not cured the defect in his
qualification. Maquiling, therefore, is binding on and applicable to this case
following the salutary doctrine of stare decisis et non quieta movere, which
means to adhere to precedents, and not to unsettle things which are
established. 48 Under the doctrine, "[w]hen the court has once laid down a
principle of law as applicable to a certain state of facts, it will adhere to that
principle and apply it to all future cases where facts are substantially the
same." 49 It enjoins adherence to judicial precedents and bars relitigation of the
same issue. 50
It may not be amiss to add that as early as 2010, the year when Balua
filed a petition to disqualify him, Arnado has gotten wind that the use of his US
passport might pose a problem to his candidacy. In other words, when Arnado
filed his CoC on October 1, 2012, he was not totally unaware that the use of his
US passport after he had executed the Affidavit of Renunciation might have an

impact on his qualification and candidacy. In fact, at that time, Maquiling had
already reached this Court. But despite the petitions filed against him
questioning his qualification to run for public office in 2010, Arnado filed his CoC
on October 1, 2012 unmindful of any possible legal setbacks in his candidacy for
the 2013 elections and without executing another Affidavit of Renunciation. In
short, the argument that Arnado should be given the opportunity to correct the
deficiency in his CoC since Maquiling was promulgated after the lapse of the
period for filing a CoC for the 2013 elections, is totally bereft of merit. Consistent
with our April 16, 2013 ruling in Maquiling, Arnado should be made to face the
consequences of his inaction since he could have remedied it at the time he filed
his CoC on October 1, 2012 or even before that. There is no law prohibiting him
from executing an Affidavit of Renunciation every election period if only to avert
possible questions about his qualifications.
The alleged November 30, 2009 

Affidavit of Renunciation with Oath of 
Allegiance cannot be given any 
probative weight.
As to the alleged recently discovered November 30, 2009 Affidavit of

Renunciation with Oath of Allegiance, the same is highly suspect. As correctly
pointed out by the Solicitor General, the original or certified true copy thereof
was not presented. In addition, such crucial evidence sufficient to alter the
outcome of the case was never presented before the Comelec much less in
the Maquiling case. Curiously, it only surfaced for the first time in this petition.
In Jacot v. Dal, 51 this Court disallowed the belated presentation of similar
evidence on due process considerations. Thus:
As a rule, no question will be entertained on appeal

unless it has been raised in the proceedings below. Points of
law, theories, issues and arguments not brought to the
attention of the lower court, administrative agency or quasi-
judicial body need not be considered by a reviewing court, as
they cannot be raised for the first time at that late stage.
Basic considerations of fairness and due process impel this
rule. Courts have neither the time nor the resources to
accommodate parties who chose to go to trial haphazardly.
Likewise, this Court does not countenance the late

submission of evidence. Petitioner should have offered the
Affidavit dated 7 February 2007 during the proceedings
before the COMELEC.
Section 1 of Rule 43 of the COMELEC Rules of

Procedure provides that "In the absence of any applicable
provisions of these Rules, the pertinent provisions of the
Rules of Court in the Philippines shall be applicable by
analogy or in suppletory character and effect." Section 34 of

Rule 132 of the Revised Rules of Court categorically enjoins
the admission of evidence not formally presented: SDHTEC
SEC. 34. Offer of evidence. —

The court shall consider no evidence
which has not been formally offered. The
purpose for which the evidence is offered
must be specified.
Since the said Affidavit was not formally offered

before the COMELEC, respondent had no opportunity to
examine and controvert it. To admit this document would be
contrary to due process. Additionally, the piecemeal
presentation of evidence is not in accord with orderly
justice. 52
Moreover, in Maquiling it was mentioned that Arnado used his US

passport on January 12, 2010 and March 23, 2010. Thus:
Balua likewise presented a certification from the

Bureau of Immigration dated 23 April 2010, certifying that the
name "Arnado, Rommel Cagoco" appears in the available
Computer Database/Passenger manifest/IBM listing on file as
of 21 April 2010, with the following pertinent travel records:
DATE OF Arrival
01/12/2010
NATIONALITY
USA-AMERICAN
PASSPORT
057782700
DATE OF Arrival
03/23/2010
NATIONALITY
USA-AMERICAN
PASSPORT
057782700 53
Despite the existence of such statement in Maquiling, We are puzzled why
Arnado never bothered to correct or refute it. He neither alleged nor presented
evidence in this petition to prove that he did not travel abroad on those dates
using his US passport.
Justice Marvic M.V.F. Leonen, however, dissents and maintains the

same position he had taken in Maquiling that Arnado's use of his US passport in
2009 is an isolated act justified by the circumstances at that time. At any rate,
Arnado started to use his Philippine passport in his travels abroad beginning
December 11, 2009 and thenceforth. This, according to J. Leonen, is borne out
by Arnado's Philippine passport.
With due respect to my esteemed colleague, it appears that J. Leonen

is not only reviving an issue that had already been settled with finality in
the Maquiling case, but he is also going beyond the issues raised in this petition.
To reiterate for clarity, Arnado's argument in this case — that he is qualified to
run for mayor as he has satisfied the requirements of Sec. 5 (2) of RA
9225 relative to the May 13, 2013 elections — is premised only on the alleged
newly discovered November 30, 2009 Affidavit. Nothing more. He does not claim
in this case that his use of US passport in his travel abroad in 2009 is an isolated
act, as J. Leonen insists. In Vazquez v. De Borja, 54 it was held that courts do not
have jurisdiction over issues neither raised in the pleading nor tried with the
express or implied consent of the parties. They cannot render judgment based
on issues that have never been raised before them. Equally settled is the rule that
"points of law, theories, issues, and arguments not brought to the attention of the
lower [tribunal] need not be, and ordinarily will not be, considered by a reviewing
court, as these cannot be raised for the first time at such late stage. Basic
considerations of due process underlie this rule." 55 The same goes true with J.
Brion's theory that what was cancelled by virtue of Maquiling was only the April
3, 2009 Affidavit of Renunciation where Arnado expressly renounced any foreign
citizenship; not the July 10, 2008 Oath of Allegiance which carried with it an
implied abdication of foreign citizenship. For J. Brion, "[t]he requirement of an
express renunciation . . . does not negate the effect of, or make any less real, the
prior implicit renunciation of citizenship and allegiance made upon taking the
oath of allegiance." Again, this was never raised in this petition. At any rate, the
execution of an Oath of Allegiance is required by Section 3 56 of RA 9225. For
those who avail themselves of RA 9225 and intend to run for public office,
Section 5 (2) thereof provides the additional requirement of making a personal
and sworn renunciation of any and all foreign citizenships prior to or at the time
of filing of their CoC. Definitely, the provisions of Section 5 (2) are not useless or
meaningless surplusage. When the law expressly requires an explicit
renunciation, an implicit one would be insufficient. Furthermore, even assuming
that Arnado's 2008 implied renunciation is sufficient, the same has also been
negated by his use of his US passport in 2009, following the ruling
in Maquiling. Otherwise, we would give more weight to an implied renunciation
than to an express one specifically required by law. AScHCD
Besides, the Decision of this Court in Maquiling holding that Arnado's
use of his US passport effectively recanted his Affidavit of Renunciation has
already become final and immutable. We can no longer resurrect in this case the
issues that have already been resolved there with finality.
In maintaining that Arnado used his Philippine passport in travelling

abroad in the first quarter of 2010, J. Leonen relies on the copy thereof attached
to the rollo of the Maquiling case. But said copy of Arnado's Philippine
passport 57 is a mere "CERTIFIED TRUE COPY FROM THE MACHINE COPY
ON FILE" as attested to by Rosario P. Palacio, Records Officer III of the
Comelec. 58 This is clearly stamped on aforesaid copy of Arnado's Philippine
passport. A machine copy or photocopy is a mere secondary evidence. 59 As
such, it cannot be admitted in evidence until and unless the offeror has proven
the due execution and the subsequent loss or unavailability of the original. 60 In
this case, however, Arnado's Philippine passport is not missing. Thus, said
photocopy of Arnado's Philippine passport cannot sway us to depart from the
uncontroverted certification of the Bureau of Immigration that Arnado used his
US passport on January 12, 2010 and March 23, 2010. Consequently, even
assuming that the recently discovered November 30, 2009 Affidavit of
Renunciation with Oath of Allegiance is true and authentic, Arnado once more
performed positive acts on January 12, 2010 and March 23, 2010, which
effectively negated the alleged November 30, 2009 Affidavit resulting in his
disqualification to run for an elective public office. HESI
||| (Arnado v. Commission on Elections, G.R. No. 210164, [August 18, 2015], 767 PHIL
51-147)
10. Revison vs amendments
The distinctions between revision and amendment are as follows: Revision broadly implies a
change that alters a basic principle in the Constitution, like altering the principle of
separation of powers or the system of checks and balances. There is also revision if the
change alters the substantial entirety of the Constitution. On the other hand, amendment
broadly refers to a change that adds, reduces, deletes, without altering the basic principle
involved. Revision generally affects several provisions of the Constitution; while amendment
generally affects only the specific provision being amended (Lambino v. Comelec, G.R. No.
174153, October 25, 2006).
11. Qou waranto sereno
REPUBLIC of the PHILIPPINES, represented by SOLICITOR GENERAL JOSE C. CALIDA v.

MARIA LOURDES P.A. SERENO,
G.R. No. 237428, May 11, 2018 [J. Tijam, En Banc] (https://yourlawyersays.com/2018/05/13/
digest-republic-v-sereno-g-r-no-237428-may-11-2018/)
DOCTRINE OF THE CASE:
Quo warranto as a remedy to oust an ineligible public official may be availed of when the
subject act or omission was committed prior to or at the time of appointment or election
relating to an official’s qualifications to hold office as to render such appointment or election
invalid. Acts or omissions, even if it relates to the qualification of integrity being a continuing
requirement but nonetheless committed during the incumbency of a validly appointed and/or
validly elected official cannot be the subject of a quo warranto proceeding, but of
impeachment if the public official concerned is impeachable and the act or omission
constitutes an impeachable offense, or to disciplinary, administrative or criminal action, if
otherwise.
FACTS:
From 1986 to 2006, Sereno served as a member of the faculty of the University of the
Philippines-College of Law. While being employed at the UP Law, or from October 2003 to
2006, Sereno was concurrently employed as legal counsel of the Republic in two
international arbitrations known as the PIATCO cases, and a Deputy Commissioner of the
Commissioner on Human Rights.
The Human Resources Development Office of UP (UP HRDO) certified that there was no
record on Sereno’s file of any permission to engage in limited practice of profession.
Moreover, out of her 20 years of employment, only nine (9) Statement of Assets, Liabilities,
and Net Worth (SALN) were on the records of UP HRDO. In a manifestation, she attached a
copy of a tenth SALN, which she supposedly sourced from the “filing cabinets” or “drawers
of UP”. The Ombudsman likewise had no record of any SALN filed by Sereno. The JBC has
certified to the existence of one SALN. In sum, for 20 years of service, 11 SALNs were
recovered.
On August 2010, Sereno was appointed as Associate Justice. On 2012, the position of Chief
Justice was declared vacant, and the JBC directed the applicants to submit documents,
among which are “all previous SALNs up to December 31, 2011” for those in the government
and “SALN as of December 31, 2011” for those from the private sector. The JBC
announcement further provided that “applicants with incomplete or out-of-date documentary
requirements will not be interviewed or considered for nomination.” Sereno expressed in a
letter to JBC that since she resigned from UP Law on 2006 and became a private
practitioner, she was treated as coming from the private sector and only submitted three (3)
SALNs or her SALNs from the time she became an Associate Justice. Sereno likewise added
that “considering that most of her government records in the academe are more than 15
years old, it is reasonable to consider it infeasible to retrieve all of those files,” and that the
clearance issued by UP HRDO and CSC should be taken in her favor. There was no record
that the letter was deliberated upon. Despite this, on a report to the JBC, Sereno was said to
have “complete requirements.” On August 2012, Sereno was appointed Chief Justice.
On August 2017, an impeachment complaint was filed by Atty. Larry Gadon against Sereno,
alleging that Sereno failed to make truthful declarations in her SALNs. The House of
Representatives proceeded to hear the case for determination of probable cause, and it was
said that Justice Peralta, the chairman of the JBC then, was not made aware of the
incomplete SALNs of Sereno. Other findings were made: such as pieces of jewelry
amounting to P15,000, that were not declared on her 1990 SALN, but was declared in prior
years’ and subsequent years’ SALNs, failure of her husband to sign one SALN, execution of
the 1998 SALN only in 2003
On February 2018, Atty. Eligio Mallari wrote to the OSG, requesting that the latter, in
representation of the Republic, initiate a quo warranto proceeding against Sereno. The OSG,
invoking the Court’s original jurisdiction under Section 5(1), Article VIII of the Constitution in
relation to the special civil action under Rule 66, the Republic, through the OSG filed the
petition for the issuance of the extraordinary writ of quo warranto to declare as void Sereno’s
appointment as CJ of the SC and to oust and altogether exclude Sereno
therefrom. [yourlawyersays]
Capistrano, Sen. De Lima, Sen. Trillianes, et. al., intervened. Sereno then filed a Motion for
Inhibition against AJ Bersamin, Peralta, Jardeleza, Tijam, and Leonardo-De Castro, imputing
actual bias for having testified against her on the impeachment hearing before the House of
Representatives.
Contentions:
Office of the Solicitor General (petitioner):
OSG argues that the quo warranto is an available remedy because what is being sought is to
question the validity of her appointment, while the impeachment complaint accuses her of
committing culpable violation of the Constitution and betrayal of public trust while in office,
citing Funa v. Chairman Villar, Estrada v. Desierto and Nacionalista Party v. De Vera. OSG
maintains that the phrase “may be removed from office” in Section 2, Article XI of the
Constitution means that Members of the SC may be removed through modes other than
impeachment.
OSG contends that it is seasonably filed within the one-year reglementary period under
Section 11, Rule 66 since Sereno’s transgressions only came to light during the
impeachment proceedings. Moreover, OSG claims that it has an imprescriptible right to bring
a quo warranto petition under the maxim nullum tempus occurit regi (“no time runs against
the king”) or prescription does not operate against the government. The State has a
continuous interest in ensuring that those who partake of its sovereign powers are qualified.
Even assuming that the one-year period is applicable to the OSG, considering that SALNs
are not published, the OSG will have no other means by which to know the disqualification.
Moreover, OSG maintains that the SC has jurisdiction, citing A.M. No. 10-4-20-SC which
created a permanent Committee on Ethics and Ethical Standards, tasked to investigate
complaints involving graft and corruption and ethical violations against members of the SC
and contending that this is not a political question because such issue may be resolved
through the interpretation of the provisions of the Constitution, laws, JBC rules, and Canons
of Judicial Ethics.
OSG seeks to oust Sereno from her position as CJ on the ground that Sereno failed to show
that she is a person of proven integrity which is an indispensable qualification for
membership in the Judiciary under Section 7(3), Article VIII of the Constitution. According to
the OSG, because OSG failed to fulfill the JBC requirement of filing the complete SALNs, her
integrity remains unproven. The failure to submit her SALN, which is a legal obligation,
should have disqualified Sereno from being a candidate; therefore, she has no right to hold
the office. Good faith cannot be considered as a defense since the Anti-Graft and Corrupt
Practices Act (RA No. 3019) and Code of Conduct and Ethical Standards for Public Officials
and Employees (RA No. 6713) are special laws and are thus governed by the concept
of malum prohibitum, wherein malice or criminal intent is completely immaterial.
Sereno (respondent):
Sereno contends that an impeachable officer may only be ousted through impeachment,
citing Section 2 of Article XI of the Constitution, and Mayor Lecaroz v.
Sandiganbayan, Cuenca v. Hon. Fernan, In Re: First lndorsement from Hon. Gonzales,
and Re: Complaint-Affidavit for Disbarment Against SAJ Antonio T. Carpio. Sereno contends
that the clear intention of the framers of the Constitution was to create an exclusive category
of public officers who can be removed only by impeachment and not otherwise.
Impeachment was chosen as the method of removing certain high-ranking government
officers to shield them from harassment suits that will prevent them from performing their
functions which are vital to the continued operations of government. Sereno further argues
that the word “may” on Section 2 of Article XI only qualifies the penalty imposable after the
impeachment trial, i.e., removal from office. Sereno contends that the since the mode is
wrong, the SC has no jurisdiction.
Sereno likewise argues that the cases cited by OSG is not in all fours with the present case
because the President and the Vice President may, in fact, be removed by means other than
impeachment on the basis of Section 4, Article VII of the 1987 Constitution vesting in the
Court the power to be the “sole judge” of all contests relating to the qualifications of the
President and the Vice-President. There is no such provision for other impeachable officers.
Moreover, on the rest of the cases cited by the OSG, there is no mention that quo
warranto may be allowed.
Sereno also argues that since a petition for quo warranto may be filed before the RTC, such
would result to a conundrum because a judge of lower court would have effectively exercised
disciplinary power and administrative supervision over an official of the Judiciary much
higher in rank and is contrary to Sections 6 and 11, Article VIII of the Constitution which
vests upon the SC disciplinary and administrative power over all courts and the personnel
thereof.
Sereno likewise posits that if a Member of the SC can be ousted through quo

warranto initiated by the OSG, the Congress’ “check” on the SC through impeachment
would be rendered inutile.
Furthermore, Sereno argues that it is already time-barred. Section 11, Rule 66 provides that a
petition for quo warranto must be filed within one (1) year from the “cause of ouster” and not
from the “discovery” of the disqualification.
Moreover, Sereno contends that the Court cannot presume that she failed to file her SALNs
because as a public officer, she enjoys the presumption that her appointment to office was
regular. OSG failed to overcome the presumption created by the certifications from UP HRDO
that she had been cleared of all administrative responsibilities and charges. Her integrity is a
political question which can only be decided by the JBC and the President.
Regarding her missing SALNs, Sereno contends that the fact that SALNs are missing cannot
give rise to the inference that they are not filed. The fact that 11 SALNs were filed should give
an inference to a pattern of filing, not of non-filing.
Intervenors’ arguments:
The intervenors argue that it is not incumbent upon Sereno to prove to the JBC that she
possessed the integrity required by the Constitution; rather, the onus of determining whether
or not she qualified for the post fell upon the JBC. Moreover, submission of SALNs is not a
constitutional requirement; what is only required is the imprimatur of the JBC. The
intervenors likewise contend that “qualifications” such as citizenship, age, and experience
are enforceable while “characteristics” such as competence, integrity, probity, and
independence are mere subjective considerations.
ISSUES:
Preliminary issues:
1. Whether the Court should entertain the motion for intervention
2. Whether the Court should grant the motion for the inhibition of Sereno against five
Justices
Main Issues:
3. Whether the Court can assume jurisdiction and give due course to the instant petition
for quo warranto.
4. Whether Sereno may be the respondent in a quo warranto proceeding

notwithstanding the fact that an impeachment complaint has already been filed with
the House of Representatives.
5. Whether Sereno, who is an impeachable officer, can be the respondent in a quo

warranto proceeding, i.e., whether the only way to remove an impeachable officer is
impeachment.
6. Whether to take cognizance of the quo warranto proceeding is violative of the

principle of separation of powers
7. Whether the petition is outrightly dismissible on the ground of prescription
8. Whether the determination of a candidate’s eligibility for nomination is the sole and
exclusive function of the JBC and whether such determination. partakes of the
character of a political question outside the Court’s supervisory and review powers;
9. Whether the filing of SALN is a constitutional and statutory requirement for the
position of Chief Justice.
10. If answer to ninth issue is in the affirmative, whether Sereno failed to file her SALNs as
mandated by the Constitution and required by the law and its implementing rules and
regulations
11. If answer to ninth issue is in the affirmative, whether Sereno filed SALNs are not filed
properly and promptly.
12. Whether Sereno failed to comply with the submission of SALNs as required by the
JBC
13. If answer to the twelfth issue is in the affirmative, whether the failure to submit SALNs
to the JBC voids the nomination and appointment of Sereno as Chief Justice;
14. In case of a finding that Sereno is ineligible to hold the position of Chief Justice,
whether the subsequent nomination by the JBC and the appointment by the President
cured such ineligibility.
15. Whether Sereno is a de jure or a de facto officer.
[READ: Justice Leonen’s dissenting opinion: Q&A Format]
HELD:
Anent the first issue: The intervention is improper.
Intervention is a remedy by which a third party, not originally impleaded in the proceedings,
becomes a litigant therein for a certain purpose: to enable the third party to protect or
preserve a right or interest that may be affected by those proceedings. The remedy of
intervention is not a matter of right but rests on the sound discretion of the court upon
compliance with the first requirement on legal interest and the second requirement that no
delay and prejudice should result. The justification of one’s “sense of patriotism and their
common desire to protect and uphold the Philippine Constitution”, and that of the Senator
De Lima’s and Trillanes’ intervention that their would-be participation in the impeachment
trial as Senators-judges if the articles of impeachment will be filed before the Senate as the
impeachment court will be taken away is not sufficient. The interest contemplated by law
must be actual, substantial, material, direct and immediate, and not simply contingent or
expectant. Moreover, the petition of quo warranto is brought in the name of the Republic. It is
vested in the people, and not in any private individual or group, because disputes over title to
public office are viewed as a public question of governmental legitimacy and not merely a
private quarrel among rival claimants.
Anent the second issue: There is no basis for the Associate Justices of the Supreme Court to
inhibit in the case.
It is true that a judge has both the duty of rendering a just decision and the duty of doing it in
a manner completely free from suspicion as to its fairness and as to his integrity. However,
the right of a party to seek the inhibition or disqualification of a judge who does not appear to
be wholly free, disinterested, impartial and independent in handling the case must be
balanced with the latter’s sacred duty to decide cases without fear of repression. Bias must
be proven with clear and convincing evidence. Those justices who were present at the
impeachment proceedings were armed with the requisite imprimatur of the Court En Banc,
given that the Members are to testify only on matters within their personal knowledge. The
mere imputation of bias or partiality is not enough ground for inhibition, especially when the
charge is without basis. There must be acts or conduct clearly indicative of arbitrariness or
prejudice before it can brand them with the stigma of bias or partiality. Sereno’s call for
inhibition has been based on speculations, or on distortions of the language, context and
meaning of the answers the Justices may have given as sworn witnesses in the proceedings
before the House.
Moreover, insinuations that the Justices of the SC are towing the line of President Duterte in
entertaining the quo warranto petition must be struck for being unfounded and for sowing
seeds of mistrust and discordance between the Court and the public. The Members of the
Court are beholden to no one, except to the sovereign Filipino people who ordained and
promulgated the Constitution. It is thus inappropriate to misrepresent that the SolGen who
has supposedly met consistent litigation success before the SG shall likewise automatically
and positively be received in the present quo warranto action. As a collegial body, the
Supreme Court adjudicates without fear or favor. The best person to determine the propriety
of sitting in a case rests with the magistrate sought to be disqualified. [yourlawyersays]
Anent the third issue: A quo warranto petition is allowed against impeachable officials and
SC has jurisdiction.
The SC have concurrent jurisdiction with the CA and RTC to issue the extraordinary writs,
including quo warranto. A direct invocation of the SC’s original jurisdiction to issue such writs
is allowed when there are special and important reasons therefor, and in this case, direct
resort to SC is justified considering that the action is directed against the Chief Justice.
Granting that the petition is likewise of transcendental importance and has far-reaching
implications, the Court is empowered to exercise its power of judicial review. To exercise
restraint in reviewing an impeachable officer’s appointment is a clear renunciation of a
judicial duty. an outright dismissal of the petition based on speculation that Sereno will
eventually be tried on impeachment is a clear abdication of the Court’s duty to settle actual
controversy squarely presented before it. Quo warranto proceedings are essentially judicial in
character – it calls for the exercise of the Supreme Court’s constitutional duty and power to
decide cases and settle actual controversies. This constitutional duty cannot be abdicated or
transferred in favor of, or in deference to, any other branch of the government including the
Congress, even as it acts as an impeachment court through the Senate.
To differentiate from impeachment, quo warranto involves a judicial determination of the

eligibility or validity of the election or appointment of a public official based on predetermined
rules while impeachment is a political process to vindicate the violation of the public’s trust.
In quo warranto proceedings referring to offices filled by appointment, what is determined is
the legality of the appointment. The title to a public office may not be contested collaterally
but only directly, by quo warranto proceedings. usurpation of a public office is treated as a
public wrong and carries with it public interest, and as such, it shall be commenced by a
verified petition brought in the name of the Republic of the Philippines through the Solicitor
General or a public prosecutor. The SolGen is given permissible latitude within his legal
authority in actions for quo warranto, circumscribed only by the national interest and the
government policy on the matter at hand.
Anent the fourth issue: Simultaneous quo warranto proceeding and impeachment proceeding

is not forum shopping and is allowed.
Quo warranto and impeachment may proceed independently of each other as these

remedies are distinct as to (1) jurisdiction (2) grounds, (3) applicable rules pertaining to
initiation, filing and dismissal, and (4) limitations. Forum shopping is the act of a litigant who
repetitively availed of several judicial remedies in different courts, simultaneously or
successively, all substantially founded on the same transactions and the same essential facts
and circumstances, and all raising substantially the same issues, either pending in or already
resolved adversely by some other court, to increase his chances of obtaining a favorable
decision if not in one court, then in another. The test for determining forum shopping is
whether in the two (or more) cases pending, there is identity of parties, rights or causes of
action, and reliefs sought. The crux of the controversy in this quo warranto proceedings is
the determination of whether or not Sereno legally holds the Chief Justice position to be
considered as an impeachable officer in the first place. On the other hand, impeachment is
for respondent’s prosecution for certain impeachable offenses. Simply put, while Sereno’s
title to hold a public office is the issue in quo warranto proceedings, impeachment
necessarily presupposes that Sereno legally holds the public office and thus, is an
impeachable officer, the only issue being whether or not she committed impeachable
offenses to warrant her removal from office.
Moreover, the reliefs sought are different. respondent in a quo warranto proceeding shall be
adjudged to cease from holding a public office, which he/she is ineligible to hold. Moreover,
impeachment, a conviction for the charges of impeachable offenses shall result to the
removal of the respondent from the public office that he/she is legally holding. It is not legally
possible to impeach or remove a person from an office that he/she, in the first place, does
not and cannot legally hold or occupy.
Lastly, there can be no forum shopping because the impeachment proceedings before the
House is not the impeachment case proper, since it is only a determination of probable
cause. The impeachment case is yet to be initiated by the filing of the Articles of
Impeachment before the Senate. Thus, at the moment, there is no pending impeachment
case against Sereno. The process before the House is merely inquisitorial and is merely a
means of discovering if a person may be reasonably charged with a crime.
Anent the fifth issue: Impeachment is not an exclusive remedy by which an invalidly
appointed or invalidly elected impeachable official may be removed from office.
The language of Section 2, Article XI of the Constitution does not foreclose a quo
warranto action against impeachable officers: “Section 2. The President, the Vice-President,
the Members of the Supreme Court, the Members of the Constitutional Commissions, and
the Ombudsman may be removed from office on impeachment for, and conviction of,
culpable violation of the Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust.” The provision uses the permissive term “may” which
denote discretion and cannot be construed as having a mandatory effect, indicative of a
mere possibility, an opportunity, or an option. In American jurisprudence, it has been held
that “the express provision for removal by impeachment ought not to be taken as a tacit
prohibition of removal by other methods when there are other adequate reasons to account
for this express provision.”
The principle in case law is that during their incumbency, impeachable officers cannot be
criminally prosecuted for an offense that carries with it the penalty of removal, and if they are
required to be members of the Philippine Bar to qualify for their positions, they cannot be
charged with disbarment. The proscription does not extend to actions assailing the public
officer’s title or right to the office he or she occupies. Even the PET Rules expressly provide
for the remedy of either an election protest or a petition for quo warranto to question the
eligibility of the President and the Vice-President, both of whom are impeachable officers.
Further, that the enumeration of “impeachable offenses” is made absolute, that is, only those
enumerated offenses are treated as grounds for impeachment, is not equivalent to saying
that the enumeration likewise purport to be a complete statement of the causes of removal
from office. If other causes of removal are available, then other modes of ouster can likewise
be availed. To subscribe to the view that appointments or election of impeachable officers
are outside judicial review is to cleanse their appointments or election of any possible defect
pertaining to the Constitutionally-prescribed qualifications which cannot otherwise be raised
in an impeachment proceeding. To hold otherwise is to allow an absurd situation where the
appointment of an impeachable officer cannot be questioned even when, for instance, he or
she has been determined to be of foreign nationality or, in offices where Bar membership is a
qualification, when he or she fraudulently represented to be a member of the Bar.
Anent the sixth issue: The Supreme Court’s exercise of its jurisdiction over a quo
warranto petition is not violative of the doctrine of separation of powers.
The Court’s assumption of jurisdiction over an action for quo warranto involving a person

who would otherwise be an impeachable official had it not been for a disqualification, is not
violative of the core constitutional provision that impeachment cases shall be exclusively
tried and decided by the Senate. Again, the difference between quo warranto and
impeachment must be emphasized. An action for quo warranto does not try a person’s
culpability of an impeachment offense, neither does a writ of quo warranto conclusively
pronounce such culpability. The Court’s exercise of its jurisdiction over quo
warranto proceedings does not preclude Congress from enforcing its own prerogative of
determining probable cause for impeachment, to craft and transmit the Articles of
Impeachment, nor will it preclude Senate from exercising its constitutionally committed
power of impeachment.
However, logic, common sense, reason, practicality and even principles of plain arithmetic
bear out the conclusion that an unqualified public official should be removed from the
position immediately if indeed Constitutional and legal requirements were not met or
breached. To abdicate from resolving a legal controversy simply because of perceived
availability of another remedy, in this case impeachment, would be to sanction the initiation
of a process specifically intended to be long and arduous and compel the entire membership
of the Legislative branch to momentarily abandon their legislative duties to focus on
impeachment proceedings for the possible removal of a public official, who at the outset,
may clearly be unqualified under existing laws and case law.
For guidance, the Court demarcates that an act or omission committed prior to or at the time
of appointment or election relating to an official’s qualifications to hold office as to render
such appointment or election invalid is properly the subject of a quo warranto petition,
provided that the requisites for the commencement thereof are present. Contrariwise, acts or
omissions, even if it relates to the qualification of integrity, being a continuing requirement
but nonetheless committed during the incumbency of a validly appointed and/or validly
elected official, cannot be the subject of a quo warranto proceeding, but of something else,
which may either be impeachment if the public official concerned is impeachable and the act
or omission constitutes an impeachable offense, or disciplinary, administrative or criminal
action, if otherwise.
Anent the seventh issue: Prescription does not lie against the State.
The rules on quo warranto provides that “nothing contained in this Rule shall be construed to
authorize an action against a public officer or employee for his ouster from office unless the
same be commenced within one (1) year after the cause of such ouster, or the right of the
petitioner to hold such office or position, arose”. Previously, the one-year prescriptive period
has been applied in cases where private individuals asserting their right of office, unlike the
instant case where no private individual claims title to the Office of the Chief Justice. Instead,
it is the government itself which commenced the present petition for quo warranto and puts
in issue the qualification of the person holding the highest position in the Judiciary.
Section 2 of Rule 66 provides that “the Solicitor General or a public prosecutor, when
directed by the President of the Philippines, or when upon complaint or otherwise he has
good reason to believe that any case specified in the preceding section can be established
by proof must commence such action.” It may be stated that ordinary statutes of limitation,
civil or penal, have no application to quo warranto proceeding brought to enforce a public
right. There is no limitation or prescription of action in an action for quo warranto, neither
could there be, for the reason that it was an action by the Government and prescription could
not be plead as a defense to an action by the Government.
That prescription does not lie in this case can also be deduced from the very purpose of an
action for quo warranto. Because quo warranto serves to end a continuous usurpation, no
statute of limitations applies to the action. Needless to say, no prudent and just court would
allow an unqualified person to hold public office, much more the highest position in the
Judiciary. Moreover, the Republic cannot be faulted for questioning Sereno’s qualification· for
office only upon discovery of the cause of ouster because even up to the present, Sereno
has not been candid on whether she filed the required SALNs or not. The defect on Sereno’s
appointment was therefore not discernible, but was, on the contrary, deliberately rendered
obscure.
Anent the eighth issue: The Court has supervisory authority over the JBC includes ensuring
that the JBC complies with its own rules.
Section 8(1), Article VIII of the Constitution provides that “A Judicial and Bar Council is
hereby created under the supervision of the Supreme Court.” The power of supervision
means “overseeing or the authority of an officer to see to it that the subordinate officers
perform their duties.” JBC’s absolute autonomy from the Court as to place its non-action or
improper· actions beyond the latter’s reach is therefore not what the Constitution
contemplates. What is more, the JBC’s duty to recommend or nominate, although calling for
the exercise of discretion, is neither absolute nor unlimited, and is not automatically
equivalent to an exercise of policy decision as to place, in wholesale, the JBC process
beyond the scope of the Court’s supervisory and corrective powers. While a certain leeway
must be given to the JBC in screening aspiring magistrates, the same does not give it an
unbridled discretion to ignore Constitutional and legal requirements. Thus, the nomination by
the JBC is not accurately an exercise of policy or wisdom as to place the JBC’s actions in
the same category as political questions that the Court is barred from
resolving. [yourlawyersays]
[READ: Justice Leonen’s dissenting opinion: Q&A Format]
With this, it must be emphasized that qualifications under the Constitution cannot be waived
or bargained by the JBC, and one of which is that “a Member of the Judiciary must be a
person of proven competence, integrity, probity, and independence. “Integrity” is closely
related to, or if not, approximately equated to an applicant’s good reputation for honesty,
incorruptibility, irreproachable conduct, and fidelity to sound moral and ethical standards.”
Integrity is likewise imposed by the New Code of Judicial Conduct and the Code of
Professional Responsibility. The Court has always viewed integrity with a goal of preserving
the confidence of the litigants in the Judiciary. Hence, the JBC was created in order to
ensure that a member of the Supreme Court must be a person
of proven competence, integrity, probity, and independence.
Anent the ninth issue: The filing of SALN is a constitutional and statutory requirement.
Section 17, Article XI of the Constitution states that “A public officer or employee shall, upon
assumption of office and as often thereafter as may be required by law, submit a declaration
under oath of his assets, liabilities, and net worth.” This has likewise been required by RA
3019 and RA 6713. “Failure to comply” with the law is a violation of law, a “prima facie
evidence of unexplained wealth, which may result in the dismissal from service of the public
officer.” It is a clear breach of the ethical standards set for public officials and employees.
The filing of the SALN is so important for purposes of transparency and accountability that
failure to comply with such requirement may result not only in dismissal from the public
service but also in criminal liability. Section 11 of R.A. No. 6713 even provides that non-
compliance with this requirement is not only punishable by imprisonment and/or a fine, it
may also result in disqualification to hold public office.
Because the Chief Justice is a public officer, she is constitutionally and statutorily mandated
to perform a positive duty to disclose all of his assets and liabilities. According to Sereno
herself in her dissenting opinion in one case, those who accept a public office do so cum
onere, or with a burden, and are considered as accepting its burdens and obligations,
together with its benefits. They thereby subject themselves to all constitutional and legislative
provisions relating thereto, and undertake to perform all the duties of their office. The public
has the right to demand the performance of those duties. More importantly, while every office
in the government service is a public trust, no position exacts a greater demand on moral
righteousness and uprightness of an individual than a seat in the Judiciary.
Noncompliance with the SALN requirement indubitably·reflects on a person’s integrity. It is

not merely a trivial or a formal requirement. The contention that the mere non-filing does not
affect Sereno’s integrity does not persuade considering that RA 6713 and RA 3019
are malum prohibitum and not malum in se. Thus, it is the omission or commission of that act
as defined by the law, and not the character or effect thereof, that determines whether or not
the provision has been violated. Malice or criminal intent is completely immaterial.
Anent the tenth issue: Sereno chronically failed to file her SALNs and thus violated the
Constitution, the law, and the Code of Judicial Conduct.
In Sereno’s 20 years of government service in UP Law, only 11 SALNs have been filed.
Sereno could have easily dispelled doubts as to the filing or nonfiling of the unaccounted
SALNs by presenting them before the Court. Yet, Sereno opted to withhold such information
or such evidence, if at all, for no clear reason. The Doblada case, invoked by Sereno, cannot
be applied, because in the Doblada case, there was a letter of the head of the personnel of
the branch of the court that the missing SALN exists and was duly transmitted and received
by the OCA as the repository agency. In Sereno’s case, the missing SALNs are neither
proven to be in the records of nor was proven to have been sent to and duly received by the
Ombudsman as the repository agency. The existence of these SALNs and the fact of filing
thereof were neither established by direct proof constituting substantial evidence nor by
mere inference. Moreover, the statement of the Ombudsman is categorical: “based on
records on file, there is no SALN filed by [Sereno] for calendar years 1999 to 2009 except
SALN ending December 1998.” This leads the Court to conclude that Sereno did not indeed
file her SALN.
For this reason, the Republic was able to discharge its burden of proof with the certification
from UP HRDO and Ombudsman, and thus it becomes incumbent upon Sereno to discharge
her burden of evidence. Further, the burden of proof in a quo warranto proceeding is different
when it is filed by the State in that the burden rests upon the respondent.
In addition, contrary to what Sereno contends, being on leave does not exempt her from
filing her SALN because it is not tantamount to separation from government service. The fact
that Sereno did not receive any pay for the periods she was on leave does not make her a
government worker “serving in an honorary capacity” to be exempted from the SALN laws on
RA 6713. [yourlawyersays]
Neither can the clearance and certification of UP HRDO be taken in favor of Sereno. During
the period when Sereno was a professor in UP, concerned authorized official/s of the Office
of the President or the Ombudsman had not yet established compliance procedures for the
review of SALNs filed by officials and employees of State Colleges and Universities, like U.P.
The ministerial duty of the head of office to issue compliance order came about only on 2006
from the CSC. As such, the U.P. HRDO could not have been expected to perform its
ministerial duty of issuing compliance orders to Sereno when such rule was not yet in
existence at that time. Moreover, the clearance are not substitutes for SALNs. The import of
said clearance is limited only to clearing Sereno of her academic and administrative
responsibilities, money and property accountabilities and from administrative charges as of
the date of her resignation.
Neither can Sereno’s inclusion in the matrix of candidates with complete requirements and in
the shortlist nominated by the JBC confirm or ratify her compliance with the SALN
requirement. Her inclusion in the shortlist of candidates for the position of Chief Justice does
not negate, nor supply her with the requisite proof of integrity. She should have been
disqualified at the outset. Moreover, the JBC En Banc cannot be deemed to have considered
Sereno eligible because it does not appear that Sereno’s failure to submit her SALNs was
squarely addressed by the body. Her inclusion in the shortlist of nominees and subsequent
appointment to the position do not estop the Republic or this Court from looking into her
qualifications. Verily, no estoppel arises where the representation or conduct of the party
sought to be estopped is due to ignorance founded upon an innocent mistake
Anent the eleventh issue: Sereno failed to properly and promptly file her SALNs, again in
violation of the Constitutional and statutory requirements .
Failure to file a truthful, complete and accurate SALN would likewise amount to dishonesty if
the same is attended by malicious intent to conceal the truth or to make false statements.
The suspicious circumstances include: 1996 SALN being accomplished only in 1998; 1998
SALN only filed in 2003; 1997 SALN only notarized in 1993; 2004-2006 SALNs were not filed
which were the years when she received the bulk of her fees from PIATCO cases, 2006 SALN
was later on intended to be for 2010, gross amount from PIATCO cases were not reflected,
suspicious increase of P2,700,000 in personal properties were seen in her first five months as
Associate Justice. It is therefore clear as day that Sereno failed not only in complying with
the physical act of filing, but also committed dishonesty betraying her lack of integrity,
honesty and probity. The Court does not hesitate to impose the supreme penalty of dismissal
against public officials whose SALNs were found to have contained discrepancies,
inconsistencies and non-disclosures.
Anent the twelfth issue: Sereno failed to submit the required SALNs as to qualify for
nomination pursuant to the JBC rules.
The JBC required the submission of at least ten SALNs from those applicants who are
incumbent Associate Justices, absent which, the applicant ought not to have been
interviewed, much less been considered for nomination. From the minutes of the meeting of
the JBC, it appeared that Sereno was singled out from the rest of the applicants for having
failed to submit a single piece of SALN for her years of service in UP Law. It is clear that JBC
did not do away with the SALN requirement, but still required substantial compliance.
Subsequently, it appeared that it was only Sereno who was not able to substantially comply
with the SALN requirement, and instead of complying, Sereno wrote a letter containing
justifications why she should no longer be required to file the SALNs: that she resigned from
U.P. in 2006 and then resumed government service only in 2009, thus her government
service is not continuous; that her government records are more than 15 years old and thus
infeasible to retrieve; and that U.P. cleared her of all academic and administrative
responsibilities and charges.
These justifications, however, did not obliterate the simple fact that Sereno submitted only 3
SALNs to the JBC in her 20-year service in U.P., and that there was nary an attempt on
Sereno’s part to comply. Moreover, Sereno curiously failed to mention that she did not file
several SALNs during the course of her employment in U.P. Such failure to disclose a
material fact and the concealment thereof from the JBC betrays any claim of integrity
especially from a Member of the Supreme Court. [yourlawyersays]
Indubitably, Sereno not only failed to substantially comply with the submission of the SALNs
but there was no compliance at all. Dishonesty is classified as a grave offense the penalty of
which is dismissal from the service at the first infraction. A person aspiring to public office
must observe honesty, candor and faithful compliance with the law. Nothing less is expected.
Dishonesty is a malevolent act that puts serious doubt upon one’s ability to perform his
duties with the integrity and uprightness demanded of a public officer or employee. For these
reasons, the JBC should no longer have considered Sereno for interview.
Moreover, the fact that Sereno had no permit to engage in private practice while in UP, her
false representations that she was in private practice after resigning from UP when in fact
she was counsel for the government, her false claims that the clearance from UP HRDO is
proof of her compliance with SALNs requirement, her commission of tax fraud for failure to
truthfully declare her income in her ITRs for the years 2007-2009, procured a brand new
Toyota Land Cruiser worth at least P5,000,000, caused the hiring of Ms. Macasaet without
requisite public bidding, misused P3,000,000 of government funds for hotel accommodation
at Shangri-La Boracay as the venue of the 3rd ASEAN Chief Justices meeting, issued a TRO
in Coalition of Associations of Senior Citizens in the Philippines v. COMELEC contrary to the
Supreme Court’s internal rules, manipulated the disposition of the DOJ request to transfer
the venue of the Maute cases outside of Mindanao, ignored rulings of the Supreme Court
with respect to the grant of survivorship benefits which caused undue delay to the release of
survivorship benefits to spouses of deceased judges and Justices, manipulated the
processes of the JBC to exclude then SolGen, now AJ Francis Jardeleza, by using highly
confidential document involving national security against the latter among others, all belie the
fact that Sereno has integrity.
Anent the thirteenth issue: Sereno’s failure to submit to the JBC her SALNs for several years
means that her integrity was not established at the time of her application
The requirement to submit SALNs is made more emphatic when the applicant is eyeing the
position of Chief Justice. On the June 4, 2012, JBC En Banc meeting, Senator Escudero
proposed the addition of the requirement of SALN in order for the next Chief Justice to avoid
what CJ Corona had gone through. Further, the failure to submit the required SALNs means
that the JBC and the public are divested of the opportunity to consider the applicant’s fitness
or propensity to commit corruption or dishonesty. In Sereno’s case, for example, the waiver
of the confidentiality of bank deposits would be practically useless for the years that she
failed to submit her SALN since the JBC cannot verify whether the same matches the entries
indicated in the SALN.
Anent the fourteenth issue: Sereno’s ineligibility for lack of proven integrity cannot be cured
by her nomination and subsequent appointment as Chief Justice.
Well-settled is the rule that qualifications for public office must be possessed at the time of
appointment and assumption of office and also during the officer’s entire tenure as a
continuing requirement. The voidance of the JBC nomination as a necessary consequence of
the Court’s finding that Sereno is ineligible, in the first place, to be a candidate for the
position of Chief Justice and to be nominated for said position follows as a matter of course.
The Court has ample jurisdiction to do so without the necessity of impleading the JBC as the
Court can take judicial notice of the explanations from the JBC members and the OEO. he
Court, in a quo warranto proceeding, maintains the power to issue such further judgment
determining the respective rights in and to the public office, position or franchise of all the
parties to the action as justice requires.
Neither will the President’s act of appointment cause to qualify Sereno. Although the JBC is
an office constitutionally created, the participation of the President in the selection and
nomination process is evident from the composition of the JBC itself.
An appointment is essentially within the discretionary power of whomsoever it is vested,

subject to the only condition that the appointee should possess the qualifications required by
law. While the Court surrenders discretionary appointing power to the President, the exercise
of such discretion is subject to the non-negotiable requirements that the appointee is
qualified and all other legal requirements are satisfied, in the absence of which, the
appointment is susceptible to attack.
Anent the fifteenth issue: Sereno is a de facto officer removable through quo warranto
The effect of a finding that a person appointed to an office is ineligible therefor is that his
presumably valid appointment will give him color of title that confers on him the status of a
de facto officer. For lack of a Constitutional qualification, Sereno is ineligible to hold the
position of Chief Justice and is merely holding a colorable right or title thereto. As such,
Sereno has never attained the status of an impeachable official and her removal from the
office, other than by impeachment, is justified. The remedy, therefore, of a quo warranto at
the instance of the State is proper to oust Sereno from the appointive position of Chief
Justice. [yourlawyersays]
DISPOSITIVE PORTION:
WHEREFORE, the Petition for Quo Warranto is GRANTED.
Sereno is found DISQUALIFIED from and is hereby adjudged GUILTY of UNLAWFULLY

HOLDING and EXERCISING the OFFICE OF THE CHIEF JUSTICE. Accordingly, Sereno
is OUSTED and EXCLUDED therefrom.
The position of the Chief Justice of the Supreme Court is declared vacant and the Judicial
and Bar Council is directed to commence the application and nomination process.
This Decision is immediately executory without need of further action from the Court.
Sereno is ordered to SHOW CAUSE within ten (10) days from receipt hereof why she should
not be sanctioned for violating the Code of Professional Responsibility and the Code of
Judicial Conduct for transgressing the sub judice rule and for casting aspersions and ill
motives to the Members of the Supreme Court.
12. Impeachment corona
3. CORONA VS SENATE OF THE PHILIPPINES (https://www.scribd.com/document/

273123710/Corona-vs-Senate-of-the-Philippines)
FACTS: A verified complaint for impeachment was filed against Chief Justice Renato Corona
by respondent Members of the House of Representatives (HOR). The complaint was
transmitted to the Senate which convened as an impeachment court.
Petitioner Corona received a copy of the complaint charging him with culpable violation of
the Constitution, betrayal of public trust and graft and corruption:
a. when he failed to disclose to the public his statement of assets, liabilities and net worth as
required under Sec. 17, Art. XI of the 1987 Constitution;
b. by failing to meet and observe the stringent standards under Art. VIII, Section 7 (3) of the
Constitution that provides that “[a] member of the judiciary must be a person of proven
competence, integrity, probity, and independence” in allowing the Supreme Court to act on
mere letters filed by a counsel which caused the issuance of flip-flopping decisions in final
and
executory cases;
c. in creating an excessive entanglement with Mrs. Arroyo through her appointment of his
wife to office; and in discussing with litigants regarding cases pending before the Supreme
Court; when
he blatantly disregarded the principle of separation of powers by issuing a “status quo ante”
order against the HOR in the case concerning the impeachment of then Ombudsman
Merceditas
Navarro-Gutierrez;
d. through wanton arbitrariness and partiality in consistently disregarding the principle of res
judicata in the cases involving the 16 newly-created cities, and the promotion of Dinagat
Island into a
province;
e. by arrogating unto himself, and to a committee he created, the authority and jurisdiction to
improperly investigate a justice of the Supreme Court for the purpose of exculpating him.
Such
authority and jurisdiction is properly reposed by the Constitution in the HOR via
impeachment.
f. through his partiality in granting a temporary restraining order (TRO) in favor of former
President Gloria Macapagal-Arroyo and her husband in order to give them an opportunity to
escape
prosecution and to frustrate the ends of justice, and in distorting the Supreme Court decision
on the effectivity of the TRO in view of a clear failure to comply with the conditions of the
Supreme
Court’s own TRO.
g. when he failed and refused to account for the Judiciary Development Fund (JDF) and
Special Allowance for the Judiciary (SAJ) collections.
The Impeachment Court granted the prosecution’s request for subpoena directed to the
officers of two private banks where petitioner allegedly deposited millions in peso and dollar
currencies. PSBank filed a petition for certiorari and prohibition (G.R. No. 200238) seeking to
enjoin the Impeachment Court and the HOR prosecutors from implementing the aforesaid
subpoena requiring PSBank thru its authorized representative to testify and to bring the
original and certified true copies of the opening documents for petitioner’s alleged foreign
currency accounts, and thereafter to render judgment nullifying the subpoenas including the
bank statements showing the year-end balances for the said accounts.
This Court issued a TRO in G.R. No. 200238 enjoining the Senate from implementing the
Resolution and subpoena ad testificandum et duces tecum issued by the Senate sitting as
an Impeachment Court, both dated February 6, 2012. The Court further resolved to deny
petitioner’s motion for the inhibition of
Justices Carpio and Sereno “in the absence of any applicable compulsory ground and of any
voluntary inhibition from the Justices concerned.”
On the same day, the present petition was filed arguing that the Impeachment Court
committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
proceeded to trial on the basis of the complaint filed by respondent Representatives which
complaint is constitutionally infirm and defective for lack of probable cause. Petitioner filed a
Supplemental Petition claiming that his right to due process is being violated in the ongoing
impeachment proceedings because certain Senator-Judges have lost the cold neutrality of
impartial judges by acting as prosecutors. Petitioner particularly mentioned SenatorJudge
Franklin S. Drilon, whose inhibition he had sought from the Impeachment Court, to no avail.
He further called attention to the fact that despite the Impeachment Court’s January 27, 2012
Resolution which disallowed the introduction of evidence in support of paragraph 2.4 of
Article II, from which no motion for reconsideration would be entertained, “the allies of
President Aquino in the Senate abused their authority and continued their presentation of
evidence for the prosecution, without fear of objection”.
In view of the persistent efforts of President Aquino’s Senator-allies to overturn the ruling of
Presiding Officer Juan Ponce Enrile that the prosecution could not present evidence on
paragraph 2.4 of Article II -for which President Aquino even thanked “his senator allies in
delivering what the prosecution could not”-petitioner reiterates the reliefs prayed for in his
petition before this Court. In the Comment Ad Cautelam Ex Superabundanti filed on behalf of
the respondents, the Solicitor General argues that the instant petition raises matters purely
political in character which may be decided or resolved only by the Senate and HOR, with
the manifestation that the comment is being filed by the respondents “without submitting
themselves to the jurisdiction of the Honorable Supreme Court and without conceding the
constitutional and exclusive power of the House to initiate all cases of impeachment and of
the Senate to try and decide all cases of impeachment.”
Citing the case of Nixon v. United States, respondents contend that to allow a public official
being impeached to raise before this Court any and all issues relative to the substance of the
impeachment complaint would result in an unnecessarily long and tedious process that may
even go beyond the terms of the Senator-Judges hearing the impeachment case. Such
scenario is clearly not what the Constitution intended.
Respondents maintain that subjecting the ongoing impeachment trial to judicial review
defeats the very essence of impeachment. They contend that the constitutional command of
public accountability to petitioner and his obligation to fully disclose his assets, liabilities and
net worth prevail over his claim of confidentiality of deposits; hence, the subpoena subject of
this case were correctly and judiciously issued. Considering that the ongoing impeachment
proceedings, which was initiated and is being conducted in accordance with the
Constitution, simply aims to enforce the principle of public accountability and ensure that the
transgressions of impeachable public officials are corrected, the injury being claimed by
petitioner allegedly resulting from the impeachment trial has no factual and legal basis. It is
thus prayed that the present petition, as well as petitioner’s prayer for issuance of a TRO/
preliminary injunction, be dismissed.
ISSUE: Whether or not the certiorari jurisdiction of this Court may be invoked to assail
matters or incidents arising from impeachment proceedings, and to obtain injunctive relief for
alleged violations of right to due process of the person being tried by the Senate sitting as
Impeachment Court.
RULING: Impeachment, described as “the most formidable weapon in the arsenal of

democracy,”14 was foreseen as creating divisions, partialities and enmities, or highlighting
pre-existing factions with the greatest danger that “the decision will be regulated more by the
comparative strength of parties, than by the real demonstrations of innocence or guilt.”15
Given their concededly political character, the precise role of the judiciary in impeachment
cases is a matter of utmost importance to ensure the effective functioning of the separate
branches while preserving the structure of checks and balance in our government. Moreover,
in this jurisdiction, the acts of any branch or instrumentality of the government, including
those traditionally
entrusted to the political departments, are proper subjects of judicial review if tainted with
grave abuse or arbitrariness.
Impeachment refers to the power of Congress to remove a public official for serious crimes
or misconduct as provided in the Constitution. A mechanism designed to check abuse of
power, impeachment has its roots in Athens and was adopted in the United States (US)
through the influence of English common law on the Framers of the US Constitution.
Our own Constitution’s provisions on impeachment were adopted from the US Constitution.
Petitioner was impeached through the mode provided under Art. XI, par. 4, Sec. 3, in a
manner that he claims was accomplished with undue haste and under a complaint which is
defective for lack of probable cause.
Petitioner likewise assails the Senate in proceeding with the trial under the said complaint,
and in the alleged partiality exhibited by some Senator-Judges who were apparently aiding
the prosecution during the hearings.
On the other hand, respondents contend that the issues raised in the Supplemental Petition
regarding the behavior of certain Senator-Judges in the course of the impeachment trial are
issues that do not concern, or allege any violation of, the three express and exclusive
constitutional limitations on the Senate’s sole power to try and decide impeachment cases.
They argue that unless there is a clear transgression of these constitutional limitations, this
Court may not exercise its power of expanded judicial review over the actions of Senator-
Judges during the proceedings. By the nature of the functions they discharge when sitting as
an Impeachment Court, SenatorJudges are clearly entitled to propound questions on the
witnesses, prosecutors and counsel during the trial. Petitioner thus failed to prove any
semblance of partiality on the part of any Senator-Judges. But whether the Senate
Impeachment Rules were followed or not, is a political question that is not within this Court’s
power of expanded judicial review.
In the meantime, the impeachment trial had been concluded with the conviction of petitioner
by more than the required majority vote of the Senator-Judges. Petitioner immediately
accepted the verdict and without any protest vacated his office. In fact, the Judicial and Bar
Council is already in the process of screening applicants and nominees, and the President of
the Philippines is expected to appoint a new Chief Justice within the prescribed 90-day
period from among those candidates shortlisted by the JBC. Unarguably, the constitutional
issue raised by petitioner had been mooted by supervening events and his own acts.
14. Executive privilege vs deliberative process
EXECUTIVE ORDER NO. 464
ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS,

ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE
RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF
LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES (https://

lawphil.net/executive/execord/eo2005/eo_464_2005.html)
WHEREAS, the Constitution guarantees the separate of powers of the Executive, Legislative

and Judicial branches of the government:
WHEREAS, Article VI, Section 22 of the Constitution provides that heads of departments
may, with the prior consent of the President, appear before and be heard by either House of
Congress on any matter pertaining to their departments and, when the security of the State
or the public interest so requires and the President so states in writing, such appearance
shall be conducted in executive session;
WHEREAS, pursuant to the rule of executive privilege, the President and those who assist
her must be free to explore alternatives in the process of shaping policies and making
decisions since this is fundamental to the operation of the government and is rooted in the
separation of powers under the Constitution;
WHEREAS, Article VI, Section 21 of the Constitution mandates that the rights of persons
appearing in or affected by inquiries in aid of legislation by the Senate or House of
Representatives shall be respected;
WHEREAS, recent events, particularly with respect to the invitation of a member of the
Cabinet by the Senate as well as various heads of offices, civilian and military, have
highlighted the need to ensure the observance of the principle of separation of powers,
adherence to the rule on executive privilege and respect for the rights of persons appearing
in such inquiries in aid of legislation and due regard to constitutional mandate;
WHEREAS, there is a need to prevent such inquires in aid of legislation from being used for
partisan political purposes, disrupting diplomatic relations with foreign government, and
weakening the stability of the State, thereby impeding the efforts of the government to
generate and attract foreign investments;
WHEREAS, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public
Officials and Employees provides that public official and employees shall not use or divulge
confidential or classified information officially known to them by reason of their office and not
made available to the public to prejudice the public interest;
WHEREAS, Article 229 of the Revised Penal Code prohibits any public officer from revealing
any secret known to him by reason of his official capacity or wrongfully delivering papers or
copies thereof which he may have charge and which should not be published;
WHEREAS, the 1987 Constitution and the Administrative Code of 1987 provide that the
President shall have control of all government departments, bureaus and offices and shall
ensure that all the laws be faithfully executed.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by the powers vested in me by law, do hereby order:
SECTION 1. Appearance by Heads of Departments Before Congress. - In accordance with

Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on
the separation of powers between co-equal branches of the government, all heads of
departments of the Executive Branch of the government shall secure the consent of the
President prior to appearing before either House of Congress.
When the security of the State or the public interest so requires and the President so states
in writing, the appearance shall only be conducted in executive session.
SECTION 2. Nature, Scope and Coverage of Executive Privilege. -
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is
fundamental to the operation of government and rooted in the separation of powers under
the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act
No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees
provides that public officials and employees shall not use or divulge confidential or classified
information officially known to them by reason of their office and not made available to the
public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the President and
the public officers covered by this executive order, including:
i. Conversations and correspondence between the President and the public official covered
by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public
Estates Authority, G.R. No. 133250, 9 July 2002);
ii. Military, diplomatic and other national security matters which in the interest of national
security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez
v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).
iii. Information between inter-government agencies prior to the conclusion of treaties and
executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998);
iv. Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good

Government, G.R. No. 130716, 9 December 1998);
v. Matters affecting national security and public order (Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. - The following are covered by this executive order:
i. Senior officials of executive departments who in the judgment of the department heads are
covered by the executive privilege;
ii. Generals and flag officers of the Armed Forces of the Philippines and such other officers
who in the judgment of the Chief of Staff are covered by the executive privilege;
iii. Philippine National Police (PNP) officers with rank of chief superintendent or higher and
such other officers who in the judgment of the Chief of the PNP are covered by the executive
privilege;
iv. Senior national security officials who in the judgment of the National Security Adviser are
covered by the executive privilege; and
v. Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. - All public officials
enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to
appearing before either House of Congress to ensure the observance of the principle of
separation of powers, adherence to the rule on executive privilege and respect for the rights
of public officials appearing in inquiries in aid of legislation.
SECTION 4. Repealing Clause. - All executive issuances, orders, rules and regulations or
parts thereof inconsistent with the provision of this Executive Order are hereby repealed or
modified accordingly.
SECTION 5. Separability Clause. - If any section or provision of this executive order shall be
declared unconstitutional or invalid, the other sections or provision not affected thereby shall
remain in full force and effect.
SECTION 6. Effectivity. - This Executive Order shall take effect immediately.
DONE in the City of Manila, this 26th day of September in the Year of our Lord, Two
Thousand and Five.
(Sgd. ) GLORIA MACAPAGAL-ARROYO 

By the President:
(Sgd.) EDUARDO R. ERMITA 
Executive Secretary
SENATE OF THE PHILIPPINES, et. al. vs. EDUARDO R. ERMITA, et. al., G.R. No. 169777,
with companion cases, G.R. No. 169659, G.R. No. 169660, G.R. No. 169667, G.R. No.
1 6 9 8 3 4 , a n d G . R . N o . 1 7 1 2 4 6 , p ro m u l g a t e d o n A p r i l 2 0 , 2 0 0 6 . ( h t t p : / /
attylaserna.blogspot.com/2007/10/executive-privilege.html)
X x x.
On September 28, 2005, the President issued E.O. 464, “ENSURING

OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO THE
RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS
APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE
CONSTITUTION, AND FOR OTHER PURPOSES,”[i] which, pursuant to Section 6 thereof,
took effect immediately. The salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before

Congress. – In accordance with Article VI, Section 22 of the
Constitution and to implement the Constitutional provisions on the
separation of powers between co-equal branches of the
government, all heads of departments of the Executive Branch
of the government shall secure the consent of the President
prior to appearing before either House of Congress.
When the security of the State or the public interest so requires

and the President so states in writing, the appearance shall only
be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –
(a) Nature and Scope. - The rule of confidentiality based on

executive privilege is fundamental to the operation of government
and rooted in the separation of powers under the Constitution
(Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further,
Republic Act No. 6713 or the Code of Conduct and Ethical
Standards for Public Officials and Employees provides that Public
Officials and Employees shall not use or divulge confidential or
classified information officially known to them by reason of their
office and not made available to the public to prejudice the public
interest.
Executive privilege covers all confidential or classified information

between the President and the public officers covered by this
executive order, including:
i. Conversations and correspondence between the

President and the public official covered by this
executive order (Almonte vs. Vasquez G.R. No.
95367, 23 May 1995; Chavez v. Public Estates

Authority, G.R. No. 133250, 9 July 2002);
ii. Military, diplomatic and other national security

matters which in the interest of national security
should not be divulged (Almonte vs. Vasquez, G.R.
No. 95367, 23 May 1995; Chavez v. Presidential
Commission on Good Government, G.R. No.
130716, 9 December 1998).
iii. Information between inter-government agencies

prior to the conclusion of treaties and executive
agreements (Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December
1998);
iv. Discussion in close-door Cabinet meetings (Chavez

v. Presidential Commission on Good Government,
G.R. No. 130716, 9 December 1998);
v. Matters affecting national security and public order

(Chavez v. Public Estates Authority, G.R. No.
133250, 9 July 2002).
(b) Who are covered. – The following are covered by this

executive order:
i. Senior officials of executive departments who in the

judgment of the department heads are covered by the
executive privilege;
ii. Generals and flag officers of the Armed Forces of the

Philippines and such other officers who in the judgment of the
Chief of Staff are covered by the executive privilege;
iii. Philippine National Police (PNP) officers with rank of chief

superintendent or higher and such other officers who in the
judgment of the Chief of the PNP are covered by the
executive privilege;
iv. Senior national security officials who in the judgment of the

National Security Adviser are covered by the executive
privilege; and
v. Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before

Congress. – All public officials enumerated in Section 2 (b)
hereof shall secure prior consent of the President prior to
appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to
the rule on executive privilege and respect for the rights of public
officials appearing in inquiries in aid of legislation. (Emphasis and
underscoring supplied)
X x x.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;
2. Whether E.O. 464 violates the right of the people to information on matters of public
concern; and
3. Whether respondents have committed grave abuse of discretion when they implemented
E.O. 464 prior to its publication in a newspaper of general circulation.
X x x.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials before Congress,
deprives Congress of the information in the possession of these officials. To resolve the
question of whether such withholding of information violates the Constitution, consideration
of the general power of Congress to obtain information, otherwise known as the power of
inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the

Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any

of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such
inquiries shall be respected. (Underscoring supplied)
xxxx.
The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v.
Nazareno,[ii] a case decided in 1950 under that Constitution, the Court already recognized
that the power of inquiry is inherent in the power to legislate.
Arnault involved a Senate investigation of the reportedly anomalous purchase of the

Buenavista and Tambobong Estates by the Rural Progress Administration. Arnault, who was
considered a leading witness in the controversy, was called to testify thereon by the
Senate. On account of his refusal to answer the questions of the senators on an important
point, he was, by resolution of the Senate, detained for contempt. Upholding the Senate’s
power to punish Arnault for contempt, this Court held:
Although there is no provision in the Constitution expressly

investing either House of Congress with power to make
investigations and exact testimony to the end that it may exercise
its legislative functions advisedly and effectively, such power is so
far incidental to the legislative function as to be implied. In other
words, the power of inquiry – with process to enforce it – is an
essential and appropriate auxiliary to the legislative function. A
legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the
legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite information –
which is not infrequently true – recourse must be had to others
who do possess it. Experience has shown that mere requests for
such information are often unavailing, and also that information

which is volunteered is not always accurate or complete;
so some means of compulsion is essential to obtain what is
needed.[iii] . . . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the executive branch may be
deduced from the same case. The power of inquiry, the Court therein ruled, is co-extensive
with the power to legislate.[iv] The matters which may be a proper subject of legislation and
those which may be a proper subject of investigation are one. It follows that the operation of
government, being a legitimate subject for legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government transaction involved
in Arnault was a proper exercise of the power of inquiry. Besides being related to the
expenditure of public funds of which Congress is the guardian, the transaction, the Court
held, “also involved government agencies created by Congress and officers whose positions
it is within the power of Congress to regulate or even abolish.”
Since Congress has authority to inquire into the operations of the executive branch, it would
be incongruous to hold that the power of inquiry does not extend to executive officials who
are the most familiar with and informed on executive operations.
As discussed in Arnault, the power of inquiry, “with process to enforce it,” is grounded on
the necessity of information in the legislative process. If the information possessed by
executive officials on the operation of their offices is necessary for wise legislation on that
subject, by parity of reasoning, Congress has the right to that information and the power to
compel the disclosure thereof.
As evidenced by the American experience during the so-called “McCarthy era,”

however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less
susceptible to abuse than executive or judicial power. It may thus be subjected to judicial
review pursuant to the Court’s certiorari powers under Section 1, Article VIII of the
Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,[v] the inquiry itself
might not properly be in aid of legislation, and thus beyond the constitutional power of
Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way
for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to
the public officials concerned, or to any person for that matter, the possible needed statute
which prompted the need for the inquiry. Given such statement in its invitations, along with
the usual indication of the subject of inquiry and the questions relative to and in furtherance
thereof, there would be less room for speculation on the part of the person invited on
whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe the
legislative power of inquiry. The provision requires that the inquiry be done in accordance
with the Senate or House’s duly published rules of procedure, necessarily implying the
constitutional infirmity of an inquiry conducted without duly published rules of
procedure. Section 21 also mandates that the rights of persons appearing in or affected by
such inquiries be respected, an imposition that obligates Congress to adhere to the
guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit
filed by the persons affected, even if they belong to the executive branch. Nonetheless, there
may be exceptional circumstances, none appearing to obtain at present, wherein a clear
pattern of abuse of the legislative power of inquiry might be established, resulting in palpable
violations of the rights guaranteed to members of the executive department under the Bill of
Rights. In such instances, depending on the particulars of each case, attempts by the
Executive Branch to forestall these abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized exemptions
to the power of inquiry, which exemptions fall under the rubric of “executive privilege.” Since
this term figures prominently in the challenged order, it being mentioned in its provisions, its
preambular clauses,[vi] and in its very title, a discussion of executive privilege is crucial for
determining the constitutionality of E.O. 464.
Executive privilege
X x x.
Schwartz defines executive privilege as “the power of the Government to withhold

information from the public, the courts, and the Congress.”[vii] Similarly, Rozell defines it
as “the right of the President and high-level executive branch officers to withhold information
from Congress, the courts, and ultimately the public.”[viii]
Executive privilege is, nonetheless, not a clear or unitary concept. [ix] It has encompassed
claims of varying kinds.[x] Tribe, in fact, comments that while it is customary to employ the
phrase “executive privilege,” it may be more accurate to speak of
executive privileges “since presidential refusals to furnish information may be actuated by
any of at least three distinct kinds of considerations, and may be asserted, with differing
degrees of success, in the context of either judicial or legislative investigations.”
One variety of the privilege, Tribe explains, is the state secrets privilege invoked by

U.S. Presidents, beginning with Washington, on the ground that the information is of such
nature that its disclosure would subvert crucial military or diplomatic objectives. Another
variety is the informer’s privilege, or the privilege of the Government not to disclose
the identity of persons who furnish information of violations of law to officers charged
with the enforcement of that law. Finally, a generic privilege for internal deliberations has
been said to attach to intragovernmental documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated. [xi]
Tribe’s comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have

c l a i m e d a v a r i e t y o f p r i v i l e g e s t o re s i s t d i s c l o s u re
of information the confidentiality of which they felt was crucial to
fulfillment of the unique role and responsibilities of the
executive branch of our government. Courts ruled early that the
executive had a right to withhold documents that might
reveal military or state secrets. The courts have also granted the
executive a right to withhold the identity of government
informers in some circumstances and a qualified right to
withhold information related to pending investigations. x x
x”[xii] (Emphasis and underscoring supplied)
The entry in Black’s Law Dictionary on “executive privilege” is similarly instructive regarding
the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of

powers, exempts the executive from disclosure requirements
applicable to the ordinary citizen or organization where such
exemption is necessary to the discharge of highly important
executive responsibilities involved in maintaining governmental
operations, and extends not only
to military and diplomatic secrets but also to documents integral to
an appropriate exercise of the executive’ domestic decisional and
policy making functions, that is, those documents reflecting the
frank expression necessary in intra-governmental advisory and
deliberative communications.[xiii] (Emphasis and underscoring
supplied)
X x x.
The leading case on executive privilege in the United States is U.S. v. Nixon, [xiv] decided in
1974. In issue in that case was the validity of President Nixon’s claim of executive privilege
against a subpoena issued by a district court requiring the production of certain tapes and
documents relating to the Watergate investigations. The claim of privilege was based on the
President’s general interest in the confidentiality of his conversations and
correspondence. The U.S. Court held that while there is no explicit reference to a privilege of
confidentiality in the U.S. Constitution, it is constitutionally based to the extent that it relates
to the effective discharge of a President’s powers. The Court, nonetheless, rejected the
President’s claim of privilege, ruling that the privilege must be balanced against the public
interest in the fair administration of criminal justice. Notably, the Court was careful to
clarify that it was not there addressing the issue of claims of privilege in a civil litigation or
against congressional demands for information.
X x x. However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case
decided earlier in the same year as Nixon, recognized the President’s privilege over his
conversations against a congressional subpoena.[xv] Anticipating the balancing approach
adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public
interest protected by the claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the President, the Court
declined to enforce the subpoena. [xvi]
In this jurisdiction, the doctrine of executive privilege was recognized by this Court
in Almonte v. Vasquez.[xvii] Almonte used the term in reference to the same privilege subject
of Nixon. It quoted the following portion of the Nixon decision which explains the basis for
the privilege:
“The expectation of a President to the confidentiality of his

conversations and correspondences, like the claim of
confidentiality of judicial deliberations, for example, has all the
values to which we accord deference for the privacy of all citizens
and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh
opinions in Presidential decision-making. A President and those
who assist him must be free to explore alternatives in the process
of shaping policies and making decisions and to do so in a way
many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation
of government and inextricably rooted in the separation of
powers under the Constitution x x x ” (Emphasis and
Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein
petitioners. It did not involve, as expressly stated in the decision, the right of the people to
information.[xviii] Nonetheless, the Court recognized that there are certain types of
information which the government may withhold from the public, thus acknowledging, in
substance if not in name, that executive privilege may be claimed against citizens’ demands
for information.
In Chavez v. PCGG,[xix] the Court held that this jurisdiction recognizes the common law
holding that there is a “governmental privilege against public disclosure with respect to state
secrets regarding military, diplomatic and other national security matters.”[xx] The same case
held that closed-door Cabinet meetings are also a recognized limitation on the right to
information.
Similarly, in Chavez v. Public Estates Authority,[xxi] the Court ruled that the right to
information does not extend to matters recognized as “privileged information under the
separation of powers,”[xxii] by which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings. It also held that
information on military and diplomatic secrets and those affecting national security, and
information on investigations of crimes by law enforcement agencies before the prosecution
of the accused were exempted from the right to information.
X x x. Executive privilege, whether asserted against Congress, the courts, or the public, is
recognized only in relation to certain types of information of a sensitive character. While
executive privilege is a constitutional concept, a claim thereof may be valid or not depending
on the ground invoked to justify it and the context in which it is made. Noticeably absent is
any recognition that executive officials are exempt from the duty to disclose information by
the mere fact of being executive officials. Indeed, the extraordinary character of the
exemptions indicates that the presumption inclines heavily against executive secrecy
and in favor of disclosure.
Validity of Section 1
X x x.
Section 1 specifically applies to department heads. It does not, unlike Section 3, require a
prior determination by any official whether they are covered by E.O. 464. The President
herself has, through the challenged order, made the determination that they are. Further,
unlike also Section 3, the coverage of department heads under Section 1 is not made to
depend on the department heads’ possession of any information which might be covered
by executive privilege. In fact, in marked contrast to Section 3 vis-à-vis Section 2, there is no
reference to executive privilege at all. Rather, the required prior consent under Section 1 is
grounded on Article VI, Section 22 of the Constitution on what has been referred to as
the question hour.
SECTION 22. The heads of departments may upon their own

initiative, with the consent of the President, or upon the request of
either House, as the rules of each House shall provide, appear
before and be heard by such House on any matter pertaining to
their departments. Written questions shall be submitted to the
President of the Senate or the Speaker of the House of
Representatives at least three days before their scheduled
appearance. Interpellations shall not be limited to written
questions, but may cover matters related thereto. When the
security of the State or the public interest so requires and the
President so states in writing, the appearance shall be conducted
in executive session.
Determining the validity of Section 1 thus requires an examination of the meaning of Section
22 of Article VI. Section 22 which provides for the question hour must be interpreted vis-à-
vis Section 21 which provides for the power of either House of Congress to “conduct
inquiries in aid of legislation.” As the following excerpt of the deliberations of the
Constitutional Commission shows, the framers were aware that these two provisions
involved distinct functions of Congress. X x x x x.
X x x.
A distinction was thus made between inquiries in aid of legislation and the question
hour. While attendance was meant to be discretionary in the question hour, it was
compulsory in inquiries in aid of legislation. Xxxx.
Consistent with their statements earlier in the deliberations, Commissioners Davide and
Maambong proceeded from the same assumption that these provisions pertained to two
different functions of the legislature. Both Commissioners understood that the power to
conduct inquiries in aid of legislation is different from the power to conduct inquiries during
the question hour. Commissioner Davide’s only concern was that the two provisions on these
distinct powers be placed closely together, they being complementary to each other. Neither
Commissioner considered them as identical functions of Congress.
X x x.
In the context of a parliamentary system of government, the “question hour” has a definite
meaning. It is a period of confrontation initiated by Parliament to hold the Prime Minister and
the other ministers accountable for their acts and the operation of the government,
[xxiii] corresponding to what is known in Britain as the question period. There was a specific
provision for a question hour in the 1973 Constitution[xxiv] which made the appearance of
ministers mandatory. The same perfectly conformed to the parliamentary system established
by that Constitution, where the ministers are also members of the legislature and are directly
accountable to it.
An essential feature of the parliamentary system of government is

the immediate accountability of the Prime Minister and the Cabinet
to the National Assembly. They shall be responsible to the National
Assembly for the program of government and shall determine the
guidelines of national policy. Unlike in the presidential system
where the tenure of office of all elected officials cannot be
terminated before their term expired, the Prime Minister and the
Cabinet remain in office only as long as they enjoy the confidence
of the National Assembly. The moment this confidence is lost the
Prime Minister and the Cabinet may be changed.[xxv]
The framers of the 1987 Constitution removed the mandatory nature of such appearance
during the question hour in the present Constitution so as to conform more fully to a system
of separation of powers.[xxvi] To that extent, the question hour, as it is presently understood
in this jurisdiction, departs from the question period of the parliamentary system. That
department heads may not be required to appear in a question hour does not, however,
mean that the legislature is rendered powerless to elicit information from them in all
circumstances. In fact, in light of the absence of a mandatory question period, the need to
enforce Congress’ right to executive information in the performance of its legislative
function becomes more imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on

the subject under discussion, it is that the Congress has the
right to obtain information from any source – even from
officials of departments and agencies in the executive
branch. In the United States there is, unlike the situation which
prevails in a parliamentary system such as that in Britain, a clear
separation between the legislative and executive branches. It is

this very separation that makes the congressional right to
obtain information from the executive so essential, if the
functions of the Congress as the elected representatives of
the people are adequately to be carried out. The absence of
close rapport between the legislative and executive branches in
this country, comparable to those which exist under a
parliamentary system, and the nonexistence in the Congress of an
institution such as the British question period have perforce made
reliance by the Congress upon its right to obtain information from
the executive essential, if it is intelligently to perform its
legislative tasks. Unless the Congress possesses the right to
obtain executive information, its power of oversight of
administration in a system such as ours becomes a power devoid
of most of its practical content, since it depends for its
effectiveness solely upon information parceled out ex gratia by the
executive.[xxvii] (Emphasis and underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary to each other, should
not be considered as pertaining to the same power of Congress. One specifically relates to
the power to conduct inquiries in aid of legislation, the aim of which is to elicit
information that may be used for legislation, while the other pertains to the power to
conduct a question hour, the objective of which is to obtain information in pursuit
of Congress’ oversight function.
When Congress merely seeks to be informed on how department heads are implementing
the statutes which it has issued, its right to such information is not as imperative as that of
the President to whom, as Chief Executive, such department heads must give a report of
their performance as a matter of duty. In such instances, Section 22, in keeping with the
s e p a r a t i o n o f p o w e r s , s t a t e s t h a t C o n g r e s s m a y o n l y r e q u e s t t h e i r
appearance. Nonetheless, when the inquiry in which Congress requires their
appearance is “in aid of legislation” under Section 21, the appearance is mandatory for
the same reasons stated in Arnault.[xxviii]
In fine, the oversight function of Congress may be facilitated by compulsory

process only to the extent that it is performed in pursuit of legislation. Xxxx.
Ultimately, the power of Congress to compel the appearance of executive officials under
Section 21 and the lack of it under Section 22 find their basis in the principle of separation of
powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate
the power of Congress to legislate by refusing to comply with its demands for information.
When Congress exercises its power of inquiry, the only way for department
heads to exempt themselves therefrom is by a valid claim of privilege. They are not
exempt by the mere fact that they are department heads. Only one executive official may
be exempted from this power — the President on whom executive power is vested, hence,
beyond the reach of Congress except through the power of impeachment. It is based on her
being the highest official of the executive branch, and the due respect accorded to a co-
equal branch of government which is sanctioned by a long-standing custom.
X x x.
Section 1, in view of its specific reference to Section 22 of Article VI of the

Constitution and the absence of any reference to inquiries in aid of legislation, must be
construed as limited in its application to appearances of department heads in the
question hour contemplated in the provision of said Section 22 of Article VI. The reading is
dictated by the basic rule of construction that issuances must be interpreted, as much as
possible, in a way that will render it constitutional.
The requirement then to secure presidential consent under Section 1, limited as it is

only to appearances in the question hour, is valid on its face. For under Section 22,
Article VI of the Constitution, the appearance of department heads in the question hour is
discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in

inquiries in aid of legislation. Congress is not bound in such instances to respect the
refusal of the department head to appear in such inquiry, unless a valid claim of
privilege is subsequently made, either by the President herself or by the Executive
Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the
consent of the President prior to appearing before either house of Congress. The
enumeration is broad. It covers all senior officials of executive departments, all officers of the
AFP and the PNP, and all senior national security officials who, in the judgment of the heads
of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP,
Chief of the PNP, and the National Security Adviser), are “covered by the executive
privilege.”
The enumeration also includes such other officers as may be determined by the
President. Given the title of Section 2 — “Nature, Scope and Coverage of Executive
Privilege” —, it is evident that under the rule of ejusdem generis, the determination by the
President under this provision is intended to be based on a similar finding of coverage under
executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive
privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege,
as discussed above, is properly invoked in relation to specific categories of information
and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of
executive privilege, the reference to persons being “covered by the executive privilege” may
be read as an abbreviated way of saying that the person is in possession of
information which is, in the judgment of the head of office concerned, privileged as defined in
Section 2(a). The Court shall thus proceed on the assumption that this is the intention of the
challenged order.
Upon a determination by the designated head of office or by the President that an official is
“covered by the executive privilege,” such official is subjected to the requirement that he first
secure the consent of the President prior to appearing before Congress. This requirement
effectively bars the appearance of the official concerned unless the same is permitted by the
President. The proviso allowing the President to give its consent means nothing more than
that the President may reverse a prohibition which already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a head of

office, authorized by the President under E.O. 464, or by the President herself, that such
official is in possession of information that is covered by executive privilege. This
determination then becomes the basis for the official’s not showing up in the legislative
investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such
invocation must be construed as a declaration to Congress that the President, or a head of
office authorized by the President, has determined that the requested information is
privileged, and that the President has not reversed such determination. Such declaration,
however, even without mentioning the term “executive privilege,” amounts to an implied
claim that the information is being withheld by the executive branch, by authority of the
President, on the basis of executive privilege. Verily, there is an implied claim of privilege.
X x x.
While there is no Philippine case that directly addresses the issue of whether executive
privilege may be invoked against Congress, it is gathered from Chavez v. PEA that certain
information in the possession of the executive may validly be claimed as privileged even
against Congress. Thus, the case holds:
There is no claim by PEA that the information demanded by

petitioner is privileged information rooted in the separation of
powers. The information does not cover Presidential
conversations, correspondences, or discussions during
closed-door Cabinet meetings which, like inter nal-
deliberations of the Supreme Court and other collegiate
courts, or executive sessions of either house of Congress, are
recognized as confidential. This kind of information cannot be
pried open by a co-equal branch of government. A frank
exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to
protect the independence of decision-making of those tasked to
exercise Presidential, Legislative and Judicial power. This is not
the situation in the instant case.[xxix] (Emphasis and underscoring
supplied)
X x x.
While the validity of claims of privilege must be assessed on a case to case basis,
examining the ground invoked therefor and the particular circumstances surrounding it,
there is, in an implied claim of privilege, a defect that renders it invalid per se. By its
very nature, and as demonstrated by the letter of respondent Executive Secretary
quoted above, the implied claim authorized by Section 3 of E.O. 464 is not
accompanied by any specific allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic secrets, closed-door Cabinet
meetings, etc.). While Section 2(a) enumerates the types of information that are
covered by the privilege under the challenged order, Congress is left to speculate as to
which among them is being referred to by the executive. The enumeration is not even
intended to be comprehensive, but a mere statement of what is included in the phrase
“confidential or classified information between the President and the public officers
covered by this executive order.”
Certainly, Congress has the right to know why the executive considers
the requested information privileged. It does not suffice to merely declare that the President,
or an authorized head of office, has determined that it is so, and that the President has not
overturned that determination. Such declaration leaves Congress in the dark on how the
requested information could be classified as privileged. That the message is couched in
terms that, on first impression, do not seem like a claim of privilege only makes it more
pernicious. It threatens to make Congress doubly blind to the question of why the executive
branch is not providing it with the information that it has requested.
A claim of privilege, being a claim of exemption from an obligation to disclose information,

must, therefore, be clearly asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted by

it; it can neither be claimed nor waived by a private party. It is not
to be lightly invoked. There must be a formal claim of privilege,
lodged by the head of the department which has control over the
matter, after actual personal consideration by that officer. The
court itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so without forcing
a disclosure of the very thing the privilege is designed to protect.

[xxx] (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive privilege, there is no
way of determining whether it falls under one of the traditional privileges, or whether, given
the circumstances in which it is made, it should be respected.[xxxi] These, in substance,
were the same criteria in assessing the claim of privilege asserted against the Ombudsman
in Almonte v. Vasquez[xxxii] and, more in point, against a committee of the Senate in Senate
Select Committee on Presidential Campaign Activities v. Nixon.[xxxiii]
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential

harm resulting from disclosure impossible, thereby preventing the
Court from balancing such harm against plaintiffs’ needs to
determine whether to override any claims of privilege.
[xxxiv] (Underscoring supplied)
And so is U.S. v. Article of Drug:[xxxv]
On the present state of the record, this Court is not called upon to
perform this balancing operation. In stating its objection to
claimant’s interrogatories, government asserts, and nothing
more, that the disclosures sought by claimant would inhibit
the free expression of opinion that non-disclosure is designed
to protect. The government has not shown – nor even alleged –
that those who evaluated claimant’s product were involved in
i n t e r n a l p o l i c y m a k i n g , g e n e r a l l y, o r i n t h i s p a r t i c u l a r
instance. Privilege cannot be set up by an unsupported
claim. The facts upon which the privilege is based must be
established. To find these interrogatories objectionable, this Court
would have to assume that the evaluation and classification of
claimant’s products was a matter of internal policy formulation, an
assumption in which this Court is unwilling to indulge sua sponte.
[xxxvi] (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy[xxxvii] similarly emphasizes that “an agency must
provide ‘precise and certain’ reasons for preserving the confidentiality of requested
information.”
Black v. Sheraton Corp. of America[xxxviii] amplifies, thus:
A formal and proper claim of executive privilege requires a specific

designation and description of the documents within its scope as
well as precise and certain reasons for preserving their
confidentiality. Without this specificity, it is impossible for a court
to analyze the claim short of disclosure of the very thing sought to
be protected. As the affidavit now stands, the Court has little more
than its sua sponte speculation with which to weigh the
applicability of the claim. An improperly asserted claim of
privilege is no claim of privilege. Therefore, despite the fact that
a claim was made by the proper executive
as Reynolds requires, the Court can not recognize the claim in the
instant case because it is legally insufficient to allow the Court to
make a just and reasonable determination as to its applicability. To
recognize such a broad claim in which the Defendant has
given no precise or compelling reasons to shield these
documents from outside scrutiny, would make a farce of the
whole procedure.[xxxix] (Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no less than a claim
of privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v.
U.S:[xl]
We think the Court’s decision in United States v. Bryan, 339 U.S.

323, 70 S. Ct. 724, is highly relevant to these questions. For it is as
true here as it was there, that ‘if (petitioner) had legitimate reasons
for failing to produce the records of the association, a decent
respect for the House of Representatives, by whose authority
the subpoenas issued, would have required that (he) state (his)
reasons for noncompliance upon the return of the writ. Such a
statement would have given the Subcommittee an opportunity to

avoid the blocking of its inquiry by taking other appropriate steps
to obtain the records. ‘To deny the Committee the opportunity
to consider the objection or remedy is in itself a contempt of
its authority and an obstruction of its processes. His failure to
make any such statement was “a patent evasion of the duty of one
summoned to produce papers before a congressional committee[,
and] cannot be condoned.” (Emphasis and underscoring supplied;
citations omitted)
Upon the other hand, Congress must not require the executive to state the reasons for the
claim with such particularity as to compel disclosure of the information which the privilege is
meant to protect.[xli] A useful analogy in determining the requisite degree of particularity
would be the privilege against self-incrimination. Thus, Hoffman v. U.S.[xlii] declares:
The witness is not exonerated from answering merely because he

declares that in so doing he would incriminate himself – his say-so
does not of itself establish the hazard of incrimination. It is for
the court to say whether his silence is justified, and to require
him to answer if ‘it clearly appears to the court that he is
mistaken.’ However, if the witness, upon interposing his claim,
were required to prove the hazard in the sense in which a claim is
usually required to be established in court, he would be compelled
to surrender the very protection which the privilege is designed to
guarantee. To sustain the privilege, it need only be evident from
the implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous
because injurious disclosure could result.” x x x (Emphasis and
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is
thus invalid per se. It is not asserted. It is merely implied. Instead of providing precise
and certain reasons for the claim, it merely invokes E.O. 464, coupled with an
announcement that the President has not given her consent. It is woefully insufficient
for Congress to determine whether the withholding of information is justified under the
circumstances of each case. It severely frustrates the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides

guidelines, binding only on the heads of office mentioned in Section 2(b), on what is covered
by executive privilege. It does not purport to be conclusive on the other branches of
government. It may thus be construed as a mere expression of opinion by the President
regarding the nature and scope of executive privilege.
Petitioners, however, assert as another ground for invalidating the challenged order
the alleged unlawful delegation of authority to the heads of offices in Section
2(b). Petitioner Senate of the Philippines, in particular, cites the case of the United States
where, so it claims, only the President can assert executive privilege to withhold information
from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines
that a certain information is privileged, such determination is presumed to bear the
President’s authority and has the effect of prohibiting the official from appearing before
Congress, subject only to the express pronouncement of the President that it is allowing the
appearance of such official. These provisions thus allow the President to authorize claims of
privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional

nature of the privilege. Executive privilege, as already discussed, is recognized with
respect to information the confidential nature of which is crucial to the fulfillment of the
unique role and responsibilities of the executive branch,[xliii] or in those instances
where exemption from disclosure is necessary to the discharge of highly
important executive responsibilities.[xliv] The doctrine of executive privilege is thus
premised on the fact that certain informations must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The privilege being, by definition, an
exemption from the obligation to disclose information, in this case to Congress, the
necessity must be of such high degree as to outweigh the public interest in enforcing
that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential
to limit to the President the power to invoke the privilege. She may of course authorize the
Executive Secretary to invoke the privilege on her behalf, in which case the Executive
Secretary must state that the authority is “By order of the President,” which means that he
personally consulted with her. The privilege being an extraordinary power, it must be
wielded only by the highest official in the executive hierarchy. In other words, the
President may not authorize her subordinates to exercise such power. There is even
less reason to uphold such authorization in the instant case where the authorization is
not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on
this score.
It follows, therefore, that when an official is being summoned by Congress on a

matter which, in his own judgment, might be covered by executive privilege, he must be
afforded reasonable time to inform the President or the Executive Secretary of the
possible need for invoking the privilege. This is necessary in order to provide the President
or the Executive Secretary with fair opportunity to consider whether the matter indeed calls
for a claim of executive privilege. If, after the lapse of that reasonable time, neither the
President nor the Executive Secretary invokes the privilege, Congress is no longer bound to
respect the failure of the official to appear before Congress and may then opt to avail of the
necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for requiring officials to secure the
consent of the President under Section 3 of E.O. 464 is to ensure “respect for the rights of
public officials appearing in inquiries in aid of legislation.” That such rights must indeed be
respected by Congress is an echo from Article VI Section 21 of the Constitution mandating
that “[t]he rights of persons appearing in or affected by such inquiries shall be respected.”
In light of the above discussion of Section 3, it is clear that it is essentially an authorization

for implied claims of executive privilege, for which reason it must be invalidated. That such
authorization is partly motivated by the need to ensure respect for such officials does not
change the infirm nature of the authorization itself.
Right to Information
xxxxx.
There are, it bears noting, clear distinctions between the right of Congress to
information which underlies the power of inquiry and the right of the people to information on
matters of public concern. For one, the demand of a citizen for the production of documents
pursuant to his right to information does not have the same obligatory force as a subpoena
duces tecum issued by Congress. Neither does the right to information grant a citizen the
power to exact testimony from government officials. These powers belong only to Congress
and not to an individual citizen.
X x x.
To the extent that investigations in aid of legislation are generally conducted in public,
however, any executive issuance tending to unduly limit disclosures of information in such
investigations necessarily deprives the people of information which, being presumed to be in
aid of legislation, is presumed to be a matter of public concern. The citizens are thereby
denied access to information which they can use in formulating their own opinions on the
matter before Congress — opinions which they can then communicate to their
representatives and other government officials through the various legal means allowed by
their freedom of expression. Thus holds Valmonte v. Belmonte:
It is in the interest of the State that the channels for

free political discussion be maintained to the end that the
government may perceive and be responsive to the people’s
will. Yet, this open dialogue can be effective only to the extent
that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the discussion are
aware of the issues and have access to information relating thereto
can such bear fruit.[xlv] (Emphasis and underscoring supplied)
The impairment of the right of the people to information as a consequence of E.O.

464 is, therefore, in the sense explained above, just as direct as its violation of the
legislature’s power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it does not follow that the
same is exempt from the need for publication. On the need for publishing even those
statutes that do not directly apply to people in general, Tañada v. Tuvera states:
The term “laws” should refer to all laws and not only to those of
general application, for strictly speaking all laws relate to the
people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular
individual, like a relative of President Marcos who was decreed
instant naturalization. It surely cannot be said that such a law
does not affect the public although it unquestionably does not
apply directly to all the people. The subject of such law is a
matter of public interest which any member of the body politic
may question in the political forums or, if he is a proper party,
even in courts of justice.[xlvi] (Emphasis and underscoring
supplied)
Although the above statement was made in reference to statutes, logic dictates that the
challenged order must be covered by the publication requirement. As explained above, E.O.
464 has a direct effect on the right of the people to information on matters of public
concern. It is, therefore, a matter of public interest which members of the body politic may
question before this Court. Due process thus requires that the people should have been
apprised of this issuance before it was implemented.
X x x.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order

No. 464 (series of 2005), “ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION
OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR
THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF
LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES,” are
declared VOID. Sections 1 and 2(a) are, however, VALID.
SO ORDERED.
DEPARTMENT OF FOREIGN AFFAIRS, petitioner, vs. BCA INTERNATIONAL

CORPORATION, respondent. [G.R. No. 210858. June 29, 2016.]
The Issues
DFA raises the following issues in this petition: (1) the 1976 UNCITRAL Arbitration Rules and
the Rules of Court apply to the present arbitration proceedings, not RA 9285 and the Special
ADR Rules; and (2) the witnesses presented during the 14, 16, and 17 October 2013 hearings
before the ad hoc arbitral tribunal are prohibited from disclosing information on the basis of
the deliberative process privilege.
The Ruling of the Court
We partially grant the petition.
Arbitration is deemed a special proceeding 13 and governed by the special provisions of RA

9285, its IRR, and the Special ADR Rules. 14 RA 9285 is the general law applicable to all
matters and controversies to be resolved through alternative dispute resolution
methods. 15 While enacted only in 2004, we held that RA 9285 applies to pending arbitration
proceedings since it is a procedural law, which has retroactive effect:
While RA 9285 was passed only in 2004, it nonetheless applies in the instant case since it is
a procedural law which has a retroactive effect. Likewise, KOGIES filed its application for
arbitration before the KCAB on July 1, 1998 and it is still pending because no arbitral award
has yet been rendered. Thus, RA 9285 is applicable to the instant case. Well-settled is the
rule that procedural laws are construed to be applicable to actions pending and
undetermined at the time of their passage, and are deemed retroactive in that sense and to
that extent. As a general rule, the retroactive application of procedural laws does not violate
any personal rights because no vested right has yet attached nor arisen from
them. 16 (Emphasis supplied)
The IRR of RA 9285 reiterate that RA 9285 is procedural in character and applicable to all
pending arbitration proceedings. 17 Consistent with Article 2046 of the Civil Code, 18 the
Special ADR Rules were formulated and were also applied to all pending arbitration
proceedings covered by RA 9285, provided no vested rights are impaired. 19 Thus, contrary
to DFA's contention, RA 9285, its IRR, and the Special ADR Rules are applicable to the
present arbitration proceeding. The arbitration between the DFA and BCA is still pending,
since no arbitral award has yet been rendered. Moreover, DFA did not allege any vested
rights impaired by the application of those procedural rules.
RA 9285, its IRR, and the Special ADR Rules provide that any party to an arbitration, whether
domestic or foreign, may request the court to provide assistance in taking evidence such as
the issuance of subpoena ad testificandum and subpoena duces tecum. 20 The Special ADR
Rules specifically provide that they shall apply to assistance in taking evidence, 21 and the
RTC order granting assistance in taking evidence shall be immediately executory and not
subject to reconsideration or appeal. 22 An appeal with the Court of Appeals (CA) is only
possible where the RTC denied a petition for assistance in taking evidence. 23 An appeal to
the Supreme Court from the CA is allowed only under any of the grounds specified in the
Special ADR Rules. 24 We rule that the DFA failed to follow the procedure and the hierarchy
of courts provided in RA 9285, its IRR, and the Special ADR Rules, when DFA directly
appealed before this Court the RTC Resolution and Orders granting assistance in taking
evidence. SDHTEC
DFA contends that the RTC issued the subpoenas on the premise that RA 9285 and the
Special ADR Rules apply to this case. However, we find that even without applying RA 9285
and the Special ADR Rules, the RTC still has the authority to issue the subpoenas to assist
the parties in taking evidence.
The 1976 UNCITRAL Arbitration Rules, agreed upon by the parties to govern them, state that
the "arbitral tribunal shall apply the law designated by the parties as applicable to the
substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall
apply the law determined by the conflict of laws rules which it considers
applicable." 25 Established in this jurisdiction is the rule that the law of the place where the
contract is made governs, or lex loci contractus. 26 Since there is no law designated by the
parties as applicable and the Agreement was perfected in the Philippines, "The Arbitration
Law," or Republic Act No. 876 (RA 876), applies.
RA 876 empowered arbitrators to subpoena witnesses and documents when the materiality
of the testimony has been demonstrated to them. 27 In Transfield Philippines, Inc. v. Luzon
Hydro Corporation, 28 we held that Section 14 of RA 876 recognizes the right of any party to
petition the court to take measures to safeguard and/or conserve any matter which is the
subject of the dispute in arbitration.
Considering that this petition was not filed in accordance with RA 9285, the Special ADR
Rules and 1976 UNCITRAL Arbitration Rules, this petition should normally be denied.
However, we have held time and again that the ends of justice are better served when cases
are determined on the merits after all parties are given full opportunity to ventilate their
causes and defenses rather than on technicality or some procedural imperfections. 29 More
importantly, this case is one of first impression involving the production of evidence in an
arbitration case where the deliberative process privilege is invoked.
Thus, DFA insists that we determine whether the evidence sought to be subpoenaed is
covered by the deliberative process privilege. DFA contends that the RTC erred in holding
that the deliberative process privilege is no longer applicable in this case. According to the
RTC, based on Chavez v. Public Estates Authority, 30 "acts, transactions or decisions are
privileged only before a definite proposition is reached by the agency," and since, in this
case, DFA not only made "a definite proposition" but already entered into a contract then the
evidence sought to be produced is no longer privileged. 31
We have held in Chavez v. Public Estates Authority 32 that:
Information, however, on on-going evaluation or review of bids or proposals being

undertaken by the bidding or review committee is not immediately accessible under the right
to information. While the evaluation or review is still on-going, there are no "official acts,
transactions, or decisions" on the bids or proposals. However, once the committee makes
its official recommendation, there arises a "definite proposition" on the part of the
government. From this moment, the public's right to information attaches, and any citizen
can access all the non-proprietary information leading to such definite proposition.
xxx xxx xxx
The right to information, however, does not extend to matters recognized as privileged
information under the separation of powers. The right does not also apply to information on
military and diplomatic secrets, information affecting national security, and information on
investigations of crimes by law enforcement agencies before the prosecution of the accused,
which courts have long recognized as confidential. The right may also be subject to other
limitations that Congress may impose by law.
There is no claim by PEA that the information demanded by petitioner is privileged

information rooted in the separation of powers. The information does not cover Presidential
conversations, correspondences, or discussions during closed-door Cabinet meetings
which, like internal deliberations of the Supreme Court and other collegiate courts, or
executive sessions of either house of Congress, are recognized as confidential. This kind of
information cannot be pried open by a co-equal branch of government. A frank exchange of
exploratory ideas and assessments, free from the glare of publicity and pressure by
interested parties, is essential to protect the independence of decision-making of those
tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the
instant case.
We rule, therefore, that the constitutional right to information includes official information
on on-going negotiations before a final contract. The information, however, must constitute
definite propositions by the government and should not cover recognized exceptions
like privileged information, military and diplomatic secrets and similar matters affecting
national security and public order. Congress has also prescribed other limitations on the right
to information in several legislations. (Emphasis supplied) AScHCD
Contrary to the RTC's ruling, there is nothing in our Chavez v. Public Estates

Authority 33 ruling which states that once a "definite proposition" is reached by an agency,
the privileged character of a document no longer exists. On the other hand, we hold that
before a "definite proposition" is reached by an agency, there are no "official acts,
transactions, or decisions" yet which can be accessed by the public under the right to
information. Only when there is an official recommendation can a "definite proposition" arise
and, accordingly, the public's right to information attaches. However, this right to information
has certain limitations and does not cover privileged information to protect the independence
of decision-making by the government.
Chavez v. Public Estates Authority 34 expressly and unequivocally states that the right to
information "should not cover recognized exceptions like privileged information, military and
diplomatic secrets and similar matters affecting national security and public order."
Clearly, Chavez v. Public Estates Authority 35 expressly mandates that "privileged
information" should be outside the scope of the constitutional right to information, just like
military and diplomatic secrets and similar matters affecting national security and public
order. In these exceptional cases, even the occurrence of a "definite proposition" will not give
rise to the public's right to information.
Deliberative process privilege is one kind of privileged information, which is within the

exceptions of the constitutional right to information. In In Re: Production of Court Records
and Documents and the Attendance of Court Officials and Employees as Witnesses, 36 we
held that:
Court deliberations are traditionally recognized as privileged communication. Section 2, Rule

10 of the IRSC provides:
Section 2. Confidentiality of court sessions. — Court sessions are executive in character,

with only the Members of the Court present. Court deliberations are confidential and shall not
be disclosed to outside parties, except as may be provided herein or as authorized by the
Court.
Justice Abad discussed the rationale for the rule in his concurring opinion to the Court
Resolution in Arroyo v. De Lima (TRO on Watch List Order case): the rules on confidentiality
will enable the Members of the Court to "freely discuss the issues without fear of criticism for
holding unpopular positions" or fear of humiliation for one's comments. The privilege against
disclosure of these kinds of information/communication is known
as deliberative process privilege, involving as it does the deliberative process of reaching a
decision. "Written advice from a variety of individuals is an important element of the
government's decision-making process and that the interchange of advice could be stifled if
courts forced the government to disclose those recommendations;" the privilege is intended
"to prevent the 'chilling' of deliberative communications."
The privilege is not exclusive to the Judiciary. We have in passing recognized the claim of
this privilege by the two other branches of government in Chavez v. Public Estates
Authority (speaking through J. Carpio) when the Court declared that —
[t]he information . . . like internal deliberations of the Supreme Court and other collegiate
courts, or executive sessions of either house of Congress, are recognized as confidential.
This kind of information cannot be pried open by a co-equal branch of government. A frank
exchange of exploratory ideas and assessments, free from the glare of publicity and pressure
by interested parties, is essential to protect the independence of decision-making of those
tasked to exercise Presidential, Legislative and Judicial power. (Emphasis supplied)
In Akbayan v. Aquino, 37 we adopted the ruling of the U.S. Supreme Court in NLRB v. Sears,
Roebuck & Co, 38 which stated that the deliberative process privilege protects from
disclosure "advisory opinions, recommendations, and deliberations comprising part of
a process by which governmental decisions and policies are formulated." We explained that
"[w]ritten advice from a variety of individuals is an important element of the government's
decision-making process and that the interchange of advice could be stifled if courts forced
the government to disclose those recommendations"; thus, the privilege is intended "to
prevent the 'chilling' of deliberative communications." 39
The privileged character of the information does not end when an agency has adopted a
definite proposition or when a contract has been perfected or consummated; otherwise, the
purpose of the privilege will be defeated.
The deliberative process privilege applies if its purpose is served, that is, "to protect the
frank exchange of ideas and opinions critical to the government's
decision[-]making process where disclosure would discourage such discussion in the
future." 40 In Judicial Watch of Florida v. Department of Justice, 41 the U.S. District Court for
the District of Columbia held that the deliberative process privilege's "ultimate purpose . . . is
to prevent injury to the quality of agency decisions by allowing government officials freedom
to debate alternative approaches in private," and this ultimate purpose would not be served
equally well by making the privilege temporary or held to have expired. In Gwich'in Steering
Comm. v. Office of the Governor, 42 the Supreme Court of Alaska held that communications
have not lost the privilege even when the decision that the documents preceded is finally
made. The Supreme Court of Alaska held that "the question is not whether the decision has
been implemented, or whether sufficient time has passed, but whether disclosure of these
preliminary proposals could harm the agency's future decision[-]making by chilling either the
submission of such proposals or their forthright consideration."
Traditionally, U.S. courts have established two fundamental requirements, both of which
must be met, for the deliberative process privilege to be invoked. 43 First, the
communication must be predecisional, i.e., "antecedent to the adoption of an agency
policy." Second, the communication must be deliberative, i.e., "a direct part of
the deliberative process in that it makes recommendations or expresses opinions on legal or
policy matters." It must reflect the "give-and-take of the consultative process." 44 The
Supreme Court of Colorado also took into account other considerations: AcICHD
Courts have also looked to other considerations in assessing whether material is

predecisional and deliberative. The function and significance of the document in the
agency's decision-making process are relevant. Documents representing the ideas and
theories that go into the making of policy, which are privileged, should be distinguished from
"binding agency opinions and interpretations" that are "retained and referred to as
precedent" and constitute the policy itself.
Furthermore, courts examine the identity and decision-making authority of the office or
person issuing the material. A document from a subordinate to a superior official is more
likely to be predecisional, "while a document moving in the opposite direction is more likely
to contain instructions to staff explaining the reasons for a decision already made."
Finally, in addition to assessing whether the material is predecisional and deliberative, and in

order to determine if disclosure of the material is likely to adversely affect the purposes of the
privilege, courts inquire whether "the document is so candid or personal in nature that public
disclosure is likely in the future to stifle honest and frank communication within the agency."
As a consequence, the deliberative process privilege typically covers recommendations,
advisory opinions, draft documents, proposals, suggestions, and other subjective documents
that reflect the personal opinions of the writer rather than the policy of the
agency. 45 (Emphasis supplied)
Thus, "[t]he deliberative process privilege exempts materials that are 'predecisional' and

'deliberative,' but requires disclosure of policy statements and final opinions 'that have the
force of law or explain actions that an agency has already taken.'" 46
In City of Colorado Springs v. White, 47 the Supreme Court of Colorado held that the outside
consultant's evaluation report of working environment and policies was covered by
the deliberative process privilege because the report contained observations on current
atmosphere and suggestions on how to improve the division rather than an expression of
final agency decision. In Strang v. Collyer, 48 the U.S. District Court for the District of
Columbia held that the meeting notes that reflect the exchange of opinions between agency
personnel or divisions of agency are covered by the deliberative process privilege because
they "reflect the agency's group thinking in the process of working out its policy" and are
part of the deliberative process in arriving at the final position. In Judicial Watch v.
Clinton, 49 the U.S. District Court for the District of Columbia held that handwritten notes
reflecting preliminary thoughts of agency personnel were properly withheld under
the deliberative process privilege. The U.S. District Court reasoned that "disclosure of this
type of deliberative material inhibits open debate and discussion, and has a chilling effect on
the free exchange of ideas."
This Court applied the deliberative process privilege in In Re: Production of Court Records

and Documents and the Attendance of Court Officials and Employees as Witnesses 50 and
found that court records which are "predecisional" and "deliberative" in nature — in
particular, documents and other communications which are part of or related to
the deliberative process, i.e., notes, drafts, research papers, internal discussions, internal
memoranda, records of internal deliberations, and similar papers — are protected and
cannot be the subject of a subpoena if judicial privilege is to be preserved. We further held
that this privilege is not exclusive to the Judiciary and cited our ruling in Chavez v. Public
Estates Authority. 51
The deliberative process privilege can also be invoked in arbitration proceedings under RA

9285.
"Deliberative process privilege contains three policy bases: first, the privilege protects candid

discussions within an agency; second, it prevents public confusion from premature
disclosure of agency opinions before the agency establishes final policy; and third, it protects
the integrity of an agency's decision; the public should not judge officials based on
information they considered prior to issuing their final decisions." 52 Stated differently, the
privilege serves "to assure that subordinates within an agency will feel free to provide the
decision[-]maker with their uninhibited opinions and recommendations without fear of later
being subject to public ridicule or criticism; to protect against premature disclosure of
proposed policies before they have been finally formulated or adopted; and to protect
against confusing the issues and misleading the public by dissemination of documents
suggesting reasons and rationales for a course of action which were not in fact the ultimate
reasons for the agency's action." 53
Under RA 9285, 54 orders of an arbitral tribunal are appealable to the courts. If an official is

compelled to testify before an arbitral tribunal and the order of an arbitral tribunal is appealed
to the courts, such official can be inhibited by fear of later being subject to public criticism,
preventing such official from making candid discussions within his or her agency. The
decision of the court is widely published, including details involving the privileged
information. This disclosure of privileged information can inhibit a public official from
expressing his or her candid opinion. Future quality of deliberative process can be impaired
by undue exposure of the decision-making process to public scrutiny after the court decision
is made.
Accordingly, a proceeding in the arbitral tribunal does not prevent the possibility of the
purpose of the privilege being defeated, if it is not allowed to be invoked. In the same
manner, the disclosure of an information covered by the deliberative process privilege to a
court arbitrator will defeat the policy bases and purpose of the privilege.
DFA did not waive the privilege in arbitration proceedings under the Agreement. The
Agreement does not provide for the waiver of the deliberative process privilege by DFA. The
Agreement only provides that:
Section 20.02 None of the parties shall, at any time, before or after the expiration or sooner
termination of this Amended BOT Agreement, without the consent of the other party, divulge
or suffer or permit its officers, employees, agents or contractors to divulge to any person,
other than any of its or their respective officers or employees who require the same to enable
them properly to carry out their duties, any of the contents of this Amended BOT Agreement
or any information relating to the negotiations concerning the operations, contracts,
commercial or financial arrangements or affair[s] of the other parties hereto. Documents
marked "CONFIDENTIAL" or the like, providing that such material shall be kept confidential,
and shall constitute prima facie evidence that such information contained therein is subject
to the terms of this provision.
Section 20.03 The restrictions imposed in Section 20.02 herein shall not apply to the
disclosure of any information:
xxx xxx xxx
C. To a court arbitrator or administrative tribunal the course of proceedings before it to which
the disclosing party is party; . . . 55 (Emphasis supplied)
Section 20.02 of the Agreement merely allows, with the consent of the other party, disclosure
by a party to a court arbitrator or administrative tribunal of the contents of the "Amended
BOT Agreement or any information relating to the negotiations concerning the operations,

contracts, commercial or financial arrangements or affair[s] of the other parties hereto." There
is no express waiver of information forming part of DFA's predecisional deliberative or
decision-making process. Section 20.02 does not state that a party to the arbitration is
compelled to disclose to the tribunal privileged information in such party's possession.
On the other hand, Section 20.03 merely allows a party, if it chooses, without the consent of
the other party, to disclose to the tribunal privileged information in such disclosing party's
possession. In short, a party can disclose privileged information in its possession, even
without the consent of the other party, if the disclosure is to a tribunal. However, a party
cannot be compelled by the other party to disclose privileged information to the tribunal,
where such privileged information is in its possession and not in the possession of the party
seeking the compulsory disclosure.
Nothing in Section 20.03 mandates compulsory disclosure of privileged information. Section

20.03 merely states that "the restrictions imposed in Section 20.02," referring to the "consent
of the other party," shall not apply to a disclosure of privileged information by a party in
possession of a privileged information. This is completely different from compelling a party to
disclose privileged information in its possession against its own will. ICHDca
Rights cannot be waived if it is contrary to law, public order, public policy, morals, or good
customs, or prejudicial to a third person with a right recognized by law. 56 There is a public
policy involved in a claim of deliberative process privilege — "the policy of open, frank
discussion between subordinate and chief concerning administrative action." 57 Thus,
the deliberative process privilege cannot be waived. As we have held in Akbayan v.
Aquino, 58 the deliberative process privilege is closely related to the presidential
communications privilege and protects the public disclosure of information that can
compromise the quality of agency decisions:
Closely related to the "presidential communications" privilege is

the deliberative process privilege recognized in the United States. As discussed by the U.S.
Supreme Court in NLRB v. Sears, Roebuck & Co, deliberative process covers documents
reflecting advisory opinions, recommendations and deliberations comprising part of
a process by which governmental decisions and policies are formulated. Notably, the
privileged status of such documents rests, not on the need to protect national security but,
on the "obvious realization that officials will not communicate candidly among themselves if
each remark is a potential item of discovery and front page news," the objective of the
privilege being to enhance the quality of agency decisions. (Emphasis supplied)
As a qualified privilege, the burden falls upon the government agency asserting
the deliberative process privilege to prove that the information in question satisfies both
requirements — predecisional and deliberative. 59 "The agency bears the burden of
establishing the character of the decision, the deliberative process involved, and the role
played by the documents in the course of that process." 60 It may be overcome upon a
showing that the discoverant's interests in disclosure of the materials outweigh the
government's interests in their confidentiality. 61 "The determination of need must be made
flexibly on a case-by-case, ad hoc basis," and the "factors relevant to this balancing include:
the relevance of the evidence, whether there is reason to believe the documents may shed
light on government misconduct, whether the information sought is available from other
sources and can be obtained without compromising the
government's deliberative processes, and the importance of the material to the discoverant's
case." 62
In the present case, considering that the RTC erred in applying our ruling in Chavez v. Public
Estates Authority, 63 and both BCA's and DFA's assertions of subpoena of evidence and
the deliberative process privilege are broad and lack specificity, we will not be able to
determine whether the evidence sought to be produced is covered by
the deliberative process privilege. The parties are directed to specify their claims before the
RTC and, thereafter, the RTC shall determine which evidence is covered by
the deliberative process privilege, if there is any, based on the standards provided in this
Decision. It is necessary to consider the circumstances surrounding the demand for the
evidence to determine whether or not its production is injurious to the consultative functions
of government that the privilege of non-disclosure protects. cDHAES
WHEREFORE, we resolve to PARTIALLY GRANT the petition and REMAND this case to the

Regional Trial Court of Makati City, Branch 146, to determine whether the documents and
records sought to be subpoenaed are protected by the deliberative process privilege as
explained in this Decision. The Resolution dated 2 April 2014 issuing a Temporary
Restraining Order is superseded by this Decision.
||| (Department of Foreign Affairs v. BCA International Corp., G.R. No. 210858, [June 29,
2016])
15. Expropration validty re private use
New expropriation law (https://business.inquirer.net/208827/new-expropriation-law)
By: Raul J. Palabrica - @inquirerdotnet
Philippine Daily Inquirer / 03:27 AM March 21, 2016
EXPROPRIATING private property for public use has been a pain in the neck for the
government, both national and local, due to ambiguities in the law and delays in the judicial
process.
To address these problems, President Aquino recently signed into law Republic Act No.
10752, or “The Right-of-Way Act,” which aimed to facilitate the acquisition of right-of-way
(ROW) site or location for national government infrastructure projects.
The law applies to all national government infrastructure projects and its public service
facilities, engineering works and service contracts, including those undertaken by
government-owned and -controlled corporations.
The government can acquire private real property for such projects through donation,
negotiated sale, expropriation and other modes of acquisition authorized by existing laws.
Since negotiated sales and expropriations are often contentious and result in delays, the law
states in detail the procedures to be followed by the government agency concerned and the
time frames that the courts should observe in resolving expropriation issues.
The idea is, time is of the essence in the acquisition of ROW sites so the process should be
completed as fast as possible without sacrificing the right to just compensation of property
owners.
Negotiated sale
Negotiated sale is the preferred mode in ROW acquisitions (unless the owner agrees to
donate the site) as it avoids going through the tedious process of expropriation.
In negotiating the purchase of a property, the government agency is required to offer

compensation to the owner in an amount equivalent to the sum of (a) current market value of
the land, (b) replacement cost of structures and improvements on it, and (c) current value of
planted crops and trees.
For this purpose, the agency may engage the services of a government financial institution
with adequate experience in property appraisal, or an independent property appraiser
accredited by the Bangko Sentral ng Pilipinas (BSP), or a professional association of
appraisers recognized by the BSP.
The property appraisal will enable the agency to make a reasonable offer to the owner and
the latter will have no reason to complain that he is being short-changed.
The owner has 30 days from receipt of the offer to buy his property whether or not to accept
it.
In an act of generosity, the law allows the payment of the replacement cost of structures and
improvements even if their owners “do not have legally recognized rights to the land” on
condition they are Filipino citizens, they do not own any real property or other housing facility
in any urban or rural area, and are not professional squatters or members of a squatting
syndicate, as defined in the Urban Development and Housing Act of 1992.
Payment terms
If the owner agrees to the sale, 50 percent of the agreed price of the land and 70 percent of
the price of the structures, improvements, crops and trees (in both cases exclusive of unpaid
real estate taxes) shall be paid by the agency upon the signing of the deed of sale.
The balance of 50 percent for the land and 30 percent for the structures and improvements
shall be paid when the title to the land has been transferred to the Republic of the Philippines
and the land is completely cleared of structures, improvements, crops and trees.
To sweeten the pot in negotiated sales, the capital gains tax payable from the sale of the land
and its improvements (which under existing laws is the seller’s obligation), shall be paid by
the agency for the account of the seller.
However, in case the owner refuses or fails to accept the offer of negotiated sale within the
30-day period, the agency shall institute expropriation proceedings.
Unlike before when expropriation cases can be filed only by the Solicitor General or
Government Corporate Counsel, this time the action can be instituted by, in addition to these
offices, any government or private legal counsel that they may deputize for that purpose.
Possession
Upon the filing of the expropriation complaint and the owner is notified of that action, the
agency shall immediately deposit with the court in favor of the owner the amount equivalent
to the sum of:
100 percent of the value of the land based on the current relevant zonal valuation of the
Bureau of Internal Revenue issued not more than three years prior to the filing of the
complaint
Replacement cost at current market value of the improvements and structures as determined
by the agency, a government financial institution with experience in property appraisal, and
an independent property appraisal accredited by the BSP.
Current market value of crops and trees located in the land as determined by a government
financial institution or an independent property appraiser.
Once payment is made, the court is required to immediately issue an order to the agency to
take possession of the land and start the implementation of the project.
If the writ is not issued within seven working days after payment has been deposited in court,
the agency’s lawyer can file a motion for the issuance of the writ, and the court is obliged to
issue it ex parte, or even without a hearing.
Anticipating that the owner may not accept the deposited payment, the law obliges the court
to determine the just compensation to be paid to the owner within 60 days from the date of
the filing of the expropriation case.
The difference between the deposited payment and just compensation adjudged by the court
has to be paid by the agency as soon as the court’s decision becomes final.
Hopefully, the new terms of payment and judicial procedures prescribed by the law will result
in the faster implementation of the government’s infrastructure projects.
REPUBLIC ACT No. 10752
AN ACT FACILITATING THE ACQUISITION OF RIGHT-OF-WAY SITE OR LOCATION FOR

NATIONAL GOVERNMENT INFRASTRUCTURE PROJECTS
Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled:
SECTION 1. Short Title. – This Act shall be known as “The Right-of-Way Act”.
SECTION 2. Declaration of Policy. – Article III, Section 9 of the Constitution states that
private property shall not be taken for public use without just compensation. Towards this
end, the State shall ensure that owners of real property acquired for national government
infrastructure projects are promptly paid just compensation for the expeditious acquisition of
the required right-of-way for the projects.
SECTION 3. National Government Projects. – As used in this Act, the term “national
government projects” shall refer to all national government infrastructure projects and its
public service facilities, engineering works and service contracts, including projects
undertaken by government-owned and -controlled corporations, all projects covered by
Republic Act No. 6957, as amended by Republic Act No. 7718, otherwise known as the
“Build-Operate-and-Transfer Law”, and other related and necessary activities, such as site
acquisition, supply or installation of equipment and materials, implementation, construction,
completion, operation, maintenance, improvement, repair and rehabilitation, regardless of the
source of funding. Subject to the provisions of Republic Act No. 7160, otherwise known as
the “Local Government Code of 1991”, local government units (LGUs) may also adopt the
provisions of this Act for use in the acquisition of right-of-way for local government
infrastructure projects.
SECTION 4. Modes of Acquiring Real Property. – The government may acquire real property
needed as right-of-way site or location for any national government infrastructure project
through donation, negotiated sale, expropriation, or any other mode of acquisition as
provided by law.
In case of lands granted through Commonwealth Act No. 141, as amended, otherwise known
as “The Public Land Act”, the implementing agency shall:
(a) Follow the other modes of acquisition enumerated in this Act, if the landowner is not the
original patent holder and any previous acquisition of said land is not through a gratuitous
title; or
(b) Follow the provisions under Commonwealth Act No. 141, as amended, regarding
acquisition of right-of-way on patent lands, if the landowner is the original patent holder or
the acquisition of the land from the original patent holder is through a gratuitous title.
The implementing agency may utilize donation or similar mode of acquisition if the landowner
is a government-owned or government-controlled corporation.
When it is necessary to build, construct, or install on the subsurface or subterranean portion

of private and government lands owned, occupied, or leased by other persons, such
infrastructure as subways, tunnels, underpasses, waterways, floodways, or utility facilities as
part of the government’s infrastructure and development project, the government or any of
its authorized representatives shall not be prevented from entry into and use of the
subsurface or subterranean portions of such private and government lands by surface
owners or occupants, if such entry and use are made more than fifty (50) meters from the
surface.
SECTION 5. Rules on Negotiated Sale. – The implementing agency may offer to acquire,
through negotiate sale, the right-of-way site or location for a national government
infrastructure project, under the following rules.
(a) The implementing agency shall offer to the property owner concerned, as compensation
price, the sum of:
(1) The current market value of the land,
(2) The replacement cost of structures and improvements therein; and
(3) The current market value of crops and trees therein.
To determine the appropriate price offer, the implementing agency may engage the services
of a government financial institution with adequate experience in property appraisal, or an
independent property appraiser accredited by the Bangko Sentral ng Pilipinas (BSP) or a
professional association of appraisers recognized by the BSP to be procured by the
implementing under the provisions of Republic Act No. 9184, otherwise known as the
“Government Procurement Reform Act” and its implementing rules and regulations pertaining
to consulting services.
If the property owner does not accept the price offer, the implementing agency shall initiate
expropriation proceedings pursuant to Section 6 hereof.
The property owner is given thirty (30) days to decide whether or not to accept the offer as
payment for his property. Upon refusal or failure of the property owner to accept such offer or
fails anchor refuses to submit the documents necessary for payments, the implementing
agency shall immediately initiate expropriation proceedings as provided in Section 6 herein.
(b) Subparagraph (a)(2) of Section 5 hereof shall also apply to all owners of structures and
improvements who do not have legally recognized rights to the land, and who meet all of the
following criteria:
(1) Must be a Filipino citizen;
(2) Must not own any real property or any other housing facility, whether in an urban or rural
area; and
(3) Must not be a professional squatter or a member of a squatting syndicate, as defined in

Republic Act No. 7279, otherwise known as the “Urban Development and Housing Act of
1992”.
(c) With regard to the taxes and fees relative to the transfer of title of the property to the
Republic of the Philippines through negotiated sale, the implementing agency shall pay, for
the account of the seller, the capital gains tax, as well as the documentary stamp tax,
transfer tax and registration fees, while the owner shall pay any unpaid real property tax.
(d) If requested by the property owner, the implementing agency shall remit to the LGU
concerned the amount corresponding to any unpaid real property tax, subject to the
deduction of this amount from the total negotiated price. Provided, however, That the said
amount is not more than the negotiated price.
(e) The property owner and the implementing agency shall execute a deed of absolute sale:
Provided, That the property owner has submitted to the implementing agency the Transfer
Certificate of Title, Tax Declaration, Real Property Tax Certificate, and other documents
necessary to transfer the title to the Republic of the Philippines. The implementing agency
shall cause the annotation of the deed of absolute sale on the Transfer Certificate of Title.
(f) Upon the execution of a deed of sale, the implementing agency shall pay the property
owner:
(1) Fifty percent (50%) of the negotiated price of the affected land, exclusive of taxes
remitted to the LGU concerned under subparagraph (d) herein; and
(2) Seventy percent (70%) of the negotiated price of the affected structures, improvements,
crops and trees, exclusive of unpaid taxes remitted to the LGU concerned under
subparagraph (d) herein.
(g) The implementing agency shall, at the times stated hereunder, pay the property owner the
remaining fifty percent (50%) of the negotiated price of the affected land, and thirty percent
(30%) of the affected structures, improvements, crops and trees, exclusive of unpaid taxes
remitted to the LGU concerned under subparagraph (d) herein: Provided, That the land is
already completely cleared of structures, improvements, crops and trees.
(1) At the time of the transfer of title in the name of the Republic of the Philippines, in cases
where the land is wholly affected; or
(2) At the time of the annotation of a deed of sale on the title, in cases where the land is
partially affected.
The provisions of subparagraph (a) herein shall also apply to outstanding claims for right-of-
way payments, except that the amount to be offered shah be the price at the time of taking
of the property, including legal interest until fully paid.
SECTION 6. Guidelines for Expropriation Proceedings. – Whenever it is necessary to acquire

real property for the right-of-way site or location for any national government infrastructure
through expropriation, the appropriate implementing agency, through the Office of the
Solicitor General, the Office of the Government Corporate Counsel, or their deputize
government or private legal counsel, shall immediately initiate the expropriation proceedings
before the proper court under the following guidelines:
(a) Upon the filing of the complaint or at any time thereafter, and after due notice to the
defendant, the implementing agency shall immediately deposit to the court in favor of the
owner the amount equivalent to the sum of:
(1) One hundred percent (100%) of the value of the land based on the current relevant zonal
valuation of the Bureau of Internal Revenue (BIR) issued not more than three (3) years prior to
the filing of the expropriation complaint subject to subparagraph (c) of this section;
(2) The replacement cost at current market value of the improvements and structures as
determined by:
(i) The implementing agency;
(ii) A government financial institution with adequate experience in property appraisal; and
(iii) An independent property appraiser accredited by the BSP.
(3) The current market value of crops and trees located within the property as determined by
a government financial institution or an independent property appraiser to be selected as
indicated in subparagraph (a) of Section 5 hereof.
Upon compliance with the guidelines abovementioned, the court shall immediately issue to
the implementing agency an order to take possession of the property and start the
implementation of the project.
If, within seven (7) working days after the deposit to the court of the amount equivalent to the
sum under subparagraphs (a)(1) to (a)(3) of this section, the court has not issued to the
implementing agency a writ of possession for the affected property, the counsel of the
implementing agency shall immediately seek from the court the issuance of the writ of
possession. The court shall issue the writ of possession ex parte; no hearing shall be
required.
The court shall release the amount to the owner upon presentation of sufficient proofs of
ownership.
(b) In case the owner of the property cannot be found, if unknown, or deceased in cases
where the estate has not been settled, after exerting due diligence, or there are conflicting
claims over the ownership of the property and improvements and structures thereon, the
implementing agency shall deposit the amount equivalent to the sum under subparagraphs
(a)(1) to (a)(3) of this section to the court for the benefit of the person to be adjudged in the
same proceeding as entitled thereto.
Upon compliance with the guidelines abovementioned, the court shall immediately issue to
the implementing agency an order to take possession of the property and start the
implementation of the project.
If, within seven (7) working days after the deposit to the court of the amount equivalent to the
sum under subparagraphs (a)(1) to (a)(3) of this section, the court has not issued to the
implementing agency a writ of possession for the affected property, counsel of the
implementing agency shall immediately seek from the court the issuance of the writ of
possession.
The court shall release the amount to the person adjudged same expropriation proceeding as
entitled thereto.1awp++i1
(c) In provinces, cities, municipalities, and other areas where there is no land classification,
the city or municipal assessor is hereby mandated, within the period of sixty (60) days from
the date of filing of the expropriation case, to come up with the required land classification
and the corresponding declaration of real property and improvement for the area. In
provinces, cities, municipalities, and other areas where there is no zonal valuation, or where
the current zonal valuation has been in force for more than three (3) years, the BIR is
mandated, within the period of sixty (60) days from the date of filing of the expropriation
case, to conduct a zonal valuation of the area, based on the land classification done by the
city or municipal assessor.
(d) With reference to subparagraph (a)( 1) of this section, in case the completion of a
government infrastructure project is of utmost urgency and importance, and there is no land
classification or no existing zonal valuation of the area concerned or the zonal valuation has
been in force for more than three (3) years, the implementing agency shall use the BIR zonal
value and land classification of similar lands within the adjacent vicinity as the basis for the
valuation.
(e) In any of the cases in subparagraphs (a) to (d) of this section, upon its receipt of the writ
of possession issued by the court, the implementing agency may take possession of the
property and start the implementation of the project.
(f) In the event that the owner of the property contests the implementing agency’s proffered
value, the court shall determine the just compensation to be paid the owner within sixty (60)
days from the date of filing of the expropriation case. When the decision of the court
becomes final and executory, the implementing agency shall pay the owner the difference
between the amount already paid and the just compensation as determined by the court.
(g) With regard to the taxes and fees relative to the transfer of title of the property to the
Republic of the Philippines through expropriation proceedings, the implementing agency
shall pay the documentary stamp tax, transfer tax and registration fees, while the owner shall
pay the capital gains tax and any unpaid real property tax.
SECTION 7. Standards for the Assessment of the Value of the Property Subject to
Negotiated Sale. – In order to facilitate the determination of the market value of the property,
the following relevant standards shall be observed:
(a) The classification and use for which the property is suited;
(b) The development cost for improving the land,
(c) The value declared by the owners;
(d) The current selling price of similar lands in the vicinity,
(e) The reasonable disturbance compensation for the removal and demolition of certain
improvements on the land and for the value of improvements thereon;
(f) The size, shape or location, tax declaration and zonal valuation of the land;
(g) The price of the land as manifested in the ocular findings, oral as well as documentary
evidence presented; and
(h) Such facts and events as to enable the affected property owners to have sufficient funds
to acquire similarly situated lands of approximate areas as those required from them by the
government, and thereby rehabilitate themselves as early as possible.
The implementing rules and regulations (IRR) to be prepared under Section 13 hereof shall
include, among other things, the terms of reference which shall be used by the government
financial institutions and independent property appraisers in the determination of the market
value of the land. The terms of reference shall define in detail the standards stated herein.
SECTION 8. Ecological and Environmental Concerns. – In cases involving the acquisition of

right-of-way site or location for any national government infrastructure project, the
implementing agency shall take into account the ecological and environmental impact of the
project. Before any national government project could be undertaken, the implementing
agency shall consider environmental laws, land-use ordinances, and all pertinent provisions
of Republic Act No. 7160.
SECTION 9. Relocation of Informal Settlers. – The government, through the Housing and
Urban Development Coordinating Council (HUDGC) and the National Housing Authority
(NHA), in coordination with the LGUs and implementing agencies concerned, shall establish
and develop resettlement sites for informal settlers, including the provision of adequate basic
services and community facilities, in anticipation of informal settlers that have to be removed
from the right-of-way site or location of future infrastructure projects, pursuant to the
provisions of Republic Act No. 7279, otherwise known as the “Urban Development and
Housing Act of 1992”. Whenever applicable, the concerned LGUs shall provide and
administer the resettlement sites.
In case the expropriated land is occupied by informal settlers who refuse or are unable to
demolish their structures and other improvements therein despite the writ of possession
issued by the court under Section 6 hereof, the court shall issue the necessary writ of
demolition for the purpose of dismantling any and all structures found within the subject
property. The implementing agency shall take into account and observe diligently the
procedure provided for in Sections 28 and 29 of Republic Act No. 7279.
SECTION 10. Appropriations for Acquisition of Right-Of-Way Site or Location for National
Government Infrastructure Projects in Advance of Project Implementation. – The government
shall provide adequate appropriations that will allow the concerned implementing agencies
to acquire the required right-of-way site or location for national government infrastructure
projects in advance of project implementation. These appropriations shall cover the funds
needed to cover the following expenses for activities directly related to right-of-way
acquisition for the projects as provided in this Act:
(a) Cost of parcellary surveys and appraisal of properties affected by the projects;
(b) Compensation for the project-affected land, structures, improvements, crops and trees;
(c) Cost of development and implementation of resettlement projects covered by this Act,
including planning, social preparation, and other activities under the resettlement action plan;
and
(d) Related expenses of the implementing agency, including capital gains tax in the case of
negotiated sale under Section 5 hereof documentary stamp tax, transfer tax and registration
fees for the transfer of titles, and other relevant administrative expenses for right-of-way
management.
In public-private-partnership (PPP) projects, the modalities of which are defined in Republic

Act No. 6957 as amended by Republic Act No. 7718, the implementing agency may, as part
of the contract terms and conditions, require the project proponent to:
(1) Advance the funds covering the cost of the right-of-way which shall be reimbursed later
by the implementing agency, except for unsolicited proposals; or
(2) Finance the right-of-way cost which shah be recovered partly or fully by the proponent
from the tolls, fees, or tariffs to be charged to the users of the completed project.
SECTION 11. Regulation of Developments Within Declared Right-of-Way. – Upon the

approval of an infrastructure project by the head of the implementing agency concerned,
with funding authorized in the General Appropriations Act and with defined right-of-way, no
national government agency or LGU shall, within two (2) years from date of notice of taking,
allow any development or construction, or issue any building, construction, development, or
business permit, which is contrary to the approved plans and purposes of the project, within
the right-of-way, unless explicitly authorized by the head of the implementing agency for
justifiable reasons.
SECTION 12. Sanctions. – Violation of any provision of this Act shall subject the government
official or employee concerned to appropriate administrative, civil, or criminal sanctions,
including suspension or dismissal from the government service and forfeiture of benefits in
accordance with the provisions of the law.
SECTION 13. Implementing Rules and Regulations (IRR). – A committee shall prepare, in
consultation with key stakeholders, the IKE.1âwphi1 for the proper implementation of this Act
within sixty (60) days from its approval.
The committee shall be composed of the following officials or their duly designated
representatives:
(a) The Secretary of the Department of Public Works and Highways as Chairperson;
(b) The Secretary of the Department of Transportation and Communications as member;
(c) The Secretary of the Department of Energy as member;
(d) The Secretary of the Department of Justice as member;
(e) The Secretary of the Department of Budget and Management as member;
(f) The Director General of the National Economic and Development Authority as member;
(g) The Chairperson of the HUDCC as member; and
(h) Other representatives of concerned entities as determined by the committee as members.
SECTION 14. Transitory Clause. – The provisions of this Act shall apply to all right-of-way
transactions, except ongoing transactions which, as of the effectivity of this Act, have been
concluded satisfactorily by the parties concerned and who have signed a written agreement
as to the price to be paid to the property owner.
SECTION 15. Separability Clause. – If any provision of this Act is declared unconstitutional or

invalid, other parts or provisions hereof not affected thereby shall continue to be in full force
and effect.
SECTION 16. Repealing Clause. – Republic Act No. 8974 is hereby repealed and all other
laws, decrees, orders, rules and regulations or parts thereof inconsistent with this Act are
hereby repealed or amended accordingly.
SECTION 17. Effectivity. – This Act shall take effect fifteen (15) days after its publication in
the Official Gazette or in a newspaper of general circulation.
 
16. Non establishment of religion clause re governmnt property is used
RE: LETTER OF TONY Q. VALENCIANO, HOLDING OF RELIGIOUS RITUALS AT THE

HALL OF JUSTICE BUILDING IN QUEZON CITY [A.M. No. 10-4-19-SC. March 7, 2017.]
||| (Re: Tony Q. Valenciano, A.M. No. 10-4-19-SC (Resolution), [March 7, 2017], 806 PHIL
786-822)
ISSUE: WHETHER THE HOLDING OF MASSES AT THE BASEMENT OF THE QUEZON CITY

HALL OF JUSTICE VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF
CHURCH AND STATE AS WELL AS THE CONSTITUTIONAL PROHIBITION AGAINST
APPROPRIATION OF PUBLIC MONEY OR PROPERTY FOR THE BENEFIT OF ANY SECT,
CHURCH, DENOMINATION, SECTARIAN INSTITUTION, OR SYSTEM OF RELIGION.
The Court's Ruling
The Court agrees with the findings and recommendation of the OCA and denies the prayer of
Valenciano that the holding of religious rituals of any of the world's religions in the QC Hall of
Justice or any halls of justice all over the country be prohibited.
The Holding of Religious 

Rituals in the Halls of Justice 
does not Amount to a Union of 
Church and State
As earlier stated, Valenciano is against the holding of religious rituals in the halls of justice on
the ground that it violates the constitutional provision on the separation of Church and State
and the constitutional prohibition against the appropriation of public money or property for
the benefit of a sect, church, denomination, or any other system of religion. Indeed, Section
6, Article II of the 1987 Constitution provides:
The separation of Church and State shall be inviolable. 17
The Court once pronounced that "our history, not to speak of the history of mankind, has
taught us that the union of church and state is prejudicial to both, for occasions might arise
when the state will use the church, and the church the state, as a weapon in the furtherance
of their respective ends and aims." 18
Justice Isagani Cruz expounded on this doctrine, viz.:
The rationale of the rule is summed up in the familiar saying, "Strong fences make good
neighbors." The idea is to delineate the boundaries between the two institutions and, thus,
avoid encroachments by one against the other because of a misunderstanding of the limits of
their respective exclusive jurisdictions. The demarcation line calls on the entities to "render
therefore unto Caesar the things that are Caesar's and unto God the things that are
God's." 19 DETACa
This, notwithstanding, the State still recognizes the inherent right of the people to have some
form of belief system, whether such may be belief in a Supreme Being, a certain way of life,
or even an outright rejection of religion. Our very own Constitution recognizes the
heterogeneity and religiosity of our people as reflected in Imbong v. Ochoa, 20 as follows:
At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of
people of diverse ethnic, cultural and religious beliefs and backgrounds. History has shown
us that our government, in law and in practice, has allowed these various religious, cultural,
social and racial groups to thrive in a single society together. It has embraced minority
groups and is tolerant towards all — the religious people of different sects and the non-
believers. The undisputed fact is that our people generally believe in a deity, whatever they
conceived Him to be, and to Whom they called for guidance and enlightenment in crafting
our fundamental law. Thus, the preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just
and humane society, and establish a Government that shall embody our ideals and
aspirations, promote the common good, conserve and develop our patrimony, and secure to
ourselves and our posterity, the blessings of independence and democracy under the rule of
law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God" manifested their spirituality innate
in our nature and consciousness as a people, shaped by tradition and historical experience.
As this is embodied in the preamble, it means that the State recognizes with respect the
influence of religion in so far as it instills into the mind the purest principles of
morality. Moreover, in recognition of the contributions of religion to society, the 1935, 1973
and 1987 Constitutions contain benevolent and accommodating provisions towards religions
such as tax exemption of church property, salary of religious officers in government
institutions, and optional religious instructions in public schools. [Emphases supplied]
In Aglipay v. Ruiz 21 (Aglipay), the Court acknowledged how religion could serve as a

motivating force behind each person's actions:
Religious freedom, however, as a constitutional mandate is not inhibition of profound

reverence for religion and is not a denial of its influence in human affairs. Religion as a
profession of faith to an active power that binds and elevates man to his Creator is
recognized. And, in so far as it instills into the minds the purest principles of morality, its
influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of
their Constitution, implored "the aid of Divine Providence, in order to establish a government
that shall embody their ideals, conserve and develop the patrimony of the nation, promote
the general welfare, and secure to themselves and their posterity the blessings of
independence under a regime of justice, liberty and democracy," they thereby manifested
their intense religious nature and placed unfaltering reliance upon Him who guides the
destinies of men and nations. The elevating influence of religion in human society is
recognized here as elsewhere. In fact, certain general concessions are indiscriminately
accorded to religious sects and denominations. Our Constitution and laws exempt from
taxation properties devoted exclusively to religious purposes (sec. 14, subsec. 3, Art.
VI, Constitution of the Philippines and sec. 1, subsec. Ordinance appended thereto;
Assessment Law, sec. 344, par. [c], Adm. Code) sectarian aid is not prohibited when a priest,
preacher, minister or other religious teacher or dignitary as such is assigned to the armed
forces or to any penal institution, orphanage or leprosarium xxx. Optional religious instruction
in the public schools is by constitutional mandate allowed xxx. Thursday and Friday of Holy
Week, Thanksgiving Day, Christmas Day, and Sundays are made legal holidays (sec. 29,
Adm. Code) because of the secular idea that their observance is conducive to beneficial
moral results. The law allows divorce but punishes polygamy and bigamy; and certain crimes
against religious worship are considered crimes against the fundamental laws of the state
xxx. 22 [Emphasis supplied]
Thus, the right to believe or not to believe has again been enshrined in Section 5, Article III
of the 1987 Constitution:
Section 5. xxx. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. xxx.
Free Exercise Clause
Freedom of religion was accorded preferred status by the framers of our fundamental law.
And this Court has consistently affirmed this preferred status, well aware that it is "designed
to protect the broadest possible liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he believes he ought to live,
consistent with the liberty of others and with the common good." 23
"The right to religious profession and worship has a two-fold aspect — freedom to believe
and freedom to act on one's beliefs. The first is absolute as long as the belief is confined
within the realm of thought. The second is subject to regulation where the belief is translated
into external acts that affect the public welfare." 24 Justice Isagani A. Cruz explained these
two (2) concepts in this wise:
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He
may indulge his own theories about life and death; worship any god he chooses, or none at
all; embrace or reject any religion; acknowledge the divinity of God or of any being that
appeals to his reverence; recognize or deny the immortality of his soul — in fact, cherish any
religious conviction as he and he alone sees fit. However absurd his beliefs may be to others,
even if they be hostile and heretical to the majority, he has full freedom to believe as he
pleases. He may not be required to prove his beliefs. He may not be punished for his inability
to do so. Religion, after all, is a matter of faith. "Men may believe what they cannot prove."
Every one has a right to his beliefs and he may not be called to account because he cannot
prove what he believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the public, his
freedom to do so becomes subject to the authority of the State. As great as this liberty may
be, religious freedom, like all other rights guaranteed in the Constitution, can be enjoyed only
with a proper regard for the rights of others.
It is error to think that the mere invocation of religious freedom will stalemate the State and
render it impotent in protecting the general welfare. The inherent police power can be
exercised to prevent religious practices inimical to society. And this is true even if such
practices are pursued out of sincere religious conviction and not merely for the purpose of
evading the reasonable requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: "The constitutional provision on religious freedom

terminated disabilities, it did not create new privileges. It gave religious liberty, not civil
immunity. Its essence is freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma." 25
Allowing religion to flourish is not contrary to the principle of separation of Church and State.
In fact, these two principles are in perfect harmony with each other.
The State is aware of the existence of religious movements whose members believe in the
divinity of Jose Rizal. Yet, it does not implement measures to suppress the said religious
sects. Such inaction or indifference on the part of the State gives meaning to the separation
of Church and State, and at the same time, recognizes the religious freedom of the members
of these sects to worship their own Supreme Being.
As pointed out by Judge Lutero, "the Roman Catholics express their worship through the
holy mass and to stop these would be tantamount to repressing the right to the free exercise
of their religion. Our Muslim brethren, who are government employees, are allowed to
worship their Allah even during office hours inside their own offices. The Seventh Day
Adventists are exempted from rendering Saturday duty because their religion prohibits them
from working on a Saturday. Even Christians have been allowed to conduct their own bible
studies in their own offices. All these have been allowed in respect of the workers' right to
the free exercise of their religion. xxx" 26 aDSIHc
Clearly, allowing the citizens to practice their religion is not equivalent to a fusion of Church
and State.
No Compelling State Interest
Religious freedom, however, is not absolute. It cannot have its way if there is a compelling
state interest. To successfully invoke compelling state interest, it must be demonstrated that
the masses in the QC Hall of Justice unduly disrupt the delivery of public services or affect
the judges and employees in the performance of their official functions. In Estrada v.
Escritor, 27 the Court expounded on the test as follows:
The "compelling state interest" test is proper where conduct is involved for the whole gamut
of human conduct has different effects on the state's interests: some effects may be
immediate and short-term while others delayed and far-reaching. A test that would protect
the interests of the state in preventing a substantive evil, whether immediate or delayed, is
therefore necessary. However, not any interest of the state would suffice to prevail over the
right to religious freedom as this is a fundamental right that enjoys a preferred position in the
hierarchy of rights — "the most inalienable and sacred of all human rights," in the words of
Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a
higher sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty
God in order to build a just and humane society and establish a government." As held in
Sherbert, only the gravest abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which balances a right with just a colorable
state interest is therefore not appropriate. Instead, only a compelling interest of the state can
prevail over the fundamental right to religious liberty. The test requires the state to carry a
heavy burden, a compelling one, for to do otherwise would allow the state to batter religion,
especially the less powerful ones until they are destroyed. In determining which shall prevail
between the state's interest and religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering religious liberty while at the same
time affording protection to the paramount interests of the state. This was the test used in
Sherbert which involved conduct, i.e., refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount interests of the state, seeks to
protect the very state, without which, religious liberty will not be preserved. 137 [Citations
omitted] [Emphases supplied]
As reported by the Executive Judges of Quezon City, the masses were being conducted only
during noon breaks and were not disruptive of public services. The court proceedings were
not being distracted or interrupted and that the performance of the judiciary employees were
not being adversely affected. Moreover, no Civil Service rules were being violated. As there
has been no detrimental effect on the public service or prejudice to the State, there is
simply no state interest compelling enough to prohibit the exercise of religious freedom in the
halls of justice.
In fact, the Civil Service Commission (CSC) was more lenient or tolerant. On November 13,
1981, the CSC came out with Resolution No. 81-1277, which provided, among others, that
"during Friday, the Muslim pray day, Muslims are excused from work from 10:00 o'clock in
the morning to 2:00 o'clock in the afternoon." The Court struck this down 28 as not
sanctioned by the law. It wrote:
To allow the Muslim employees in the Judiciary to be excused from work from 10:00 a.m. to
2:00 p.m. every Friday (Muslim Prayer Day) during the entire calendar year would mean a
diminution of the prescribed government working hours. For then, they would be rendering
service twelve (12) hours less than that required by the civil service rules for each month.
Further, this would encourage other religious denominations to request for similar treatment.
The performance of religious practices, whether by the Muslim employees or those belonging
to other religious denominations, should not prejudice the courts and the public. Indeed, the
exercise of religious freedom does not exempt anyone from compliance with reasonable
requirements of the law, including civil service laws.
Accommodation, Not Establishment of Religion
In order to give life to the constitutional right of freedom of religion, the State adopts a policy
of accommodation. Accommodation is a recognition of the reality that some governmental
measures may not be imposed on a certain portion of the population for the reason that
these measures are contrary to their religious beliefs. As long as it can be shown that the
exercise of the right does not impair the public welfare, the attempt of the State to regulate
or prohibit such right would be an unconstitutional encroachment. 29
In Estrada v. Escritor, 30 the Court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government
policies that take religion specifically into account not to promote the government's favored
form of religion, but to allow individuals and groups to exercise their religion without
hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the
exercise of, a person's or institution's religion. As Justice Brennan explained, the
"government [may] take religion into account . . . to exempt, when possible, from generally
applicable governmental regulation individuals whose religious beliefs and practices would
otherwise thereby be infringed, or to create without state involvement an atmosphere in
which voluntary religious exercise may flourish." [Emphases supplied]
In Victoriano v. Elizalde Rope Workers Union, 31 the Court upheld the exemption of members
of Iglesia ni Cristo from the coverage of a closed shop agreement between their employer
and a union, because it would violate the teaching of their church not to affiliate with a labor
organization.
In Ebralinag v. Division Superintendent of Schools of Cebu, 32 the petitioners, who were

members of the Jehovah's Witnesses, refused to salute the flag, sing the national anthem,
and recite the patriotic pledge for it is their belief that those were acts of worship or religious
devotion, which they could not conscientiously give to anyone or anything except God. The
Court accommodated them and granted them an exemption from observing the flag
ceremony out of respect for their religious beliefs.
Further, several laws have been enacted to accommodate religion. The Revised

Administrative Code of 1987 has declared Maundy Thursday, Good Friday, and Christmas
Day as regular holidays. Republic Act (R.A.) No. 9177 proclaimed the first day of Shawwal,
the tenth month of the Islamic Calendar, a national holiday for the observance of Eidul
Fitr (the end of Ramadan). R.A. No. 9849 declared the tenth day of Zhul Hijja, the twelfth
month of the Islamic Calendar, a national holiday for the observance of Eidul
Adha. Presidential Decree (P.D.) No. 1083, otherwise known as the Code of Muslim Personal
Laws of the Philippines, expressly allows a Filipino Muslim to have more than one (1) wife
and exempts him from the crime of bigamy punishable under Revised Penal Code (RPC). The
same Code allows Muslims to have divorce. 33
As to Muslims in government offices, Section 3 of P.D. No. 291, as amended by P.D. No. 322,

provides: ETHIDa
Sec. 3. (a) During the fasting season on the month of Ramadan, all Muslim employees in the
national government, government-owned or controlled corporations, provinces, cities,
municipalities and other instrumentalities shall observe office hours from seven-thirty in the
morning (7:30 a.m.) to three-thirty in the afternoon (3:30 p.m.) without lunch break or coffee
breaks, and that there shall be no diminution of salary or wages, provided, that the employee
who is not fasting is not entitled to the benefit of this provision.
Pursuant thereto, the CSC promulgated Resolution No. 81-1277, dated November 13, 1981,
which reads in part:
2. During "Ramadan" the Fasting month (30 days) of the Muslims, the Civil Service official
time of 8 o'clock to 12 o'clock and 1 o'clock to 5 o'clock is hereby modified to 7:30 A.M. to
3:30 P.M. without noon break and the difference of 2 hours is not counted as undertime.
Following the decree, in Re: Request of Muslim Employees in the Different Courts in Iligan
City (Re: Office Hours), 34 the Court recognized that the observance of Ramadan as integral
to the Islamic faith and allowed Muslim employees in the Judiciary to hold flexible office
hours from 7:30 o'clock in the morning to 3:30 o'clock in the afternoon without any break
during the period. This is a clear case of accommodation because Section 5, Rule XVII of
the Omnibus Rules Implementing Book V of E.O. No. 292, enjoins all civil servants, of
whatever religious denomination, to render public service of no less than eight (8) hours a
day or forty (40) hours a week.
Non-Establishment Clause
On the opposite side of the spectrum is the constitutional mandate that "no law shall be
made respecting an establishment of religion," 35 otherwise known as the non-establishment
clause. Indeed, there is a thin line between accommodation and establishment, which makes
it even more imperative to understand each of these concepts by placing them in the Filipino
society's perspective.
The non-establishment clause reinforces the wall of separation between Church and State. It
simply means that the State cannot set up a Church; nor pass laws which aid one religion,
aid all religion, or prefer one religion over another nor force nor influence a person to go to or
remain away from church against his will or force him to profess a belief or disbelief in any
religion; that the state cannot punish a person for entertaining or professing religious beliefs
or disbeliefs, for church attendance or non-attendance; that no tax in any amount, large or
small, can be levied to support any religious activity or institution whatever they may be
called or whatever form they may adopt or teach or practice religion; that the state cannot
openly or secretly participate in the affairs of any religious organization or group and vice
versa. 36 Its minimal sense is that the state cannot establish or sponsor an official
religion. 37
In the same breath that the establishment clause restricts what the government can do with
religion, it also limits what religious sects can or cannot do. They can neither cause the
government to adopt their particular doctrines as policy for everyone, nor can they cause the
government to restrict other groups. To do so, in simple terms, would cause the State to
adhere to a particular religion and, thus, establish a state religion. 38
Father Bernas further elaborated on this matter, as follows:
"In effect, what non-establishment calls for is government neutrality in religious matters.
Such government neutrality may be summarized in four general propositions: (1) Government
must not prefer one religion over another or religion over irreligion because such preference
would violate voluntarism and breed dissension; (2) Government funds must not be applied
to religious purposes because this too would violate voluntarism and breed interfaith
dissension; (3) Government action must not aid religion because this too can violate
voluntarism and breed interfaith dissension; [and] (4) Government action must not result in
excessive entanglement with religion because this too can violate voluntarism and breed
interfaith dissension." 39
Establishment entails a positive action on the part of the State. Accommodation, on the other
hand, is passive. In the former, the State becomes involved through the use of government
resources with the primary intention of setting up a state religion. In the latter, the State,
without being entangled, merely gives consideration to its citizens who want to freely
exercise their religion.
In a September 12, 2003 Memorandum for Chief Justice Hilario G. Davide, Jr., the Office of
the Chief Attorney recommended to deny, on constitutional grounds, the request of Rev. Fr.
Carlo M. Ilagan to hold a one-day vigil in honor of the Our Lady of Caysasay within the
premises of the Court. Such controversy must be distinguished from the present issue in that
with respect to the former, a Catholic priest was the one who requested for the vigil.
Moreover, in that case, the vigil would take one (1) whole working day; whereas in this case,
the masses are held at the initiative of Catholic employees and only during the thirty-minute
lunch break.
Guided by the foregoing, it is our considered view that the holding of Catholic masses at the
basement of the QC Hall of Justice is not a case of establishment, but merely
accommodation. First, there is no law, ordinance or circular issued by any duly constitutive
authorities expressly mandating that judiciary employees attend the Catholic masses at the
basement. Second, when judiciary employees attend the masses to profess their faith, it is at
their own initiative as they are there on their own free will and volition, without any coercion
from the judges or administrative officers. Third, no government funds are being spent
because the lightings and airconditioning continue to be operational even if there
are no religious rituals there. Fourth, the basement has neither been converted into a Roman
Catholic chapel nor has it been permanently appropriated for the exclusive use of its
faithful. Fifth, the allowance of the masses has not prejudiced other religions.
No Appropriation of Public 
Money or Property for the 
Benefit of any Church
Section 29 (2), Article VI of the 1987 Constitution provides, "No public money or property

shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or
support of any sect, church, denomination, sectarian institution, or system of religion, or of
any priest, preacher, minister, or other religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium."
The word "apply" means "to use or employ for a particular purpose." 40 "Appropriate"
means "to prescribe a particular use for particular moneys or to designate or destine a fund
or property for a distinct use, or for the payment of a particular demand." 41
Under the principle of noscitur a sociis, where a particular word or phrase is ambiguous in
itself or is equally susceptible of various meanings, its correct construction may be made
clear and specific by considering the company of words in which it is found or with which it
is associated. This is because a word or phrase in a statute is always used in association
with other words or phrases, and its meaning may, thus, be modified or restricted by the
latter. The particular words, clauses and phrases should not be studied as detached and
isolated expressions, but the whole and every part of the statute must be considered in fixing
the meaning of any of its parts and in order to produce a harmonious whole. A statute must
be so construed as to harmonize and give effect to all its provisions whenever possible. 42
Thus, the words "pay" and "employ" should be understood to mean that what is prohibited is
the use of public money or property for the sole purpose of benefiting or supporting any
church. The prohibition contemplates a scenario where the appropriation is primarily
intended for the furtherance of a particular church.
It has also been held that the aforecited constitutional provision "does not inhibit the use of
public property for religious purposes when the religious character of such use is merely
incidental to a temporary use which is available indiscriminately to the public in general."
Hence, a public street may be used for a religious procession even as it is available for a
civic parade, in the same way that a public plaza is not barred to a religious rally if it may also
be used for a political assemblage. 43
In relation thereto, the phrase "directly or indirectly" refers to the manner of appropriation of
public money or property, not as to whether a particular act involves a direct or a mere
incidental benefit to any church. Otherwise, the framers of the Constitution would have
placed it before "use, benefit or support" to describe the same. Even the exception to the
same provision bolsters this interpretation. The exception contemplates a situation wherein
public funds are paid to a priest, preacher, minister, or other religious teacher, or dignitary
because they rendered service in the armed forces, or to any penal institution, or government
orphanage or leprosarium. That a priest belongs to a particular church and the latter may
have benefited from the money he received is of no moment, for the purpose of the payment
of public funds is merely to compensate the priest for services rendered and for which other
persons, who will perform the same services will also be compensated in the same manner.
Ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. 44 As such,

the foregoing interpretation finds support in the Establishment Clause, which is as clear as
daylight in stating that what is proscribed is the passage of any law which tends to establish
a religion, not merely to accommodate the free exercise thereof.
The Constitution even grants tax exemption to properties actually, directly and exclusively

devoted to religious purposes. 45 Certainly, this benefits the religious sects for a portion of
what could have been collected for the benefit of the public is surrendered in their favor.
In Manosca v. CA, 46 a parcel of land located in Taguig was determined by the National
Historical Institute to be the birthsite of Felix Y. Manalo, the founder of Iglesia ni Cristo. The
Republic then sought to expropriate the said property. The exercise of the power of eminent
domain was questioned on the ground that it would only benefit members of Iglesia ni Cristo.
The Court upheld the legality of the expropriation, viz.: cSEDTC
The practical reality that greater benefit may be derived by members of the Iglesia ni
Cristo than by most others could well be true but such a peculiar advantage still remains to
be merely incidental and secondary in nature. 47 [Emphasis supplied]
Again, in Aglipay, the issuing and selling of postage stamps commemorative of the Thirty-
third International Eucharistic Congress was assailed on the ground that it violated the
constitutional prohibition against the appropriation of public money or property for the
benefit of any church. In ruling that there was no such violation, the Court held:
It is obvious that while the issuance and sale of the stamps in question may be said to be
inseparably linked with an event of a religious character, the resulting propaganda, if any,
received by the Roman Catholic Church, was not the aim and purpose of the Government.
We are of the opinion that the Government should not be embarrassed in its activities simply
because of incidental results, more or less religious in character, if the purpose had in view is
one which could legitimately be undertaken by appropriate legislation. The main purpose
should not be frustrated by its subordination to mere incidental results not
contemplated. 48 [Emphasis supplied]
Here, the basement of the QC Hall of Justice is not appropriated, applied or employed for the
sole purpose of supporting the Roman Catholics.
Further, it has not been converted into a Roman Catholic chapel for the exclusive use of its
faithful contrary to the claim of Valenciano. Judge Maceren reported that the basement is
also being used as a public waiting area for most of the day and a meeting place for different
employee organizations. The use of the area for holding masses is limited to lunch break
period from twelve (12) o'clock to one (1) o'clock in the afternoon. Further, Judge Sagun, Jr.
related that masses run for just a little over thirty (30) minutes. It is, therefore, clear
that no undue religious bias is being committed when the subject basement is allowed to be
temporarily used by the Catholics to celebrate mass, as the same area can be used by other
groups of people and for other purposes. 49 Thus, the basement of the QC Hall of Justice
has remained to be a public property devoted for public use because the holding of Catholic
masses therein is a mere incidental consequence of its primary purpose.
Conclusion
Directing the Executive Judges of the RTC and MeTC to regulate and closely monitor the
holding of masses and other religious practices within the courts does not promote
excessive collaboration between courts and various religions. On the contrary, this is
necessary to ensure that there would be no excessive entanglement.
To disallow the holding of religious rituals within halls of justice would set a dangerous
precedent and commence a domino effect. Strict separation, rather than benevolent
neutrality/accommodation, would be the norm. Thus, the establishment of Shari'a courts, the
National Commission for Muslim Filipinos, and the exception of Muslims from the provisions
of the RPC relative to the crime of bigamy would all be rendered nugatory because of strict
separation. The exception of members of Iglesia ni Cristo from joining a union or the non-
compulsion recognized in favor of members of the Jehovah's Witnesses from doing certain
gestures during the flag ceremony, will all go down the drain simply because we insist on
strict separation.
That the holding of masses at the basement of the QC Hall of Justice may offend non-
Catholics is no reason to proscribe it. Our Constitution ensures and mandates an
unconditional tolerance, without regard to whether those who seek to profess their faith
belong to the majority or to the minority. It is emphatic in saying that "the free exercise and
enjoyment of religious profession and worship shall be without discrimination or preference."
Otherwise, accommodation or tolerance would just be mere lip service.
One cannot espouse that the constitutional freedom of religion ensures tolerance, but, in
reality, refuses to practice what he preaches. One cannot ask for tolerance when he refuses
to do the same for others.
In fine, the Court denies the plea that the holding of Catholic masses at the basement of the
QC Hall of Justice be prohibited because the said practice does not violate the constitutional
principle of separation of Church and State and the constitutional prohibition against
appropriation of public money or property for the benefit of a sect, church, denomination, or
any other system of religion.
WHEREFORE, the Court resolves to:
1. NOTE the letter-complaints of Mr. Tony Q. Valenciano, dated January 6, 2009, May 13,
2009, and March 23, 2010;
2. NOTE the 1st Indorsement, dated September 21, 2010, by the Office on Halls of Justice,
containing photocopies and certified photocopies of previous actions made relative to the
complaint;
3. NOTE the Letter-Comment, dated September 9, 2010, of Quezon City Regional Trial Court
Executive Judge Fernando T. Sagun, Jr.;
4. NOTE the undated Letter-Comment of Quezon City Metropolitan Trial Court Executive

Judge Caridad M. Walse-Lutero;
5. DENY the prayer of Tony Q. Valenciano to prohibit the holding of religious rituals in the QC
Hall of Justice and in all halls of justice in the country; and
6. DIRECT the Executive Judges of Quezon City to REGULATE and CLOSELY MONITOR the

holding of masses and other religious practices within the Quezon City Hall of Justice by
ensuring, among others, that:
(a) it does not disturb or interrupt court proceedings;
(b) it does not adversely affect and interrupt the delivery of public service; and
(c) it does not unduly inconvenience the public.
In no case shall a particular part of a public building be a permanent place for worship for the
benefit of any and all religious groups. There shall also be no permanent display of religious
icons in all halls of justice in the country. In case of religious rituals, religious icons and
images may be displayed but their presentation is limited only during the celebration of such
activities so as not to offend the sensibilities of members of other religious denominations or
the non-religious public. After any religious affair, the icons and images shall be hidden or
concealed from public view.
The disposition in this administrative matter shall apply to all halls of justice in the country.
Other churches, religious denominations or sects are entitled to the same rights, privileges,
and practices in every hall of justice. In other buildings not owned or controlled by the
Judiciary, the Executive Judges should coordinate and seek approval of the building owners/
administrators accommodating their courts.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Peralta, Bersamin, Del Castillo, Reyes and Perlas-Bernabe,
JJ., concur.
Leonardo-de Castro, J., please see my Separate Concurring Opinion.
Leonen, J., I dissent. See separate opinion.
Jardeleza, J., see separate opinion.
Caguioa, J., I concur in separate opinion of J. Jardeleza.
||| (Re: Tony Q. Valenciano, A.M. No. 10-4-19-SC (Resolution), [March 7, 2017], 806 PHIL
786-822)
17. Martiai law extension requirements
[G.R. No. 231658. December 5, 2017.]
REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, GARY C. ALEJANO,

EMMANUEL A. BILLONES, AND TEDDY BRAWNER BAGUILAT, JR., petitioners, vs. HON.
SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY; HON. DELFIN N. LORENZANA,
SECRETARY OF THE DEPARTMENT OF NATIONAL DEFENSE
AND MARTIAL LAW ADMINISTRATOR; AND GEN. EDUARDO AÑO, CHIEF OF STAFF OF
THE ARMED FORCES OF THE PHILIPPINES
AND MARTIAL LAW IMPLEMENTOR, respondents.
On July 4, 2017, the Court rendered its Decision finding sufficient factual bases for the
issuance of Proclamation No. 216 and declaring it as constitutional. Petitioners timely filed
separate Motions for Reconsideration. The Office of the Solicitor General (OSG) also filed its
Comment.
After a careful review of the arguments raised by the parties, we find no reason to reverse our
July 4, 2017 Decision.
All three Motions for Reconsideration question two aspects of the July 4, 2017 Decision, i.e.,
the sufficiency of the factual bases of Proclamation No. 216 and the parameters used in
determining the sufficiency of the factual bases. Petitioners, however, failed to present any
substantial argument to convince us to reconsider our July 4, 2017 Decision.
Sufficiency of the Factual Bases of 

Proclamation No. 216 has been 
rendered moot by the expiration of the 
said Proclamation.
Section 18, Article VII of the Constitution provides that "the President x x x may, for a period
not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. x x x Upon the initiative of the President,
the Congress may, in the same manner, extend such proclamation or suspension for a period
to be determined by the Congress, if the invasion or rebellion shall persist and public safety
requires it."
From the foregoing, it is clear that the President's declaration of martial law and/or

suspension of the privilege of the writ of habeas corpus is effective for 60 days. As aptly
described by Commissioner Monsod, "this declaration has a time fuse. It is only good for a
maximum of 60 days. At the end of 60 days, it automatically
terminates." 1 Any extension thereof should be determined by Congress. The act of

declaring martial law and/or suspending the privilege of the writ of habeas corpus by the
President, however, is separate from the approval of the extension of the declaration and/or
suspension by Congress. The initial declaration of martial law and/or suspension of the writ
of habeas corpus is determined solely by the President, while the extension of the
declaration and/or suspension, although initiated by the President, is approved by Congress.
In this case, Proclamation No. 216 issued on May 23, 2017 expired on July 23, 2017.
Consequently, the issue of whether there were sufficient factual bases for the issuance of the
said Proclamation has been rendered moot by its expiration. We have consistently ruled that
a case becomes moot and academic when it "ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration thereon would be of no practical
value." 2 As correctly pointed out by the OSG, "the martial law and suspension of the
privilege of the writ of habeas corpus now in effect in Mindanao no longer finds basis
in Proclamation No. 216" 3 but in Resolution of Both Houses No. 11 (RBH No. 11) adopted
on July 22, 2017. RBH No. 11 is totally different and distinct from Proclamation No. 216. The
former is a joint executive-legislative act while the latter is purely executive in nature.
The decision of the Congress to extend the same is of no moment. The approval of
the extension is a distinct and separate incident, over which we have no jurisdiction to review
as the instant Petition only pertains to the President's issuance of Proclamation No. 216.
Thus, considering the expiration of Proclamation No. 216 and considering further the
approval of the extension of the declaration of martial law and the suspension of the privilege
of the writ of habeas corpus by Congress, we find no reason to disturb our finding that there
were sufficient factual bases for the President's issuance of Proclamation No. 216.
However, although the Motions for Reconsideration are dismissible on the ground of
mootness, we deem it prudent to emphasize our discussion on the parameters for
determining the sufficiency of factual basis for the declaration of martial law and/or the
suspension of the privilege of the writ of habeas corpus.
The Constitution requires sufficiency of 

factual basis, not accuracy.
Petitioners, in essence, posit that the Court is required to determine the accuracy of the
factual basis of the President for the declaration of martial law and/or the suspension of the
privilege of the writ of habeas corpus. To recall, we held that "the parameters for determining
the sufficiency of factual basis are as follows: 1) actual rebellion or invasion; 2) public safety
requires it; the first two requirements must concur; and 3) there is probable cause for the
President to believe that there is actual rebellion or invasion." 4 Moreover, we stated in the
assailed Decision that "the phrase 'sufficiency of factual basis' in Section 18, Article VII of
the Constitution should be understood as the only test for judicial review of the President's
power to declare martial law and suspend the privilege of the writ of habeas
corpus." 5 Requiring the Court to determine the accuracy of the factual basis of the
President contravenes the Constitution as Section 18, Article VII only requires the Court to
determine the sufficiency of the factual basis. Accuracy is not the same as sufficiency as the
former requires a higher degree of standard. As we have explained in our July 4, 2017
Decision:
In determining the sufficiency of the factual basis of the declaration and/or the suspension,
the Court should look into the full complement or totality of the factual basis, and not
piecemeal or individually. Neither should the Court expect absolute correctness of the facts
stated in the proclamation and in the written Report as the President could not be expected
to verify the accuracy and veracity of all facts reported to him due to the urgency of the
situation. To require precision in the President's appreciation of facts would unduly burden
him and therefore impede the process of his decision-making. Such a requirement will
practically necessitate the President to be on the ground to confirm the correctness of the
reports submitted to him within a period that only the circumstances obtaining would be able
to dictate. Such a scenario, of course, would not only place the President in peril but would
also defeat the very purpose of the grant of emergency powers upon him, that is, to borrow
the words of Justice Antonio T. Carpio in Fortun, to 'immediately put an end to the root cause
of the emergency'. Possibly, by the time the President is satisfied with the correctness of the
facts in his possession, it would be too late in the day as the invasion or rebellion could have
already escalated to a level that is hard, if not impossible, to curtail.
Besides, the framers of the 1987 Constitution considered intelligence reports of military

officers as credible evidence that the President can appraise and to which he can anchor his
judgment, as appears to be the case here.
At this point, it is wise to quote the pertinent portions of the Dissenting Opinion of Justice
Presbitero J. Velasco, Jr. in Fortun:
President Arroyo cannot be blamed for relying upon the information given to her by the
Armed Forces of the Philippines and the Philippine National Police, considering that the
matter of the supposed armed uprising was within their realm of competence, and that a
state of emergency has also been declared in Central Mindanao to prevent lawless violence
similar to the 'Maguindanao massacre,' which may be an indication that there is a threat to
the public safety warranting a declaration of martial law or suspension of the writ.
Certainly, the President cannot be expected to risk being too late before
declaring martial law or suspending the writ of habeas corpus. The Constitution, as couched,
does not require precision in establishing the fact of rebellion. The President is called to act
as public safety requires.
Corollary, as the President is expected to decide quickly on whether there is a need to

proclaim martial law even only on the basis of intelligence reports, it is irrelevant, for
purposes of the Court's review, if subsequent events prove that the situation had not been
accurately reported to him. After all, the Court's review is confined to the sufficiency, not
accuracy, of the information at hand during the declaration or suspension; subsequent
events do not have any bearing insofar as the Court's review is concerned. x x x
Hence, the maxim falsus in uno, falsus in omnibus finds no application in this case. Falsities
of and/or inaccuracies in some of the facts stated in the proclamation and written report
are not enough reasons for the Court to invalidate the declaration and/or suspension as long
as there are other facts in the proclamation and the written Report that support the
conclusion that there is an actual invasion or rebellion and that public safety requires the
declaration and/or suspension.
In sum, the Court's power to review is limited to the determination of whether the President
in declaring martial law and suspending the privilege of the writ of habeas corpus had
sufficient factual basis. Thus, our review would be limited to an examination on whether the
President acted within the bounds set by the Constitution, i.e., whether the facts in his
possession prior to and at the time of the declaration or suspension are sufficient for him to
declare martial law or suspend the privilege of the writ of habeas corpus. 6 (Emphasis
supplied)
This is consistent with our ruling that "the President only needs to convince himself that there
is probable cause or evidence showing that more likely than not a rebellion was committed
or is being committed." 7 The standard of proof of probable cause does not require absolute
truth. Since "martial law is a matter of urgency x x x the President x x x is not expected to
completely validate all the information he received before declaring martial law or suspending
the privilege of the writ of habeas corpus." 8
Notably, out of the several facts advanced by the President as basis for Proclamation No.
216, only five of them were being questioned by the petitioners. However, they were not even
successful in their refutation since their "counter-evidence were derived solely from
unverified news articles on the internet, with neither the authors nor the sources shown to
have affirmed the contents thereof. It was not even shown that efforts were made to secure
such affirmation albeit the circumstances proved futile." 9 Even granting that the petitioners
were successful in their attempt to refute the aforesaid five incidents, there are other facts
sufficient to serve as factual basis for the declaration of martial law and suspension of the
privilege of the writ of habeas corpus.
There is absolutely no basis to petitioners' claim that the Court abdicated its power to
review. To be sure, our findings that there was sufficient factual basis for the issuance
of Proclamation No. 216 and that there was probable cause, that is, that more likely than not,
rebellion exists and that public safety requires the declaration of martial law and suspension
of the privilege of the writ of habeas corpus, were reached after due consideration of the
facts, events, and information enumerated in the proclamation and report to Congress. The
Court did not content itself with the examination only of the pleadings/documents submitted
by the parties. In addition, it conducted a closed-door session where it tried to ferret
additional information, confirmation and clarification from the resource persons, particularly
Secretary of National Defense Delfin Lorenzana and Armed Forces of the Philippines Chief of
Staff Eduardo Año. At this juncture, it must be stated that the Court is not even obliged to
summon witnesses as long as it satisfies itself with the sufficiency of the factual basis; it is
purely discretionary on its part whether to call additional witnesses. In any event, reliance on
so-called intelligence reports, even without presentation of its author, is proper and allowed
by law.
The Court's acknowledgment of the President's superior data gathering apparatus, and the
fact that it has given the Executive much leeway and flexibility, should never be understood
as a prelude to surrendering the judicial power to review. The Court never intended to
concede its power to verify the sufficiency of factual basis for the declaration
of martial law and suspension of the privilege of the writ of habeas corpus. The leeway and
flexibility accorded to the Executive must be construed in the context of the present set up
wherein the declaration of martial law and suspension of the privilege of the writ of habeas
corpus are grounded on actual invasion or rebellion, not on imminent threat or danger
thereof; as such, time is of the essence for the President to act quickly to protect the country.
It is also a recognition of the unassailable fact that as Commander-in-Chief, the President
has access to confidential information. In fact, Fr. Joaquin Bernas even opined that the Court
might have to rely on the fact-finding capabilities of the Executive; in turn, the Executive
should share its findings with the Court if it wants to convince the latter of the propriety of its
action. 10 Moreover, it is based on the understanding that martial law is a flexible concept;
that "the precise extent or range of the rebellion [cannot] be measured by exact metes and
bounds;" 11 that public safety requirement cannot be quantified or measured by metes and
bounds; that the Constitution does not provide that the territorial scope or coverage
of martial law should be confined only to those areas where the armed public uprising
actually transpired; that it will be impractical to expand the territorial application
of martial law each time the coverage of actual rebellion expands and in direct proportion
therewith; and, that there is always a possibility that the rebellion and other accompanying
hostilities will spill over.
As regards the other arguments raised by petitioners, the same are a mere rehash which
have already been considered and found to have no merit.
WHEREFORE, petitioners' Motions for Reconsideration are hereby DENIED WITH

FINALITY for mootness and lack of merit.
No further pleadings shall be entertained.
Let entry of judgment be made in n immediately.
SO ORDERED.
||| (Lagman v. Medialdea, G.R. Nos. 231658, 231771 & 231774 (Resolution), [December 5,
2017])
18. Operative fact doctrine re abolished region 18
Doctrine of Operative Fact- Acts done pursuant to a law which was subsequently
declared unconstitutional remain valid, but not when the acts are done after the
declaration of unconstitutionality. (https://batasnatin.com/law-library/political-and-
public-international-law/constitutional-law/2320-doctrine-of-operative-fact.html)
As a general rule, 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 inoperative as if it has not been
passed at all. The general rule is supported by Article 7 of the Civil Code.1
Exception to the general rule, the doctrine of operative fact:
The Doctrine of Operative Fact serves as an exception to the aforementioned general rule. In
Planters Products, Inc. vs. Fertiphil Corporation 2, the Cout held: The doctrine of operative
fact, as an exception to the general rule only applies as a matter of equity and fair play. It
nullifies the effects of an unconstitutional law by recognizing that the existence of a statute
prior to a determination of unconstitutionality is an operative fact and may have
consequences that which cannot always be ignored. The past cannot always be erased by a
new judicial declaration. The doctrine is applicable when a declaration of unconstitutionality
will impose an undue burden on those who have relied on the invalid law. Thus, it was
applied to a criminal case when a declaration of unconstitutionality would put the accused in
double jeopardy or would put in limbo the acts done by a municipality in reliance upon the
law creating it. 3
PSGC 3rd Quarter 2017 Updates: Abolition of the Negros Island Region (NIR) (https://
psa.gov.ph/content/psgc-3rd-quarter-2017-updates-abolition-negros-island-region-nir)
Reference Number:
2017-125
Release Date:
Friday, October 27, 2017
The Negros Island Region (NIR) was abolished through Executive Order No. 38 – “Revoking
Executive Order No. 183 (s. 2015) which Created a Negros Island Region and for Other
Purposes”, signed by President Rodrigo Roa Duterte on 07 August 2017. The abolition of
NIR reverted the provinces, cities, municipalities, and barangays of Negros Occidental and
Negros Oriental to Region VI (Western Visayas) and Region VII (Central Visayas), respectively.
Per Philippine Standard Geographic Code (PSGC) updating procedures, any geographic-
political unit in the country which reverted to its previous region/ province/ city/ municipality/
barangay will assume its former code. Thus, Negros Occidental and Negros Oriental shall be
assigned their former codes 064500000 and 074600000, respectively. For the complete list
of updated codes, the PSGC database and masterlist can be accessed and downloaded
at http://nap.psa.gov.ph/activestats/psgc/default.asp.
With the abolition of NIR, the total number of regions in the country is back to 17.
Inter-level
As of 30 Sept. 2017
As of 30 June 2017
Regions
17
18
Provinces
81
81
Cities
145
145
Municipalities
1,489
1,489
Barangays
42,036
42,036
Meanwhile, per Section 10 of the 1991 Local Government Code, no division or alteration of
boundaries of local government units shall take effect unless approved by a majority of the
votes cast in a plebiscite in the political units directly affected. Said plebiscite shall be
conducted within one hundred twenty (120) days from the date of effectivity of the law. Thus,
the created seven (7) distinct and independent barangays in the City of Navotas through
Republic Acts No. 10933, 10934, and 10935 signed in August 2017 pending the conduct of
the required plebiscites are not yet included in the 3rd Quarter 2017 PSGC Updates. The
plebiscites for the newly created barangays are scheduled to be held in December 2017.
[G.R. No. 176951. August 24, 2010.]
LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President

JERRY P. TREÑAS, CITY OF ILOILO represented by MAYOR JERRY P. TREÑAS, CITY OF
CALBAYOG represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREÑAS in
his personal capacity as taxpayer, petitioners, vs. COMMISSION ON ELECTIONS;
MUNICIPALITY OF BAYBAY, PROVINCE OF LEYTE; MUNICIPALITY OF BOGO, PROVINCE
OF CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN SAMAR;
MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF
BORONGAN, PROVINCE OF EASTERN SAMAR; and MUNICIPALITY OF TAYABAS,
PROVINCE OF QUEZON, respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI,
CITY OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF
GENERAL SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY
OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG,
CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY
OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF
CADIZ, and CITY OF TAGUM, petitioners-in-intervention.
||| (League of Cities of the Philippines v. Commission on Elections, G.R. Nos. 176951, 177499
& 178056 (Resolution), [August 24, 2010], 643 PHIL 202-231)
B. Operative Fact Doctrine
Under the operative fact doctrine, the law is recognized as unconstitutional but the effects of

the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter
of equity and fair play. In fact, the invocation of the operative fact doctrine is an admission
that the law is unconstitutional. CaSAcH
However, the minority's novel theory, invoking the operative fact doctrine, is that the

enactment of the Cityhood Laws and the functioning of the 16 municipalities as new cities
with new sets of officials and employees operate to contitutionalize the unconstitutional
Cityhood Laws. This novel theory misapplies the operative fact doctrine and sets a gravely
dangerous precedent.
Under the minority's novel theory, an unconstitutional law, if already implemented prior to its
declaration of unconstitutionality by the Court, can no longer be revoked and its
implementation must be continued despite being unconstitutional. This view will open the
floodgates to the wanton enactment of unconstitutional laws and a mad rush for their
immediate implementation before the Court can declare them unconstitutional. This view is
an open invitation to serially violate the Constitution, and be quick about it, lest the violation
be stopped by the Court.
The operative fact doctrine is a rule of equity. As such, it must be applied as an exception to

the general rule that an unconstitutional law produces no effects. It can never be invoked to
validate as constitutional an unconstitutional act. In Planters Products, Inc. v. Fertiphil
Corporation, 3 the Court stated:
The general rule is that an unconstitutional law is void. It produces no rights, imposes no
duties and affords no protection. It has no legal effect. It is, in legal contemplation,
inoperative as if it has not been passed. Being void, Fertiphil is not required to pay the levy.
All levies paid should be refunded in accordance with the general civil code principle against
unjust enrichment. The general rule is supported by Article 7 of the Civil Code, which
provides:
ART. 7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former shall be
void and the latter shall govern.
The doctrine of operative fact, as an exception to the general rule, only applies as a matter of

equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the
existence of a statute prior to a determination of unconstitutionality is an operative fact and
may have consequences which cannot always be ignored. The past cannot always be erased
by a new judicial declaration.
The doctrine is applicable when a declaration of unconstitutionality will impose an undue

burden on those who have relied on the invalid law. Thus, it was applied to a criminal case
when a declaration of unconstitutionality would put the accused in double jeopardy or would
put in limbo the acts done by a municipality in reliance upon a law creating it. (Emphasis
supplied)
The operative fact doctrine never validates or constitutionalizes an unconstitutional law.

Under the operative fact doctrine, the unconstitutional law remains unconstitutional, but
the effects of the unconstitutional law, prior to its judicial declaration of nullity, may be left
undisturbed as a matter of equity and fair play. In short, the operative fact doctrine affects or
modifies only the effects of the unconstitutional law, not the unconstitutional law
itself. CAIHTE
Thus, applying the operative fact doctrine to the present case, the Cityhood Laws remain
unconstitutional because they violate Section 10, Article X of the Constitution. However, the
effects of the implementation of the Cityhood Laws prior to the declaration of their nullity,
such as the payment of salaries and supplies by the "new cities" or their issuance of licenses
or execution of contracts, may be recognized as valid and effective. This does not mean that
the Cityhood Laws are valid for they remain void. Only the effects of the implementation of
these unconstitutional laws are left undisturbed as a matter of equity and fair play to innocent
people who may have relied on the presumed validity of the Cityhood Laws prior to the
Court's declaration of their unconstitutionality.
||| (League of Cities of the Philippines v. Commission on Elections, G.R. Nos. 176951, 177499
& 178056 (Resolution), [August 24, 2010], 643 PHIL 202-231)

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Last Minute Tips for Political Law Bar 2019, Page 1 of 121

Remedial law; Certiorari and prohibition. The remedies of certiorari and prohibition are

Inc., to explain that “[s]tanding is a peculiar concept in constitutional law because in

Transcendental importance as a ground to waive locus standi. Each of the petitioners

Administrative law; Budget process; Implementation and funding of the Disbursement

No violation of equal protection. Petitioners claim that the Executive discriminated against

Understanding the SC ruling on the DAP

Published 3:30 PM, July 14, 2014

Updated 9:51 AM, July 17, 2014

MANILA, Philippines – On July 1, 2014, the Supreme Court ruled on the controversial

The High Tribunal ruled as unconstitutional the following:

When exactly did the DAP start?

How was DAP supposed to be implemented and funded?

Can the President transfer funds?

Are “cross-border” transfers or augmentations of the budget allowed?

What is the operative fact doctrine and why is it relevant to DAP?

2. JBC Ruling on appointment of SC JUSTICE not included in JbC sortlist submitted to

IV. HOW ARE CANDIDATES NOMINATED?

THE JBC CONVENES

APPLICATIONS/RECOMMENDATIONS ARE FILED

Applicants may file applications themselves or be recommended by other persons.

A LIST OF APPLICANTS IS PUBLISHED

A long list of candidates shall be published in a Philippine newspaper of general circulation

APPLICANTS ARE SCREENED BY THE JBC

They shall also be evaluated according to

3. Probity and independence

4. Sound physical, mental, and emotional condition, by means of

• Those with pending criminal or regular administrative cases;

• Those with pending criminal cases in foreign courts or tribunals; and

• Members of the Judiciary facing administrative complaints under informal preliminary

PUBLIC INTERVIEWS ARE HELD

THE JBC VOTES ON THE LIST OF NOMINEES

THE PRESIDENT APPOINTS SOMEONE FROM THE LIST

3. Archipelagic doctrine-9 dash line

Published: 12:00am, 12 Jul, 2016 (https://www.scmp.com/news/china/diplomacy-defence/

Key rulings to watch out for in South China Sea case

What is the origin of the line?

What is Beijing’s strategy with the nine-dash line?

*On the Archipelagic Doctrine

The Archipelagic Doctrine, as enunciated in the UNCLOS and affirmed in Article I of the 1987

5.3. The application of the Archipelagic Doctrine to a political subdivision will encroach on

The archipelagic doctrine is embodied in Article I of the 1987 Constitution which provides:

*ON 9-DASH LINE:

Thus, we find no reason for EDCA to be declared unconstitutional. It fully conforms to the

WHEREFORE, we hereby DENY the Motion for Reconsideration.

4. Valid search subsequent to valid arrest

Section 13. Search incident to a lawful arrest. — A person lawfully arrested may be searched

The purpose of allowing a warrantless search and seizure incident to a

When an arrest is made, it is reasonable for the arresting officer to search the person

second search, not to mention the fact that the second search was conducted at a venue

In sum, the subsequent and second search made on petitioners at the Panabo Police Station

||| (Vaporoso v. People, G.R. No. 238659, [June 3, 2019])

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE

5. Constitutional revision

1. The Congress, upon a vote of three-fourths of all its Members; or

Published April 25, 2015 12:48pm

By DEAN PACIFICO AGABIN

He filed a case in the Supreme Court questioning his removal.

While his case was pending, he was reelected Governor by a landslide.

It should be borne in mind that the Aguinaldo doctrine is rationalized on democratic

RODOLFO E. AGUINALDO, petitioner, vs. HON. LUIS SANTOS, as Secretary of the

1. ADMINISTRATIVE LAW; PUBLIC OFFICERS; AS RULE, CANNOT BE REMOVED FOR

2. ID.; ID.; ACTS OF DISLOYALTY TO THE REPUBLIC AS A GROUND FOR REMOVAL

What is the origin of the line? 

1. The Congress, upon a vote of three-fourths of all its Members; or 

Arnado has not yet satisfied the twin 

The alleged November 30, 2009 