Clearly, therefore, although said arrastre function may be
ARTICLE XVI deemed proprietary, it is a necessary incident of the primary
GENERAL PROVISIONS
Section 1. The flag of the Philippines shall be red, white, and blue, with a
sun and three stars, as consecrated and honored by the people and
recognized by law.
Section 2. The Congress may, by law, adopt a new name for the country,
a national anthem, or a national seal, which shall all be truly reflective and
symbolic of the ideals, history, and traditions of the people. Such law shall
take effect only upon its ratification by the people in a national
referendum.
Section 3. The State may not be sued without its consent.
State immunity from suit
(1) NOT INCLUDED: Mobil v. Customs Arrastre Service
4 cases of rotary drill parts were shipped from abroad on
board SS Leoville, consigned to Mobil Philippines Exploration,
Inc. Manila.
When the shipment arrived at the Port of Manila, it was
discharged to the custody of the Customs Arrastre Service.
o The Customs Arrastre Service is the unit of the
Bureau of Customs then handling arrastre
operations.
However, only 3 cases of the shipment were delivered to Mobil
Philippines.
Mobil Philippines filed a suit against the Customs Arrastre
Service and the Bureau of Customs to recover the value of the
undelivered cases.
The lower court dismissed the complaint on the ground that
neither the Customs Arrastre Service and Bureau of Customs
is suable.
Hence, the present petition by Mobil Philippines claiming that
not all government entities are immune from suit and that the
Bureau of Customs as operator of the arrastre service at the
Port of Manila, is discharging proprietary functions and
therefore, may be sued.
Issue: Whether or not the Bureau of Customs and the Customs Arrastre
Service may be sued?
Ruling: Both are immune from suit.
The fact that a non-corporate government entity performs a
function proprietary in nature does not necessarily result in its
being suable.
o If said non-governmental function is undertaken as
an incident to its governmental function, there is no
waiver thereby of the sovereign immunity from suit
extended to such government entity.
The Bureau of Customs is part of the Department of Finance,
with no personality of its own apart from that of the national
government.
o Its primary function is governmental, that of
assessing and collecting lawful revenues from
imported articles and all other tariff and customs
duties, fees, charges, fines and penalties.
To this function, arrastre service is a necessary incident.
o For practical reasons said revenues and customs
duties can not be assessed and collected by simply
receiving the importer's or ship agent's or
consignee's declaration of merchandise being
imported and imposing the duty provided in the
Tariff law.
o Customs authorities and officers must see to it that
the declaration tallies with the merchandise actually
landed.
o And this checking up requires that the landed
merchandise be hauled from the ship's side to a
suitable place in the customs premises to enable
said customs officers to make it, that is, it requires
arrastre operations.
and governmental function of the Bureau of Customs, so that
engaging in the same does not necessarily render said Bureau
liable to suit.
o For otherwise, it could not perform its governmental
function without.necessarily exposing itself to suit.
Sovereign immunity, granted as to the end, should
not be denied as to the necessary means to that
end.
(2) Baer v. Tizon - 57 SCRA 1
Gener filed an action to enjoin the commander of the US naval
base in Olongapo from stopping his operations. The base
commander argued that he performed the acts complained of in an
official capacity and the action was in effect a suit against the US
without its consent.
Is the suit against the base commander a suit against the US that
therefore needs its consent?
YES. What was sought by Gener amounted to an interference
with the performance of the duties of the base commander in
the base area in accordance with his powers under the
Philippine-American Military Bases Agreement. Prosecution of a
sovereign for doing an act pertaining directly to the defense of
the State as a public function of any government is likewise an
action against the State without its consent.
(3) Municipality of San Fernando v. Judge Firme
A dump truck of the Municipality of San Fernando, La union,
while on its way to get sand and gravel for the repair of
municipal streets, collided with a jeepney, resulting in the
death and physical injuries to several passengers. In the
complaint for damages, the driver and the Municipality were
impleaded. The Municipality contended that it could not be held
liable.
Can the municipality of San Fernando, La Union be held liable?
NO. Municipal corporations like provinces and cities are
agencies of the State when they are engaged in
governmental function and therefore should enjoy the sovereign
immunity from suit. Nevertheless, they are subject to suit even in
the performance of such functions because their charter provided
that they can sue and be sued. Suability depends on the consent
of the State to be sued; Liability depends on the applicable law
and the established facts. The fact that a State is suable does
not necessarily mean that it is liable. While it can never be
held liable if it does not first consent to be sued. Liability is not
conceded by the mere fact that the State has allowed itself to
be sued. When the State does not waive its sovereign immunity,
it is only giving the plaintiff the chance to prove if the
defendant is liable, the test of liability of the municipality
depends on whether or not the driver, acting in behalf of the
municipality, is performing governmental or proprietary
functions. In the case at bar, the driver of the dump truck of the
municipality insists that he was on his way to the Naguilian river
to get a load of sand and gravel for the repair of San
Fernando's municipal streets. In the absence of any evidence
to the contrary, the regularity of the performance of official
duty is presumed pursuant to Section 3(m) of Rule 131 of the
Revised Rules of Court. Hence, we rule that the driver of the
dump truck was performing duties or tasks pertaining to his office
and that the municipality cannot be held liable for the torts
committed by its regular employee, who was then engaged
in the discharge of governmental functions.
1
(4) Republic v. Sandoval - 220 SCRA 124
8 days and 7 nights of encampment of members of the Kilusang
Magbubukid sa Pilipinas (KMP) at the DAR, presenting their
demands for a genuine agrarian reform by giving lands for free
to farmers, zero retention of lands of landlords, and stop
amortization of land payments. During the dialogue between KMP
Pres. Tadeo with Minister of DAR Heherson Alvarez, he merely
promised to bring it to the attention of Pres. Aquino. Tension
mounted and the farmers barricaded the DAR premises preventing
EEs from going inside their offices. Minister Alvarez tried to appease
and advised them to wait for the ratification of the 1987 Constitution.
Tadeos group decided to march to Malacanang and in the
process, talked to the press that they will proceed to Mendiola
and break through the police lines and shed blood. In anticipation of
the disturbance, disturbance control units were activated and
deployed. Intelligence reports revealed that the KMP was heavily
infiltrated with NPA elements and that San Beda and CEU would
be occupied. When the marchers arrived, around 10,000 to
15,000, a clash occurred. 12 marchers died as a result, 39 were
wounded by gunshots, and 12 sustained minor injuries, all from the
marchers. Of the police and military, 3 sustained gunshot wounds
and 20 suffered minor physical injuries. This was named the
Mendiola massacre. President Aquino then issued AO 11, which
created the Citizens Mendiola Commission for the purpose of
conducting an investigation for the disorders, death and casualties
that took place. The most significant recommendation of the
Commission was for the deceased and other victims of the
Mendiola incident to be compensated by the government. Due to
this recommendation, petitioners filed a formal letter of demand for
compensation from the government, which remained unheeded.
After almost a year, the group instituted an action for damages
against the Republic of the Philippines together with military officers
and personnel involved in the Mendiola incident. Respondent
Judge Sandoval dismissed the complaint as against the Republic
of the Philippines on the basis that there was no waiver by the
State. Petitioners contend that the recommendation of the
Commission to indemnify the heirs and victims of the Mendiola
massacre and the public address made by Pres. Aquino promising to
address the grievances of the marchers, constitute implied waiver of
sovereign immunity.
Has the state waived its immunity from suit by virtue of the AO11?
NO, hence this petition is dismissed. Sec. 3 providing for
immunity from suit is based on the practical ground that there
can be no legal right as against the authority that makes the law
on which the right depends. And based on public policy that
public service would be hindered, and the public endangered, if
the sovereign authority could be subjected to law suits of every
citizen and consequently controlled in the uses and dispositions
of the means required for the proper administration of the
government. The recommendation made by the Commission does
not in any way mean that liability automatically attaches to the
State, AO 11 merely created the Commission to investigate such
that whatever may be the findings of the Commission shall only
serve as the cause of action of any party. The commission is not
the end in itself, as a fact-finding body, its recommendation is not
final and executory. The speech of the Pres. Is not tantamount to
a waiver, she has not admitted liability, much less consented to
the suit.
Also, the case is not a suit against the State.
Some instances when a suit against the State is
proper:
1. When the Republic is sued by name
2. When the suit is against an unincorporated government
agency
3. When the suit is on its face against a government
officer but the ultimate liability will belong not to the
officer but to the government.
When the Republic is sued by name, the ultimate liability does
not pertain to the government. Although the military personnel
were discharging their official functions, it ceased to be official
the moment they exceeded their authority, as such it is them
that will be held liable and not the State and as such, the
principle of state immunity does not apply. The inescapable
conclusion is that the State cannot be held civilly liable for the
deaths that resulted, the liability should fall on the defendants in
the lower court.
(5)
EPG Construction v. Vigilar 354 SCRA 566
Petitioner is suing for the payment of construction work done for
the governments low cost housing program. The suit was based
on an implied contract and the suit was for more than 5 million
pesos. Because of some technical difficulties, however, the
implied contract was deemed void. But the construction was
done and funds were made available for such. Petitioner then
collected. DPWH auditor interposed no objection to the payment
and the DBM had ordered the release of the amount under a
corresponding Advise of Allotment is issued. However, the DPWH
Secretary denied the money claims of petitioner hence this case
where the State contends immunity from suit.
Is it immune? NO. Although this Court agrees with respondent's
postulation that the "implied contracts", which covered the
additional constructions, are void, in view of violation of applicable
laws, auditing rules and lack of legal requirements, we nonetheless
find the instant petition laden with merit and uphold, in the interest
of substantial justice, petitioners-contractors' right to be
compensated for the "additional construction" on the public
works housing project, applying the principle of quantum meruit.
Under these circumstances, respondent may not validly invoke
the Royal Prerogative of Dishonesty and conveniently hide under
the State's cloak of invincibility against suit, considering that this
principle yields to certain settled exceptions. True enough, the
rule, in any case, is not absolute for it does not say that the state
may not be sued under any circumstance. The doctrine of
governmental immunity from suit cannot serve as an instrument
for perpetrating an injustice on a citizen. It is just as important, if
not more so, that there be fidelity to legal norms on the part of
officialdom if the rule of law were to be maintained.
(6) Minucher v. Court of Appeals February 11, 2003
Minucher is an Iranian national who came to study in UP in
1974 and was appointed Labor Attache for the Iranian
Embassies in Tokyo and Manila; he continued to stay in the
Philippines and headed the Iranian National Resistance Movement
in the Philippines. A buy-bust operation was conducted against
Minucher wherein Agent Scalzo, a special agent of the US Drugs
Enforcement Agency, acted as poseur buyer. Minucher was
charged and Agent Scalzo testified as a witness for the prosecution.
Minucher was acquitted. Later on, Minucher filed a complaint for
damages on the trumped-up charges of drug trafficking made
by Scalzo. In his complaint for damages, he said that some of his
properties were missing. He averred that his arrest as a heroin
trafficker was well publicized and that when we got arrested, he
was not given any food or water for 3 days. Scalzo asserted his
diplomatic immunity as evidenced by a Diplomatic Note. He
contended that it was recognized by the US Government
pursuant to the Vienna Convention on Diplomatic Relations and
the Philippine government itself thru its Executive Department and
DFA.The courts ruled in favor of Scalzo on the ground that as a
special agent of the US Drug Enforcement Administration, he
was entitled to diplomatic immunity. Hence, the present
recourse of Minucher.
Is Scalzo immune?
YES. Scalzo was an Assistant Attach of the US diplomatic
mission. Vesting a person with diplomatic immunity is a
prerogative of the executive branch of the government. A foreign
agent, operating within a territory, can be cloaked with immunity
from suit as long as it can be established that he is acting
within the directives of the sending state. The consent of the host
state is an indispensable requirement of basic courtesy between
the two sovereigns. In this case, the buy-bust operation and
other such acts are indication that the Philippine government
has given its imprimatur, if not consent, to the activities within
Philippine territory of agent Scalzo of the United States Drug
Enforcement Agency. In conducting surveillance activities on
Minucher, later acting as the poseur-buyer during the buy-bust 2
operation, and then becoming a principal witness in the criminal
case against Minucher, Scalzo hardly can be said to have acted
beyond the scope of his official function or duties.
 (7)
Air Transportation Office (ATO) v. Spouses Ramos
Sps. Ramous found that a portion of their land was being used
as part of the runway and running shoulder of the Loakan Airport
being operated by Petitioner ATO. After certain negotiations, they
decided to convey the affected portion in consideration of
P778,150.00, which the ATO failed to pay. Thus, they filed a
collection suit. ATO contends that by virtue of Proclamation No.
1358 by Pres. Marcos that reserved certain parcels of land for
use of the Loakan Airport including petitioners, the RTC had
no jurisdiction to entertain the suit without the States consent.
RTC ordered ATO to pay, which CA affirmed.
The CA correctly appreciated the juridical character of the
ATO as an agency of the Government not performing a purely
governmental or sovereign function, but was instead involved in
the management and maintenance of the Loakan Airport, an
activity that was not the exclusive prerogative of the State in
its sovereign capacity. Hence, the ATO had no claim to the States
immunity from suit. Distinguish between:
Unincorporated government agency performing a
governmental function immune because its function is
governmental
One performing proprietary function not immune as
not in pursuit of a necessary function of government but
essentially a business
Furthermore, the doctrine of sovereign immunity cannot be
successfully invoked to defeat a valid claim for compensation
arising from the taking without just compensation and without
the proper expropriation proceedings being first resorted to of
the plaintiffs property. The doctrine of sovereign immunity was
not an instrument for perpetrating any injustice on a citizen. In
exercising the right of eminent domain, the Court explained, the
State exercised its jus imperii, as distinguished from its proprietary
rights, or jus gestionis; yet, even in that area, where private
property had been taken in expropriation without just
compensation being paid, the defense of immunity from suit
could not be set up by the State against an action for payment
by the owners.
Lastly, the issue of whether or not the ATO could be sued without
the States consent has been rendered moot by the passage of RA
9497 or the Civil Aviation Authority Act of 2008. RA9497 abolished
the ATO. Established in place of the ATO was the Civil Aviation
Authority of the Philippines (CAAP), which assumed all of the
ATOs powers, duties and rights, assets, real and personal
properties, funds, and revenues. Thus, the obligations that the
ATO had incurred by virtue of the deed of sale with the Ramos
spouses might now be enforced against the CAAP.
(8) BUISAN vs COA and DPWH
FACTS:
In 1989, the DPWH undertook the construction of the Liguasan Cut-off
hannel (Project) in Tunggol, Pagalungan, Maguindanao, to minimize
the perennial problem of flooding in the area. In April 2001, the DPWH
received various claims from land owners for damages allegedly
caused to their properties, crops and improvements by the premature
opening of the Project. Hence, the Regional Director (RD), DPWH
Regional Office (R.O.) No. XII, Cotabato City, investigated the claims. 4
The DPWH R.O. No. XII and the Technical Working Group (TWG)
recommended in 2004 to pay just compensation to the claimants. The
TWG, however, noted that since the event occurred in 1989, it could
not account physically the actual quantity of the damaged crops and
properties. In 2006, an ad hoc committee was created to determine
the legality and propriety of the claims. However, due to the
considerable lapse of time and the insufficiency of evidence, no final
resolution was made by the DPWH. The claims were forwarded to the
RD of the DPWH R.O. No. XII to be returned to the claimants, as such
are considered to be under the jurisdiction of the COA pursuant to
Rule VIII of the 2009 Revised Rules of Procedure of the COA. 5
On April 14, 2010, the petitioners, represented by Mayor Bai Annie C.
Montawal (Montawal), filed a petition with the COA, 6 praying that the
DPWH be ordered to pay the petitioners the sum of 122,051,850.00
as compensation for their damaged crops, properties and
improvements. On September 16, 2010, Buisan filed a Motion to
Dismiss the Petition alleging that Montawal was not authorized to
represent them. In fact, Buisan and the other claimants filed a
separate petition with the COA based on that same money claim. 7
In its Answer, the DPWH averred that the petitioners failed to
establish that they are the owners of crops and properties allegedly
damaged, and that the damage was caused by the construction of the
Project. Moreover, the DPWH asserted that the petitioners' cause of
action had already prescribed.
The Doctrine of Non-Suability of
State insulates the DPWH, agovernmental entity, from claims
ofdamages.
The fundamental law of the land provides that the State cannot be
sued without its consent. 17 It is a fundamental postulate of
constitutionalism flowing from the juristic concept of sovereignty that
the State, as well as its government, is immune from suit unless it
gives its consent. The rule, in any case, is not absolute for it does not
say that the State may not be sued under any circumstances. The
doctrine only conveys that "the state may not be sued without its
consent;" its clear import then is that the State may at times be sued.
18 Suits filed against government agencies may either be against
incorporated or unincorporated agencies. In case of incorporated
agencies, its suability depends upon whether its own organic act
specifically provides that it can sue and be sued in Court. 19
As the State's engineering and construction arm, the DPWH exercises
governmental functions that effectively insulate it from any suit, much
less from any monetary liability. The construction of the Project which
was for the purpose of minimizing the perennial problem of flood in the
area of Tunggol, Montawal, Maguindanao, is well within the powers
and functions of the DPWH as mandated by the Administrative Code
of 1997.
Hence, the Doctrine of Non-Suability clothes the DPWH from being
held responsible for alleged damages it performed in consonance with
its mandated duty. Nowhere does it appear in the petition that the
State has given its consent, expressly or impliedly, to be sued before
the courts. The failure to allege the existence of the State's consent to
be sued in the complaint is a fatal defect, and on this basis alone,
should cause the dismissal of the complaint.
Immunity in international law
(9) Saunders v. Veridiano - 162 SCRA 88
Saunders was the special services director of the US Naval
Station, while Moreau was the commanding officer of the Subic
Naval Base. They advised Rossi, a US citizen permanently
residing in the Philippines that his employment has been
converted from permanent full-time to permanent part-time.
Hearing officer for grievance proceeding recommended institution
of Rossi plus backwages. Saunders and Moreau wrote the
hearing officer and provide their reasons for such action: 1) difficult to
supervise; 2) tends to alienate most co- workers and supervisors;
3) placed the records of grievance proceedings in public. Rossi
filed a case for damages against the two in their private or
personal capacities, alleging that the letter contained libelous
imputations which exposed them to ridicule and caused them mental
anguish.
Is the doctrine of state immunity applicable to foreign states?
YES
The doctrine of state immunity is applicable not only to our
government but also to foreign states sought to be subjected to
the jurisdiction of our courts. This is derived from the principle of
the sovereign equality of states wherein a contrary attitude would
unduly vex the peace of nations. Mere allegations that3 a
government functionary is being sued in his personal capacity will
not automatically remove him from the protection of the law of
public officers and doctrine of state immunity. The acts for which
the Sanders and Maoreau are being called to account were
performed by them in the discharge of their official duties. Thus, the
complaint cannot prosper unless the government sought to be held
ultimately liable has given its consent to be sued. There can be no
legal right against the authority which makes the law on which the
right depends.
The law provides for exceptions to the general rule that in no
case may a public officer be sued without the consent of the
state:
1. Compel him to do an act required by law
2. Secure judgment that the officer impleaded may satisfy
by himself w/o the government itself having to do a
positive act to assist him
3. Government itself has violated its own laws, aggrieved
party may directly implead the government even w/o
first filing his claim/ the COA as normally required, as the
doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice
The case at bar does not fall under any of the enumerated
exceptions and the US government has not given its consent to be
sued for the official acts of their employees, therefore, complaint
must be dismissed for lack of jurisdiction.
(10) United States v. Guinto - 182 SCRA 604
Consolidated suits, where US moved to dismiss on the ground that
they are in effect suits against it and as such, moved to dismiss on
the ground of State immunity.
1. Private respondents, concessionaires inside Clark for
many years are suing officers of the US Air Force for
the bidding they conducted for contracts for barber
services, which they awarded to Ramon Dizon. They
were questioning the award and essentially wanted to
continue their operations pending litigation.
2. Genove was a cook in the Main Club in John Hay Air
Station. He was dismissed for pouring urine in the
soup served to club customers. He was suspended and
after investigation, dismissed him. He then filed a
complaint for damages against the manager.
3. Luis Bautista, a barracks boy in the Clark Air base
extension, was arrested following a buy-bust operation
of US Air Force officers. They testified against him
and as such, he was dismissed. He then filed a
complaint for damages against the officers.
While the doctrine appears to prohibit only suits against the
state without its consent, it is also applicable to complaints filed
against officials of the state for acts allegedly performed by
them in the discharge of their duties. The doctrine is sometimes
derisively called "the royal prerogative of dishonesty" because of
the privilege it grants the state to defeat any legitimate claim
against it by simply invoking its non-suability. However, the
doctrine is not absolute and does not say the state may not be
sued under any circumstance. On the contrary, the rule says that
it may be sued if it consents. The consent of the state to be sued
may be manifested expressly or impliedly.
Express consent may be embodied in a general law or a
special law.
Implied when the state enters into a contract or it itself
commences litigation. When the govt enters into a
contract, it is deemed to have descended to the level
of the other contracting party and divested of its
sovereign immunity.
o Sovereign no implied waiver as it is performing
a purely governmental function
o Proprietary implied waiver
Based on these, the court makes a finding
1. As to Barber commercial enterprise, remanded to
determine whether they are entitled to reliefs prayed
for.
2. As to cook the US is undertaking proprietary acts
in the management of restaurants, open to the
public. As such, state immunity cannot be invoked.
By entering into the employment contract with
Genove, it impliedly divested itself of its sovereign
immunity. However, while suable, the claim must still
be dismissed as they acted with due process in
dismissing him.
3. As to drug user official functions and as such, immune.
(11) Shauf v. Court of Appeals - 191 SCRA 713
Petitioner Loida Shauf, a Filipino married to a US Air force member,
applied for the vacant position of Guidance Counselor in the Base
Education Office at Clark Air Base. She has a Master of Arts
degree from UST, with 34 semester hours in psychology
guidance and 25 quarter hours in human behavioral science,
completed all course work in human behavior and counseling
psychology for a doctoral degree, a CS eligible, and worked as
Guidance Counselor at the Clark Air base for 4 years. She was not
chosen by Persi contending that when he inquired about her, they
did not find her personnel folder and as such, had reservations on
her work experience. Mr. Isakarson was then hired, who was not
eligible. She then filed an equal employment opportunity against
Private respondents for alleged discrimination against her for her
nationality and sex. Based on the examiners recommendation,
Shauf is highly qualified. She was later on served a Notice of
Proposed Disposition of Discrimination complaint stating that she
would be appointed to a permanent capacity in the event of a
vacancy. During that time, Private repsondents Detwiler and
Persi knew that another position of Guidance Counselor would
soon be vacant as Mrs. Mary Abalateos appointment was to
expire on Aug 6, 1977, which Detwiler denied her request for
extension. Col. Corey represented to her that she would be
appointed to the overhire position as soon as it became vacant.
However, when Shauf consented to the Notice, Detwiler
extended the appointment of Mrs. Abalateo. She then filed a
complaint for damages against Detwiler and Persi. They filed a
MD, alleging that as officers of the US Armed forces, they were
immune from suit. RTC ordered payment of damages, which CA
reversed hence this petition.
Defense of immunity not proper. Liable for damages.
The doctrine of immunity from suit will not apply and may not be
invoked where the public official is being sued in his private and
personal capacity as an ordinary citizen. The cloak of protection
afforded the officers and agents of the government is removed
the moment they are sued in their individual capacity. This
situation usually arises where the public official acts without authority
or in excess of the powers vested in him. It is a well- settled principle
of law that a public official may be liable in his personal
private capacity for whatever damage he may have caused by
his act done with malice and in bad faith, or beyond the scope
of his authority or jurisdiction. In this case, they are held to be
answerable for personal torts in which the US is not involved. If
found liable, they and they alone must satisfy the judgment.
(12) United States v. Reyes - 219 SCRA 192
Nelia T. Montoya is an American citizen, who was employed
as an ID checker at the US Navy Exchange (NEX) at the Joint
US Military Assistance Group (JUSMAG) headquarters in
Quezon City.
Maxine Bradford, is also an American citizen, who was the
activity exchange (store) manager at the JUSMAG
headquarters.
Jan. 22, 1987 (12:00 noon): Montoya, after work, went
shopping in the retail store of the NEX JUSMAG.
On her way to her car, already outside the store, another ID
checker approached and informed Montoya that her bags
needed to be searched, upon instruction of the store manager
(Bradford) .
Montoya went to Bradford, who was also outside the store,
and protested the search.
o Bradford however, told her that the search is to be
made on all employees that day. 4
The search proceeded in the presence of curious onlookers,
and having found nothing irregular, Montoya was allowed to
leave.
 Montoya later discovered that she was the only employee
subjected to the search.
o She further found out that it is a matter of policy
that customers and NEX JUSMAG employees are
not to be searched outside the store unless there is
a very strong evidence.
Montoya filed a claim for damages against Bradford.
Bradford, together with the US government, filed a Motion to
dismiss on the ground that:
o The suit is against the US, a foreign sovereign
immune from state without its consent; and
That JUSMAG, composed of an Army,
Navy and Air Group, had been
established under the Philippine US
States Military Assistance Agreement to
implement the USs program of
rendering assistance to the Philippines;
That its headquarters is considered a
temporary installation under the
Agreement; and
That it has been mutually agreed that
the US shall have the rights, power, and
authority within the bases which are
necessary for the establishment, use
and operation and defense thereof, or
appropriate control thereof.
o Bradford, as activity exchange manager as
JUSMAG, is immune from suit for acts done by her
in the performance of her official functions.
That the US shall have the use of
certain facilities and areas within the
bases and shall have effective
command and control over such
facilities and over US personnel,
employees, equipment, and material.
Issue: Whether or not Bradford is immune from the suit?
Ruling: No. Not only was Bradford being sued for acts outside the scope
of her authority or in her private/ personal capacity, those acts were also
committed outside the territory where she exercises authority, having
been committed outside the NEX JUSMAG, particularly at the parking
area.
Doctrine of state immunity
o A state may not be sued without its consent (Art.
XVI, Sec. 3).
o Applicable to complaints filed against officials of the
state for acts allegedly performed by them in the
discharge of their duties.
If the judgment against such officials will
require the state itself to perform an
affirmative act to satisfy the same, such
as the appropriation of the amount
needed to pay the damages awarded
against them, the suit must be regarded
as against the state itself although it has
not been formally impleaded.
Exception: Where the public official is being sued in his private
and personal capacity as an ordinary citizen.
o Where the public official acts without authority or in
excess of the powers vested in him.
o A public official may be liable in his personal private
capacity for whatever damage he may have caused
by his act done with malice and in bad faith, or
beyond the scope of his authority or jurisdiction.
o Inasmuch as the State authorizes only legal acts by
its officers, unauthorized acts of government
officials/ officers are not acts of the State.
o Rationale: The doctrine of state immunity cannot be
used as an instrument for perpetrating injustice.
In this case, it is apparent from the complaint that Bradford
was sued in her private or personal capacity for acts allegedly
done beyond the scope and even beyond her place of official
functions.
(13) M. H. Wylie v. Rarang - 209 SCRA 357
Wylie, as Asst. Admin. Officer, and Williams, commanding officer
of the US Naval Base in Subic, supervised the publication of the
Plan of the Day, published daily by the Naval Base,
which featured important announcements and general matters of
interest. On Feb 3 1978, the action line inquiry published that
Auring consumed confiscated items from base personnel, calling
her a disgrace. Respondent Aurora Rarang was the only identified
Auring in the Base, and that she was that referred to was
conclusively proven. She then filed a complaint for damages due to
the libelous charges. Petitioners filed a MD on the ground that they
acted in the performance of their official functions and as such,
immune from suit.
Are American Naval officers who commit a crime or tortious acts
while discharging official fucntions still covered by the immunity
from suit?
NO. Killing a person in cold blood while on patrol duty, running
over a child while driving with reckless imprudence on an official
trip, or slandering a person during office hours could not possibly
be covered by the immunity agreement. Our laws and, we presume,
those of the United States do not allow the commission of crimes in
the name of official duty. We apply the same ruling. Public officials
can be held personally accountable for acts claimed to have been
performed in connection with official duties where they have acted
ultra vires or where there is showing of bad faith.
(14) Republic of Indonesia v. Vinzon June 26, 2003
The Republic of Indonesia entered into a Maintenance
Agreement with Respondent James Vinzon, sole proprietor of
Vinzon Trade & Services, which provided that Viznzon shall
maintain aircondition, generator, electrical facilities, water heater
and water motor pumps at the Embassy Main Bldg, the Annex,
and at the official residence of Petitioner Ambassador Soeratmin.
The agreement shall be effective for 4 years to be automatically
renewed unless cancelled with 30 day notice. In 2000, incoming
chief of administration, Minister Counsellor Azhari Kasim found
respondents work unsatisfactory. Hence, the Indonesian
Embassy terminated their agreement. Respondent claims that the
termination was arbitrary and unlawful and therefore filed a
complaint. Republic of Indonesia filed a MD alleging immunity
from suit. Respondent contends that it had waived its immunity
as provided in their agreement providing that any legal action
arising out of this shall be settled accdg to the laws of the PH
and by the proper court in Makati, and that the Ambassador
and the Minister Counsellor can be sued and held liable for
tortious acts done with malice and bad faith. MD was denied
hence this petition.
Does State immunity from suit also apply to foreign states?
YES. Immunity of states from suit is also a rule in international
law. The mere entering into a contract by a foreign State with a
private party cannot be construed as the ultimate test of whether it is
an act jure imperii (by right of sovereign power; in the exercise of
sovereign functions) or jure gestionis (by right of economic or
business relations.) If the foreign State is not engaged regularly in
a business or commercial activity, the particular act must then be
tested by its nature. If the act is in pursuit of a sovereign activity, or
an incident thereof, then it is an act jure imperii. The
establishment of a diplomatic mission is an act jure imperii,
which includes its maintenance and upkeep. Hence, the State
may enter into contracts with private entities to maintain the
premises, furnishings and equipment of the embassy and the
living quarters of its agents and officials. It is therefore clear that
petitioner Republic of Indonesia was acting in pursuit of a
sovereign activity when it entered into a contract with respondent
for the upkeep or maintenance of the air conditioning units, generator
sets, electrical facilities, water heaters, and water motor pumps of
the Indonesian Embassy and the official residence of the
Indonesian ambassador. Existence alone of such paragraph is5not
necessarily a waiver of sovereign immunity from suit. The
provision contains language not necessarily inconsistent with
sovereign immunity. It may also be meant to apply where the
sovereign party elects to sue in the local courts, or otherwise
waives its immunity by any subsequent act. Submission of a foreign
state to local jurisdiction must be clear and unequivocal. It must be
given explicitly or by necessary implication.
Section 4. The Armed Forces of the Philippines shall be composed of a
citizen armed force which shall undergo military training and serve as
may be provided by law. It shall keep a regular force necessary for the
security of the State.
Section 5.
(1) All members of the armed forces shall take an oath or
affirmation to uphold and defend this Constitution.
(2) The State shall strengthen the patriotic spirit and nationalist
consciousness of the military, and respect for people's rights in
the performance of their duty.
(3) Professionalism in the armed forces and adequate
remuneration and benefits of its members shall be a prime
concern of the State. The armed forces shall be insulated from
partisan politics. No member of the military shall engage,
directly or indirectly, in any partisan political activity, except to
vote.
(4) No member of the armed forces in the active service shall, at
any time, be appointed or designated in any capacity to a
civilian position in the Government, including government-
owned or controlled corporations or any of their subsidiaries.
(5) Laws on retirement of military officers shall not allow extension
of their service.
(6) The officers and men of the regular force of the armed forces
shall be recruited proportionately from all provinces and cities
as far as practicable.
(7) The tour of duty of the Chief of Staff of the armed forces shall
not exceed three years. However, in times of war or other
national emergency declared by the Congress, the President
may extend such tour of duty.
Section 6. The State shall establish and maintain one police force, which
shall be national in scope and civilian in character, to be administered
and controlled by a national police commission. The authority of local
executives over the police units in their jurisdiction shall be provided by
law.
National Police
(15) Quilona v. General Court Martial - 206 SCRA 821
Petitioner Patrolman Oscar Quilona was a policeman assigned
at the Western Police District and charged before the General
Court Martial with murder 2 counts. He wrote to Pres. Aquino
expressing his desire to be tried by a civilian court and sought a
waiver of military jurisdiction contending that with the enactment
of the PNP, he should now be under the jurisdiction of a civilian
court. During his arraignment, he expressed the same desire so
his arraignment was reset. On the scheduled arraignment, he filed
a motion for the court martial to inhibit itself from pursuing the
arraignment and to have his case investigated by the civilian
prosecutor or at least tried by a civilian court, which Respondent
denied. He then refused to enter a plea, and a plea of not guilty
was ordered to be made for him. Hence this certiorari.
GRANTED, transferred to the prosecutor.
RA 6975, creating the PNP provides that criminal cases against
PC-INP members not yet arraigned upon the effectivity of this act
shall be transferred to the proper prosecutor or judge. Although
this law was not yet in effect when Petitioner was arraigned,
Respondent knew that this act had already been signed and
approved by the President and published in 2 newspapers of
general circulation. Thus, respondent acted with grave abuse of
discretion. Regular courts now have jurisdiction over criminal
cases against members of the PNP because of the civilian nature
of the Police Force
(16) Carpio v. Executive Secretary - 206 SCRA 290
Congress passed RA 6975, establishing the PNP under the DILG.
The petitioner is questioning the constitutionality of such statute.
Petitioner herein advances the view that RA 6975 emasculated the
National Police Commission by limiting its power "to
administrative control" over the PNP, thus, "control" remained
with the Department Secretary under whom both the National
Police Commission and the PNP were placed.
SC: The circumstance that the NAPOLCOM and the PNP are
placed under the reorganized DILG is merely an
administrative realignment that would bolster a system of
coordination and cooperation among the citizenry, local executives
and the integrated law enforcement agencies and public safety
agencies created under the assailed Act. Such organizational set-
up does not detract from the mandate of the Constitution that
the national police force shall be administered and controlled by a
national police commission as at any rate, and in fact, the Act in
question adequately provides for administration and control at the
commission level.
"Doctrine of Qualified Political Agency" - the President cannot
be expected to exercise his control powers all at the same time
and in person, he will have to delegate some of them to his
Cabinet members.
(17) Mendoza v. PNP June 21, 2005
This case stemmed from the affidavit-complaint for illegal arrest,
illegal detention, physical injuries, and robbery filed by Teodoro V.
Conti against PO3 William M. Mendoza, now petitioner, and PO2
Angelita Ramos. On the basis of the complaint, P/Chief
Superintendent Orlando H. Macaspac, then District Director of the
PNP Southern Police District Office (SPDO) NCR, administratively
charged petitioner and PO2 Ramos with grave misconduct. On
April 15, 1993, after conducting a summary proceeding, PNP
Regional Director Oscar T. Aquino rendered a Decision finding the 2
policemen guilty as charged and ordering their dismissal from the
service. Claiming that they were denied due process, they
interposed an appeal to the Regional Appellate Board (RAB) of
the National Police Commission (NAPOLCOM), NCR. However,
the RAB affirmed the decision of the NAPOLCOM. Petitioner then
filed a petition for certiorari with the RTC of Makati, which was
dismissed due to non-exhaustion of administrative remedies.
Is the dismissal correct?
YES. The PNP falls under the civil service pursuant to Section
2(1), Article IX-B, also of the Constitution, thus, the Civil Service
laws apply to them. Section 47 of the Civil Service Law
provides that in cases where the decision rendered by a bureau
or office is appealable to the Civil Service Commission, the
same may initially be appealed to the Department and finally to
the Commission. Petitioners failure to exhaust all administrative
remedies is fatal to his cause. He should have filed the appeal
with the secretary of the DILG first and if unsuccessful, file an
appeal with the CSC before resorting to the regular courts. It is
elementary that where, as here, a remedy is available within the
administrative machinery, this should first be resorted to.
(18) Kulayan v. Gov. Abdusakur G.R. No. 187298
3 members from the International Committee of the Red Cross
were kidnapped in Sulu by 3 armed men who were later
confirmed to be members of the Abu Sayyaf Group (ASG).
Governor Tan organized the Civilian Emergency Force (CEF), a
group of armed male civilians coming from different
municipalities, who were redeployed to surrounding areas of
Patikul. The organization of the CEF was embodied in a
Memorandum of Understanding entered into between 3 parties:
the provincial government of Sulu; the AFP; and the PNP.
Ronaldo Puno, then Secretary of DILG, announced to the media
that government troops had cornered some 120 ASG members
along with the 3 hostages. However, the ASG demanded that the
military pull its troops back from the jungle area, threatening that one
of the hostages will be beheaded, the ASG further demanded the
evacuation of the military camps and bases in the different
6
barangays in Jolo. Governor Tan issued Proclamation No. 1
(Proclamation 1-09), declaring a state of emergency in the
province of Sulu. In the same Proclamation, Tan called upon the
PNP and the CEF to set up checkpoints and chokepoints, conduct
general search and seizures including arrests, and other actions
necessary to ensure public safety. The petitioners were suspected
ASG supporters and were being arrested under Proclamation 1-09 Section 1. Any amendment to, or revision of, this Constitution may be
who thereafter filed the present Petition for Certiorari and proposed by:
Prohibition, claiming that Proclamation 1-09 was null and void.

Does the governor have supervision over the police such that
Proclamation 1-09 is valid?
YES, to a limited extent. A local chief executive, such as the
provincial governor, exercises operational supervision over the
police, and may exercise control only in day-to-day operations.
In the discussions of the Constitutional Commission regarding
Sec 6, Art XVI, it is clear that the framers never intended for
local chief executives to exercise unbridled control over the police
in emergency situations. This is without prejudice to their authority
over police units in their jurisdiction as provided by law, and their
prerogative to seek assistance from the police in day-to- day
situations, as contemplated by the Constitutional Commission. But
as a civilian agency of the government, the police, through the
NAPOLCOM, properly comes within, and is subject to, the
exercise by the President of the power of executive control.
(1) The Congress, upon a vote of three-fourths of all its
Members; or
(2) A constitutional convention.
Section 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least
twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per
centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification
of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of
this right.

Initiative and Referendum

Section 7. The State shall provide immediate and adequate care,
benefits, and other forms of assistance to war veterans and veterans of 3 Modes of amending the Constitution:
military campaigns, their surviving spouses and orphans. Funds shall be 1) Congress upon three-fourths vote of all its Members
provided therefor and due consideration shall be given them in the of Senate, of HOR.
disposition of agricultural lands of the public domain and, in appropriate 2) Constitutional Convention:
cases, in the utilization of natural resources. a) 2/3 of all members of the
Congress; OR
Section 8. The State shall, from time to time, review to increase the b) Majority vote of all members of
pensions and other benefits due to retirees of both the government and the Congress with the question of
the private sectors. whether to call a Convention to be
resolved by the people in a
Section 9. The State shall protect consumers from trade malpractices plebiscite.
and from substandard or hazardous products. 3) Peoples initiative
APPLIES ONLY TO AN AMENDMENT AND
Section 10. The State shall provide the policy environment for the full NOT A REVISION.
development of Filipino capability and the emergence of communication Petition of at least 12% of total no. of registered
structures suitable to the needs and aspirations of the nation and the voters of which every legislative district must be
balanced flow of information into, out of, and across the country, in represented by at least 3% of the registered
accordance with a policy that respects the freedom of speech and of the voters therein.
press.
Initiative
Section 11. The power of the people to propose amendments to the
Constitution.
(1) The ownership and management of mass media shall be
limited to citizens of the Philippines, or to corporations,
cooperatives or associations, wholly-owned and managed by 3 Systems of Initiative:
such citizens. 1) Initiative on the Constitution
2) Initiative on statutes
The Congress shall regulate or prohibit monopolies in National legislation.
commercial mass media when the public interest so requires. 3) Initiative on local legislation
No combinations in restraint of trade or unfair competition Regional, provincial, city, municipal or
therein shall be allowed. barangay law, resolution or ordinance.

(2) The advertising industry is impressed with public interest,
and shall be regulated by law for the protection of consumers
and the promotion of the general welfare.
Only Filipino citizens or corporations or associations at least
seventy per centum of the capital of which is owned by such
citizens shall be allowed to engage in the advertising
industry.
The participation of foreign investors in the governing body of
entities in such industry shall be limited to their proportionate
share in the capital thereof, and all the executive and
managing officers of such entities must be citizens of the
Philippines.
Section 12. The Congress may create a consultative body to advise the
President on policies affecting indigenous cultural communities, the
majority of the members of which shall come from such communities.
ARTICLE XVII
AMENDMENTS OR REVISIONS
Indirect initiative
Exercise of initiative by the people through a
proposition sent to Congress or the local legislative
body for action
Procedure for conducting an initiative:
People must author and sign the entire proposal;
No agent or representative can sign in their
behalf.
2) Proposal must be embodied in the petition.
Signee must have seen what he is signing.
(19) Santiago v. Comelec - 270 SCRA 106
On Dec 6, 1996, Private respondent Atty. Delfin filed with the
Comelec a Petition to Amend the Constitution, to Lift term Limits7of
elective officials by Peoples initiative, and asked the Comelec for an
order fixing the time and dates for signature gathering, publications,
and establishing signing stations. He alleged that he is a founding
member of the Movement for Peoples Initiative, a group that
wanted to institutionalize people power and to exercise the power to
directly propose amendments to the Constitution by virtue of Sec. 2.
Later on, Petitioner Senator Miriam Defensor Santiago, et al filed
this petition for prohibition that the constitutional provision on
peoples initiative to amend the Constitution can only be
implemented by law to be passed by Congress.
GRANTED.
The constitutional provision on initiative and referendum is not
self-executory, and requires implementing legislations. Thus, RA
6735 was enacted. But, the SC declared RA 6735 inadequate
to cover the system of initiative to amend the Constitution,
because while Sec. 3 mentions initiative on the Constitution and
Sec. 5 restates the constitutional requirements as to the
percentage of registered voters needed for a proposal, the law
does not provide for the contents of a petition for initiative on the
Constitution;
There are three systems of initiative: initiative on the
Constitution which refers to a petition proposing amendments
to the Constitution; initiative on statutes which refers to a petition
proposing to enact a national legislation; and initiative on local
legislation which refers to a petition proposing to enact a regional,
provincial, city, municipal or barangay law, resolution or ordinance.
Indirect Initiative is exercise of initiative by the people through a
proposition sent to Congress or the local legislative body for action.
While there are subtitles for national and local initiatives IN RA
6735, there is no subtitle for initiative on the Constitution; thus,
the law is incomplete, and this inadequacy cannot be cured by
empowering the Comelec to promulgate implementing rules and
regulations. In this case, it was also held that the Comelec is
without jurisdiction to entertain the Delfin petition because it did
not contain the signatures of the required number of voters, the
petition must be signed by at least 12% of the total no. of registered
voters of which every legislative district is represented by at least 3%
of the registered voters therein.
(20) Lambino v. Comelec - October 25, 2006
The Lambino Group commenced gathering signatures for an
initiative petition to change the 1987 Constitution and then filed a
petition with COMELEC to hold a plebiscite for ratification under
Sec. 5(b) and (c) and Sec. 7 of RA 6735. The proposed changes
under the petition will shift the present Bicameral-Presidential
system to a Unicameral-Parliamentary form of government.
COMELEC did not give it due course for lack of an enabling law
governing initiative petitions to amend the Constitution, pursuant
to Santiago v. Comelec ruling.
Is such valid and compliant?
NO. The Initiative petition does not comply with Sec. 2, Art.
XVII on direct proposal by people.
Sec. 2, Art. XVII is the governing provision that allows a peoples
initiative to propose amendments to the Constitution. While this
provision does not expressly state that the petition must set forth the
full text of the proposed amendments, the deliberations of the
framers of our Constitution clearly show that: (a) the framers
intended to adopt relevant American jurisprudence on peoples
initiative; and (b) in particular, the people must first see the full text of
the proposed amendments before they sign, and that the people
must sign on a petition containing such full text. The essence of
amendments directly proposed by the people through initiative
upon a petition is that the entire proposal on its face is a petition
by the people. This means two essential elements must be present:
1. The people must author and thus sign the entire
proposal. No agent or representative can sign on their
behalf.
2. As an initiative upon a petition, the proposal must be
embodied in a petition.
These essential elements are present only if the full text of the
proposed amendments is first shown to the people who express
their assent by signing such complete proposal in a petition. The full
text of the proposed amendments may be either written on the
face of the petition, or attached to it. If so attached, the petition
must state the fact of such attachment. This is an assurance that
everyone of the several millions of signatories to the petition had
seen the full text of the proposed amendments before not after
signing. Also, an initiative signer must be informed at the time of
signing of the nature and effect of the proposal. Failure to so do
renders the initiative void. In the Lambino groups petition, there is
no proposal at all in the signature sheet, neither does it state that
the text of the proposed changes is attached to it. It merely asks
a question whether the people approve a shift from the
Bicameral-Presidential to the Unicameral- Parliamentary system of
government. The signature sheet does not show to the people the
draft of the proposed changes before they are asked to sign the
signature sheet. This omission is fatal.
The initiative violates Section 2, Article XVII of the Constitution
disallowing revision through initiatives. Article XVII of the
Constitution speaks of 3 modes of amending the Constitution:
Congress upon three-fourths vote of all its Members, Constitutional
convention, and Peoples initiative for amendments.
Sec 1 of Art XVII, referring to the first and second modes,
applies to any amendment to, or revision of, this Constitution.
In contrast, Sec 2 of Art XVII, referring to the third mode,
applies only to amendments to this Constitution. A peoples
initiative to change the Constitution applies only to an
amendment of the Constitution and not to its revision. In contrast,
Congress or a constitutional convention can propose both
amendments and revisions to the Constitution.
Amendment vs. Revision
Courts have long recognized the distinction between an amendment
and a revision of a constitution. Revision broadly implies a change
that alters a basic principle in the constitution, like altering the
principle of separation of powers or the system of checks-and-
balances. There is also revision if the change alters the
substantial entirety of the constitution, as when the change affects
substantial provisions of the constitution. On the other hand,
amendment broadly refers to a change that adds, reduces, or
deletes without altering the basic principle involved. Revision
generally affects several provisions of the constitution, while
amendment generally affects only the specific provision being
amended.
Each specific change will have to be examined case-by-case,
depending on how it affects other provisions, as well as how it
affects the structure of government. Since a revision of a
constitution affects basic principles, or several provisions of a
constitution, a deliberative body with recorded proceedings is best
suited to undertake a revision. A revision requires harmonizing not
only several provisions, but also the altered principles with those that
remain unaltered.
Tests to determine whether amendment or revision. In
California, courts have developed a two-part test: the quantitative
test and the qualitative test:
1. Quantitative test asks whether the proposed change
is so extensive in its provisions as to change directly
the substantial entirety by the deletion or alteration of
numerous existing provisions, only the number of
provisions affected and does not consider the degree
2. Qualitative test whether the change will accomplish
such far reaching changes in the nature of our basic
governmental plan as to amount to a revision.
Under both the quantitative and qualitative tests, the Lambino
Groups initiative is a revision and not merely an amendment.
Quantitatively, the Lambino Groups proposed changes overhaul
two articles 6 & 7, affecting a 105 provisions. Qualitatively, the
proposed changes alter substantially the basic plan of government,
from presidential to parliamentary, and from a bicameral to a
unicameral legislature.
8
Section 3. The Congress may, by a vote of two-thirds of all its Members,
call a constitutional convention, or by a majority vote of all its Members,
submit to the electorate the question of calling such a convention.
Proposal of amendments
(21) Del Rosario v. Comelec - 35 SCRA 367
Simeon Del Rosario filed a petition questioning the
constitutionality of RA 6132, calling for a Constitutional
Convention.
o He argued that Congress abdicated its power as a
constituent body to propose amendments in favor
of the Constitutional Convention.
Issue: Whether or not RA 6132 is constitutional?
Ruling: RA 6132 is constitutional.
Art. XV of the Constitution authorizes Congress sitting as a
Constituent Assembly either to propose amendments or to call
a convention for the purpose.
o The choice of either alternative is solely committed
to Congress, which cannot be inquired into nor
interfered with by this Tribunal, the same being
purely a political question.
Likewise, whether there is necessity for amending the
Constitution is also addressed to the wise judgment of
Congress acting as a Constituent Assembly, against which the
Court cannot pit its own judgment.
Finally, whether the Constitutional Convention will only
propose amendments to the Constitution or entirely overhaul
the present Constitution and propose an entirely new
Constitution based on an ideology foreign to the democratic
system, is of no moment.
o The same will be submitted to the people for
ratification and once ratified by the sovereign
people, there can be no debate about the validity of
the new Constitution.
o Whether the Constitution is merely amended in part
or revised or totally changed would become
immaterial the moment the same is ratified by the
sovereign people.
Doctrine: The Constitutional Convention has the power to
propose ANY amendment or revision to the Constitution,
except those that violate jus cogens, or those established under
international law.
(22) Imbong v. Comelec - 35 SCRA 28 p. 13 no. 2
Congress, acting as Constituent Assembly, passed resolution
no. 2 which called for the constitutional convention to
propose constitutional amendments. After its adoption, the
Congress, acting as a legislative body, enacted RA 4914
implementing said resolution no. 2 and restating entirely the
provisions of the said resolution. Thereafter, Congress, acting
as a Constituent Assembly, passed resolution no, 4 amending
the aforesaid resolution by providing that any other details
relating to the specific appointment of delegates, election of
delegates to, and the holding of the constitutional
convention shall be embodied in an implementing legislation.
Accordingly, Congress, acting as a legislative body, enacted RA
6132 implementing resolutions nos. 2 and 4 and expressly
repealing RA 4914. Imbong and Gonzales, both members of the
bar, taxpayers, and interested in running as candidates in the
1971 Constitutional Convention, filed separate petitions for
declaratory relief questioning its constitutionality as it prejudices
their rights as such candidates.
May Congress, acting as a legislative body, enact RA 6132 to
implement the resolution passed by it acting as a constituent
assembly?
YES. The Court declared that while the authority to call a
constitutional convention is vested by the Constitution solely
and exclusively in Congress acting as a constitutional assembly,
the power to enact the implementing details of the general law
does not exclusively pertains to Congress exercising its
comprehensive legislative power (not as a constitutional
assembly), may pass the necessary implementing law providing
for the details of the constitutional conventions, such as the
number, qualification, and compensation of its members. In
supplying such details, however, the Congress, acting as an
ordinary legislative body may not transgress the resolution
passed by the Congress acting as a constituent assembly.
(23) NOT INCLUDED: Santiago v. Comelec 270 SCRA 106
The system of initiative on the Constitution under Sec.
2 is not self-executory. The Congress shall provide for
the implementation of the right granted by Sec. 2.
Without implementing legislation, this cannot operate.
Also, based on the interpellations, Sec. 2 is limited to
proposals to AMEND, not to revise the Constitution.
Such that RA 6735 was enacted. However, it is
inadequate to cover the system of initiative on
amendments to the
Constitution, and failed to provide sufficient standard for
subordinate legislation.
FACTS: On December 6, 1996, Atty. Jesus S. Delfin, founding member
of the Movement for People's Initiative, filed with the COMELEC a
"Petition to Amend the Constitution, to Lift Term Limits of Elective
Officials, by People's Initiative" citing Section 2, Article XVII of the
Constitution. Acting on the petition, the COMELEC set the case for
hearing and directed Delfin to have the petition published. After the
hearing the arguments between petitioners and opposing parties, the
COMELEC directed Delfin and the oppositors to file their "memoranda
and/or oppositions/memoranda" within five days. On December 18, 1996,
Senator Miriam Defensor Santiago, Alexander Padilla, and Maria Isabel
Ongpin filed a special civil action for prohibition under Rule 65 raising the
following arguments, among others:
1. That the Constitution can only be amended by peoples
initiative if there is an enabling law passed by Congress, to
which no such law has yet been passed; and
2. That R.A. 6735 does not suffice as an enabling law on
peoples initiative on the Constitution, unlike in the other
modes of initiative.
ISSUES:
1. WON R.A. No. 6735 sufficient to enable amendment of the
Constitution by peoples initiative.
2. WON RA 6735 was intended to include initiative on amendments
to the Constitution, and if so WON the Act as worded adequately
covers such initiative.
3. WON COMELEC Res. No. 2300 regarding the conduct of
initiative on amendments to the constitution is valid, considering
the absence in the law of specific provisions on the conduct of
such initiative?
4. WON the lifting of term limits of elective national and local official,
as proposed in the draft petition would constitute a revision of , or
an amendment of the constitution.
5. WON the COMELEC can take cognizance of or has jurisdiction
over the petition.
6. WON it is proper for the Supreme Court to take cognizance of the
petition when there is a pending case before the COMELEC.
HELD: NO. R.A. 6735 is inadequate to cover the system of initiative on
amendments to the Constitution.
Under the said law, initiative on the Constitution is confined only to
proposals to AMEND. The people are not accorded the power to "directly
propose, enact, approve, or reject, in whole or in part, the Constitution"
through the system of initiative. They can only do so with respect to "laws,
ordinances, or resolutions." The use of the clause "proposed laws sought
to be enacted, approved or rejected, amended or repealed" denotes9that
R.A. No. 6735 excludes initiative on amendments to the Constitution.
Also, while the law provides subtitles for National Initiative and
Referendum and for Local Initiative and Referendum, no subtitle is
provided for initiative on the Constitution. This means that the main thrust
of the law is initiative and referendum on national and local laws. If R.A.
No. 6735 were intended to fully provide for the implementation of the
initiative on amendments to the Constitution, it could have provided for a
subtitle therefor, considering that in the order of things, the primacy of
interest, or hierarchy of values, the right of the people to directly propose
amendments to the Constitution is far more important than the initiative
on national and local laws.
While R.A. No. 6735 specially detailed the process in implementing
initiative and referendum on national and local laws, it intentionally did not
do so on the system of initiative on amendments to the Constitution.
COMELEC Resolution No. 2300 is hereby declared void and orders the
respondent to forthwith dismiss the Delfin Petition . TRO issued on 18
December 1996 is made permanent.
WHEREFORE, petition is GRANTED.
Section 4.Any amendment to, or revision of, this Constitution under
Section 1 hereof shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier than sixty days nor later
than ninety days after the approval of such amendment or revision.
Any amendment under Section 2 hereof shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not earlier
than sixty days nor later than ninety days after the certification by the
Commission on Elections of the sufficiency of the petition.
Ratification
Doctrine of proper submission
Because the Constitution prescribes the time frame within
which the plebiscite is to be held, there can be no
question on whether such is adequate
Question on amendment is subject to judicial review
(24) Planas v. Comelec - 49 SCRA 105
In 1967, Congress passed Resoslution No. 2, amended by
Resolution No. 4, calling for a Convention to propose amendments
to the Constitution. The Constitutional Convention (ConCon)
began to perform its functions in 1971. This was implemented by
RA 6132. While the ConCon was in session, Marcos issued
Proclamation No. 1081 placing the country under Martial Law,
then PD 73 submitting to the Filipinos the proposed Constitution
for ratification or rejection. Planas filed an action against the
COMELEC, Treasurer and Auditor General to enjoin the
respondents from implementing PD 73 contending that the
calling of the plebiscite and the incidenta matters, are lodged
exclusively in Congress and that there was no proper submission
to the people and no sufficient time to inform them. The Pres. Then
suspended the effect of P1081 for a free and open debate on the
proposed Constitution. Some petitioners contend that the
ConCon exceeded its authority in approving Sections 2, 3 Par 2,
and 12 Art. 17 of the proposed Constituion.
Can the ConCon freely do this?
YES
The ConCon was legally free to postulate any amendment it
may deem fit to propose save Jus Cogens because the ConCon
exercised sovereign powers delegated thereto by the people
although only as to determination of the proposals to be made and
also because the proposals cannot be valid as part of our
Fundamental Law unless and until approved by the majority of
the votes cast in an election where such proposal is submitted to
the people for their ratification.
Since the effectivity of a proposal made by a constituent
assembly depends upon the approval by the sovereign people,
a constituent assembly may propose any change in the
constitution. The only possible exception is that a constituent
assembly may not propose anything that is inconsistent with
what is known, particularly in international law, as Jus Cogens.
(25) Javellana v. Executive Secretary - 50 SCRA 30
Sequel of Planas case. Proclamation Nos. 2 & 4, calling a
proposal to amend the Constitution. P1102 was declared by
Pres. Marcos, dispensing with the election or plebiscite but
before Citizens Assemblies. Josue Javellana filed a case against
the Exec. Sec, the Secretaries of National Defense, Justice and
Finance, to restrain them from implementing any of the provisions
of the proposed Constitution not found in the present Constitution
on the ground that the President had announced the immediate
implementation of the New Constitution through his Cabinet, who
are acting in excess of their jurisdiction as the Pres. Is without
authority to create Citizens Assemblies to approve the proposed
Constitution, and to proclaim the ratification by the People, and
not a free election and hence null and void. Several actions
were filed by many other parties. They prayed for a writ of
preliminary mandatory injunction. This rests on the validity of the
new Constitution, which depends on W/N it has been ratified
in accordance with the 1935 Constitution.
Not ratified in accordance with the 1935 Constitution.
However, not enough votes to declare that the new Constitution
is not in force.
The matter of ratification of an amendment to the Constitution
should be settled by applying the Constitution in force at the time
of the alleged ratification, or the old Constitution. Under the 1935
Constitution, there are 3 steps for its amendment:
1. Proposed either by Congress or a convention called for
that purpose by a vote of of all the members of the
Congress voting separately in a joint session assembled
satisfied
2. Amendments be submitted to the people for their
ratification at an election
The ConCon sought the submission to a plebiscite by
reducing the voting age from 21 to 18. Those below 21
cannot exercise the right of suffrage without a previous
amendment of the Constitution. Thus, plebiscite must only be
for people who are qualified to vote in an election. Since those
not qualified to vote participated in the plebiscite of the Citizens
Assemblies, it must be considered null and void.
3. Approved by a majority of the votes cast in said election.
(26) Mitra, Jr. v. Comelec - 104 SCRA 59
Approved by a majority of the votes cast in said
election. Similar petition for prohibition contending that
the 1973 Constitution is not in force, the Javellana
ruling notwithstanding, and praying for holding of a
plebiscite so that the people may vote on its
ratification as to them, it is still in the proposal stage
contending that in the event it is rejected, the 1935
Constitution will be operative once again with the
lifting of the Martial Law.
Dismissed.
Approved by a majority of the votes cast in
said election. Javellana is controlling. Aside
from the referendum that led to the
ratification of the present Constitution, a
2nd one was held in 1973, and another in
1975, and another in 1977. The fact that
the people went to the polls is indicative of
their acquiescence in the present
Constitution.
In essence, this petition for mandamus and prohibition is not dissimilar
from the prohibition proceedings just dismissed filed respectively by
former delegates Samuel C. Occena and Ramon A. Gonzales. All three
suits proceed on the assumption that the present Constitution is not in
force and effect. There is this variation. In the last two paragraphs of10 this
petition, the plea is made for the holding of a plebiscite so that the people
may vote on the ratification of the Constitution, now in force, but as to
them, it is still in the stage of proposal. In the event it is rejected, so their
thinking goes, then the 1935 Constitution, which in the view of petitioners
was suspended by the establishment of an authoritarian regime by the
Commander-in-Chief of the Armed Forces after the proclamation of
martial law, could be once more operative with the lifting of martial law on
January 17, 1981. As in the Occena and Gonzales petitions, there is what
was therein referred to as a "rather unorthodox aspect" in "the assertion
that the 1973 Constitution is not the fundamental law, the Javellana ruling
to the contrary notwithstanding."
ISSUE: W/N a new Constitution can come into force despite the absence
of a valid ratification?
HELD: YES.
Controlling Jurisprudence:
Javellana v Executive Secretary
In this case, the SC assumed jurisdiction and voted
(8/10) for the operative character of the 1973
Constitution
There is no affront to logic, it would
seem, for us to dismiss the petitions and
accordingly rule that "there is no further
judicial obstacle to the new Constitution
being considered in force and effect."
Both the statements of "there being no further
judicial obstacle" as well as the negative form in
which mention is made of there being "not enough
votes to declare that the new Constitution" is not in
force reflect the traditional mode in which
constitutional issues are passed upon in
accordance with the American concept of judicial
review
Separate Opinion:
"Independently of the lack of validity of
the ratification of the new Constitution, if
it be accepted by the people, in whom
sovereignty resides according to the
Constitution, then this Court cannot
refuse to yield assent to such a political
decision of the utmost gravity,
conclusive in its effect. Such a
fundamental principle is meaningless if it
does not imply, to follow Laski, that the
nation as a whole constitutes the "single
center of ultimate reference, necessarily
the possessor of that 'power that is able
to resolve disputes by saying the last
word."
Other Jurisprudence
Angara v Electoral Commission
reflects the adoption of the American type of
constitutional government "where the written
constitution is interpreted and given effect by the
judicial department.
Villena v. Secretary of Interior
"Familiarity with the essential background of the
type of government established under our
Constitution, in the light of certain well-known
principles and practices that go with the system,
should offer the necessary explanation."
One of such practices is the manner in
which the dispositive portion of a
decision in a suit contesting the validity
of a legislative or executive act is
worded. It was noted that Justice
Holmes had a penchant for the double
negative. A favorite phrase of his was
that the statute "was not
unconstitutional." That is of the essence
of judicial review. For one of its basic
postulates is the presumption of validity.
The burden of proof is thus on the
person assailing the action taken by a
coordinate branch. There is no need
therefore of an affirmative finding as to
its being constitutional. It suffices that it
has not been shown to be otherwise. It
is likewise by virtue of such presumption
that Justice Malcolm correctly asserted:
"To doubt is to sustain."
Scholars in the field of constitutional law
have even gone further. They maintain
that when the Supreme Court or some
members thereof whose votes are
crucial deem the question raised as a
political and not judicial resulting in the
dismissal of the action, there was, even
then, a manifestation of the power of
judicial review at work. The Court, by
ruling that it was without jurisdiction,
allowed the political branches to have
their way.
There can be no justification then for the reckless assertion that upon
the proclamation of martial law and while it was in force,
constitutionalism, in terms of the exercise of the power of judicial review
and respect for individual rights, no longer held sway in the Philippines.
It was Justice Lionel Keith Murphy, of the High Court of Australia, whose
advocacy of a written bill of rights for his country has won him an
international reputation as a devoted and eloquent champion of human
rights who was the Second Comparative Law Lecturer of the Integrated
Bar of the Philippines. In that lecture, he appraised the role of this Court
during martial law thus: "The judicial system in the Philippines had
undergone difficult times, and much stress has been placed on it by the
necessity to resolve great issues arising in a series of cases: The Anti-
Subversion, The Plebiscite, The Ratification, The Martial Law. The
Referendum, The Right, to Counsel and The Military Tribunal Cases."
(27) Gonzales v. Comelec - 21 SCRA 774
On March 16, 1967, the Senate and the House
of Representatives passed the following
resolutions:
1. Resolution of Both Houses (RBH) No. 1, proposing that
Sec. 5, Art VI, of the Constitution, be amended so as to
increase the membership of the House of
Representatives from a maximum of 120, as provided
in the present Constitution, to a maximum of 180
2. RBH No. 2, calling a convention to propose
amendments, to be composed of 2 elective delegates
from each representative district, to be "elected in the
general elections on 2nd Tuesday of Nov 1971
3. RBH No. 3, proposing that Sec 16, Art VI be amended
so as to authorize Senators and members of the HOR
to become delegates to the aforementioned constitutional
convention, without forfeiting their respective seats in
Congress
Subsequently, Congress enacted RA4913, providing that the
amendments to the Constitution proposed in the aforementioned
Resolutions No. 1 and 3 be submitted, for approval by the
people, at the general elections which shall be held on Nov 14,
1967.
Ramon A. Gonzales instituted the case as a class unit, for and
in behalf of all citizens, taxpayers, and voters
similarly situated and PHILCONSA, a civic, non-profit and non-
partisan organization the objective of which is to uphold the rule of
law in the Philippines and to defend its Constitution, are asking the
court to restrain COMELEC from enforcing RA4913 as the same
was unconstitutional and void.
1. Does Congress (through ordinary legislative process)
have the power to amend or propose amendment to the
constitution?
NO. The power to amend the Constitution or to propose
amendments is not intended in the general grant of legislative 11
powers to Congress. It is part of the inherent powers of the people
as the repository of sovereignty in the republican state, such as
ours, to make and hence, to amend their own fundamental law.
Congress may propose amendments to the Constitution merely
because the same explicitly grants such power. Hence, when
exercising the same, it is said that Senators and Members of the
House of Congress derive their authority from the Constitution,
unlike the people when performing the same function, for the
authority of the people does not manage from the Constitution as
they are the very source of all powers of government,
including the Constitution itself.
The proposed constitutional amendments may be submitted at a
plebiscite scheduled on the same day as the regular elections as the
1935 Constitution does not indicate that the election therein
referred to is a special not a general election. Ideally,
amendments should be presented in a special election in order
that it can command the undivided attention of the electorate.
However, it is not required by the Constitution that a plebiscite
should be done in a special election. The decision whether
amendments or revision should be proposed is a wisdom left to
the discretion of Congress. The same as the conditions under
which proposed amendments shall be submitted to the people.
(28) Tolentino v. Comelec - 41 SCRA 702
The Constitutional Convention of 1971 convened for the
purpose of proposing amendments to the 1935 Constitution
pursuant to resolutions 2 and 4 of the joint sessions of the
Congress and by virtue of the implementing legislation RA
6432. Constitutional Convention then approved the organic
resolution no. 1 proposing the amendments of lowering the voting
age of 21 to 18. The said resolution scheduled the approval of the
amendment in a plebiscite to coincide with the local elections in
November 1971 without prejudice to other amendments that will
be proposed in the future by the 1971 Constitutional Convention
on other portions of the Constitution. Petitioner now comes
before the court to prohibit and restrain the COMELEC from
undertaking to hold a plebiscite because the aforesaid Convention
resolutions are null and void being violative of the Constitution.
May the Constitutional Convention validly call for an advance
plebiscite on the sole amendment contained in the organic
resolution no. 1 before the rest of the constitution then under
revision had been approved?
NO. The issue is essentially justiciable not political and hence,
subject to judicial review. The members of the Congress when
proposing, as a constituent assembly, amendments to the
Constitution, derive their authority from the fundamental law that it
necessarily follows that they do not have the final say on whether
or not their acts are within or beyond constitutional limits.
Otherwise, they could brush aside and set the same at naught,
contrary to the basic tenet that ours is a government of laws,
not of men, and to the rigid nature of our Constitution.
In the language of the 1935 Constitution, the use of the word
election in the singular meant that the entire Constitution must be
submitted for ratification at one plebiscite only; furthermore, the
people have to be given a proper frame of reference in arriving at
their decision. Thus, submission for ratification of piece-meal
amendments by the Constitutional Convention (which is tasked to
revise the Constitution) was disallowed since the people had, at that
time, no idea yet of what the rest of the revised Constitution would
be. The proposed amendment should be submitted to them not
separately from but together with all the other amendments to be
proposed by this present convention.
ARTICLE XVIII
TRANSITORY PROVISIONS
Section 1. The first elections of Members of the Congress under this
Constitution shall be held on the second Monday of May, 1987.
The first local elections shall be held on a date to be determined by the
President, which may be simultaneous with the election of the Members
of the Congress. It shall include the election of all Members of the city or
municipal councils in the Metropolitan Manila area.
Section 2. The Senators, Members of the House of Representatives, and
the local officials first elected under this Constitution shall serve until noon
of June 30, 1992.
Of the Senators elected in the elections in 1992, the first twelve obtaining
the highest number of votes shall serve for six years and the remaining
twelve for three years.
Section 3. All existing laws, decrees, executive orders, proclamations,
letters of instructions, and other executive issuances not inconsistent with
this Constitution shall remain operative until amended, repealed, or
revoked.
Section 4. All existing treaties or international agreements which have
not been ratified shall not be renewed or extended without the
concurrence of at least two-thirds of all the Members of the Senate.
Section 5. The six-year term of the incumbent President and Vice-
President elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30, 1992.
The first regular elections for the President and Vice-President under this
Constitution shall be held on the second Monday of May, 1992.
Section 6. The incumbent President shall continue to exercise legislative
powers until the first Congress is convened.
Section 7. Until a law is passed, the President may fill by appointment
from a list of nominees by the respective sectors, the seats reserved for
sectoral representation in paragraph (2), Section 5 of Article V1 of this
Constitution.
Section 8. Until otherwise provided by the Congress, the President may
constitute the Metropolitan Manila Authority to be composed of the heads
of all local government units comprising the Metropolitan Manila area.
Section 9. A sub-province shall continue to exist and operate until it is
converted into a regular province or until its component municipalities are
reverted to the mother province.
Section 10. All courts existing at the time of the ratification of this
Constitution shall continue to exercise their jurisdiction, until otherwise
provided by law. The provisions of the existing Rules of Court, judiciary
acts, and procedural laws not inconsistent with this Constitution shall
remain operative unless amended or repealed by the Supreme Court or
the Congress.
Section 11. The incumbent Members of the Judiciary shall continue in
office until they reach the age of seventy years or become incapacitated
to discharge the duties of their office or are removed for cause.
Section 12. The Supreme Court shall, within one year after the
ratification of this Constitution, adopt a systematic plan to expedite the
decision or resolution of cases or matters pending in the Supreme Court
or the lower courts prior to the effectivity of this Constitution. A similar
plan shall be adopted for all special courts and quasi-judicial bodies.
Section 13. The legal effect of the lapse, before the ratification of this
Constitution, of the applicable period for the decision or resolution of the
cases or matters submitted for adjudication by the courts, shall be
determined by the Supreme Court as soon as practicable.
Section 14. The provisions of paragraphs (3) and (4), Section 15 of
Article VIII of this Constitution shall apply to cases or matters filed before
the ratification of this Constitution, when the applicable period lapses after
such ratification.
Section 15. The incumbent Members of the Civil Service Commission,
the Commission on Elections, and the Commission on Audit shall
continue in office for one year after the ratification of this Constitution,
unless they are sooner removed for cause or become incapacitated 12to
discharge the duties of their office or appointed to a new term thereunder.
In no case shall any Member serve longer than seven years including
service before the ratification of this Constitution.

(29) Gaminde v. COA - 347 SCRA 655
Pres. Ramos appointed Petitioner Thelma Gaminde, ad interim,
CSC Commissioner and assumed office on June 1993. Her
appointment was confirmed by the Commission on Appointment
but the appointment provides that her term would end on Feb 2,
1999. She then sought clarification as to the expiry of her term, to
which the Chief Presidential Legal Counsel replied that her term
would expire on 2000. Relying on such response, she remained in
office. On Feb 4, 1999, Chairman Corazon de Leon wrote the
COA, requesting an opinion whether the Gaminde and her co-
terminous staff may be paid their salaries considering that their
appointments had expired on Feb 2, 1999. COA General Conusel
issued an opinion that their term had expired and as such, CSC
Resident Felipe issued a notice of disallowance of audit the salaries
and emoluments of Gaminde and her staff.
Until 1999 only but should be granted salaries until 2000
Sec. 15 Art. 18 contemplates TENURE, not term of the incumbent
Chairmen and members of the Constitutional Commissions, who
shall continue in office for 1 year after the ratification of this
Constitution unless sooner removed. Term means the time during
which the officer may claim to hold office as a matter of right, and
fixes the interval after which the several incumbents shall
succeed one another. The tenure represents the term during
which the incumbent actually holds the office. The term of office
is not affected by the hold-over. The tenure may be shorter than
the term for reasons within or beyond the power of the incumbent.
Tenure may be cut short by:
1. Removal from office for cause
2. Becoming incapacitated to discharge the duties of their
office, or
3. Appointment to a new term, all of which events may
occur before the end of the 1 year period after the
effectivity of the Constitution.
However, this does not affect the term of office fixed in Art. 9
providing for a 7-5-3 year rotational interval. As such, Gaminde
accepted the appointment to expire on Feb 2, 1999. She is bound
by the term of appointment she accepted. The letter of Deputy
Exec. Sec Renato Corona clarifying that her term would expire
in 2000 is error for what was submitted to the Commission on
Appointment was a nomination for a term expiring on 1999.
Section 16. Career civil service employees separated from the service
not for cause but as a result of the reorganization pursuant to
Proclamation No. 3 dated March 25, 1986 and the reorganization
following the ratification of this Constitution shall be entitled to appropriate
separation pay and to retirement and other benefits accruing to them
under the laws of general application in force at the time of their
separation. In lieu thereof, at the option of the employees, they may be
considered for employment in the Government or in any of its
subdivisions, instrumentalities, or agencies, including government-owned
or controlled corporations and their subsidiaries. This provision also
applies to career officers whose resignation, tendered in line with the
existing policy, had been accepted.
Security of tenure
(30) Dario v. Mison - 176 SCRA 84 - 81954
PP 1 declaring as policy the reorganization of govt and PP 3,
providing for the adoption of a provisional Constitution and an
orderly transition to a govt under a new Constitution. Pursuant to
these PPs, several EOs were issued by Pres. Aquino
reorganizing the govt. Among other offices, EO 127 reorganized
the BOC and pursuant to this, Commissioner of Customs Salvador
Mison, issued a memorandum providing for guidelines and
procedure in the personnel replacement and sent several notices
to 310 Customs officials that they are now performing their duties
in a hold-over capacity and those not re-appointed shall be
deemed separated from service. Also, 394 officials and employees
were given individual notices of separation. CSC ordered their
reinstatement. Commissioner Mison, instituted this certiorari.
Is Sec. 16, in so far as it mentions removals not for cause, a
grant of a license upon the Government to remove career
public officials and to remove them without rhyme or reason?
NO
There is no question that the administration may validly carry out a
government reorganization insofar as these cases are concerned, the
reorganization of the Bureau of Customs by mandate not only of the
Provisional Constitution, supra, but also of the various Executive Orders
decreed by the Chief Executive in her capacity as sole lawmaking
authority under the 1986-1987 revolutionary government. It should also
be noted that under the present Constitution, there is a recognition, albeit
implied, that a government reorganization may be legitimately
undertaken, subject to certain conditions. Thus, removal arising from
abolition of office as a result of reorganization carried out by reason
of economy no need to prove anything because the Constitution
allows it. For removal for redundancy of functions good faith must
be proven. Reorganization valid due to transition, even without cause
but only before the effectivity of the Constitution, in which case,
employees shall be paid separation and retirement benefits.
Also, RA 6656 is constitutional, which provides for reinstatement
of EEs separated without a valid cause after and after due
notice and hearing, is not contrary to Sec. 16. Although Sec.
16 mentions separations not for cause, such must
nevertheless be on account of a valid reorganization and not
automatically. Otherwise, security of tenure may be invoked. Since
it has safeguards, it is constitutional.
(31) Mendoza v. Quisumbing - 186 SCRA 108
After the February 1986 revolution, President Corazon Aquino
issued Proclamation No. 1 declaring as policy the
reorganization of the government.
Proclamation No. 3 was then issued to implement the
reorganization.
o The reorganization aimed to promote economy,
efficiency, and the eradication of graft and
corruption.
o It provided that all elective and appointive officials
and employees under the 1973 Constitution shall
continue in office until otherwise provided by
proclamation or executive order or upon the
appointment and qualification of their successors.
Consistent with the proclamation, several Executive Orders
were issued reorganizing government departments, including
DECS, DOST, DOTC, DA, and DOH.
o Incumbent government officials/ employees were
considered to be in holdover status , continued to
hold their positions until their successors were
appointed.
o Many government employees were separated from
service as a result even after the 1987 Constitution
became effective. .
Petitioners are among those employees that have been
separated from service and filed the present petitions claiming
that their right to security of tenure has been violated.
The government defended the reorganization on the ground of
Sec. 16, Art. XVIII (Transitory Provisions), which explicitly
authorize the removal of career civil service employees not for
cause but as a result of the reorganization pursuant to
Proclamation No. 3.
o Sec. 16: Career civil service employees separated
from the service not for cause but as a result of the
reorganization pursuant to Proclamation No. 3
dated March 25, 1986 and the reorganization
following the ratification of this Constitution shall be
entitled to appropriate separation pay and to
retirement and other benefits accruing to them
under the laws of general application in force at the
13
time of their separation. In lieu thereof, at the option
of the employees, they may be considered for
employment in the Government or in any of its
subdivisions, instrumentalities, or agencies,
including government-owned or controlled
corporations and their subsidiaries. This provision
 also applies to career officers whose resignation,
tendered in line with the existing policy, had been
accepted.
Issue: Whether or not the Petitioners separation from service were valid?
Ruling: No. When the 1987 Constitution became effective, security of
tenure governed.
The occupancy of a position in hold-over capacity was
conceived to facilitate reorganization and would have lapsed
on Feb. 25, 1987 (under the Provisional Constitution), but
advanced to Feb. 2, 1987 when the 1987 Constitution became
effective.
There is no dispute over the power to reorganizewhether
traditional, progressive, or whatever adjective is appended to
it.
o However, the essence of constitutional government
is adherence to basic rules.
o The rule of law requires that no government official
should feel free to do as he pleases using only his
avowedly sincere intentions and conscience to
guide him.
o The fundamental standards of fairness embodied in
the bona fide rule cannot be disregarded.
o More particularly, the auto-limita-tions imposed by
the President when she proclaimed the Provisional
Constitution and issued executive orders as sole
law maker and the standards and restrictions
prescribed by the present Constitution and the
Congress established under it, must be obeyed.
Security of tenure, together with the merit and fitness rule, is a
basic feature of the civil service scheme we have adopted in
the Philippines.
o If established principles protecting security of
tenure are to be disregarded or waived, this can be
done only on the basis of clear constitutional
grounds.
It is significant that in the charters or legislative authority for
the exercise of powerthe Provisional Constitution of 1986,
Executive Order No. 17, and Republic Act No. 6656any
reorganization in Government must follow the bona-fide rule.
o There is no basis in the above laws for
indiscriminate dismissals. The executive
implementors of policy are required to abide by the
intent and purpose stated in the grant of power, to
follow the guidelines set out for them and, in the
words of the President ensure that only those
found corrupt, inefficient, and undeserving are
separated from the government service.
Section 17. Until the Congress provides otherwise, the President shall
receive an annual salary of three hundred thousand pesos; the Vice-
President, the President of the Senate, the Speaker of the House of
Representatives, and the Chief Justice of the Supreme Court, two
hundred forty thousand pesos each; the Senators, the Members of the
House of Representatives, the Associate Justices of the Supreme Court,
and the Chairmen of the Constitutional Commissions, two hundred four
thousand pesos each; and the Members of the Constitutional
Commissions, one hundred eighty thousand pesos each.
Section 18. At the earliest possible time, the Government shall increase
the salary scales of the other officials and employees of the National
Government.
Section 19. All properties, records, equipment, buildings, facilities, and
other assets of any office or body abolished or reorganized under
Proclamation No. 3 dated March 25, 1986 or this Constitution shall be
transferred to the office or body to which its powers, functions, and
responsibilities substantially pertain.
Section 20. The first Congress shall give priority to the determination of
the period for the full implementation of free public secondary education.
Section 21. The Congress shall provide efficacious procedures and
adequate remedies for the reversion to the State of all lands of the public
domain and real rights connected therewith which were acquired in
violation of the Constitution or the public land laws, or through corrupt
practices. No transfer or disposition of such lands or real rights shall be
allowed until after the lapse of one year from the ratification of this
Constitution.
Section 22. At the earliest possible time, the Government shall
expropriate idle or abandoned agricultural lands as may be defined by
law, for distribution to the beneficiaries of the agrarian reform program.
Section 23. Advertising entities affected by paragraph (2), Section 11 of
Article XV1 of this Constitution shall have five years from its ratification to
comply on a graduated and proportionate basis with the minimum Filipino
ownership requirement therein.
Section 24. Private armies and other armed groups not recognized by
duly constituted authority shall be dismantled. All paramilitary forces
including Civilian Home Defense Forces not consistent with the citizen
armed force established in this Constitution, shall be dissolved or, where
appropriate, converted into the regular force.
Section 25. After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America concerning
military bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for that purpose,
and recognized as a treaty by the other contracting State.
(32) Bayan v. Executive Secretary - 342 SCRA 449
PH & US forged a Military Bases Agreement, which formalized
the use of installation in the PH by US military personnel. In view
of the impending expiration of the RP-US Military Bases
Agreement in 1991, PH and US negotiated for a possible extension
but the PH Senate rejected the proposed RP-US Treaty of Friendship,
Cooperation and Security, which would have extended the presence
of US military bases in the PH. Later on, IS and PH exchanged notes
on possibility of a Visiting Forces Agreement (VFA), which was later
on approved and signed by the parties. Pres. Estrada ratified this VFA
and transmitted to the Senate the Instrument of Ratification, which
was approved by Senate by a 2/3 vote of its members. VFA
provides for the mechanism for regulating the circumstances and
conditions under which the US Armed forces and defense personnel
may be present in the PH. Petitioners question the constitutionality
of the VFA contending that Sec. 25 applies considering that the VFA
has for its subject the presence of foreign military troops in the PH
and as such, US must adopt it as a treaty as well.
PETITION DISMISSED, compliant with the Constitutional
mandate.
Section 21, Article VII Section 25, Article XVIII
Treatise or international
Applies to treaties which
agreements in general, which involve the presence of foreign
requires 2/3 of all members of military bases in the PH and
the Senate, including all concurrence of Senate is only 1
treaties, international
of the requisites to render
agreements entered into by compliance with the
the PH regardless of the constitutional requirements. It
subject matter. must also be ratified by a
majority of the votes cast in a
national referendum.
Both require concurrence of Senate, both requiring 2/3 of all
members as provided by Sec. 21 which also applies to Section 25.
This case should fall under Sec. 25 as it involves foreign military
bases. As to the contention that it is inapplicable as there is no
permanent placing of structure for the establishment of a military
base, the Constitution makes no distinction between transient and
permanent. Sec. 25 disallows foreign military bases unless the
following conditions are met: 14
1. It must be under a treaty
2. Treaty must be duly concurred in by the Senate
and when so required by Congress, ratified by a
majority of the votes cast by the people in a national
 referendum actual shareholders of in the PCGG?
3. Recognized as a treaty by the other contracting state
Actual shareholders and as such, the election of the officers
First 2 are complied with. As to 3rd, the Court is of the firm view wherein PCGG participated must be set aside but remains de
that the phrase recognized as treaty means acceptance or facto officers until a new set of officers is elected
acknowledgment the agreement as a treaty. To require the other
state to submit it to the US Senate for concurrence is to accord PCGG:
strict meaning to the phrase. It is immaterial whether the US 1. May not exercise acts of ownership,
merely treats the VFA as an executive agreement as under 2. Has only powers of administration.
international law, an executive agreement is as binding as a
treaty. Also, US stated that it is fully committed to living up to The PCGG cannot perform acts of strict ownership of sequestered
the terms of the VFA. As long as it accepts or acknowledges property. It is a mere conservator. It may not vote the shares in a
the VFA as a treaty and binds itself to comply with its obligations, corporation and elect the members of the board of directors. The only
there is a marked compliance with the Consitution. conceivable exception is in a case of a takeover of a business belonging
to the government or whose capitalization comes from public funds, but
which landed in private hands as in BASECO.
Section 26. The authority to issue sequestration or freeze orders
under Proclamation No. 3 dated March 25, 1986 in relation to the
recovery of ill-gotten wealth shall remain operative for not more than Sequestered shares of stock is Sequestered shares of stock is
eighteen months after the ratification of this Constitution. However, in minority of voting shares majority of voting shares
the national interest, as certified by the President, the Congress may Registered owners would in any Registered owners are to elect a
extend such period. case be able to vote in only a majority of the Board of Directors.
minority of Board of Directors.
A sequestration or freeze order shall be issued only upon showing of a PCGG, to perform its functions as Safeguards:
prima facie case. The order and the list of the sequestered or frozen conservator of sequestered 1) An independent
properties shall forthwith be registered with the proper court. For shares pending final comptroller must be
orders issued before the ratification of this Constitution, the determination by the courts appointed by the Board
corresponding judicial action or proceeding shall be filed within six whether they are ill-gotten, must: of Directors upon a
months from its ratification. For those issued after such ratification, the 1) Be represented in the nomination of the PCGG,
judicial action or proceeding shall be commenced within six months Board of Directors and which cannot be
from the issuance thereof. of its majority-owned removed without its
subsidiaries and in the consent;
The sequestration or freeze order is deemed automatically lifted if no Executive Committee; 2) Corporate Secretary
judicial action or proceeding is commenced as herein provided. 2) Right of full access to must be acceptable to
and inspection of PCGG;
Extent of PCGG's power books, records, etc. 3) External auditors must
and the right to receive be independent and
Writ of sequestration may be issued only upon authority copies of reports to acceptable to PCGG;
of at least 2 PCGG Commissioners. Board of Directors; 4) PCGG must be
3) Observe and monitor represented in the Board
Lifting of the sequestration orders does not ipso facto the carrying out of the of Directors and in the
mean that the sequestered property i s not ill gotten. business and discover Executive Committee
It only means that the role of government as in a timely manner any with the right to vote;
conservator is terminated. move to conceal, 5) All disbursements of
waste, and dissipate corporate funds in
Sandiganbayan can review the validity of sequestration the assets of the excess of P5 Million
orders. corporation or the must have prior approval
sequestered shares, of PCGG;
and seasonably bring 6) Incurring debt in excess
PCGG has authority to enter into compromise
such move to the of P5 Million requires
agreements involving ill- gotten wealth and to grant
attention of the prior approval as well;
immunity in civil and criminal cases without need of
Sandiganbayan. 7) Disposition of substantial
prior Congressional approval.
part of assets in excess
of P5 Million requires
A mere allegation in the complaint that the accused prior approval.
is a relative of Pres. Marcos will not suffice to
enable the PCGG to take cognizance of the case. There
must also be a showing that the accused has unlawfully (34) BASECO v. PCGG - 155 SCRA 60
accumulated wealth by virtue of such close relation.
Baseco questions EOs 1 & 2 and the sequestration, takeover and
other acts done of the PCGG in accordance with said EOs.
In order that the SBs exclusive jurisdiction may be Commissioner Ramon Diaz decreed the provisional takeover by
invoked, the PCGG must be a party to the suit. the PCGG of Baseco, pursuant
to EO1 and removed its officers. Evidence supports the
conclusion that Pres. Marcos not only controls Baseco, it owns
(33) Cojuangco, Jr. v. Roxas et. al - 195 SCRA 797 100% of its outstanding stock and its stockholders and directors
are mere dummies or alter egos of Pres. Marcos.
On April 18, 1989, the annual meeting of stockholders of SMC
was held. Because PCGG sequestered shares they were Are the acts of the PCGG valid?
included in the election. Other members contend that the shares
are not under sequestration and even if they are, PCGG had no YES
right to vote the same. They were overruled so PCGG was The govts plan to recover ill-gotten wealth is valid. However, 15
allowed to vote. Petitioners allege that the votes of PCGG were it is subject to the fundamental rights of private property and
illegally cast and should be counted in their favor. free enterprise, as pillars of a free society. The law has
prescribed 3 provisional remedies:
Is the right to vote sequestered shares of stock vested in the
 1. Sequestration to place in its possession or control
property and records, businesses to prevent their destruction,
concealment, or dissipation until final determination
2. Freeze order prohibits the person
having possession of property alleged to
be ill gotten from transferring, conveying,
concealing or depleting
3. Provisional takeover assumption of control over
operations only to businesses taken over by the govt of
the Marcos Administration or by entities or persons
close for Pres. Marcos
These remedies may be resorted to only for a particular exigency:
to prevent in the public interest the disappearance or dissipation
of property or business, and conserve it pending adjudgment in
appropriate proceedings of the primary issue of whether or not
the acquisition of title or other right thereto by the apparent owner
was attended by some vitiating anomaly. None of the remedies is
meant to deprive the owner or possessor of his title or any right to
the property sequestered, frozen or taken over and vest it in the
sequestering agency, the Government or other person. This can
be done only for the causes and by the processes laid down by
law. Also, they are provisional, temporary, and always subject to
the control of the issuing court or agency.
In this case however, the provisional takeover is valid as
Baseco was proven to be owned and controlled by Pres.
Marcos, which is the requirement for a provisional takeover.
Since it is present, the takeover is valid. However, PCGG
cannot exercise acts of dominion over property sequestered. It
may not vote sequestered shares of stock or elect the members
of the board of directors of the corporation concerned, it may
not exercise acts of ownership and is limited to powers of
administration. The removal and election of members of the
BOD are clear acts of ownership on the part of the shareholders
of the corporation, a right that should be denied the PCGG
under ordinary circumstances. However, when Mr. Marcos took
possession and control of total ownership thereof which he
could not have acquired out of his lawfully gotten wealth, the
PCGG was allowed by the Court to vote the sequestered
shares. This is justified because the former officers were just
tools of Pres. Marcos and were no longer owners of any stock
in the firm. However, PCGG nominees must never forget that
they are conservators, not owners, they are fiduciaries, trustees,
of whom the highest degree of diligence and rectitude is, in the
premises, required.
(35) Republic v. Sandiganbayan - 192 SCRA 743
In this case the PCGG sequestered a jet plane not belonging to
a sequestered company. PCGG asked the Sandiganbayan for
authority to sell. The Sandiganbayan did not grant the authority.
The PCGG sold the plane claiming that it was necessary for the
preservation of the property and that its request from the
Sandiganbayan was merely out of courtesy.
Can the PCGG exercise prerogatives of ownership such as
sale over such sequestered property?
NO
The SC held that the power over sequestered property is
administrative power, not dominical power. It may not be exercised
without court permission. Moreover, for the validity of a
sequestration, prima facie evidence is needed. On that basis a
sequestration may be challenged before the Sandiganbayan.
Rightly the Sandiganbayan refused to recognize the sequestration
absent evidence to justify it.
The only qualifying requirement in the Constitution is that the
action or proceeding be filed for orders of sequestration,
freezing or provisional take-over. What is apparently
contemplated is that the action or proceeding must concern or
involve the matter of sequestration, freezing or provisional take-
over of specific property and should have, as objective, the
demonstration by competent evidence, that the property is indeed
ill- gotten wealth over which the government has a legitimate claim
for recovery and other relief. Thus, where the PCGG had filed
complaints against named defendants and had attached to the
complainant a list of other corporations alleged to be dummies of
the defendant, such listing was found sufficient to prevent the lifting
of the sequestration of listed corporations even if they themselves
had not been impleaded.
(36) Disini v. Sandiganbayan, GR No. 180564
This case involved an immunity agreement between petitioner
and the State whereby petitioner agreed to testify for, and
provide information and documents to, the State in two cases
involving the contract for the construction of the Bataan Nuclear
Power Plant, believed to have been brokered by one of his second
cousins companies and attended by anomalies. Under the same
agreement, petitioner would not be compelled to testify in any
other case which the state may bring against his said cousin.
Eighteen years after the immunity agreement was forged, and
after petitioner complied with his undertaking, the State, through
the PCGG, revoked its guarantee not to compel petitioner to
testify against his second cousin.
Is petitioner immune?
YES. PCGGs revocation of the questioned immunity and
Sandiganbayans denial of Disinis motion to quash the subpoena
were both annulled.
A contract is the law between the parties. It cannot be withdrawn
except by their mutual consent. This applies with more reason in
this case where petitioner had already complied with the terms
and conditions of the Immunity Agreement. To allow the Republic
to revoke the Agreement at this late stage will run afoul of the rule
that a party to a compromise cannot ask for a rescission after it
had enjoyed its benefits. The Court should not allow the Republic,
to put it bluntly, to double cross Disini. The Immunity Agreement
was the result of a long drawn out process of negotiations with
each party trying to get the best concessions out of it. The
Republic did not have to enter into that agreement; it was free
not to. But when it did, it needed to fulfill its obligations
honorably as Disini did. More than anyone, the government should
be fair.
Section 27. This Constitution shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite held for the
purpose and shall supersede all previous Constitutions.
The foregoing proposed Constitution of the Republic of the Philippines
was approved by the Constitutional Commission of 1986 on the twelfth
day of October, Nineteen hundred and eighty-six, and accordingly
signed on the fifteenth day of October, Nineteen hundred and eighty-six
at the Plenary Hall, National Government Center, Quezon City, by the
Commissioners whose signatures are hereunder affixed.
Date of effectivity of the Constitution
(37) De Leon v. Esguerra - 153 SCRA 602
In the 1982 barangay elections, Petitioner Alfredo de Leon was
elected barangay captain and the other petitioners as Brgy
councilmen of Brgy Dolores, Taytay, Rizal. In 1987, De Leon
received a Memorandum antedated Dec 1, 1986 but signed by OIC
Governor Esguerra on Feb 8, 1987 designating Magno as Barangay
Captain. The designation made by the OIC was by authority of
the Minister of Local Government. Petitioners pray that the
Memoranda of Feb 8, 1987 be declared null and void and prohibit
the respondents from taking over their positions on the ground that
with the ratification of the 1987 Constitution, the governor no longer
has authority to replace them and designate their successors.
Petitioners, as elective officials under the 1973 Constitution,
may continue in office but should vacate upon proclamation 16 or
EO providing for such or a designation or appointment and
qualification of their successors. There is no proclamation or EO
terminating them. The question now is whether the designation
of respondents was made within the 1yr period which ended on
Feb 25, 1987.

PETITION GRANTED, while within the deadline, superseded by

the Constitution. They were designated on Feb 8, which is
ostensibly within the deadly. However, the provisional
Constitution must be deemed to have been overtaken by Sec. 27.
The 1987 Constitution was ratified in a plebiscite on Feb 2, 1987.
The day of ratification, that is, the day on which the votes of
the people were cast to signify their acceptance of the draft. By
that date, therefore, the Provisional Constitution must be deemed
to have been superseded. Having become inoperative,
respondent OIC Governor could no longer rely on the
Provisional Constitution to designate respondents to the elective
positions occupied by petitioners.

17