Political Law ACADEMIC FREEDOM

Academic freedom of schools includes autonomy to decide terms and conditions of employment.

Q – A teacher was dismissed because of failure to comply with the certain requirements like submission of final test questions to his program coordinator for checking or comment; noncompliance with the standard format (multiple choice) of final questions and failure to encode modular grade reports required by the school.Sje was dismissed. Is the dismissal proper? Why?

Answer: Yes, because of the academic freedom of the school. It is the prerogative of the school to set high standards of efficiency for its teachers since quality education is a mandate of the Constitution. As long as the standards fixed are reasonable and not arbitrary, courts are not at liberty to set them aside. Schools cannot be required to adopt standards which barely satisfy criteria set for government recognition. The same academic freedom grants the school the autonomy to decide for itself the terms and conditions for hiring its teacher, subject of course to the overarching limitations under the Labor Code. The authority to hire is likewise covered and protected by its management prerogative – the right of an employer to regulate all aspects of employment, such as hiring, the freedom to prescribe work assignments, working methods, process to be followed, regulation regarding transfer of employees, supervision of their work, lay-off and discipline, and dismissal and recall of workers.

Political Law ADMINISTRATIVE LAW

Doctrine of primary jurisdiction.

Q – A resolution was issued by Samar II Electric Cooperative, Inc. (SAMELCO II) Board of Directors removing a certain Setudo, Jr. as a member of the Board of Directors. A petition for prohibition was filed with the RTC. Is the petition proper? Why?

Answer: No, because the National Electrification Administration has jurisdiction, under the doctrine of primary jurisdiction. The NEA has the power of supervision and control over electric cooperatives under Secs. 5 & 7. PD No. 1645, hence, the resolution removing the Director within the power of NEA to review. The RTC has no jurisdiction (Samar II Electric Cooperative, Inc. v. Setudo, Jr., G.R. No. 173840, April 25, 2012, Peralta, J).

The doctrine of primary jurisdiction applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, has been placed within the special competence of an administrative agency. (Baguna v. Sps. Aggabao, et al., G.R. No. 18487, August 15, 2011). In such a case, the court in which the claim is sought to be enforced may suspend the judicial process pending referral of such issues to the administrative body for its view or, if the parties would not be unfairly disadvantaged, dismiss the case without prejudice. (Baguna v. Sps. Aggabao, et al., supra.).

Action for damages against a school for refusal to release transcript of records is within the jurisdiction of the regular courts. Exhaustion of administrative remedy to CHED, not necessary.

Q – A school refused to release the transcript of records of a student. The school contended that the student failed to enroll during the second semester of the school year 2000-2001, hence, the school contended that the complaint failed to state a cause of no action, hence, a motion to dismiss was filed. It was further contended that there was failure to exhaust administrative remedy to CHED. Rule on the contention.

Answer: The contention is not correct as the action essentially is one for mandamus and damages. The doctrine of exhaustion of administrative remedies requires that where a remedy before an administrative agency is provided, the administrative agency concerned must be given the opportunity to decide a matter within its jurisdiction before an action is brought before the courts. Failure to exhaust administrative remedies is a ground for dismissal of the action.

The doctrine of exhaustion of administrative remedies admits of numerous exceptions, one of which is where the issues are purely legal and well within the jurisdiction of the trial court. Petitioners’ liability – if any – for damages will have to be decided by the courts, since any judgment inevitably calls for the application and the interpretation of the Civil Code. As such, exhaustion of administrative remedies may be dispensed with. As held in Regino v. Pangasinan Colleges of Science and Technology:

x x x exhaustion of administrative remedies is applicable when there is competence on the part of the administrative body to act upon the matter complained of. Administrative agencies are not courts; x x x neither are they part of the judicial system, or deemed judicial tribunals. Specifically, the CHED does not have the power to award damages. Hence, petitioner could not have commenced her case before the Commission. (485 Phil. 446 (2004); UST, et al. v. Danes Sanchez, G.R. No. 165569, July 29, 2010).

Political Law ARTICLE II - Declaration of Principles and State Policies

Constitution mandates self-reliant economy, but does not impose police of monopoly.

Q - Petitioners questioned the constitutionality of RA 8762 otherwise known as Retail Trade Liberalization Act of 2000 which expressly repealed RA 1180 which absolutely prohibited foreign nationals from engaging in the retail trade business. The new law allows them to do so. They contended that R.A. 8762 violated the mandate of the 1987 Constitution for the State to develop a self-reliant and independent national economy effectively controlled by Filipinos and provisions of the Constitution, that the State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. Rule on the contention. Explain. Answer: The contention of the petitioners is not correct. As explained in Tañada v. Angara, 358

Phil. 546 (1997), the provisions of Article II of the 1987 Constitution, the declarations of principles and state policies, are not self-executing. There must be laws to implement the same. Legislative failure to pursue such policies cannot give rise to a cause of action in the courts.

The 1987 Constitution does not rule out the entry of foreign investments, goods, and services. While it does not encourage their unlimited entry into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair. The key, as in all economies in the world, is to strike a balance between protecting local businesses and allowing the entry of foreign investments and services.

More importantly, Section 10, Article XII of the 1987 Constitution gives Congress the discretion to reserve to Filipinos certain areas of investments upon the recommendation of the NEDA and when the national interest requires. Thus, Congress can determine what policy to pass and when to pass it depending on the economic exigencies. It can enact laws allowing the entry of foreigners into certain industries not reserved by the Constitution to Filipino citizens. In this case, Congress has decided to open certain areas of the retail trade business to foreign investments instead of reserving them exclusively to Filipino citizens. The NEDA has not opposed such policy. (Rep. Espina, et al. v. Hon. Ronaldo Zamora, Jr., G.R. No. 143855, September 21, 2010).

Political Law ARTICLE III - BILL OF RIGHTS - Due Process and Equal Protection Notice

sufficient in due process.

Q – A person who was subjected to administrative charge requested for a formal investigation, but the PAGC denied it, hence, he claimed that his right to due process was violated. Is the contention correct? Explain.

Answer: No. Due process, as a constitutional precept, does not always and in all situations require a trial-type proceeding. It is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of due process. More often, this opportunity is conferred through written pleadings that the parties submit to present their charges and defenses. (Cabalit v. COA, Region VII, G.R. Nos. 180236, 180341 & 180362, January 17, 2012; Office of the Ombudsman v. Galicia, G.R. No. 167711, October 10, 2008, 568 SCRA 327). But as long as a party is given the opportunity to defend his or her interests in due course,said party is not denied due process. (Cayago v. Lina, G.R. No. 149539, January 19, 2005, 449 SCRA 29; Dr. Fernando Melendres v. PAGC, G.R. No. 163859, August 15, 2012).

Due process applies to the power to tax; equal protection clause.

Q – Petitioner assailed the validity of the imposition of minimum corporate income tax

(MCIT) on corporations and creditable withholding tax (CWT) on sales of real properties classified as ordinary assets. He argued that the MCIT violates the due process clause because it levies income tax even if there is no realized gain. He asserted that the enumerated provisions of the subject revenue regulations violate the due process clause because, like the MCIT, the government collects income tax even when the net income has not yet been determined. Is the contention correct? Why?

Answer: No, because the CWT is creditable against the tax due from the seller of the property at the end of the taxable year. The seller will be able to claim a tax refund if its net income is less than the taxes withheld. Nothing is taken that is not due so there is no confiscation of property repugnant to the constitutional guarantee of due process. More importantly, the due process requirement applies to the power to tax. The CWT does not impose new taxes nor does it increase taxes. It relates entirely to the method and time of payment. (Chamber of Real Estate and Builders’ Association, Inc. vs. The Honorable Executive Secretary, et. Al., G.R. No. 160756, March 9, 2010).

Q – The notice to an employee who was being terminated merely stated that he was being dropped from the rolls. It did not specify the factual and legal reasons for terminating the services of the employee. He process. Rule on the contention. Explain.

Answer: The contention is correct. This is a violation of due process since it strikes at its essence. The opportunity to be heard, or the opportunity to adequately and intelligently mount a defense made against him was violated. He was completely left in the dark why his services were being summarily terminated. LBP v. Paden, G.R. No. 157607, July 7, 2009).

Q – Petitioners questioned E.O. No. 1 dated July 30, 2010, “Creating the Philippine Truth Commission” as violative of the equal protection clause as it merely focused on the alleged corrupt acts of former Pres. Macapagal. It does not encompass all acts of prior administrations where the same magnitude of controversies and anomalies were reported. It merely singled the previous administration. The OSG contended that the previous administration is not the only initial subject of the investigation. Even assuming that it will confine its proceedings to officials of the previous administration, there is no violation of the equal protection clause for the segregation of the transactions of public officers during the previous administration as possible subjects of investigation is a valid classification based on substantial distinctions and germane to the evils sought to be corrected. This is so because of the widespread reports of large scale graft and corruption in the previous administration which have eroded public confidence in public institutions. The investigation will deter others from committing the evils of the previous administration. Whose contention is correct? Why?

Answer: Petitioners’ contention is correct, since the E.O singles out the previous administration. The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause. (Biraogo v. Phil. Truth Commission, G.R. No. 192935; Lagman, et al. v. Executive Secretary, et al., G.R. No. 193036, December 7, 2010, Mendoza, J).

Q – The equal protection clause allows classification. When is classification valid? Explain. Answer: For a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally belong to the class. “The classification will be regarded as invalid if all the members of the class are not similarly treated, both as to rights conferred and obligations imposed. It is not necessary that the classification be made with absolute symmetry, in the sense that the members of the class should possess the same characteristics in equal degree. Substantial similarity will suffice; and as long as this is achieved, all those covered by the classification are to be treated equally. The mere fact that an individual belonging to a class differs from the other members, as long as that class is substantially distinguishable from all others, does not justify the non-application of the law to him.” (Biraogo v. Phil. Truth Commission, G.R. No. 192935; Lagman, et al. v. Executive Secretary, et al., G.R. No. 193036, December 7, 2010).

Q – A, a judge filed his certificate of candidacy in 2013 elections but he lost. Informed of his act, the SC issued an order that he cannot return to work after the elections, as he is deemed resigned. He filed a MR contending that the deemed resigned provision of appointive officials when they file the certificate of candidacy violative of the equal protection clause. Is his contention correct? Why?

Answer: No. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take (sic) part in any election except to vote. Elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. (Quinto, et al. v. COMELEC, G.R. No. 189698, February 22, 2010).

Q – State the governmental interests that are served by the deemed resigned provision under the Election Law. Explain.

Answer: The deemed-resigned provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party; (ii) avoidance of the appearance of “political justice” as to policy; (iii) avoidance of the danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity. These are interests that are important enough to outweigh the non-fundamental right of appointive officials and employees to seek elective office. (Quinto, et al. v. COMELEC, G.R. No. 189698, February 22, 2010).

Political Law ARTICLE IX - Constitutional Commissions/Elections

Residence and domicile once again interpreted. Q – Arsenio Noble was born in Lapasan, Cagayan de Oro City. He claimed to have chosen Kinoguitan, Misamis Oriental as his new domicile contending that he has voted there three (3) times; he is married to Bernadith Go, a resident therein; that he paid his water bills therein and proved that he is an owner of a property there. He sought to be elected for mayor in Kinoguitan. Is he qualified? Why?

Answer: No. While voting gives rise to a strong presumption of residence, it is not conclusive evidence thereof. (Domino v. COMELEC, 369 Phil. 798 (1999). In Perez v. Commission on Elections, 375 SCRA 1106 (1999) it was held that a person’s registration as voter in one district is not proof that he is not domiciled in another district. The registration of a voter in a place other than his residence of origin is not sufficient to consider him to have abandoned or lost his residence. (Faypon v. Quirino, 96 Phil. 294 (1954). To establish a new domicile of choice, personal presence in the place must be coupled with conduct indicative of that intention. It requires not only such bodily presence in that place but also a declared and probable intent to make it one’s fixed and permanent place of abode. (Pundaodaya v. COMELEC, et al., G.R. No. 179313, September 17, 2009).

Premature campaigning; its nature.

Q – Rosalinda Penera filed her certificate of candidacy but she was charged with premature campaigning since there was a motorcade that immediately took place in the locality after the filing of her certificate of candidacy. No speeches were however made, instead, there was only marching music in the background and a grandstanding for the purpose of raising the hands of the candidates in the motorcade. Is she disqualified to run for mayor considering that she conducted premature campaigning? Explain.

Answer: No, because at the time of the motorcade, she was not yet a candidate. The mere filing of her certificate of candidacy did not make her a candidate because she can only be considered a candidate at the start of the campaign period for which she filed her certificate of candidacy. (Sec. 13(3), RA 9369). The unlawful acts or omission applicable to a candidate shall take effect only upon the start of the aforesaid campaign period. (Sec. 13). Hence, the election offenses may be committed by a candidate only upon the start of the campaign period. Before the start of the campaign period, such election offenses cannot be committed. (Rosalinda Penera v. COMELEC, et al., G.R. No. 181613, November 25, 2009 citing Lanot v. COMELEC, G.R. No. 164858, November 16, 2006, 507 SCRA 114).

Proclaimed candidate was the loser; remedy is to annul proclamation.

Q – Records show that petitioner was declared the 12th winning candidate based on SOVPs containing mathematical and clerical errors, instead of private respondent. A petition for correction of manifest error and annulment of the proclamation was filed. It was contended that protest is the appropriate remedy. Is the contention correct? Why?

Answer: Yes. As a rule, It is very clear that the proclaimed candidate was the loser, hence, the petition to amend and annul was proper. The remedy of the losing party is an election protest after his opponent has already been proclaimed as winning candidate, but such recourse is on the assumption, however, that there has been a valid proclamation. Where a proclamation is null and

void, the proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to declare such nullity and annul the proclamation. (Torres v. COMELEC, 337 Phil. 270 (1997); Duremdes v. COMELEC, G.R. Nos. 86362-63, October 27, 1989, 178 SCRA 746 and Aguam v. COMELEC, 132 Phil. 353 (1968); Taguiam v. COMELEC, et al., G.R. No. 184801, July 30, 2009).

Cayat principle not applied.

Q – Nardo Velasco, a Filipino citizen acquired American citizenship. Later on he became a dual citizen. He applied for registration as a voter but his application was denied, hence, he filed his petition for inclusion as voter with the MTC which granted the petition. The RTC on appeal reversed the order, hence, he appealed to the CA but the latter dismissed the appeal for lack of jurisdiction. In the meantime, he filed his certificate of candidacy for Mayor, hence, Panlaqui filed a petition to deny due course to and/or cancel his COC based on gross misrepresentation as to his residency, hence, disqualified to vote. He won in the elections and took his oath. Finding material misrepresentations, the COMELEC nullified his proclamation hence, Panlaqui moved for proclamation. Can he, as second placer, be proclaimed as the winner? Why?

Answer: No. Since the disqualification of Velasco had not yet become final and executory before the elections, the COMELEC properly applied the rule on succession. Cayat v. COMELEC, G.R. No. 163776, April 24, 2007, 522 SCRA 23 does not apply because Cayat was disqualified in a final and executory judgment before the elections. As the only candidate Palileng, who numerically lost in the elections, he was not a second placer. On the contrary, Palileng was the sole and only placer, second to none. The doctrine in the rejection of the second placer which triggers the rule on succession does not apply. (Panlaqui vs. COMELEC, et al., G.R. No. 188671, February 24, 2010).

Political Law ARTICLE VI - Legislative Department Composition

of the JBC.

Q – Atty. Francisco Chavez questioned the constitutionality of the practice of Congress of sending two (2) representatives to the JBC with full separate votes when the Constitution provides for only one (1) representative. The petitioner contended that the framers of the Constitution envisioned only seven (7) members but the practice is different as there are now (8) members. Furthermore, he contended that the JBC cannot conduct valid proceedings as its composition is illegal and unconstitutional. The OSG contended that there are two (2) houses of the Congress, the Senate and the House of Representatives. The House without the Senate, is not the Congress. Bicamerlism, as the system of choice by the Framers, requires that both houses exercise their respective powers in the performance of its mandated duty which is to legislate. Thus, when Section 8(1), Article VIII of the Constitution speaks of “a representative from Congress”, it should mean one representative each from both Houses which comprise the entire Congress.

It was contended by the petitioner that the use of the singular letter “a” preceding

representative of Congress” is unequivocal and leaves no room for any other construction. It is indicative that the Constitutional Commission had in mind that Congress may designate only one (1) representative to the JBC. Is the contention correct? Explain. Answer: Yes. Constitution is very clear. The Constitution provides for seven (7) members of the JBC including “a representative of the Congress.”

“A Judicial & Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio members, a representative of the Integrated Bar; a professor of law, a retired Member of the Supreme Court and a representative of the private sector.” (Art. VIII, Sec. 8 of the Constitution).

The use of the singular letter “a” preceding “representative of Congress” is unequivocal and leaves no room for any other construction. It is indicative of what the members of the Constitutional Commission had in mind, that is, Congress may designate only one (1) representative to the JBC. Had it been the intention that more than one (1) representative from the legislature would sit in the JBC, the Framers could have, in no uncertain terms, so provided. (Francisco Chavez v. JBC, et al., G.R. No. 202242, July 17, 2012).

The word “Congress” used in Article VIII, Section 8(1) of the Constitution is used in its generic sense. No particular allusion whatsoever is made on whether the Senate or the House of Representatives is being referred to, but that, in either case, only a singular representative may be allowed to sit in the JBC. The foregoing declaration is but sensible, since, as pointed out by an esteemed former member of the Court and consultant of the JBC in his memorandum, “from the enumeration of the membership of the JBC, it is patent that each category of members pertained to a single individual only.”

Indeed, the spirit and reason of the statute may be passed upon where a literal meaning would lead to absurdity, contradiction, injustice, or defeat the clear purpose of the lawmakers. Not any of these instances, however, is present in the case at bench. Considering that the language of the subject constitutional provision is plain and unambiguous, there is no need to resort extrinsic aids such as records of the Constitutional Commission. (Francisco Chavez v. JBC, et al., G.R. No. 202242, July 17, 2012).

Bicameral nature of Congress; effect.

Q – The respondents insisted that owing to the bicameral nature of Congress, the word “Congress” in Section 8(1), Article VIII of the Constitution should be read as including both the Senate and the House of Representatives. They theorized that it was so worded because at the time the said provision was being drafted, the Framers initially intended a unicameral form of Congress. Then, when the Constitutional Commission eventually adopted a bicameral form of Congress, the Framers, through oversight, failed to amend Article VIII, Section 8 of the Constitution. Is the contention correct? Why? Answer: No. “Congress” in the context of JBC representation, should be considered as one body. It is evidence that the definition of “Congress” as a bicameral body refers to its primary function in government – to legislate. (Sec. 27(1), Art. VI, Constitution). In the passage of laws, the Constitution is explicit in the distinction of the role of each house in the process. The same holds

true in Congress’ non-legislative powers such as inter alia, the power of appropriation, (Sec. 24, Art. VI, Constitution), the declaration of an existence of a state of war, (Sec. 23(1), Art. VI, Constitution), canvassing of electoral returns for the President and Vice-President, (Sec. 4, Art. VII, Constitution), and impeachment (Sec. 3(1), Art. II, Constitution). In the exercise of these powers, the Constitution employs precise language in laying down the roles which a particular house plays, regardless of whether the two houses consummate an official act by voting jointly or separately. An inter-play between the two houses is necessary in the realization of these powers causing a vivid dichotomy that the Court cannot simply discount. Verily, each house is constitutionally granted with powers and functions peculiar to its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in consonance with the principle of checks and balances, to the other branches of government.

This, however, cannot be said in the case of JBC representation because no liaison between the two houses exists in the workings of the JBC. No mechanism is required between the Senate and the House of Representatives in the screening and nomination of judicial officers. Hence, the term “Congress” must be taken to mean the entire legislative department. A fortiori, a pretext of oversight cannot prevail over the more pragmatic scheme which the Constitution laid with firmness, that is, that the JBC has a seat for a single representative of Congress, as one of the coequal branches of government. (Francisco Chavez v. JBC, et al., G.R. No. 202242, July 17, 2012).

Parliamentary Immunity; rationale for privilege.

Q – A complaint for disbarment was filed against Senator Santiago based on her speech delivered in the Senate after she was not considered in her application for the Chief Justice of the Supreme Court. She uttered the following:

“I am not angry. I am irate. I am homicidal. I am suicidal. I am humiliated, debased, degraded. And I am not only that, I feel like throwing up to be living my middle years in a country of this nature. I am nauseated. I spit on the face of Chief Justice Artemio Panganiban and his cohorts in the Supreme Court, I am no longer interested in the position of Chief Justice if I was to be surrounded by idiots. I would rather be in another environment but not in the Supreme Court of idiots.”

To Pobre, the foregoing statements reflected a total disrespect on the part of the speaker towards then Chief Justice Artemio Panganiban and the other members of the Court and constituted direct contempt of court. He asked that disbarment proceedings or other disciplinary actions be taken against the lady senator.

In her comment, Senator Santiago, through counsel, explained that those statements were covered by the constitutional provision on parliamentary immunity. The purpose of her speech, according to her, was to bring out in the open controversial anomalies in governance with a view to future remedial legislation. Is the contention correct? Explain.

Answer: Yes. The immunity Senator Santiago claimed is rooted primarily on the provision of Article VI, Section 11 of the Constitution, which provides: “A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee

thereof.” Explaining the import of parliamentary immunity, in Osmeña, Jr. v. Pendatun, it was ruled that our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in every legislative assembly of the democratic world. As old as the English Parliament, its purpose “is to enable and encourage a representative of the public to discharge his public trust with firmness and success” for “it is indispensably necessary that he should enjoy the fullest liberty of speech and that he should be protected from resentment of every one, however, powerful, to whom the exercise of that liberty may occasion offense.” (Antero Pobre vs. Sen. Miriam Defensor Santiago, A.C. No. 7399, August 25, 2009).

Q – Danilo Ramon Fernandez filed his certificate of candidacy for representative of the First District of Laguna. In his certificate of candidacy, he stated that he is a resident of Villa Toledo Subdivision, Barangay Balibago, Sta. Rosa, Laguna. A petition to deny due course to his certificate of candidacy was filed before the COMELEC, Laguna alleging material misrepresentation as in the past elections, he declared Pagsanjan, Laguna as his address. He likewise maintains a house outside of the First District, particularly in Cabuyao, Laguna. He was proclaimed as the duly elected Representative of the First District of Laguna. A petition for quo warranto was filed with the HRET praying that he be declared ineligible to hold the position since he lacked the one-year residence requirement. At the hearing, witnesses were presented that he is not from Sta. Rosa; that he was not oftenly seen in Villa Toledo Subdivision. He presented evidence, however, that he is a resident of said places, testified to by some witnesses; a certification by the President of the Homeowners Association and that he bought a property at Bel-Air Sta. Rosa, Laguna and presented a lease contract over a house being rented by his family. The lessor was presented too, to testify that he is a resident of Sta. Rosa. The HRET declared him ineligible as he lacked the required residence. Before the SC he contended that the COMELEC has already passed upon his qualification, thus, the HRET should have dismissed the case. Is the contention correct? Explain.

Answer: Yes. Article VI, Section 17 provides that the HRET and the Senate Electoral Tribunal (SET) shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective members. The authority conferred upon the Electoral Tribunal is full, clear and complete. The use of the word sole emphasizes the exclusivity of the jurisdiction of these Tribunals, (Co v. HRET, G.R. No. 92191-92, July 30, 1991, 199 SCRA 692), which is conferred upon the HRET and the SET after elections and the proclamation of the winning candidates. A candidate who has not been proclaimed and who has not taken his oath of office cannot be said to be a member of the House of Representatives. (Co v. HRET).

A petition for quo warranto is within the exclusive jurisdiction of the HRET, and cannot be considered forum shopping even if the COMELEC had already passed upon in administrative or quasi-judicial proceedings the issue of the qualification of the Member of the House of Representatives while the latter was still a candidate. (Rep. Danilo Ramon Fernandez v. HRET, et al., G.R. No. 187478, December 21, 2009).

Political Law ARTICLE VII – EXECUTIVE DEPARTMENT

Creation of Phil. Truth Commission not justified by power of control.

Q - The petitioners questioned EO No. 1 creating the Phil. Truth Commission contending that it is a public office and not merely an adjunct body of the Office of the President. Thus, in order that the President may create a public office he must be empowered by the Constitution, a statute or an authorization vested in him by law. Such power cannot be presumed since there is no provision in the Constitution or any specific law that authorizes the President to create a truth commission. It was contended that Section 31 of the Administrative Code of 1987, granting the President the continuing authority to reorganize his office, cannot serve as basis for the creation of a truth commission considering the aforesaid provision merely uses verbs such as “reorganize,” “transfer,” “consolidate,” “merge,” and “abolish.” Insofar as it vests in the President the plenary power to reorganize the Office of the President to the extent of creating a public office, Section 31 is inconsistent with the principle of separation of powers enshrined in the Constitution and must be deemed repealed upon the effectivity thereof. Whose contention is correct? Explain.

Answer: The petitioners’ contention is correct. To say that the PTC is borne out of a restructuring of the Office of the President is a misplaced supposition, even in the plainest meaning attributable to the term “restructure”– an “alteration of an existing structure.” Evidently, the PTC was not part of the structure of the Office of the President prior to the enactment of Executive Order No. 1.

The creation of the PTC is not justified by the President’s power of control. Control is essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with that of the latter. (The Veterans Federation of the Philippines v. Reyes, G. R. No. 155027, February 28, 2006, 483 SCRA 526, 564; DOTC v. Mabalot, 428 Phil. 154, 164-165 (2002); Mondano v. Silvosa, 97 Phil. 143 (1955)). Clearly, the power of control is entirely different from the power to create public offices. The former is inherent in the Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully execute the laws. (Biraogo v. Phil. Truth Commission, G.R. No. 192935; Lagman, et al. V. Executive Secretary, et al., G.R. No. 193036, December 7, 2010, Mendoza, J).

Nature of the power to deport; Act of State; subject to judicial review.

Q – The respondent was sought to be deported for violation of Section 37(a)4 of CA No. 613 otherwise known as the Philippine Immigration Act of 1940. It was alleged that he was convicted and/or sentenced for Uniform Controlled Substance Act in connection with his being a Drug Trafficker and/or Courier of prohibited drugs in the State of Washington, United States of America, thus, making him an undesirable alien and/or a public burden in violation of Section 37(4) [sic] of the Philippine Immigration Act of 1940, as amended.

The Board of Commissioners ordered his deportation after trial. The DOJ on appeal affirmed the order. By way of a Petition for Certiorari and Prohibition he the CA which reversed the ruling of the DOJ holding that there was no valid and legal ground for the deportation of respondent since there was no violation of Section 37(a)(4) of the Philippine Immigration Act of 1940, as amended, because respondent was not convicted or sentenced for a violation of the law on prohibited drugs since the U.S. Court dismissed the case for violation of the Uniform Controlled Substances Act in the State of Washington, USA filed against respondent. Before the SC, it was contended that the Bureau of Immigration has the exclusive authority to decide

whether a foreigner may be deported and such proceedings are beyond judicial review. Is the contention correct? Why?

Answer: No. It is beyond cavil that the BI has the exclusive authority and jurisdiction to try and hear cases against an alleged alien, and that the BOC has jurisdiction over deportation proceedings. Nonetheless, Article VIII, Section 1 of the Constitution has vested power of judicial review in the Supreme Court and the lower courts such as the CA, as established by law. Although the courts are without power to directly decide matters over which full discretionary authority has been delegated to the legislative or executive branch of the government and are not empowered to execute absolutely their own judgment from that of Congress or of the President, (Tatad vs. Secretary of the Department of Energy, G.R. No. 124360, November 5, 1997, 281 SCRA 330, 347; Ledesma vs. CA, G.R. No. 113216, September 5, 1997, 278 SCRA 656, 681; Tañada vs. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18, 48-49), the Court may look into and resolve questions of whether or not such judgment has been made with grave abuse of discretion, when the act of the legislative or executive department is contrary to the Constitution, the law or jurisprudence, or when executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. (Republic vs. Garcia, G.R. No. 167741, July 12, 2007, 527 SCRA 495, 502; Information Technology Foundation of the Philippines vs. Commission on Elections, G.R. No. 159139, January 13, 2004, 419 SCRA 141, 148; Domingo vs. Scheer, 466 Phil. 235 (2004); House of Sara Lee vs. Rey, 500 SCRA 419 (2006); Secretary of Justice, et al. vs. Christopher Roruga, G.R. No. 166199, April 24, 2009).

Political Law ARTICLE VIII – Judiciary Department Power

of judicial review; requisites.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. (Senate of the Phil. v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1).

An aspect of the “case-or-controversy” requirement is the requisite of “ripeness.” In the United States, courts are centrally concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all. Another concern is the evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial decision; and second, the hardship to the parties entailed by withholding court consideration. In our jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. (Lozano v. Nograles, G.R. Nos. 187883 and 187910,

June 16, 2009, 589 SCRA 356, citing Guingona, Jr. v. Court of Appeals, 354 Phil. 415).

In this case, the petitioner contested the implementation of an alleged unconstitutional statute, as citizens and taxpayers. According to LAMP, the practice ofdirect allocation and release of funds to the Members of Congress and the authority given to them to propose and select projects is the core of the law’s flawed execution resulting in a serious constitutional transgression involving the expenditure of public funds. Undeniably, as taxpayers, LAMP would somehow be adversely affected by this. A finding of unconstitutionality would necessarily be tantamount to a misapplication of public funds which, in turn, cause injury or hardship to taxpayers. This affords “ripeness” to the present controversy. Further, the allegations in the petition do not aim to obtain sheer legal opinion in the nature of advice concerning legislative or executive action. The possibility of constitutional violations in the implementation of PDAF surely involves the interplay of legal rights susceptible of judicial resolution. For LAMP, this is the right torecover public funds possibly misapplied by no less than the Members of Congress. Hence, without prejudice to other recourse against erring public officials, allegations of illegal expenditure of public funds reflect a concrete injury that may have been committed by other branches of government before the court intervenes. The possibility that this injury was indeed committed cannot be discounted. The petition complains of illegal disbursement of public funds derived from taxation and this is sufficient reason to say that there indeed exists a definite, concrete, real or substantial controversy before the Court.

Anent locus standi, “the rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustained, direct injury as a result of its enforcement. (People v. Vera, 65 Phil. 56 (1937)). The gist of the question of standing is whether a party alleges “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” (Navarro v. Ermita, G.R. No. 180050, April 12, 2011, 648 SCRA 400). In public suits, the plaintiff, representing the general public, asserts a “public right” in assailing an allegedly illegal official action. The plaintiff may be a person who is affected no differently from any other person, and could be suing as a “stranger,” or as a “citizen” or “taxpayer.” (David v. MacapagalArroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 and 171424, May 3, 2006, 489 SCRA 160). Thus, taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law. (Public Interest Center, Inc. v. Honorable Vicente Q. Roxas, in his capacity as Presiding Judge, RTC of Quezon City, Branch 227, G.R. No. 125509, January 31, 2007, 513 SCRA 457, 470) Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. (People v. Vera, 65 Phil. 56 (1937)).

Here, the sufficient interest preventing the illegal expenditure of money raised by taxation required in taxpayers’ suits is established. Thus, in the claim that PDAF funds have been illegally disbursed and wasted through the enforcement of an invalid or unconstitutional law,

LAMP should be allowed to sue. The case of Pascual v. Secretary of Public Works, 110 Phil. 331 (1960), is authority in support of the petitioner:

In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditures of moneys raised by taxation and may therefore question the constitutionality of statutes requiring expenditure of public moneys. (11 Am. Jur. 761) (Lawyers Against Monopoly & Poverty (LAMP), et al., G.R. No. 164987, April 24, 2012).

Q – What are the requisites of the judicial review? Explain.

Answer: They are: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. (Senate v. Ermita, 488 SCRA 1 (2006); Francisco v. House of Representatives, 460 Phil. 830 (2003); Biraogo v. Phil. Truth Commission, G.R. No. 192935; Lagman, et al. v. Executive Secretary, et al., G.R. No. 193036, December 7, 2010)).

Q - The SC in its July 5, 2009 decision declared RA 95 creating the PNRC unconstitutional. PNRC intervened and filed a Motion for Reconsideration contending that in the original case, the issue of unconstitutionality of RA 95 was not raised, hence, the SC should not have ruled on it. Is the contention correct? Why?

Answer: Yes. The Court will not touch the issue of unconstitutionality unless it is the very lis mota. It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raise, if the record also presents some other ground upon which the court rest its judgment, that course will be adopted and the constitutional question will be left for consideration until such question will be unavoidable. (G.R. No. 162243, November 29, 2006, 508 SCRA 498 citing Sotto v. COMELEC, 76 Phil. 516 (1946); Alvarez v. PICOP resources, Inc.).

Q – Atty. Romulo B. Makalintal questioned the constitution of the Presidential Electoral Tribunal (PET) as an illegal and unauthorized progeny of Section 4, Article VIII of the Constitution which provides that the SC, sitting en banc, shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice-President and may promulgate its rules for the purpose. He contended that the creation of the PET violates the Constitution as the SC created a body separate and distinct from it. Is the contention correct? Why?

Answer: No. The PET is not a separate and distinct entity from the SC, although it has functions peculiar only to it. It was constituted in implementation of Section 4, Article VIII of the Constitution and it faithfully complies, not unlawfully defies the constitutional directive. It is a legitimate progeny of the Constitutional provision composed of the members of the SC, sitting en banc. The constitutional intent is to bestow independence to the SC as the PET to undertake the

Herculean task of deciding election protests involving presidential and vice-presidential candidates. The conferment of additional jurisdiction to the SC, with the duty characterized as an “awesome” task, includes the means necessary to carry it into effect under the doctrine of necessary implication. The abstraction of the PET from the explicit grant of power to the SC, given the abundant experience, is not unwarranted.

The Constitution grants authority to the Supreme Court sitting en banc. Although the method by which the Supreme Court exercises this authority is not specified in the provision, the grant of power does not contain any limitation on the Supreme Court's exercise thereof. The Supreme Court's method of deciding presidential and vice-presidential election contests, through the PET, is actually a derivative of the exercise of the prerogative conferred by the aforequoted constitutional provision. Thus, the subsequent directive in the provision for the Supreme Court to "promulgate its rules for the purpose." The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full authority conferred upon the electoral tribunals of the Senate and the House of Representatives, i.e., the Senate Electoral Tribunal (SET) and the House of Representatives Electoral Tribunal (HRET), which we have affirmed on numerous occasions. (Makalintal v. PET, G.R. No. 191618, November 23, 2010 and June 7, 2011).

Q – It was contended that the creation of the PET violates Section 12, Article VIII of the Constitution prohibiting the designation of members of the judiciary to any agency performing quasi-judicial or administrative functions. Is the contention correct? Why?

Answer: No, because the resolution of electoral contests is essentially an exercise of judicial power whether exercised by the COMELE, HRET, SET or the MTC or RTC. In fact their decisions are subject to judicial review via a petition for certiorari if there is a showing of grave abuse of discretion amounting to lack or excess of jurisdiction.

The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which provides that the power "shall be vested in one Supreme Court and in such lower courts as may be established by law." Judicial power was expanded to include "the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The power was expanded, but it remained absolute.

If the contention of the petitioner were logical, then the SET and HRET members who are Justices of the SC would violate the constitutional proscription because of the explicit constitutional empowerment found in Section 2(2), Article IX-C (for the COMELEC) and Section 17, Article VI (for the Senate and House Electoral Tribunals) of the Constitution. Besides, when the COMELEC, the HRET, and the SET decide election contests, their decisions are still subject to judicial review - via a petition for certiorari filed by the proper party - if there is a showing that the decision was rendered with grave abuse of discretion tantamount to lack or excess of jurisdiction. (Makalintal v. PET, supra.).

Political Law ARTICLE XII - General Provisions

Filipinization provision of the Constitution; meaning and purpose.

Q – What is the meaning and purpose of the Filipinization of public utilities? Explain.

Answer: The Filipinization provision in the 1987 Constitution is one of the products of the spirit of nationalism which gripped the 1935 Constitutional Convention. (Luzon Stevedoring Corp. v. Anti-Dummy Board, 46 SCRA 474 (1972). The 1987 Constitution “provides for the Filipinization of public utilities by requiring that any form of authorization for the operation of public utilities should be granted only to ‘citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens.’ The provision is an express recognition of the sensitive and vital position of public utilities both in the national economy and for national security.” The evident purpose of the citizenship requirement is to prevent aliens from assuming control of public utilities, which may be inimical to the national interest. This specific provision explicitly reserves to Filipino citizens control of public utilities, pursuant to an overriding economic goal of the 1987 Constitution: to “conserve and develop our patrimony” and ensure “a self-reliant and independent national economy effectively controlled by Filipinos.”

Any citizen or juridical entity desiring to operate a public utility must therefore meet the minimum nationality requirement prescribed in Section 11, Article XII of the Constitution. Hence, for a corporation to be granted authority to operate a public utility, at least 60 percent of its “capital” must be owned by Filipino citizens. (Gamboa v. Teves, et al., G.R. No. 176579, June 28, 2011).

Franchises cannot be exclusive, otherwise, void.

Q – Tawag Multi-Purpose Cooperative (TMPC) is a duly registered cooperative organized to provide domestic water services in Barangay Tawag, La Trinidad, Benguet. It applied for a certificate of public convenience with the National Water Resources Board to operate and maintain a waterworks system, but La Trinidad Water District opposed contending that it has an exclusive franchise as a local water utility created under PD 198. The application was approved where the NWRB held that the exclusive franchise is not valid and unconstitutional. On appeal to the RTC, it held that the exclusive franchise is valid. Is the ruling correct? Why?

Answer: No, because exclusive franchise is void and unconstitutional. Article XII, Section 11 of the Constitution prohibits that exclusive nature or character of a franchise when it says “nor shall such franchise x x be exclusive in character.” There is no exception. Section 47 of PD 198 which states that no franchise shall be granted to any other person or agency unless and except to the extent that the board of directors consents thereto is patently unconstitutional. In case of conflict between the Constitution and a statute, the Constitution always prevails because the Constitution is the basic Law to which all laws must conform to. The duty of the Court is to uphold the Constitution and to declare void all laws that do not conform to it. (Tawag Multi-Purpose Cooperative v. La Trinidad Water District, G.R. No. 166471, March 22, 2011, Carpio, J).

Political Law BILL OF RIGHTS

Compensation to be paid; basis; instance of an inverse condemnation proceedings.

Q – In 1970, Napocor constructed high-tension transmission lines to implement the DavaoManat 138 KV Transmission Line Project traversing over a parcel of land belonging to the respondents. When they demanded for payment, as they were not compensated for the value of the land, Napocor contended that their claim for just compensation has already prescribed pursuant to Sec. 3(i) of RA 6395 as amended by PD 380, 395, 758, 938, 1360 & 1443 prescribing a 5-year period to file any action. Is the contention correct? Why?

Answer: No. The right to recover just compensation is enshrined in no less than our Bill of Rights, which states in clear and categorical language that “[p]rivate property shall not be taken for public use without just compensation.” (Art. III, Sec. 9, Constitution). This constitutional mandate cannot be defeated by statutory prescription. (Napocor v. Heirs of Sangkay, G.R. No. 165828, August 24, 2011). Thus, it has been ruled that the prescriptive period under Section 3 (i) of R.A. No. 6395 does not extend to an action to recover just compensation. (Napocor v. Sangkay). It would be a confiscatory act on the part of the government to take the property of respondent spouses for a public purpose and deprive them of their right to just compensation, solely because they failed to institute inverse condemnation proceedings within five years from the time the transmission lines were constructed. To begin with, it was not the duty of respondent spouses to demand for just compensation. Rather, it was the duty of NAPOCOR to institute eminent domain proceedings before occupying their property. In the normal course of events, before the expropriating power enters a private property, it must first file an action for eminent domain (Rule 67, Sec. 1, Rules of Court) and deposit with the authorized government depositary an amount equivalent to the assessed value of the property. (Sec. 2, Rule 67). Due to its omission, however, respondents were constrained to file inverse condemnation proceedings to demand the payment of just compensation before the trial court. NAPOCOR cannot invoke the statutory prescriptive period to defeat respondent spouses’ constitutional right to just compensation. (National Power Corporation v. Sps. Saludares, G.R. No. 189127, April 25, 2012).

Political Law CITIZENSHIP

Naturalization laws are strictly construed, burden lies in the petitioner to prove qualifications.

Q – Kerry Lao Ong filed a petition for naturalization alleging that he was born in Cebu City of Chinese parents on March 4, 1958. He alleged that he took his elementary and high school education at the Sacred Heart for Boys in Cebu City where social studies, Pilipino, religion and the Philippine Constitution were taught. He obtained a degree of Bachelor Arts in Management at the Ateneo de Manila in 1978. In 1981, he got married with a Chinese and have four (4) children. He has been engaged in business since 1989 with an

average annual income of P150,000.00. He alleged his various residence; has socialized with Filipinos and with sound physical and mental health.

After trial, the court granted the petition, but the Republic appealed alleging that he failed to prove that he possessed a known lucrature trade, possession and occupation. The CA ruled that there was an appreciable margin of his income over the expenses as to be able to provide for his family. The Republic contended otherwise, considering that he has four (4) children, all studying in exclusive school. Is the contention of the Republic correct? Why?

Answer: Yes. Naturalization proceedings are imbued with the highest public interest. Naturalization laws should be rigidly enforced and strictly construed in favor of the government and against the applicant. The burden of proof rests upon the applicant to show full and complete compliance with the requirements of law.

Under the law, one of the qualifications for a person to become a Filipino citizen by naturalizarion is that he must own real estate in the Philippines worth not less than five thousand pesos, Philippine currency, or must have some known lucrative trade, profession or lawful occupation. (Sec. 2, Revised Naturalization Law (RA 473)). Based on jurisprudence, the qualification of “some known lucrative trade, profession, or lawful occupation” means “not only that the person having the employment gets enough for his ordinary necessities in life. It must be shown that the employment gives one an income such that there is an appreciable margin of his income over his expenses as to be able to provide for an adequate support in the event of unemployment, sickness, or disability to work and thus avoid one’s becoming the object of charity or a public charge.” (Chua Kian Lai v. Republic, 158 Phil. 44 (1974); In the Matter of the Petition of Tiong v. Republic, supra; In the Matter of the Petition of Ban Uan, supra; Chiao v. Republic, 154 Phil. 8 (1974); Watt v. Republic, 150-B Phil. 610 (1972)). His income should permit “him and the members of his family to live with reasonable comfort, in accordance with the prevailing standard of living, and consistently with the demands of human dignity, at this stage of our civilization.” (In the Matter of the Petition of Ban Uan, 154 Phil. 552 (1974); In the Matter of the Petition of Tiong v. Republic, 157 Phil. 107 (1974); Tan v. Republic, 121 Phil. 643 (1965); Rep. v. Kerry Lao Ong, G.R. No. 175430, June 18, 2012).

Political Law CIVIL SERVICE LAW

President has only the power of supervision, not control.

Q – The Province of Negros Occidental passed Resolution 720-A allocating health care and insurance benefits to its employees. It was disallowed by the COA contending that it violated AO 103 as it was done without approval of the President. Is the COA correct? Why?

Answer: No, because the requirement of prior approval by the President applies only to departments, bureaus, offices and government-owned and controlled corporations under the Executive branch. Being an LGU, petitioner is merely under the President’s general supervision (Sec. 4, Article X of the Constitution). The President’s power of general supervision means the power of a superior officer to see to it that subordinates perform their functions according to law.

(De Villa v. City of Bacolod, G.R. no. 80744, September 20, 1990, 189 SCRA 736). This is distinguished from the President’s power of control which is the power to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the President over that of the subordinate officer. (Bito-Onon v. Judge Fernandez, 403 Phil. 693 (2001)). The power of control gives the President the power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of discretion. (Province of Negros Occidental v. The Commission on Audit, G.R. No. 182574, September 28, 2010).

Political Law ELECTION

Votes of nuisance candidate is counted for the legitimate candidate.

Q – If the name of a nuisance candidate whose certificate of candidacy was still included or printed in the official ballot on election day, should the votes cast for such nuisance candidate be considered stray or counted in favor of the bona fide candidate? Explain. Answer: It is counted in favor of the bona fide candidate because the votes cast could have been intended only for the legitimate candidate. The possibility of confusion in names of candidates if the name of the nuisance candidate remained on the ballots on election day, cannot be discounted or eliminated even under the automated voting system especially considering that voters mistakenly shaded the oval beside the name of the nuisance candidate instead of the bona fide candidate they intended to vote for could no longer ask for replacement ballots to correct the same. (Dela Cruz v. COMELEC, et al., G.R. No. 192221, November 13, 2012, Villarama, J).

3-term limit; Mayor did not serve the 3-term limit when he was deprived of the right to occupy position although finally proclaimed winners.

Q – Mayor Abundo was elected Mayor in the local elections of Viga, Catanduanes in 2011, 2004, 2007 and served as Mayor. However, in the 2004 elections, Torres was proclaimed as the winner, but after the protest was decided Abundo was finally proclaimed as the winner, hence, he served as Mayor starting May 9, 2006 until the end of the 2004-2007 term on June 30, 2007 or for a period of one year and one month. In the 2010 local elections, he again filed his certificate of candidacy. The opponent filed a petition for disqualification because he was running for a fourth term, violating of the 3-term limit rule. Is the contention correct? Why?

Answer: No, because he did not serve the full term in the 2004-2007 elections, when he was initially deprived of title to, and was veritably disallowed to serve and occupy an office to which he, after due proceedings, was eventually declared to have been the rightful choice of the electorate. Article X, Sec. 8 of the Constitution and Sec. 43(b) of RA 7160, or the Local Government Code provide that no local elective official shall serve for more than three (3) consecutive terms in the same position. The 3-term limit has two (2) basic requirements, thus:

(1) That the official concerned has been elected for three consecutive terms in the same local government post; and

(2) That he has fully served three consecutive terms. (Lonzanida v. COMELEC, G.R. No. 135150, July 28, 1999, 311 SCRA 602).

Abundo could not have served for a full term in 2004-2007 because the opponent was proclaimed as the winner, hence, Abundo was termporarily unable to discharge his functions as mayor during the pendency of the election protest. The declaration of being the winner in an election protest grants the local elected official the right to serve the unexpired portion of the term but while was declared the winner for the 2004-2007 term, his full term has been substantially reduced by the actual service by his opponent. Hence, there was involuntary interruption in the term of Abundo and cannot be considered to have served the full 2004-2007 term. (Mayor Abelardo Abundo, Jr. v. COMELEC, et al., G.R. No. 201716, January 8, 2013).

Political Law EMINENT DOMAIN

For compensation to be just it must not only be full, but it should like be not delayed. Q – The government took a property under the Comprehensive Agrarian Reform program of the government but there was no payment for twelve (12) years. State the effect of the delay in the payment? Explain.

Answer: There was no more just compensation. Section 9, Article III of the 1987 Constitution expresses the constitutional rule on eminent domain – “Private property shall not be taken for public use without just compensation.” While confirming the State’s inherent power and right to take private property for public use, this provision at the same time lays down the limitation in the exercise of this power. When it takes property pursuant to its inherent right and power, the State has the corresponding obligation to pay the owner just compensation for the property taken. For compensation to be considered “just,” it must not only be full and fair equivalent of the property taken; it must also be paid to the landowner without delay.

Inevitably, if the government falters or is seen to be faltering through lack of good faith in implementing the needed reforms, including any hesitation in paying the landowners just compensation, this reform program and its objectives would suffer major setbacks. That the government’s agrarian reform program and its success are matters of public interest, to our mind, cannot be disputed as the program seeks to remedy long existing ad widespread social justice and economic problems. (Apo Fruits Corp. v. LBP, et al., G.R. No. 164195, April 5, 2011, Brion, J.).

Q – RA No. 8874 otherwise known as An Act to Facilitate Site or Location for National Government Infrastructure Project and for Other Purposes provides for guidelines for expropriation proceedings. To attain the objective of the government to facilitate infrastructure projects, what are the requirements for authorizing immediate entry in expropriation proceedings involving real property? Explain.

Answer: The requirements for authorizing immediate entry in expropriation proceedings involving real property are: (1) the filing of a complaint for expropriation sufficient in form and substance; (2) due notice to the defendant; (3) payment of an amount equivalent to 100% of the value of the property based on the current relevant zonal valuation of the BIR including payment

of the value of the improvements and/or structures if any, or if no such valuation is available and in cases of utmost urgency, the payment of the proffered value of the property to be seized; and (4) presentation to the court of a certificate of availability of funds from the proper officials.

Upon compliance with the requirements, a complainant in an expropriation case is entitled to a writ of possession as a matter of right, and it becomes the ministerial duty of the trial court to forthwith issue the writ of possession. No hearing is required, and the court exercises neither its discretion nor its judgment in determining the amount of the provisional value of the properties to be expropriated, as the legislature has fixed the amount under Section 4 of Republic Act No. 8974. (Rep. v. Far East Ent. Inc., et al., G.R. No. 176487, August 25, 2009 citing Capitol Steel Corp. v. PHIVIDEC Industrial Authority, G.R. No. 169453, December 6, 2006, 510 SCRA 590).

Political Law IMPEACHMENT

Power of the House of Representatives to promulgate rules of impeachment. Q – On July 22, 2010, Risa Hontiveros-Baraquel, et al., filed an impeachment complaint against Ombudsman Merceditas Gutierrez. Renato Reyes, Jr, et al., likewise filed an impeachment complaint against her on August 3, 2010. On August 11, 2010, the House of Representatives simultaneously referred the two complaints to the Committee on Justice which found the complaints sufficient in form on September 1, 2010. On August 3, 2010, the House provisionally adopted the Impeachment Rules of the 14th Congress and on September 2, 2010, the Rules on Impeachment Proceedings of the 15th Congress was published. On September 7, 2010, the Committee found both complaints of culpable violation of the Constitution and betrayal of public trust to be sufficient in substance. She filed a petition for injunction with the SC contending that she was deprived of due process since the Impeachment Rules was published only on September 2, 2010 a day after public respondent ruled on the sufficiency in form of the complaints. She tacked her contention on Sec. 3(8), Article XI of the Constitution which directs that Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. The respondent contended that promulgation refers to publication of the rules in any medium of information. As basis for her contention she invoked Neri v. Senate Committee on Accountability of Officers and Investigation, G.R. No. 180643, March 25, 2008, 549 SCRA 77 and 564 SCRA 152 (2008) which held that the Constitution categorically requires publication of the rules of procedure in legislative inquiries. The respondent contended that the Impeachment Rules is intended merely to enable Congress to effectively carry out the purposes of Sec. 3(8) of Article XI of the Constitution. Rule on the contention. Explain.

Answer: The contention is not correct. The Constitution merely uses the word promulgate which means to publish or to announce officially (Black’s Law Dictionary).

The Constitution does not restrict “promulgation” to “publication,” hence, the former should be understood to have been used in its general sense. It is within the discretion of Congress to determine on how to promulgate its Impeachment Rules, in much the same way that the Judiciary is permitted to determine that to promulgate a decision means to deliver the decision to the clerk of court for filing and publication.

Publication in the Official Gazette or a newspaper of general circulation is but one avenue for Congress to make known its rules. Jurisprudence emphatically teaches that in the absence of constitutional or statutory guidelines or specific rules, this Court is devoid of any basis upon which to determine the legality of the acts of the Senate relative thereto. On grounds of respect for the basic concept of separation of powers, courts may not intervene in the internal affairs of the legislature; it is not within the province of courts to direct Congress how to do its work. Where no specific, operable norms and standards are shown to exist, then the legislature must be given a real and effective opportunity to fashion and promulgate as well as to implement them, before the courts may intervene. (Sen. Santiago v. Sen. Guingona, Jr., 359 Phil. 276 (1998)).

Had the Constitution intended to have the Impeachment Rules published, it could have stated so as categorically as it did in the case of the rules of procedure in legislative inquiries, per Neri. (Gutierrez v. The House of Representatives Committee on Justice, et al., G.R. No. 193459, February 15, 2011).

Q – She contended that the filing of the second complaint violated Sec. 3(5) Article XI of the Constitution which provides that “No impeachment proceedings shall be initiated against the same official more than once within a period of one year.” She reckoned the 1-year ban from the filing of the first complaint on July 22, 2010 or before the opening of the sessions on July 26, 2010. She contended that no impeachment complaint can be accepted and referred within that period.

On the other hand, public respondent contended that the initiation starts with the filing of the impeachment complaint and ends with the referral to the Committee, following Francisco, but venture to alternatively proffer that the initiation ends somewhere between the conclusion of the Committee Report and the transmittal of the Articles of Impeachment to the Senate. Is her contention correct? Explain.

Answer: No. The term “initiate” means to file the complaint and take initial action on it. The initiation starts with the filing of the complaint which must be accompanied with an action to set the complaint moving. It refers to the filing of the impeachment complaint coupled with Congress’ taking initial action of said complaint. The initial action taken by the House on the complaint is the referral of the complaint to the Committee on Justice. (Francisco v. House of Representatives, et al., 460 Phil. 830 (2003). What ends the initiation is the referral to the Committee on Justice. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period. (Gutierrez v. The House of Representatives Committee on Justice, et al., G.R. No. 193459, February 15, 2011).

Political Law LOCAL GOVERNMENTS

Doctrine of condonation does not apply to appointive.

Q – Petitioners were appointed by X, a duly elected mayor. During his incumbency, he was administratively changed, but he was re-elected. The charges against petitioners continued, hence, they filed a motion to dismiss contending that the doctrine of condonation to

coterminous appointive officials who were administratively charged along with re-elected official/appointing authority with infractions allegedly committed during their preceding term should apply to them. Is the contention correct? Why?

Answer: No. Election expresses the sovereign will of the people. Under the principle of vox populi est suprema lex, the re-election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a re-appointment to a non-career position. There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president. (Atty. Vicente Salumbides, et al. v. Office of the Ombudsman, et al., G.R. No. 180917, April 23, 2010 citing CSC v. Sojor, 554 SCRA 160 (2008)).

Q – Is not the non-application of the doctrine of condonation to appointed officials violative of the equal protection clause? Why?

Answer: No. The non-application of the condonation doctrine to appointive officials does not violate the right to equal protection of the law. The electorate’s condonation of the previous administrative infractions of the re-elected official cannot be extended to that of the reappointed coterminous employees, the underlying basis of the rule being to uphold the will of the people expressed through the ballot. In other words, there is neither subversion of the sovereign will nor disenfranchisement of the electorate to speak of, in the case of reappointed coterminous employees.

It is the will of the populace, not the whim of one person who happens to be the appointing authority, that could extinguish an administrative liability. Since petitioners hold appointive positions, they cannot claim the mandate of the electorate. The people cannot be charged with the presumption of full knowledge of the life and character of each and every probable appointee of the elective official ahead of the latter’s actual reelection.

The unwarranted expansion of the doctrine would set a dangerous precedent as it would, provide civil servants, particularly local government employees, with blanket immunity from administrative liability that would spawn and breed abuse in the bureaucracy. (Salumbides v. Office of the Ombudsman, G.R. No. 180917, April 23, 2010).

3-term limit.

Q – Marino Morales was elected Mayor of Mabalacat, Pampanga in 1995, 1998, 2001, 2004 and 2007 local elections. He was, however disqualified in the 2004 elections because of the 3term limit. While his proclamation in the 1998-2001 election was declared void, it was done after serving the term or on July 4, 2001. On May 7, 2007, the SC promulgated a decision disqualifying him. He vacated the position, the next day, the Vice-Mayor assumed office from May 17, 2007 to June 30, 2007. It was contended that he was not qualified to run in the 2007 local elections, otherwise, he would be serving a 5th term. Is the contention correct? Why?

Answer: No. It is true that he occupied the position of mayor in the following periods: 19951998; 1998-2001; 2001-2004; 2004-2007 but because of his disqualification he was not duly elected mayor for the 2004-2007 term. Neither did Morales hold the position of mayor of Mabalacat for the full term. Morales cannot be deemed to have served the full term of 2004-2007 because he was ordered to vacate his post before the expiration of the term. Morales’ occupancy of the

position of mayor of Mabalacat from 1 July 2004 to 16 May 2007 cannot be counted as a term for purposes of computing the three-term limit. Indeed, the period from 17 May 2007 to 30 June 2007 served as a gap for purposes of the three-term limit rule. Thus, the present 1 July 2007 to 30 June 2010 term is effectively Morales’ first term for purposes of the three-term limit rule. (Dizon v. COMELEC, et al., G.R. No. 182088, January 30, 2009).

Q – It was alleged that Morales “was able to serve his fourth term as mayor through lengthy litigations. In other words, he was violating the rule on three-term limit with impunity by the sheer length of litigation and profit from it even more by raising the technicalities arising therefrom.” Is the contention correct? Why?

Answer: No. The respondents harp on the delay in resolving the election protest between petitioner and his then opponent which took roughly about three years and resultantly extended the petitioner’s incumbency in an office to which he was not lawfully elected. Such delay cannot be imputed to the him because there was no proof that the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant, was not without legal recourse to move for the early resolution of the election protest while it was pending before the regional trial court or to file a motion for the execution of the regional trial court’s decision declaring the position of mayor vacant and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not shown to have been intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen local government post in the succeeding mayoral election. (Dizon v. COMELEC, et al., G.R. No. 182088, January 30, 2009).

Q – Nicasio Bolos ran for Punong Barangay in Dauis, Bohol in the 1994, 1997 and 2002 barangay elections and won. Petitioner contended that he is qualified to run for the position of Punong Barangay in the October 29, 2007 Barangay and Sangguniang Kabataan Elections since he did not serve continuously three consecutive terms. He admitted that in the 1994, 1997 and 2002 Barangay elections, while serving his third term as Punong Barangay, he ran as Municipal Councilor of Dauis, Bohol, and won. On July 1, 2004, he assumed office and, consequently, left his post as Punong Barangay by operation of law. He averred that he served the full term as member of the Sangguniang Bayan until June 30, 2007. On October 29, 2007, he filed his Certificate of Candidacy for Punong Barangay and won. The COMELEC issued an order disqualifying him as a candidate for Punong Barangay since he did not complete his third term by operation of law. He contended that he is qualified. Is his contention correct? Why?

Answer: No. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years, and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

It is undisputed that petitioner was elected as PunongBarangay for three consecutive terms, satisfying the first condition for disqualification.

Petitioner was serving his third term as Punong Barangay when he ran for Sangguniang Bayan member and, upon winning, assumed the position of Sangguniang Bayan member, thus,

voluntarily relinquishing his office as Punong Barangay which is deemed to be voluntary renunciation of said office.

Q – Mayor Abundo was elected Mayor in the local elections of Viga, Catanduanes in 2011, 2004, 2007 and served as Mayor. However, in the 2004 elections, Torres was proclaimed as the winner, but after the protest was decided Abundo was finally proclaimed as the winner, hence, he served as Mayor starting May 9, 2006 until the end of the 2004-2007 term on June 30, 2007 or for a period of one year and one month. In the 2010 local elections, he again filed his certificate of candidacy. The opponent filed a petition for disqualification because he was running for a fourth term, violating of the 3-term limit rule. Is the contention correct? Why?

Answer: No, because he did not serve the full term in the 2004-2007 elections, when he was initially deprived of title to, and was veritably disallowed to serve and occupy an office to which he, after due proceedings, was eventually declared to have been the rightful choice of the electorate. Article X, Sec. 8 of the Constitution and Sec. 43(b) of RA 7160, or the Local Government Code provide that no local elective official shall serve for more than three (3) consecutive terms in the same position. The 3-term limit has two (2) basic requirements, thus:

(1) That the official concerned has been elected for three consecutive terms in the same local government post; and

(2) That he has fully served three consecutive terms. (Lonzanida v. COMELEC, G.R. No. 135150, July 28, 1999, 311 SCRA 602).

Abundo could not have served for a full term in 2004-2007 because the opponent was proclaimed as the winner, hence, Abundo was termporarily unable to discharge his functions as mayor during the pendency of the election protest. The declaration of being the winner in an election protest grants the local elected official the right to serve the unexpired portion of the term but while was declared the winner for the 2004-2007 term, his full term has been substantially reduced by the actual service by his opponent. Hence, there was involuntary interruption in the term of Abundo and cannot be considered to have served the full 2004-2007 term. (Mayor Abelardo Abundo, Jr. v. COMELEC, et al., G.R. No. 201716, January 8, 2013).

Q – Wilfredo Asilo was elected councilor in Lucena City for three (3) terms, but he was suspended for 90 days by the SB on his third term. In the 2007 elections, he filed his certificate of candidacy for councilor but there ws a petition to deny due course to his certificate of candidacy alleging that he was running for a fourth term. The COMELEC ruled in favor of Asilo and denied the petition to deny due course holding that the preventive suspension was an effective interruption of his term because it rendered him unable to provide complete service for the full term, hence, such term should not be counted for the purpose for the three-term limit rule. Is the ruling correct? Explain.

Answer: No, because he has already served three (3) terms as councilor.

The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. (Sec. 8, Art. 10, Constitution).

The constitutional provision fixes the term of a local elective office and limits an elective official’s stay in office to no more than three consecutive terms. This provision refers to a “term” as a period of time – three years – during which an official has title to office and can serve. In Appari v. Court of Appeals, it was ruled that:

The word “term” in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an office. According to Mechem, the term of office is the period during which an office may be held. Upon expiration of the officer’s term, unless he is authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto cease. In the law of public officers, the most and natural frequent method by which a public officer ceases to be such is by the expiration of the terms for which he was elected or appointed. (G.R. No. L-30057, January 31, 1984, 127 SCRA 231; Simon Aldovino, Jr., et al. v. COMELEC, et al., G.R. No. 184836, December 23, 2009, Brion, J).

Q – State the reason why a preventively suspended elective public officer cannot run for a fourth term. Explain.

Answer: To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our eyes to this reality and to allow a constitutional violation through sophistry by equating the temporary inability to discharge the functions of office with the interruption of term that the constitutional provision contemplates. To be sure, many reasons exist, voluntary or involuntary – some of them personal and some of them by operation of law – that may temporarily prevent an elective office holder from exercising the functions of his office in the way that preventive suspension does. A serious extended illness, inability through force majeure, or the enforcement of a suspension as a penalty, to cite some involuntary examples, may prevent an office holder from exercising the functions of his office for a time without forfeiting title to office. Preventive suspension is no different because it disrupts actual delivery of service for a time within a term. Adopting such interruption of actual service as the standard to determine effective interruption of term under the three-term rule raises at least the possibility of confusion in implementing this rule, given the many modes and occasions when actual service may be interrupted in the course of serving a term of office. The standard may reduce the enforcement of the three-term limit rule to a case-to-case and possibly see-sawing determination of what an effective interruption is. (Simon Aldovino, Jr., et al. v. COMELEC, et al., G.R. No. 184836, December 23, 2009, Brion, J).

Criterion in creating a local government unit.

Q – In the February 10, 2010 decision of the SC, it declared RA 9355 creating the province of Dinagat unconstitutional for failure to comply with the requirements of population and land area. It further declared as void Article 9(2) of the LGC-IRR stating that the land area requirement shall not apply where the proposed province is composed of one (1) or more islands. Under the law, a province must comprise of at least 2,000 square kilometres, but the province does not meet the requirement, hence, a motion for reconsideration seeking the exemption’s application was filed with the SC contending that while the Local Government Code allows the creation of a city or municipality even if the areas are not contiguous, such does not exist in the creation of a province. Is the MR proper? Why?

Answer: Yes. When the local government unit to be created consists of one (1) or more islands, it is exempt from the land area requirement as expressly provided in Section 442 and Section 450 of the LGC if the local government unit to be created is a municipality or a component city, respectively. This exemption is absent in the enumeration of the requisites for the creation of a province under Section 461 of the LGC, although it is expressly stated under Article 9(2) of the LGC-IRR.

There appears neither rhyme nor reason why this exemption should apply to cities and municipalities, but not to provinces. In fact, considering the physical configuration of the Philippine archipelago, there is a greater likelihood that islands or group of islands would form part of the land area of a newly-created province than in most cities or municipalities. It is, therefore, logical to infer that the genuine legislative policy decision was expressed in Section 442 (for municipalities) and Section 450 (for component cities) of the LGC, but was inadvertently omitted in Section 461 (for provinces). Thus, when the exemption was expressly provided in Article 9(2) of the LGC-IRR, the inclusion was intended to correct the congressional oversight in Section 461 of the LGC – and to reflect the true legislative intent. It would, then, be in order for the Court to uphold the validity of Article 9(2) of the LGC-IRR. (Navarro, et al. V. Executive Secretary Ermita, G.R. No. 180050, April 12, 2011).

Q – What is the reason for the above interpretation of the law? Explain.

Answer: The interpretation has to be so because of the basic policy consideration underpinning the principle of local autonomy. Consistent with the declared policy to provide local government units genuine and meaningful local autonomy, contiguity and minimum land area requirements for prospective local government units should be liberally construed in order to achieve the desired results. The strict interpretation could prove to be counter-productive, if not outright absurd, awkward, and impractical. Picture an intended province that consists of several municipalities and component cities which, in themselves, also consist of islands. The component cities and municipalities which consist of islands are exempt from the minimum land area requirement, pursuant to Sections 450 and 442, respectively, of the LGC. Yet, the province would be made to comply with the minimum land area criterion of 2,000 square kilometers, even if it consists of several islands. This would mean that Congress has opted to assign a distinctive preference to create a province with contiguous land area over one composed of islands — and negate the greater imperative of development of self-reliant communities, rural progress, and the delivery of basic services to the constituency. This preferential option would prove more difficult and burdensome if the 2,000-square-kilometer territory of a province is scattered because the islands are separated by bodies of water, as compared to one with a contiguous land mass.

A very restrictive construction could trench on the equal protection clause, as it actually defeats the purpose of local autonomy and decentralization as enshrined in the Constitution. Hence, the land area requirement should be read together with territorial contiguity. (Navarro, et al. v. Executive Secretary Ermita, G.R. No. 180050, April 12, 2011).

Zoning power of LGUs is intended to increase local autonomy.

Q – Resolution No. 29-A of the Municipality of Dasmariñas dated July 9, 1972 approved the subdivision of certain properties for residential purposes from agricultural. Petitioners Buklod

ng Magbubukid sa Lupaing Ramos, Inc. and the DAR sought to include the same under the coverage of the CARP Law contending that the LGU has no power to reclassify the land; only the national legislature can do it. Is the contention correct? Why?

Answer: No, because a parcel of land reclassified for non-agricultural uses prior to June 15, 1988 shall no longer be considered agricultural land under the CARP.

When city and municipal boards and councils approved an ordinance delineating an area or district in their cities or municipalities as residential, commercial or industrial zone, pursuant to the power granted to them under, they were, at the same time, reclassifying any agricultural lands within the zone for non-agricultural use; hence, ensuring the implementation of and compliance with their zoning ordinances. The logic and practicality behind such a presumption is more evident when considering the approval by local legislative bodies of subdivision ordinances and regulations. The approval by city and municipal boards and councils of an application for subdivision through an ordinance should already be understood to include approval of the reclassification of the land, covered by said application, from agricultural to the intended nonagricultural use. Otherwise, the approval of the subdivision application would serve no practical effect; for as long as the property covered by the application remains classified as agricultural, it could not be subdivided and developed for non-agricultural use.

A liberal interpretation of the zoning power of city and municipal boards and councils, as to include the power to accordingly reclassify the lands within the zones, would be in accord with the avowed legislative intent behind the Local Autonomy Act of 1959, which was to increase the autonomy of local governments. (Buklod nang Magbubukid sa Lupaing Ramos, Inc. v. E.M. Ramos, Inc., G.R. No. 131481; DAR v. E.M. Ramos, Inc., G.R. No. 131624, March 16, 2011).

Renunciation of Filipino citizenship must be under oath.

Q – Teodora Sobejana-Condon, a Filipino citizenship acquired Australian citizenship. In 2006, she filed a renunciation of Australian citizenship but it was not under oath contrary to the mandate of Section 5(2) of RA 9225. Then, she filed her certificate of candidacy and was elected. Is she qualified to run for public office? Explain.

Answer: No. The requirement that the renunciation of her foreign citizenship must be under oath is mandatory.

The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC, we declared its categorical and single meaning: a Filipino American or any dual citizen cannot run for any elective public position in the Philippines unless he or she personally swears to a renunciation of all foreign citizenship at the time of filing the certificate of candidacy. We also expounded on the form of the renunciation and held that to be valid, the renunciation must be contained in an affidavit duly executed before an officer of the law who is authorized to administer an oath stating in clear and unequivocal terms that affiant is renouncing all foreign citizenship.

The foreign citizenship must be formally rejected through an affidavit duly sworn before an officer authorized to administer oath. (Teodora Sobejana-Condon v. COMELEC, et al., G.R. No. 198742, August 10, 2012, Reyes, J, citing De Guzman v. COMELEC, G.R. No. 180048, June 19, 2009, 590 SCRA 149).

Q – What is the effect of her winning in the election? Explain.

Answer: The fact that she won the elections can not cure the defect of her candidacy. Garnering the most number of votes does not validate the election of a disqualified candidate because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity. (Lopez v. COMELEC, G.R. No. 182701, July 23, 2008, 559 SCRA 696; Teodora Sobejana-Condon v. COMELEC, et al., supra.).

Candidate convicted of robbery is disqualified to run; petition for cancellation of COC is the remedy.

Q – Dominador Jalosjos, Jr. filed his certificate of candidacy for Mayor of the City of Dapitan, Zamboanga del Sur for the 2010 elections. His opponent Agapito Cardino filed a petition to deny due course and cancel his COC due to a false material misrepresentation in his certificate when he declared under oath that he was eligible when he has been convicted of the crime of robbery and sentenced to prison mayor by the RTC. Jalosjos contended that he was granted probation where the COMELEC found out that the certificate of compliance with the requirement was fraudulently issued. He has not yet served his sentence. The penalty of prision mayor carries with it perpetual special disqualification to hold public office. Is the COMELEC’s ruling correct? Why?

Answer: Yes. The COMELEC properly cancelled Jalosjos’ certificate of candidacy. A void certificate of candidacy on the ground of ineligibility that exited at the time of the filing of the certificate of candidacy can never give rise to a valid candidacy, and much less to valid votes. Jalosjos’ certificate of candidacy was cancelled because he was ineligible from the start to run for Mayor. Whether his certificate of candidacy is cancelled before or after the election is immaterial because the cancellation on such ground means he was never a valid candidate from the very beginning, his certificate of candidacy being void ab initio. Jalosjos’ ineligibility existed on the day he filed his certificate of candidacy, and the cancellation of his certificate of candidacy retroacted to the day he filed it. Thus, Cardino ran unopposed. There was only one qualified candidate for Mayor in the May 2010 elections -- Cardino – who received the highest number of votes.

Section 74 requires the candidate to state under oath in his certificate of candidacy "that he is eligible for said office." A candidate is eligible if he has a right to run for the public office. If a candidate is not actually eligible because he is barred by final judgment in a criminal case from running for public office, and he still states under oath in his certificate of candidacy that he is eligible to run for public office, then the candidate clearly makes a false material representation that is a ground for a petition under Section 78. (Jalosjos, Jr. v. COMELEC, et al., G.R. No. 193237; Cardino v. Jalosjos, et al., G.R. No. 193237, October 9, 2012).

Vice-Mayor is included in computing the quorum.

Q – Petitioners alleged that Atty. Rex Rojo’s appointment as Sangguniang Panlungsod Secretary is void. They maintained that respondent’s irrevocable resignation as aSangguniang Panlungsod member was not deemed accepted during the regular session of the Sangguniang Panlungsodof La Carlota City, Negros Occidental for lack of quorum. Consequently, respondent was still an incumbent regular Sangguniang Panlungsod

member when then Vice Mayor Jalandoon appointed him as Sangguniang Panlungsod Secretary on 18 March 2004, which contravenes Section 7, Article IX-B of the Constitution.

They contended that the vice-mayor, as presiding officer of the Sangguniang Panlungsod, should not be counted in determining whether a quorum exists. Excluding the vice-mayor, there were only six (6) out of the twelve (12) members of the Sangguniang Panlungsod who were present on 17 March 2004. Since the required majority of seven (7) was not reached to constitute a quorum, then no business could have validly been transacted on that day including the acceptance of respondent’s irrevocable resignation.

On the other hand, Atty. Rojo maintained that the Sangguniang Panlungsod consists of the presiding officer, ten (10) regular members, and two (2) ex-officio members, or a total of thirteen (13) members, hence there was a quorum as the Vice-Mayor should be included in the computation of the quorum. Whose contention is correct? Explain.

Answer: The contention of Atty. Rojo is correct. The Vice-Mayor is a member of the Sanggunian, hence, he should be included in the computation of the quorum.

RA 7160 clearly states that the Sangguniang Panlungsod “shall be composed of the city vicemayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.” Black’s Law Dictionary defines “composed of” as “formed of” or “consisting of.” As the presiding officer, the vice-mayor can vote only to break a tie. In effect, the presiding officer votes when it matters the most, that is, to break a deadlock in the votes. Clearly, the vicemayor, as presiding officer, is a “member” of the Sangguniang Panlungsod considering that he is mandated under Section 49 of RA 7160 to vote to break a tie. To construe otherwise would create an anomalous and absurd situation where the presiding officer who votes to break a tie during a Sanggunian session is not considered a “member” of the Sanggunian. (La Carlota City, Negros Occidental, etc. v. Atty. Rex Rojo, G.R. No. 181367, April 24, 2012, Carpio, J).

Political Law POLICE POWER

Q – There was a deed of restriction on the property of a homeowner that it can be used for educational purposes up to nursery only. Subsequently, the City of Muntinlupa passed an ordinance re-classifying the area as institutional, hence, the owner expanded the school. The neighborhood objected, hence, the suit. Which shall prevail, the restriction in the title or the ordinance? Explain.

Answer: The ordinance as it is an exercise of police power. As early as Ortigas & Co. Ltd. Partnership v. Feati Bank & Trust Co., 183 Phil. 176 (1979), the SC upheld the validity of an ordinance declaring the residential area in Mandaluyong as industrial and commercial zone as it was passed in the exercise of police power.

Since the motives behind the passage of the questioned resolution is reasonable, and it being a legitime response to a felt public need, not whimsical or oppressive, the non-impairment of

contracts clause of the Constitution will not bar the municipality’s exercise of police power. (Learning Child, Inc., et al. v. Ayala Alabang Village Asso., et al., G.R. No. 134269, and other companion cases, July 7, 2010).

Political Law PUBLIC OFFICERS

Q – Calixto Cataquiz, then General Manager of the Laguna Lake Development Authority was charged with violation of the Anti-Graft Law. The case was dismissed. In the meantime an administrative case was filed seeking his removal. He contended that because of the dismissal of the criminal case, there was no more basis to hold him administratively liable. Is his contention correct? Why?

Answer: No. It is a basic rule in administrative law that public officials are under a three-fold responsibility for a violation of their duty or for a wrongful act or omission, such that they may be held civilly, criminally and administratively liable for the same act. (Tecson v. SB, 376 Phil. 191 (1999)). Obviously, administrative liability is separate and distinct from penal and civil liability. (Veloso v. SB, 187 SCRA 504, (1990)).

The distinct and independent nature of one proceeding from the other can be attributed to the following: first, the difference in the quantum of evidence required and, correlatively, the procedure observed and sanctions imposed; and second, the principle that a single act may offend against two or more distinct and related provisions of law, or that the same act may give rise to criminal as well as administrative liability. (People v. SB, G.R. No. 164577, July 5, 2010, 623 SCRA 147, citing People v. Paredes, G.R. No. 169534, July 30, 2007, 528 SCRA 577; Office of the Pres. v. Calixto Cataquiz, G.R. No. 183445, September 14, 2011).

Political LawSEARCHES AND SEIZURES

Arrest in flagrante delicto, no need for warrant; objects searched are admissible in evidence.

Q – When the police got a call from a concerned citizen that an illegal drug trade was being conducted in a place, they responded and saw a man examining a transparent plastic sachet containing shabu powder by flicking the same. They arrested him. When charged with violation of the law, he contended that he was not doing anything at the time of his arrest, hence, the subsequent search upon his person was illegal, hence, the alleged illegal drugs recovered from him cannot be used against him, otherwise, it would violate his constitutional rights against unreasonable searches and seizures. Is his contention correct? Why?

Answer: No, because he was arrested in flagrante delicto as he was then committing a crime, violation of the Dangerous Drugs Act, within the view of the police officers.  At the time of his

arrest, the police officers were actively performing their duties, since they were following up a tip that there was an illegal drug trade being conducted in the area.  This fact, coupled with the overt acts of petitioner, formed sufficient basis on the part of the police officers to believe that a crime was actually being committed.  Thus, his case falls within the exception to the rule requiring a warrant before effecting an arrest.  Consequently, the results of the ensuing search and seizure were admissible in evidence to prove petitioner’s guilt of the offense charged. (Stephen Sy v. People, G.R. No. 182178, August 15, 2011, Peralta, J,).

Obscene language is an unprotected speech.

Q - An order suspending the program of Soriano was issued due to certain utterances he made in his television show, Ang Dating Daan. He uttered the following: Lehitimong anak ng demonyo; sinungaling. Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang doon yung ibaba, (dito) kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito. x x x He contended that the MTRCB denied him his right to the equal protection of the law, arguing that, owing to the preventive suspension order, he was unable to answer the criticisms coming from the INC ministers. Is his contention correct? Why?

Answer: No. His position does not persuade. The equal protection clause demands that “all persons subject to legislation should be treated alike, under like circumstances and conditions both in the privileges conferred and liabilities imposed”. It guards against undue favor and individual privilege as well as hostile discrimination. (Ichong vs. Hernandez, 101 Phil. 1155 (1957). Surely, he cannot, place himself in the same shoes as the INC ministers, who, for one, are not facing administrative complaints before the MTRCB. For another, he offered no proof that the said ministers, in their TV programs, used language similar to that which he used in his own, necessitating the MTRCB’s disciplinary action. If the immediate result of the preventive suspension order is that petitioner remains temporarily gagged and is unable to answer his critics, this does not become a deprivation of the equal protection guarantee. Such suspension is not an indication of oppressive inequality. (Eliseo Soriano v. Laguardia, et al., G.R. No. 164785; Soriano v. MTRCB, et al., G.R. No. 165636, April 29, 2009).

Q – He contended that what he uttered was religious speech, adding that words like “putang babae” were said in the exercise of his religious freedom. Rule on the contention. Explain.

Answer: The argument has no merit. There is nothing in his statements expressing any particular religious belief, nothing furthering his avowed evangelical mission. The fact that he came out with his statements in a televised bible exposition program does not automatically accord them the character of a religious discourse. Plain and simple insults directed at another person cannot be elevated to the status of religious speech. He was only moved by anger and the need to seek retribution, not by any religious conviction. His claim, assuming its veracity, that some INC ministers distorted his statements does not convert the foul language used in retaliation as religious speech. It cannot be accepted that petitioner made his statements in defense of his reputation and religion, as they constitute no intelligible defense or refutation of the alleged lies being spread by a rival religious group. They simply illustrate that he had descended to the level of name-calling and foul-language discourse. He could have chosen to contradict and disprove his detractors, but opted for the low road. (Soriano v. Laguardia, et al., supra.).

Q – Is there a distinction between regulation or restriction of protected speech that is content-based and that which is content-neutral?

Answer: Yes. A content-based restraint is aimed at the contents or idea of the expression, whereas a content-neutral restraint intends to regulate the time, place, and manner of the expression under well-defined standards tailored to serve a compelling state interest, without restraint on the message of the expression. Courts subject content-based restraint to strict scrutiny. (Chavez vs. Gonzales, 545 SCRA 441 (2008); Soriano v. Laguardia, et al., supra.).

Q – He asserted that his utterances must present a clear and present danger of bringing about a substantive evil the State has the right and duty to prevent and such danger must be grave and imminent. Is the contention correct? Why?

Answer: No. His invocation of the clear and present danger doctrine, arguably the most permissive of speech tests, would not avail him any relief, for the application of said test is uncalled for under the premises. The doctrine, first formulated by Justice Holmes, accords protection for utterances so that the printed or spoken words may not be subject to prior restraint or subsequent punishment unless its expression creates a clear and present danger of bringing about a substantial evil which the government has the power to prohibit. (16A AM. Jur. 2d Constitutional Law Sec. 493; Schenck vs. U.S. 249 U.S. 47). Under the doctrine, freedom of speech and of press is susceptible of restriction when and only when necessary to prevent grave and immediate danger to interests which the government may lawfully protect. As it were, said doctrine evolved in the context of prosecutions for rebellion and other crimes involving the overthrow of government. It was originally designed to determine the latitude which should be given to speech that espouses anti-government action, or to have serious and substantial deleterious consequences on the security and public order of the community. (Gonzales vs. COMELEC, 27 SCRA 835 (1969). The clear and present danger rule has been applied to this jurisdiction. As a standard of limitation on free speech and press, however, the clear and present danger test is not a magic incantation that wipes out all problems and does away with analysis and judgment in the testing of the legitimacy of claims to free speech and which compels a court to release a defendant from liability the moment the doctrine is invoked, absent proof of imminent catastrophic disaster. (Zaldivar vs. Gonzales, 170 SCRA 1 (1989). As observed in Eastern Broadcasting Corporation, the clear and present danger test “does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums.” (137 SCRA 628 (1985); Soriano v. Laguardia, et al., supra.).

Political LawTAXATION

Q – Cooperatives, under RA 6938 as amended by RA 9520 enjoy preferential tax treatment. The members of the coop were being made to pay taxes. They protested as they should likewise be exempted. The BIR contended otherwise, hence, they filed a petition contending that the tax preferential treatment include the members. If you were the Court, how would you decide? Explain.

Answer: I would rule in favour of the members of the cooperative. Under Article 2 of RA 6938, as amended by RA 9520, it is a declared policy of the State to foster the creation and growth of cooperatives as a practical vehicle for promoting self-reliance and harnessing people power towards the attainment of economic development and social justice. Thus, to encourage the formation of cooperatives and to create an atmosphere conducive to their growth and development, the State extends all forms of assistance to them, one of which is providing cooperatives a preferential tax treatment.

Cooperatives, including their members, deserve a preferential tax treatment because of the vital role they play in the attainment of economic development and social justice.  Thus, although taxes are the lifeblood of the government, the State’s power to tax must give way to foster the creation and growth of cooperatives.  To borrow the words of Justice Isagani A. Cruz: “The power of taxation, while indispensable, is not absolute and may be subordinated to the demands of social justice.” (Dumaguete Credit Cooperative v. Com. Of Internal Revenue, G.R. No. 182722, January 22, 2010; Rep. v. Judge Peralta, 234 Phil. 40 (1987).