The Resolution was penned by no less that Chief Justice Reynato S. Puno. Concurring with the Chief Justice were Justices Conchita Carpio Morales, Arturo D. Brion, Diosdado M. Peralta, Mariano C. Del Castillo, Roberto A. Abad, Martin S. Villarama, Jr., Jose P. Perez, and Jose C. Mendoza. Dissenting were Justices Antonio Eduardo B. Nachura (the ponente in the original Decision), Renato C. Corona, Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, and Lucas P. Bersamin.

Read a copy of the Resolution here.

PROCLAIMING A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE PROVINCE OF MAGUINDANAO, EXCEPT FOR CERTAIN AREAS

WHEREAS, Proclamation 1946 was issued on 24 November 2009 declaring a state of emergency in the provinces of Maguindanao, Sultan Kudarat and the City of Cotabato for the purpose of preventing and suppressing lawless violence in the aforesaid areas;



WHEREAS, Section 18, Article VII of the Constitution provides that “xxx In case of invasion or rebellion, when the public safety so requires it, (the President) may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law, xxx ”

WHEREAS, R.A. No. 6986 provides that the crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.


WHEREAS, heavily armed groups in the province of Maguindanao have established positions to resist government troops, thereby depriving the Executive of its powers and prerogatives to enforce the laws of the land and to maintain public order and safety;



WHEREAS, the condition of peace and order in the province of Maguindanao has deteriorated to the extent that the local judicial system and other government mechanisms in the province are not functioning, thus endangering public safety;



WHEREAS, the Implementing Operational Guidelines of the GRP-MILF Agreement on the General Cessation of Hostilities dated 14 November 1997 provides the following is considered a prohibited act: “xxx establishment of checkpoints except those necessary for the GRP’s enforcement and maintainance of peace and order; and for the defense and security of the MILF in their identified areas, as jointly determined by the GRP and the MILF, xxx ”

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby proclaim as follows:



SECTION 1. There is hereby declared a state of martial law in the province of Maguindanao, except for the identified areas of the Moro Islamic Liberation Front as referred to in the Implementing Operational Guidelines of the GRP-MILF Agreement on the General Cessation of Hostilities.



SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area for the duration of the state of martial law.



DONE in the City of Manila, this 4th day of December in the year of our Lord, Two Thousand and Nine.


GLORIA MACAPAGAL ARROYO


By the President:


EDUARDO R. ERMITA

Executive Secretary

In granting the petition, the Court found that petitioners’ interest in running for public office, an interest protected by Sections 4 and 8 of Article III of the Constitution, is breached by the proviso in Section 13 of R.A. No. 9369 and that it was “now the opportune time for the Court to strike down the said proviso for being violative of the equal protection clause and for being overbroad.” In finding that there was a violation of the equal protection clause, the Court ruled that:

“In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential treatment.

In order that there can be valid classification so that a discriminatory governmental act may pass the constitutional norm of equal protection, it is necessary that the four (4) requisites of valid classification be complied with, namely:

(1) It must be based upon substantial distinctions;

(2) It must be germane to the purposes of the law;

(3) It must not be limited to existing conditions only; and

(4) It must apply equally to all members of the class.

The first requirement means that there must be real and substantial differences between the classes treated differently. As illustrated in the fairly recent Mirasol v. Department of Public Works and Highways, a real and substantial distinction exists between a motorcycle and other motor vehicles sufficient to justify its classification among those prohibited from plying the toll ways. Not all motorized vehicles are created equal—a two-wheeled vehicle is less stable and more easily overturned than a four-wheel vehicle.

Nevertheless, the classification would still be invalid if it does not comply with the second requirement—if it is not germane to the purpose of the law. Justice Isagani A. Cruz (Ret.), in his treatise on constitutional law, explains,

The classification, even if based on substantial distinctions, will still be invalid if it is not germane to the purpose of the law. To illustrate, the accepted difference in physical stamina between men and women will justify the prohibition of the latter from employment as miners or stevedores or in other heavy and strenuous work. On the basis of this same classification, however, the law cannot provide for a lower passing average for women in the bar examinations because physical strength is not the test for admission to the legal profession. Imported cars may be taxed at a higher rate than locally assembled automobiles for the protection of the national economy, but their difference in origin is no justification for treating them differently when it comes to punishing violations of traffic regulations. The source of the vehicle has no relation to the observance of these rules.

The third requirement means that the classification must be enforced not only for the present but as long as the problem sought to be corrected continues to exist. And, under the last requirement, the classification would be regarded as invalid if all the members of the class are not treated similarly, both as to rights conferred and obligations imposed.

Applying the four requisites to the instant case, the Court finds that the differential treatment of persons holding appointive offices as opposed to those holding elective ones is not germane to the purposes of the law.

The obvious reason for the challenged provision is to prevent the use of a governmental position to promote one’s candidacy, or even to wield a dangerous or coercive influence on the electorate. The measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by eliminating the danger that the discharge of official duty would be motivated by political considerations rather than the welfare of the public. The restriction is also justified by the proposition that the entry of civil servants to the electoral arena, while still in office, could result in neglect or inefficiency in the performance of duty because they would be attending to their campaign rather than to their office work.

If we accept these as the underlying objectives of the law, then the assailed provision cannot be constitutionally rescued on the ground of valid classification. Glaringly absent is the requisite that the classification must be germane to the purposes of the law. Indeed, whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their CoCs for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.

As to the danger of neglect, inefficiency or partisanship in the discharge of the functions of his appointive office, the inverse could be just as true and compelling. The public officer who files his certificate of candidacy would be driven by a greater impetus for excellent performance to show his fitness for the position aspired for.

XXX          XXX         XXX

There is thus no valid justification to treat appointive officials differently from the elective ones.  The classification simply fails to meet the test that it should be germane to the purposes of the law.  The measure encapsulated in the second proviso of the third paragraph of Section 13 of R.A. No. 9369 and in Section 66 of the OEC violates the equal protection clause.”

In finding that the challenged proviso suffers from the infirmity of being overbroad, the Court held, to wit:

“First, the provision pertains to all civil servants holding appointive posts without distinction as to whether they occupy high positions in government or not. Certainly, a utility worker in the government will also be considered as ipso facto resigned once he files his CoC for the 2010 elections. This scenario is absurd for, indeed, it is unimaginable how he can use his position in the government to wield influence in the political world.

While it may be admitted that most appointive officials who seek public elective office are those who occupy relatively high positions in government, laws cannot be legislated for them alone, or with them alone in mind. For the right to seek public elective office is universal, open and unrestrained, subject only to the qualification standards prescribed in the Constitution and in the laws. These qualifications are, as we all know, general and basic so as to allow the widest participation of the citizenry and to give free rein for the pursuit of one’s highest aspirations to public office. Such is the essence of democracy.

Second, the provision is directed to the activity of seeking any and all public offices, whether they be partisan or nonpartisan in character, whether they be in the national, municipal or barangay level. Congress has not shown a compelling state interest to restrict the fundamental right involved on such a sweeping scale.

Specific evils require specific treatments, not through overly broad measures that unduly restrict guaranteed freedoms of the citizenry. After all, sovereignty resides in the people, and all governmental power emanates from them.”

Justice Nachura was joined in the majority by Associate Justices Renato C. Corona, Minita V. Chico-Nazario, Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Arturo D. Brion, Lucas P. Bersamin and Mariano C. del Castillo. Chief Justice Reynato S. Puno led the dissenters with a seventy page dissenting opinion. Also filing separate dissenting opinions were Associate Justice Antonio T. Carpio and Associate Justice Conchita Carpio Morales.

• Read a full copy of Quinto and Tolentino vs. COMELEC here.
• SC dissenting opinion warns: ‘Disaster waiting to happen’ - from inquirer.net

• It establishes a Climate Change Commission which shall be an independent and autonomous body and shall have the same status as that of a national government agency. It shall be attached to the Office of the President. The Commission shall be the sole policy-making body of the government which shall be tasked to coordinate, monitor and evaluate the programs and action plans of the government relating to climate change pursuant to the provisions of this Act. The Commission shall be organized within sixty (60) days from the effectivity of this Act. (Section 4, RA 9729)

• The Commission shall be composed of the President of the Republic of the Philippines who shall serve as the Chairperson, and three (3) Commissioners to be appointed by the President, one of whom shall serve as the Vice Chairperson of the Commission. (Section 5, RA 9729)

• The Commission shall meet once every three (3) months, or as often as may be deemed necessary by the Chairperson. The Chairperson may likewise call upon other government agencies for the proper implementation of this Act. (Section 6, RA 9729)

• The Commissioners must be Filipino citizens, residents of the Philippines, at least thirty (30) years of age at the time of appointment, with at least ten (10) years of experience on climate change and of proven honesty and ntegrity. The Commissioners shall be experts in climate change by virtue of their educational background, training and experience: Provided, That at least one (1) Commissioner shall be female: Provided, further, That in no case shall the Commissioners come from the same sector: Provided, finally, That in no case shall any of the Commissioners appoint representatives to act on their behalf. The Commissioners shall hold office for a period of six (6) years, and may be subjected to reappointment: Provided, That no person shall serve for more than two (2) consecutive terms: Provided, further, That in case of a vacancy, the new appointee shall fully meet the qualifications of a Commissioner and shall hold office for the unexpired portion of the term only: Provided, finally, That in no case shall a Commissioner be designated in a temporary or acting capacity. The Vice Chairperson and the Commissioners shall have the rank and privileges of a Department Secretary and Undersecretary, respectively. They shall be entitled to corresponding compensation and other emoluments and shall be subject to the same disqualifications. (Section 7, RA 9729)

Read more on the Climate Change Act of 2009 in our Recent Laws Page.

“In layman’s language, this means that a candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight — any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and express provision of the law.

The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted only after the start of the campaign period. This is not what the law says. What the law says is “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period.” The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful.

The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law state that partisan political acts done by a candidate before the campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign period. This is clearly not the language of the law. Besides, such a law as envisioned in the Decision, which defines a criminal act and curtails freedom of expression and speech, would be void for vagueness.

Congress has laid down the law — a candidate is liable for election offenses only upon the start of the campaign period. This Court has no power to ignore the clear and express mandate of the law that “any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy.” Neither can this Court turn a blind eye to the express and clear language of the law that “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period.”

The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the Legislature. This Court has no recourse but to apply a law that is as clear, concise and express as the second sentence, and its immediately succeeding proviso, as written in the third paragraph of Section 15 of RA 8436, as amended by RA 9369.”

The only exception is found in Article 26 of the Family Code of the Philippines, which states that “where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.”

The twin elements for the application of Paragraph 2 of Article 26 are as follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

However, given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine law? This was the novel question faced by the Supreme Court in the case of Republic vs. Orbecido.

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-an, Ozamis City.  Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido. In 1986, Cipriano’s wife left for the United States bringing along their son Kristoffer.  A few years later, Cipriano discovered that his wife had been naturalized as an American citizen. Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley.  Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code.  No opposition was filed. Finding merit in the petition, the court granted the same.  The Republic, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied.

In its petition, the OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien.  The proper remedy, according to the OSG, is to file a petition for annulment or for legal separation. Furthermore, the OSG argues there is no law that governs respondent’s situation.  The OSG posits that this is a matter of legislation and not of judicial determination. For his part, Cipriano admits that Article 26 is not directly applicable to his case but insists that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by operation of law pursuant to Section 12, Article II of the Constitution.

In finding for Orbecido, the Court held that:

“Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree.  The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage.  To rule otherwise would be to sanction absurdity and injustice.  Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law.  A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent. If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26.”

The Court held further that:

“The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. In this case, when Cipriano’s wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano.  As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry.  Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case.  Thus Cipriano, the “divorced” Filipino spouse, should be allowed to remarry.”

The Court was also unable to sustain the OSG’s theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation.  Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity.  On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse.

If you do find yourself in a situation similar to that of Cipriano and want to re-marry, it would be important for you to prove your allegation that your spouse was naturalized as an American citizen and you must likewise prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. Furthermore, you must also show that the divorce decree allows your former spuse to remarry as specifically required in Article 26.  Otherwise, there would be no evidence sufficient to declare that your former spouse is capacitated to enter into another marriage.

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In a related development, Lozano has filed a Motion for Reconsideration of the COMELEC’s dismissal claiming that a COC is not required if a petition similar to what he filed against Estrada is based on the need to prohibit something not allowed by the Constitution. Lozano also said he is preparing a graft complaint against officials of the Comelec, including chairman Jose Melo, for allegedly causing “undue injury” to him and giving “undue benefit” to Estrada.

(1)        That retrenchment is reasonably necessary and likely to prevent business losses which, if already incurred, are not merely de minimis, but substantial, serious, actual and real, or if only expected, are reasonably imminent as perceived objectively and in good faith by the employer;

(2)        That the employer served written notice both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment;

(3)        That the employer pays the retrenched employees separation pay equivalent to one (1) month pay or at least one-half (½) month pay for every year of service, whichever is higher;

(4)        That the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employees’ right to security of tenure; and,

(5)        That the employer uses fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as status, efficiency, seniority, physical fitness, age, and financial hardship for certain workers. (FASAP vs. Philippine Airlines, G.R. No. 178083, October 2, 2009)

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