Is the Chief Justice in the line of succession to the Presidency?

Matias Defesor said that the Chief Justice “is the most important appointment vested by the Constitution to the President” being fifth in line of succession to the Presidency.

Similarly, in his January 12 column in Manila Standard, Emil Jurado, a veteran journalist and lawyer, stated the following :

But a hiatus in the office of the chief justice poses clear and present danger to the country. There is the order of succession to the presidency: a Chief Justice is fifth in line. If there’s no President, Vice President, Senate President and Speaker of House of Representatives proclaimed by June 30, who will take over the country?

Is the Chief Justice really fifth in order of succession to the Presidency?

The answer in the negative. There is no provision in the Constitution that says expressly or by implication that the Chief Justice is fifth in line of succession to the Presidency.

To be sure, let me quote the relevant provisions of the Constitution on presidential succession.

Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or a Vice-President shall have been chosen and qualified.

In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified.

Even in the United States, the Chief Justice is not in the line of succession to the Presidency per Presidential Succession Act of 1947.

Appointment of New Chief Justice

Among the arguments proffered by several legal luminaries on whether or not the incumbent president may appoint a new chief justice vis-à-vis the constitutional prohibition against ‘midnight appointment' and command that any vacancy shall be filled within 90 days from the occurrence thereof, the one submitted by Fr. Bernas, which is mainly anchored on the principles of statutory construction, is more convincing.

Bernas sees no conflict between such prohibition (Sec. 15, Art. VII) and command (Sec. 4.1, Art. VIII) of the Constitution if the new president appoints the next chief justice.

Let me reproduce in its entirety the article written by Bernas on this issue, viz :

I had originally planned to continue my dialogue with CHEd on the issue of collegiality, but the issue of who should appoint the next chief justice has grown more sexy. Collegiality can wait.

Since, however, there are so many issues involved regarding the appointment of a chief justice after CJ Puno retires on May 17, I shall write in telegraphic style.
It is important to remember that the prohibition against appointments two months before a presidential election until the end of the incumbent’s term was inspired by the reprobation by the Supreme Court of President Garcia’s scandalous “midnight appointments” before President Diosdado Macapagal assumed office.
But the prohibition against midnight appointments in Article VII is general, whereas the command in Article VIII to fill the vacancy in 90 days is special to the Supreme Court. An accepted principle is that a special law creates exception to a general law.

But again Article VII is in negative language, whereas Article VIII is positive. Another accepted principle is that negative language carries stronger weight in law than positive.

However, when laws are apparently in conflict, jurisprudence also says that efforts should be made to give effect to both when possible. Is reconciliation possible?

Yes, it is possible. The prohibition against appointment starts March 10 and lasts only until June 30; the period for filling a vacancy (90 days) lasts until Aug. 17. The new President will therefore still have about 45 days after June 30 to make the appointment. Both Article VII and Article VIII can have effect.

The original period proposed for filling vacancy in the Supreme Court was 60 days; it was extended to 90 days without debate. [See Constitutional Commission deliberations.] Thus even the Constitution believes that the vacancy can wait 90 days. There is no rush to amend the Constitution now.

Moreover, according to the Aytona case (1962) and the Valenzuela case (1998), when the president-elect is known, the authority of the incumbent is only to ensure an orderly transfer of power. Call it an argument from morality or delicadeza. Under the automated elections, we should know who the next President will be by May 17 or soon after.

The power to appoint is activated only when a vacancy occurs. Vacancy will occur only on May 17. But by then President Arroyo will only have power to make temporary appointments in the executive department. (Speaker Nograles’ contrary view is a premature attempt to amend the Constitution.)

Appointment is a two-way street: it involves offer and acceptance. A justice who accepts a prohibited appointment is complicit in the violation of the prohibition and opens himself or herself to impeachment for culpable violation of the Constitution.

Appointment to fill an anticipated vacancy is valid only if the person making the appointment still has the power when the vacancy occurs.

The President can appoint only from a list given by the JBC. Cory Aquino made appointments without a JBC list, as Senate President Enrile correctly recalls, but only when there was as yet no JBC.

The JBC is duty-bound to submit a list, but only when there is a vacancy, not necessarily sooner.

However, the JBC has no authority to decide whether Arroyo can appoint or not. The JBC can only prepare a list for whoever has authority to appoint. The JBC is not the Supreme Court.

In substantive issues, the chief justice has only one vote out of 15. In administrative matters, the CJ’s absence can be handled, and has always been handled, internally by the other justices of the Supreme Court through a designated temporary presiding officer. To say that the 14 remaining justices will not be able to temporarily run the Supreme Court properly without a chief justice is to insult all of them, one of whom will almost certainly be the next chief justice.

Problems that can arise during the coming elections do not necessarily need a chief justice. (1) Administrative matters go to the Comelec first. (2) Contests in local elections go to local courts first or to the Commission on Elections. (3) Contests in congressional elections go to the Senate or House Electoral Tribunals where a chief justice does not participate. (4) Presidential election contests go to the Supreme Court; but the Chief Justice is not the Supreme Court. At most his is only one vote out of 15. (5) The same can be said about appeals to the SC of election cases. The quorum of the Court en banc is only eight, not 15.

The only instance I can think of where the presence of the chief justice might be indispensable is when the President is on trial on impeachment. But I cannot see that coming any time soon.

What is dangerous for the nation is not the temporary absence of a chief justice but the possible conversion of the Supreme Court into a play-thing of political powers. The Supreme Court itself should resist this. The Supreme Court boat is already listing, weighted as it is by, among others, threatening endless reconsideration of decisions.

My suspicion arising from all of this is that the rush to appoint a chief justice before the swearing in of a new President is being orchestrated, out of unfounded fears or unstated political reasons, by forces in and around the Palace.

A final word. Those who want President Arroyo to appoint the next chief justice might attempt to persuade CJ Puno to retire much earlier than two months before the elections. That would not be a solomonic solution but an unwelcome political solution. I doubt, though, that CJ Puno would want to leave that as his legacy after a distinguished career in law.

Why Ban Airsoft During Election Period?

Starting 9 February 2010 a total gun ban will be in effect nationwide until 9 June 2010 according to Comelec Resolution 8714 dated 14 December 2009.

Many airsoft enthusiasts ask this question : “Are airsoft guns included in the Comelec gun ban?”.

Section 2 of the said Resolution defines “firearm” as follows:

Firearm shall refer to the “firearm” as defined in existing laws, rules and regulations. The term also includes airgun, airsoft guns, and their replica/imitation in whatever form that can cause an ordinary person to believe that they are real.

Is the Comelec correct in including airsoft guns in the definition of firearm?
Consider the definition of ‘firearm’ in existing laws, rules and regulations.

Section 877 of the Revised Administrative defines “firearm” as follows:

Firearms or arms as herein used, include rifles, muskets, carbines, shotguns, revolvers, pistols, and all other deadly weapons from which a bullet, ball, shot shell, or other missile may be discharged by means of gunpowder or other explosives. The term also includes air rifles except such as being of small caliber and limited range and use as toys. The barrel of any firearm shall be considered a complete firearm.

PNP Circular No. 8 (13 September 2006) defines airsoft rifle/pistol as follows:

Airsoft rifle/pistol herein used includes battery operated, spring and gas type powered rifles/ pistol which discharge plastic or rubber pellets only as bullets or ammunition.

Airsoft rifle/pistol as a toy shall refer to those manufacture purposely as replica of a real armament with all its specifications and corresponding intellectual property sign or logo.

It is clear from the foregoing definitions that an airsoft gun is classified as a ‘toy airgun’ by PNP regulations and falls under the exception of an existing statute defining what a firearm is.

Since an airsoft gun is not a firearm (but rather a toy airgun), I submit that the Comelec has erred in expanding the definition of firearm which now includes airsoft guns?

Basic is the rule in administrative law that administrative agencies (such as the Comelec) may exercise only such powers as are expressly granted or delegated to them by law. The authority of the Comelec to regulate the carrying and transporting of “firearms” during election period is an express delegation of power derived from law (i.e., Sec. 32 and 33 of R.A. 7166).

The Comelec is supposed to issue rules and regulations that are consistent with existing laws and must act within the confines of its delegated authority under R.A. 7166.

Moot and Academic

Does the lifting of Proclamation No. 1959 render the petitions of Jovito Salonga et. al. challenging the legality of Proclamation No. 1959 which imposed martial law in Maguindanao moot and academic?

A case is considered moot and academic when it ceases to present a justiciable controversy by reason of supervening events. In the case of the present petitions, the supervening event is the lifting of Proclamation No. 1959 on 12 December 2009.

As a general rule, such petitions may be dismissed on ground of mootness. However, this general rule admits of exceptions, namely :

1) there is a grave violation of the Constitution.

2) the exceptional character of the situation and the paramount public interest is involved.

3) when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public.

4) the case is capable of repetition yet evading review.

I submit that the above exceptions are present and therefore the Supreme Court is bound to resolve the petitions filed by Salonga and other personalities.

Cory On My Mind

In 1985 the reluctant Cory was convinced to run for president to unify the fragmented opposition. If she did not run for president, Marcos could have handily crushed the divided opposition in the 1986 snap presidential election namely Salvador Laurel (UNIDO), Aquilino Pimentel (PDP-Laban), Jovito Salonga (LP-Salonga Wing) and Eva Estrada Kalaw ( LP-Kalaw Wing) who were all hell-bent to run for president.


04 Feb 1986. Huge crowd of Cory Aquino supporters at the election campaign rally in Luneta Park.


The key to the EDSA revolution was the voice of Cory. If she did not run for president there would perhaps have been no EDSA. We would probably not have the freedom we are enjoying today.



We owe our democracy to Cory. At 76, Cory remains a moral and political force. A recent Pulse Asia survey revealed that Cory rated highest with a trust rating of 41% beating Erap, FVR and GMA. The Time magazine put her again in its cover in its 2006 anniversary issue as the leading hero of Asia’s 60-year history beating Gandhi, Aung San Suu Kyi, MacArthur, Dalai Lama, Mother Teresa and many more heroes of our time. She was also honored by prestigious foreign award-giving institutions for her continuing efforts to empower poor communities in the socio-economic sphere in collaboration with various sectors of society.




Let us pray and light a candle of faith for Cory’s recovery from colon cancer.

Can GMA Run For Congresswoman?

There is an ongoing debate as to whether President Gloria Arroyo would be considered as having forfeited her position should she run for congresswoman in Pampanga. Let me submit what I understood about this issue.

Before the passage of Fair Election Act (Republic Act No. 9006), any elective official including a President is deemed resigned from his office upon filing of his certificate of candidacy. The Omnibus Election Code (B.P. Blg. 881, Sec. 67) provides :

Sec. 67. Candidates holding elective office. - Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

In the landmark case of Dimaporo vs. Mitra (G.R. No. 96859, 15 October 1991), the Supreme Court sustained the constitutionality of Speaker Mitras’ administrative act of erasing Ali Dimaporo name from the Roll of the House, pursuant to Sec. 67 of B.P. 881. The High Tribunal underscored the basic concept that a public office is a public trust - it is created for the interest and benefit of the people. As such, the holder thereof is subject to such regulations and conditions as the law may impose and he cannot complain of any restrictions which public policy may dictate on his office.

However, Sec. 67 of B.P. 881, was repealed by Sec. 14 of R.A. 9006 in 2001. The repealing clause provides :

Section 14. Repealing Clause. – Section 67 and 85 of the Omnibus Election Code (Batas Pambansa Bldg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly.

R.A. 9006 was declared constitutional by no less than the Supreme Court in Farinas vs. Comelec (G.R. No. 152161, 10 December 2003). The SC said that Congress is not precluded from repealing Section 67 by the ruling of the Court in Dimaporo v. Mitra, upholding the validity of the provision and by its pronouncement in the same case that the provision has a laudable purpose. Over time, Congress may find it imperative to repeal the law on its belief that the election process is thereby enhanced and the paramount objective of election laws — the fair, honest and orderly election of truly deserving members of Congress — is achieved.

Incidentally, Justice Cruz, argued that the repeal of Sec. 67 of B.P. 881 by Sec. 14 of R.A. 9006 is not valid for being a mere rider in violation of Art. VI, Sec. 26 (1) of the Constitution providing that “every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.” The Fair Election Act deals only with political advertising, like TV commercials and election posters. It has nothing to do with forfeiture of original offices upon the filing of certificates of candidacy for different offices as provided for in Sec. 67.
In conclusion, based on the R.A. 9006 and Farinas ruling, GMA would not be deemed as having forfeited her position should she files her certificate of candidacy for congresswoman or any other positions lower than the Presidency for that matter.

It is however my fervent hope that someone has to challenge anew the constitutionality of Sec. 14 of Fair Election Act in the event GMA files her certificate of candidacy.

Bill of Attainder?

Last week, the Provincial Board (PB) of Pampanga passed a resolution declaring running priest Fr. Robert Reyes as a “persona non grata” or an undesirable person. The PB’s action stemmed from the lambasting it received from Fr. Reyes for the former’s continuing opposition to Gov. Ed Panlilio’s governance.

A prominent lawyer-journalist in Pampanga described the resolution as a bill of attainder saying that such resolution has all the earmarks of a bill of attainder which are, (1) the unwanted characterization is a form of punishment; (2) The PB resolution was a legislative act; and (3) Fr. Reyes was neither invited nor given the opportunity to explain himself before the PB prior to making its “persona non grata” resolution.

I disagree.

One of the constitutive elements of a bill of attainder is that there must be a law enacted by a legislative body. Settled is the rule that a municipal resolution does not partake of the nature of a law. Said the Supreme Court in Municipality of Paranaque vs. VM Realty Corp., G.R. No. 127820, 20 July 1998)

We are not convinced by petitioner's insistence that the terms "resolution" and "ordinance" are synonymous. A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently - a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members.

Absent the most essential element of a bill of attainder (i.e., there must be a law enacted by a legislative body), I submit the view the PB’s resolution on Fr. Reyes does not amount to a bill of attainder.

Can a gender be judicially changed?

Can a petition for a change of sex (gender) be judicially granted on the basis of sex reassignment surgery (sex alteration)? In the case Silverio vs. Republic (G.R. No. 174689, 22 October 2007), the Supreme Court rejected the ruling of the Trial Court and pronounced to the effect that there is no law allowing the change of entry in the birth certificate as to sex on the ground of sex reassignment.

If an individual is an intersexual (hermaphrodite) or having both male and female reproductive organs, can a petition for a change of gender be judicially allowed on basis of his or her intersexuality? There is also no law allowing the change of entry in the birth certificate as to sex on the ground of intersexuality.

However, the Supreme Court, in the case of Republic vs. Cagandahan (GR No. 166676, 12 September 2008), affirmed the decision of RTC Laguna granting the Petition for Correction of Entries in Birth Certificate of Jennifer B. Cagandahan to change her name to Jeff Cagandahan and her gender to male. Jennifer was diagnosed of having a Congenital Adrenal Hyperplasia, a rare medical condition where afflicted persons possess both male and female characteristics.

To quote the article in the Supreme Court, the High Court considered “the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial.” It noted that Cagandahan “thinks of himself as a male and considering that his body produces high levels of male hormones (androgen), there is preponderant biological support for considering him as being male.” It stressed that Cagandahan has let nature take its course in her develoment to reveal more fully his male characteristics.

2008 Bar : Questions in Political Law

Arguably, Political Law is said to be the waterloo of the bar examinees. Many did not pass the bar because they failed on this difficult bar subject. The 2008 bar questions in Political Law are already made available in the Supreme Court website. The Bar Exams Forum, of which I am an active member, has also posted the Political Law questions which are now being discussed and answered by the forum members.

The Political Law questions already answered by the members of Bar Exams Forum are found here. Mind you, these are only suggested answers. The authoritative answers are normally prepared by the Philippine Association of Law Schools (PALS) and the UP College of Law.

Good luck, Barristers!

The most difficult professional licensure examination in the world kicks off today where 6,533 law graduates are to take the 2008 Bar examinations for the four Sundays of September at the De La Salle University in Manila (DLSU). The 2008 bar examination is the 107th bar examination since the first bar exam held in 1901. The exam is exclusively administered by the Supreme Court of the Philippines through the Supreme Court Bar Examination Committee pursuant to Article VIII, Sec. 5 of the Constitution which provides that it shall have the power to promulgate rules governing the admission to the practice of law.

Last year’s bar exam, which produced good and interesting lawyers like Attys. Rax and Macka, is said to be one of the most difficult bar exams ever given by the Supreme Court. The Supreme Court had to adjust the passing grade to 70% and the disqualification rate in 3 subjects (civil, labor and criminal law) from 50 to 45% because only 5% of the 5,626 who took the 2007 tests (or less than 300) got the passing grade of 75%. The 2007 bar exam has also the distinction of having the lowest topnotcher grade, obtained by Mercedita L. Ona of ADMU (83.55%) which erased the prior record of 84.10% obtained by Adolfo Brillantes in 1920.

I wish all 2008 barristers good luck!

Time and money can derail the recall initiative vs. Among Ed

As I write this Among Ed has safety reached Los Angeles for a series of speaking engagements before various Fil-Am organizations. He will also hold dialogue with the civil society groups foremost of which is PamagCUSA, a US-based organization that advances good citizenship through volunteerism.

Back home, the partisan news stories and editorials of Sun Star Pampanga depict that the recall initiative against Among Ed is already gaining ground. This perception is further bolstered by the moral support on the recall move given by a number of mostly controversial priests headed by an equally controversial monsignor, a son of my town Minalin who is believed to be close to the Pinedas of Lubao and Malacanang having had a hand in the appointment of one regional director in Central Luzon.

Let us not lose hope. The recall initiative will likely face formidable challenges along the way. Allow me to explain them.

1. Time Constraint

Per COMELEC Resolution No. 7505, no recall shall be held within one (1) year before the holding of the next regular election. What is the implication of this? This means the holding of a recall election is prohibited by law from 10 May 2009 until 10 May 2010, the date of the next regular election. In other words, the COMELEC has to set the recall election in Pampanga not later than 9 May 2009. After this date, no recall election is allowed by law.

Stated otherwise, Kambilan has only eight (8) months to complete the whole process of recall initiative which involves gathering of required signatures, filing of petition with the COMELEC, validating the sufficiency of the petition in form and substance and legal battles both in the COMELEC and the Supreme Court. This is a long and tedious process. Unless there’s “kingly” intervention, I don’t think the entire process of the recall initiative could be finished in a span of eight months.

2. Inadequate Budget

When top lawyer Romulo Macalintal downplayed the feasibility of a recall election due to lack of funds for that purpose, I did not believe him. Well, I believe him now after reading Republic Act No. 9498 also known as 2008 General Appropriations Act. In the COMELEC’s budget for fiscal year 2008, an amount of Php 46,894,000 is appropriated for the conduct and supervision of elections and other political exercises.

Out of that amount, only Php 5,000,000 is allocated for recall election that may be held. Incidentally, while Kambilan is yet to file a recall petition with the COMELEC there are about eighteen (18) recall petitions now pending in the COMELEC excluding the recall petition just recently filed against the governor of Sulu.

Given this situation, I do not think a recall election in Pampanga could push through. The COMELEC will have no funds to print ballots, conduct and supervise the election itself and pay the teachers that will man 6,461 precincts in Pampanga.

What happens if COMELEC officially declares that a recall election cannot be enforced because of insufficient or lack of funds? If there’s still time, I think the recall proponents would lobby Congress to pass a bill allocating a special funds for the conduct of a recall election in Pampanga. If this situation occurs, I do not think most of our senators, especially those seeking reelection, would support the measure for a simple reason that Among Ed is largely viewed as a political capital who can influence the political preference of the voters come election time.

I would like to ask a hypothetical question. What if the recall proponents volunteer to fund the recall election? Is there is a law allowing or prohibiting it. I don’t know. What I know is that a leading national newspaper branded the recall initiative as “shameless”. Going to the extent of funding the recall election by the proponents is not only brazen but downright unconscionable.

How ironic! The recall petition can prosper because of sufficient money being used by the proponents in the signature-gathering but the recall election itself cannot prosper because of the lack of it.

Note : Photo courtesy of PamagCUSA website

It's a shame!

The picture above shows Governor Ed Panlilio taking a jeepney ride to the Capitol due to the depletion of his office's fuel allocation. He’s commuting to his office because the funds of his office have been depleted after it defrayed the operations of four offices under the office of the governor, budget of which was not approved by the Provincial Board (PB). This was exacerbated by the non-approval by the PB of the supplemental budget he requested last 21 April 2008.

It is quite obvious that the PB under the leadership of Vice Gov. Guaio is now trying to paralyze the operations of the governor and make him appear immobilize and useless. On the top of that, the initiatory phase of the recall petition appears to have gained ground already, a move publicly supported by Guiao and Provincial Board.

Why the forces of dirty politics want Among Ed ousted? The answer to this is editorialized by the Philippine Daily Inquirer, thus :

‘Nakakahiya’

Philippine Daily Inquirer
First Posted 00:04:00 09/03/2008

That most of the local officials of Pampanga province, especially the mayors and board members, are suddenly beside themselves with their non-negotiable demand for credible and clean leadership is not at all surprising. But their brazenness is still breathtaking. Simply put, their “campaign” is both shameful and shameless. In Filipino, “nakakahiya, walang hiya!”

We are referring to the petition purportedly initiated by Kapanalig at Kambilan ning Memalen Pampanga (Kambilan) for the recall of Gov. Eddie “Among Ed” Panlilio.
The petition, pushed by these same officials, is not unexpected and has partisanship written all over it. It is public knowledge that some of Panlilio’s political adversaries, from the time of his election, do not want him to finish his term.

Right after his proclamation, they drove all over town waving their own version of the three R’s—recount, recall and requiem—like three swords of Damocles. Sure enough, a case for recount was filed shortly thereafter with the Commission on Elections by one of his rival candidates. (The Supreme Court forbade the recount while it deliberated on a related petition.) And the requiem? Panlilio himself has said that he has been told that a requiem (based on the Latin word for “rest,” and which in the Catholic Church’s lexicon refers to a Mass or service held especially for a deceased person) is being eyed by some of his enemies as a “last resort.”

Founded only last July, Kambilan can’t be the initiator of the recall drive; in fact, it can only be the front. This “non-profit and non-stock organization” is headed by the campaign manager of a losing candidate.

Candaba Mayor Jerry Pelayo’s statement that the Pampanga Mayors League will help gather the minimum 100,000 signatures needed for the recall petition gave Kambilan away: that is, it’s a skeleton that can’t come to life without the political networks of the very politicians unhappily watching Panlilio serve as Pampanga’s governor.

The recall petition is shameful and shameless because it is downright hypocritical. Pampanga today, despite being the home province of President Gloria Macapagal-Arroyo, remains a “jueteng-free zone.” It remains, reportedly, the home base of the country’s most influential gambling lord. But Pampanga’s officials, except for Panlilio who is openly campaigning against this corrupting illegal numbers game, are not complaining. And they didn’t complain either when the province’s collection of lahar fees, prior to Panlilio’s term, was at unbelievable lows, amid talk that most of it was flowing into private pockets instead of provincial coffers. Neither did they care that the 2007 elections in Pampanga had been reduced, in the public mind, into a contest between jueteng interests and lahar money.

Disgusted and embarrassed by the prospect of having to vote “None of the Above,” conscientious Kapampangans looked for an alternative. They found a reluctant Father Panlilio who could not refuse because he had preached that the circumstances called for a strong moral stand for good governance, and they thought it was only he who had a fighting chance to win. The priest’s victory earned for the Kapampangans the nation’s admiration. It gave its people a new sense of pride, and Pampanga basked once again in a moment of glory. But most of all, it reassured all well-meaning Filipinos that there’s still hope for the country. Panlilio became the newest symbol of the Filipino people’s aspiration for a decent society.

Now that Panlilio has raised lahar collections from P2.41 million a month in 2006 to more than P17.57 million a month since June 2007, and insists on weeding out the underground lottery “jueteng,” Pampanga’s traditional politicians are scrambling to get him out. For a jumble of fuzzy reasons: loss of confidence in his leadership, gross negligence, perjury, failure to unify local officials, lack of clear directions and programs of actions, failure to deliver basic services, even non-attendance in meetings with the President. Well, the first time he went to such a meeting, he came home with a paper bag containing P500,000 and fell out of grace with Malacañang because he chose to tell the public about it.

The recall petition is not about good governance or transparency. It is about political opportunism and personal greed. At a time the Filipino nation is in desperate need of honest leaders, officials of the President’s province are doing everything to remove one. For shame.

The Price of Among Ed’s Recall

A recall is a process which begins with the gathering of the signatures, and then proceeds to the filing of a recall petition with the COMELEC, the verification of such petition, the fixing of the date of the recall election, and the holding of the election on the date scheduled by the COMELEC.

History reveals that a recall election may take place within a short span of time or take longer than almost a year from the date of its initiation. In the case of Caloocan City Mayor Rey Malonzo, the recall election was held on 14 December 1996 or barely 5 months from the gathering of the required signatures. The recall of Mayor Jovito Claudio of Pasay City was initiated on 19 May 1999 and the recall election was held on 15 April 2000. On 2 July 2002, the people of Puerto Princesa City initiated the recall of Mayor Dennis Socrates and the COMELEC set the recall election on 14 August 2002.

I foresee that the recall of Among Ed would pass the same route as that of Mayor Claudio. It’s going to be a long protracted legal battle. Among Ed’s legal eagles would surely file opposition to the recall petition before the COMELEC citing Lilia Pineda’s pending election protest as a prejudicial question which must first be resolved before the petition for recall could be given due course. The form and substance of the petition would also be expected to be questioned by his lawyers. Even if the COMELEC would eventually give due course to the recall petition, the legal battle does not end there. The Supreme Court would finally decide whether the recall election shall take place.

The whole recall process is a very expensive exercise. The proponents of the recall of Among Ed would spend millions to buy signatures and more millions to buy votes during the recall election. These exclude the enormous amounts to be spent on election campaign, PR and lawyer’s fee. Among Ed himself would not be spared from the burden of incurring cost involved in a recall. He would certainly need millions to get reelected.


It has been said that an initiative to recall an official is always resisted with stronger vim and venom. The reason is obvious. The incumbent would not like to lose power just recently won. The challenger, often a loser in the previous election, would not want to lose a second time. It foments divisive, wasteful and bloody politics where lives are often lost. Moreover, a recall election would undermine the delivery of basic services to the public. The running of the local government units would slow down as our elected officials would be preoccupied with the recall election campaign. This all augurs ill for the future of Pampanga.

This article is also posted in PamagCUSA website and Kasaup blog

Candle of Our Lives

Brod is not thicker than water?

Ninoy and Macoy were fraternity brothers. The bond of frat brotherhood and fraternal responsibility required them to love and help each other. This was however not true in the case of Ninoy and Macoy. There was a war of attrition between these two Upsilonians. Ninoy defied Marcos authoritarian rule and Macoy ordered Ninoy tried on false charges and incarcerated. Despite the enmity, Macoy admired and also cared for Ninoy.The Upsilonian in Marcos allowed Ninoy to undergo a heart bypass operation in the United States. Report has it that Macoy considered Ninoy as his best successor, best prepared for the presidency.

The martyred Ninoy owed his heroism to Macoy, his fraternity brother. Ninoy would not have become a hero if Macoy did not torment him. To a certain extent, Macoy made Ninoy a hero.

What's wrong with the word 'dedma'?

At the first hearing on allegations of impropriety committed by some appellate court justices in their handling of a case involving Meralco, Justice Romeo Callejo berated Court of Appeals Justice Jose Sabio for using the word ‘dedma’ when he described how he felt when he saw Francis de Borja, whom he is accusing of attempting to bribe him with P10 million but who instead accused him of demanding P50 million.

“That is what is so tragic in this case, that justices, in the performance of their duties, use words such as ‘dedma'. “Forget the word dedma,” he said.

Why Justice Callejo was making a big fuss about a magistrate’s use of the word 'dedma' in conversational speech? Is ‘dedma’ a vulgar or bad word? I don’t think it is. Dedma is the attenuated form of the English words dead malice . Dead malice, in turn, is the literal translation of the Tagalog expression, patay malisya. It has been used in the following contexts.

1) To completely ignore/feign ignorance of the existence/presence of someone/something.
2) To snub, reject, or toss in the trash.
3) To pretend deafness or blindness in order to escape a sticky situation.

If the meaning word ‘dedma’ is not vulgar per se, why Callejo expressed disappointment over its usage? The obvious reason is that the word ‘dedma’ is a gay lingo. So what? The colloquial ‘dedma’ is understood in our day-to-day conversations and widely accepted as a familiar usage in informal speech. I do believe the correctness of a usage should not be judged by the social standing or prestige of the speakers who adopted it. Wide acceptance of a colloquial word should be the final arbiter of correctness. The speech of the intellectuals, the court, and the clergy is not the only standard that determines the correctness and propriety of a word. It's not unethical for our judges or justices to use colloquial words or expressions in informal conversations. I see no breach of Legal Ethics here.

The ‘Nardong Putik’ Law

R.A. 8294 amended certain provisions of P.D. 1866 (Illegal Possession of Firearms) including the lowering of the penalties imposed on the illegal possession of firearms


R.A. 8294, now known as ‘The Revilla Law’, was purportedly crafted by Senator Ramon Revilla Sr. to benefit those incarcerated during the Marcos dictatorship for their political beliefs and whose imprisonment was brought about by the abusive execution of P.D. 1866. However, many believed that R.A. 8294 was enacted solely for the benefit of Robin Padilla, the solon’s family friend and an avid Ramos campaigner, who was then serving sentence for illegal possession of firearms.

Under R.A. 8294, the use of an unlicensed weapon is either considered as an aggravating circumstance in murder or homicide, or absorbed as an element of rebellion, insurrection, sedition or attempted coup d’etat. In brief, the separate penalty for illegal possession of firearm shall no longer be imposed because it becomes merely a special aggravating circumstance in the crime of murder or homicide and a qualifying circumstance in rebellion, insurrection, sedition or attempted coup d’etat.

What if an unlicensed weapon is used in the commission of ‘other crime’ other than homicide, murder, rebellion, insurrection, sedition or attempted coup d’ etata? Stated otherwise, what happens when an unlicensed firearm is used in the commission of ‘other crime’ like alarms and scandals, direct assault, grave threat, violation of gun ban or serious physical injuries? Section 1 of R.A. 8294 provides an answer to these questions, which reads in part :

The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.

"The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.

The above provisions suggest that the accused can be convicted of simple illegal possession of firearms, provided that “no other crime was committed by the person arrested’. In other words, if the accused commits the ‘other crime’ (other than homicide, murder, rebellion, insurrection, sedition or attempted coup d’etat) with the use of an unlicensed weapon, no separate charge for such use will be brought against him.

Now, does the mere filing of an information for ‘other crime’ against an accused necessarily preclude his prosecution for illegal possession of firearm? This was clarified by the Supreme Court in the case of Celino, Sr. vs. CA (GR 170562, 29 June 2007), viz :

The law is indeed clear. The accused can be convicted of illegal possession of firearms, provided no other crime was committed by the person arrested. The word “committed” taken in its ordinary sense, and in light of the Constitutional presumption of innocence, necessarily implies a prior determination of guilt by final conviction resulting from successful prosecution or voluntary admission.

In other words, if an accused is convicted of other crime - let say alarms and scandals - with the use of unlicensed firearm, which carries an imposable penalty of arresto menor, the prosecution of his case involving illegal possession of firearm should be discontinued. Ergo, the case of illegal possession of firearm, which carries a higher penalty than that of alarms and scandals, would become judicially irrelevant. How absurd! R.A. 8294 deserves a second look by our lawyers-legislators.

Interpreting a clear provision of law

Verba legis or the “plain meaning rule” in statutory construction is that if the statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without interpretation. Verba legis non est recedendum, or from the words of a statute there should be no departure.

There are, however, rare instances where the courts have interpreted statutes that leave no room for doubt and interpretation. One of such instances is the case of Lopez vs. COMELEC (GR No. 182701 dated 23 July 2008) where the Supreme Court interpreted the clear wordings of Section 5(2) of R.A. No. 9225 (Citizenship Retention and Re-acquisition Act of 2003), which states to the effect that those who retain or re-acquire Philippine citizenship under this law and seek elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.”

The above provision is crystal-clear. A dual citizen, as defined under R.A. No. 9225, is not qualified to run for any elective public position in the Philippines unless he or she swears to a renunciation of his or her foreign citizenship at the time of filing the certificate of candidacy.

In the Lopez case, the Supreme Court affirmed the ruling of the COMELEC nullifying the election of Eusebio Eugenio Lopez, a Filipino-American (a dual citizen), who failed to renounce his American citizenship when he filed his certificate of candidacy for the position of Barangay chairman in an Iloilo town in the last Barangay election held in October 2007. The High Court reiterated the requirement of Section 5(2) of R.A. No. 9225 and further held that Lopez’s victory cannot cure the defect of his candidacy.

Why a very clear, plain and literal provision of law had to be brought up to the Supreme Court for interpretation? Aren't lawyers supposed to know the plain meaning rule?

Calculating The Bar

Yesterday I saw the Examiner’s Rating of a new lawyer whom I have always admired for his writing skill, humility and intelligence. He got a general weighted average of 75.55%. I sit back and got scared. I wondered in reticent why a person of such intellectual caliber got only a general weighted average of 75.55% in the bar exams. How could then I expect myself with less intelligence to pass the bar?

I looked again at the rating for each subject. He got a highest rating in Legal Ethics (95 and obtained a decent rating in Taxation (82) and Political and International (80). But he fared poorly in the other subjects ranging from 68 to 76. All in all the product he obtained was 1511, i.e., sum of all individual product per subject (rating per each subject multiply by corresponding relative weight). His general weighted average (75.55%) is the quotient of the product (1511) divided by the total relative weight (20).

Staring intently at the Examiner’s Rating, I made a mental interpolation on the ratings and ended up with an observation that a bar-taker could pass the bar exams if and when he would obtain a high rating in 2 or 3 subjects, particularly in a subject having a bigger relative weight namely Remedial Law, Political and International Law and Mercantile Law. I regained my courage and started calculating the bar ratings on the basis of this observation. Here’s what I got.

1. PIL (95), Legal Ethics (95), other subjects (70) = 75.00%

2. Civil (95), Legal Ethics (95), other subjects (70) = 75.00%

3. Remedial (83), PIL (86), other subjects (70) = 75.00%

4. PIL (88), Mercantile (86), other subjects (70) = 75.10%

5. Remedial (89), Legal Ethics (94), other subjects (70) = 75.00%

6. Criminal (90), Remedial (80), Legal Ethics (90), other subjects (70) = 75.00%

There are other variations depending upon one’s preferences. My favorite subject is Political Law and, modesty aside, I feel I’m quite strong in this subject. But proficiency in one subject alone is not enough. I need one more subject closer to my heart.

Are Barangay Kagawads and Lupong Tagapamayapa persons in authority?

This article is also posted in View From The Ground


When I was a freshman in law, I was made to understand that among the barangay officials, only the Punong Barangay (Barangay Captain or Chairman) was expressly considered a person in authority in Art. 152 of the Revised Penal Code, which reads in part :

Art. 152. Persons in authority and agents of persons in authority; Who shall be deemed as such. — In applying the provisions of the preceding and other articles of this Code, any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board, or commission, shall be deemed a person in authority. A barrio captain and a barangay chairman shall also be deemed a person in authority.(underscoring mine)

In my second year, however, I came to realize that my understanding above was not entirely correct based on my reading of Sec. 388 of the Local Government Code of 1991(R.A. No. 7160), which provides :

Section 388. Persons in Authority. - For purposes of the Revised Penal Code, the punong barangay, sangguniang barangay members, and members of the lupong tagapamayapa in each barangay shall be deemed as persons in authority in their jurisdictions, while other barangay officials and members who may be designated by law or ordinance and charged with the maintenance of public order, protection and security of life and property, or the maintenance of a desirable and balanced environment, and any barangay member who comes to the aid of persons in authority, shall be deemed agents of persons in authority. (underscoring supplied)

Sec. 388 of R.A. 7610 expands the import of a person in authority under the Revised Penal Code. In addition to the Punong Barangay provided in Art. 152 of the RPC, the Sangguniang Barangay members (Kagawads) and members of the Lupong Tagapamayapa are now considered as persons in authority. (People v. Felipe Sion, G. R. No. 109617, 11 August 1997)

What are the legal implications of Sec. 388 of R. A. 7160 in relation to some provisions of the Revised Penal Code? Let me cite some of them.

1. An offender may voluntarily surrender himself to a Barangay Kagawad or a member of Lupong Tagapamayapa. Such voluntary surrender is valid in accordance with Art. 13 of the Revised Penal Code.

2. A felony committed with insult or in disregard of the respect due to a person in authority on account of his rank amounts to an aggravating circumstances pursuant to Art. 14 of the Revised Penal Code.

3. In the crimes of Illegal Assemblies and Direct Assaults under Art. 146 and Art. 148 of the Revised Penal Code, respectively, a member of Sangguniang Barangay or Lupong Tagapamayapa is within the contemplation of the phrase “person in authority”.

4. Any person who shall resist or seriously disobey a Sangguniang Barangay member or a member of Lupong Tagapamayapa while engaged in the performance of his official duties may be charged with violation of Art. 151 of the Revised Penal Code.

This is just an opinion of the author. Any views, concurring or dissenting, are most welcome here.