Premature campaigning and the 2013 Philippine elections

May a candidate be held liable for premature campaigning after the filing of the certificate of candidacy but even before the start of the campaign period?

This is the crux of the petition in the case of Penera vs. Comelec, et. al. (G.R. No.  181613, November 25, 2009)

In his resonant, incisive decision, Justice Antonio Carpio answers the question in the negative. In this case, Penera, who was running for a mayoral post in the 2007 elections, was initially disqualified by both the Comelec and the Supreme Court for violating the rules on premature campaigning when she held a motorcade upon and after the filing of her certificate of candidacy. Justice Carpio’s dissenting opinion in the main decision then became the opinion of the majority when Penera sought reconsideration.

According to Justice Carpio, “Section 79(a) of the Omnibus Election Code defines a “candidate” as “any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy x x x.” The second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that “[a]ny person who files his certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy.”  The immediately succeeding proviso in the same third paragraph states that “unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period.”   These two provisions determine the resolution of this case."

He quoted his argument in the dissenting opinion: “The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007.  Penera filed her certificate of candidacy on 29 March 2007.  Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots.  On 29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots.  Acts committed by Penera prior to 30 March 2007, the date when she became a “candidate,” even if constituting election campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code.  Such acts are within the realm of a citizen’s protected freedom of expression.  Acts committed by Penera within the campaign period are not covered by Section 80 as Section 80 punishes only acts outside the campaign period.”

“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,” Justice Carpio concluded. (all emphases supplied by the Supreme Court.)

This notwithstanding, candidates must be mindful of Comelec Resolution No. 9476, or the “COMELEC Rules and Regulations Governing Campaign Finance and Disclosure,” which requires candidates to file their statements of contributions and expenditures in connection with the elections. The Resolution states that, “No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required.” In addition, penalties range from fines to perpetual disqualification to hold public office.

Restraining Order or Preliminary Injunction: Can it benefit everyone?

There is a common misunderstanding that a temporary restraining order (TRO) or preliminary injunction may benefit even those who are not parties to the suit. On the contrary however, TRO/preliminary injunction, as a general rule, is in personam only and can bind only those who are parties to the litigation. In that regard, only the applicant/s for TRO/injunction can seek the court’s protection.

In the case of Pineda v. Santiago, “the INK sought from the RTC a second alias writ of execution to implement the judgment in Calalang against Conrado Pineda (Pineda), et. al.  In opposing the issuance of such writ, Pineda, et al., asserted that they held titles to Lot 671 adverse to those of Lucia and INK and that they were not parties in De la Cruz or in Calalang.  In its assailed order, the RTC granted the second alias writ of execution on the basis that the issue of ownership of Lot 671 was already determined with finality in favor of Lucia and INK.  The writ ordered the deputy sheriff to eject Pineda, et al., from Lot 671.  When the matter was brought before us (the Supreme Court), we annulled the assailed order as the writ of execution issued was against Pineda, et al., who were not parties to Civil Case No. Q-45767, the ejectment suit instituted by De Leon, et al.  We elaborated in Pineda that:

Being a suit for injunction, Civil Case No. Q-45767 partakes of an action in personam.  In Domagas v. Jensen, we have explained the nature of an action in personam and enumerated some actions and proceedings which are in personam, viz:

“The settled rule is that the aim and object of an action determine its character. Whether a proceeding is in rem, or in personam, or quasi in rem for that matter, is determined by its nature and purpose, and by these only. A proceeding in personam is a proceeding to enforce personal rights and obligations brought against the person and is based on the jurisdiction of the person, although it may involve his right to, or the exercise of ownership of, specific property, or seek to compel him to control or dispose of it in accordance with the mandate of the court. The purpose of a proceeding in personam is to impose, through the judgment of a court, some responsibility or liability directly upon the person of the defendant.  Of this character are suits to compel a defendant to specifically perform some act or actions to fasten a pecuniary liability on him.  An action in personam is said to be one which has for its object a judgment against the person, as distinguished from a judgment against the propriety to determine its state. It has been held that an action in personam is a proceeding to enforce personal rights or obligations; such action is brought against the person. As far as suits for injunctive relief are concerned, it is well-settled that it is an injunctive act in personam. In Combs v. Combs, the appellate court held that proceedings to enforce personal rights and obligations and in which personal judgments are rendered adjusting the rights and obligations between the affected parties is in personam. Actions for recovery of real property are in personam.”

The respondent judge's jurisdiction is, therefore, limited to the parties in the injunction suit. To stress, the petition for injunction, docketed as Civil Case No. Q-45767, was filed only by therein petitioners Augusto M. de Leon, Jose de Castro, Jose A. Panlilio, Felicidad Vergara Vda. De Pineda, Fernando L. Vitug I, Fernando M. Vitug II, Fernando M. Vitug III, and Faustino Tobia, and later amended to include Elena Ostrea and Feliza C. Cristobal-Generoso as additional petitioners therein, against Bishop Eraño Manalo, in his capacity as titular and spiritual head of I.N.K. Herein petitioners Conrado Pineda, et al. never became parties thereto. Any and all orders and writs of execution, which the respondent judge may issue in that case can, therefore, be enforced only against those parties and not against the herein petitioners Conrado Pineda, et al. In issuing the assailed Order dated 22 April 1998, which directed the issuance of the 2nd Alias Writ of Execution to eject non-parties (herein petitioners), the respondent judge clearly went out of bounds and committed grave abuse of discretion.

The nature of the injunction suit — Civil Case No. Q-45767 — as an action in personam in the RTC remains to be the same whether it is elevated to the CA or to this Court for review.  An action in personam does not become an action in rem just because a pronouncement confirming I.N.K.'s title to Lot 671 was made by this Court in the Calalang decision.  Final rulings may be made by this Court, as the Highest Court of the Land, in actions in personam but such rulings are binding only as against the parties therein and not against the whole world.  Here lies another grave abuse of discretion on the part of the respondent judge when he relied on the Calalang decision in his assailed Order dated 07 May 1998 as if it were binding against the whole world, saying:

“After evaluating the arguments of both parties, decisive on the incident is the decision of the Supreme Court in favor of the respondent I.N.K., represented by its titular and spiritual head Bishop Eraño G. Manalo, sustaining its ownership over the subject Lot 671. This Court could do no less but to follow and give substantial meaning to its ownership which shall include all dominical rights by way of a Writ of Execution. To delay the issuance of such writ is a denial of justice due the I.N.K.” 

As a final word, this decision shall not be misinterpreted as disturbing or modifying our ruling in Calalang.  The final ruling on I.N.K.'s ownership and title is not at all affected. Private respondent I.N.K., as the true and lawful owner of Lot 671 as ruled by the Court in Calalang, simply has to file the proper action against the herein petitioners to enforce its property rights within the bounds of the law and our rules.  I.N.K.'s recourse of asking for the issuance of an alias writ of execution against the petitioners in Civil Case No. Q-45767 and the respondent judge's orders in said case, granting I.N.K.'s prayer and enforcing the alias writ of execution against the present petitioners, constitutes blatant disregard of very fundamental rules and must therefore be stricken down.” (Emphases by the Supreme Court.)

To summarize and as a general rule then, a restraining order, like injunction, operates upon a person as it is granted in exercise of equity jurisdiction; it has no in rem effect.

Business as usual in jail

In 1996, Rolito Go was sentenced by the Pasig Regional Trial Court to reclusion perpetua, or a maximum of 30 years imprisonment for the death of Eldon Maguan, a La Salle Engineering student, in Greenhills, San Juan. Fast forward to 2012 (or sixteen years later): News reports say that Go has been engaging in various business activities, ranging from moneylending to mining, while staying inside the New Bilibid Prison (NBP) in Muntinlupa City. (http://newsinfo.inquirer.net/251456/go-business-ranges-from-lending-firm-to-mining)

Now the question is, “Can he actually and legally engage in business while in prison and serving his sentence?”

The Revised Penal Code explicitly provides that the penalties of reclusion perpetua (20 years and 1 day to 40 years) and reclusion temporal (12 years and 1 day to 20 years) carry with them the accessory penalty, among others, of civil interdiction.

The Revised Penal Code states that, “Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance intervivos.” Civil interdiction is a restriction on capacity to act, according to the New Civil Code. A person suffering from the penalty of civil interdiction is deemed, declares the Revised Rules of Court, an “incompetent.”

With the deprivation of his right to manage his property or business being absolute and mandatory, how and why Go was able to build and conduct his businesses inside the NBP, if indeed it is true, is something that only its officials can explain.

The non-impairment clause and government contracts

Section 10, Article III of the Constitution provides:

"SECTION 10. NO LAW IMPAIRING THE OBLIGATION OF CONTRACTS SHALL BE PASSED."

According to a ruling of the Supreme Court, the purpose of the non-impairment clause is to safeguard the integrity of contracts against unwarranted interference by the State. As a rule, contracts should not be tampered with by subsequent laws that would change or modify the rights and obligations of the parties. 

It includes statutes enacted by the national legislature, executive orders and administrative regulations promulgated under a valid delegation of power, and municipal ordinances passed by the local legislative bodies.

There is impairment if a subsequent law changes the terms of a contract between the parties, imposes new conditions, dispenses with those agreed upon or withdraws remedies for the enforcement of the rights of the parties. It is anything that diminishes the efficacy of the contract.

However, it applies only to previously perfected contracts and is limited in application to laws that derogate from prior acts or contracts by enlarging, abridging or in any manner changing the intention of the parties.

Interestingly, Republic Act No. 3019 considers as a corrupt practice and unlawful the act by any public officer, “Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.”


It behooves all concerned officers of government agencies and instrumentalities then, especially those bestowed with rule-making powers, to observe and be mindful of this section of the Bill of Rights when entering into contracts and subsequently crafting rules and regulations affecting the former, to avert and avoid any legal bind.  

The (non)necessity of executing a waiver to disclose bank deposits by public officers and employees

All these hoopla and hullabaloo about the issue of requiring all government employees and officials, especially the cabinet secretaries, members of Congress and the judiciary, to execute a waiver allowing the opening up and/or disclosure of their bank accounts, must be viewed with a discerning and critical eye. Is such waiver really necessary?

Under the old or pre-2011 sworn statement of assets, liabilities and net worth (SALN) form, it was provided, that:

“I hereby authorized the Ombudsman or his duly authorized representative to obtain and secure from all appropriate government agencies, including the Bureau of Internal Revenue, such documents that may show my assets, liabilities, net worth, business interests and financial connections, to include those of my spouse and unmarried children below 18 years of age living with me in my household covering past years to include the year I first assumed office in government.”

In the revised or present SALN form, it is also stated, that:

“I/We hereby authorize the Ombudsman or his duly authorized representative to obtain and secure from all appropriate agencies, including the Bureau of Internal Revenue, such documents that may show such assets, liabilities, net worth, business interests, and financial connections, including those of my spouse and my/our children below 18 years of age living in my household, covering previous years, and if possible, including the year I/we first assumed office in Government.”

Some personages argue that such authorization does not include foreign currency deposit accounts. A high-profile and more prominent public official even went on to declare that their non-disclosure is absolute.

Just for context, both legal and factual, the Bank Secrecy Law (Republic Act No. 1405) was enacted on Sept. 9, 1955, while the Foreign Currency Deposit Act (Republic Act No. 6426) was approved on April 4, 1974.

Meanwhile, the 1987 Constitution expressly and emphatically states: “A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. (Section 17, Article XI)

A few rules on statutory construction therefore come to mind. Firstly, that the Constitution prevails over any and all laws. Secondly, where the language of the law is clear and unequivocal, it must be given its literal application and applied without interpretation. And thirdly, where the law makes no distinctions, one does not distinguish. Where the law does not distinguish, courts should not distinguish.

Considering that RA 1405 and RA 6426 are mere statutes and were enacted prior to the passage and ratification of the 1987 Constitution, it is obvious that the latter shall prevail. In fact, the 1987 Constitution provides in its transitory provisions that, “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 3, Article XVIII)

The Constitution requires that a public officer or employee must declare his assets, liabilities, and net worth. There is no exception, condition, restriction, limitation, or qualification. The language is clear and unequivocal. Thus, it must be taken literally without need of further interpretation.

In a related manner, since the Constitution does not distinguish between foreign currency deposits and peso deposits, or any assets for that matter, no distinction can be made.

Finally, the implementing law for the SALN - the Code of Conduct and Ethical Standards for Public Officials and Employees (Republic Act No. 6713), which was enacted on February 20, 1989, cannot be bent or distorted. Consistent with the Constitution, it mentions "assets such as investments, cash on hand or in banks, stocks, bonds, and the like." (Section 8, par. A, subpar. c) It also carries a repealing clause: "All laws, decrees and orders or parts thereof inconsistent herewith, are deemed repealed or modified accordingly, unless the same provide for a heavier penalty." (Section 16)


This law is anchored on a sacred provision of the Constitution, to wit:

“Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.” (Section 1, Article XI)

China’s claims over Spratly Islands and Scarborough Shoal and its inconsistent precedents and different standards on territorial negotiations

China adopts different standards throughout territorial negotiations with its neighbours. As a result, it does not have a consistent set of policies to decide how to settle these disagreements with its neighbours, particularly when it comes to maritime disputes.

When Japan proposed a 50-50 delimitation in the 1970s to resolve the Sino-Japan disputes over the East China Sea continental shelf, China firmly rejected it. Instead, it adopted the position that the dispute should be settled on the basis of the “natural extension of the continental shelf”, meaning that all of the East China Sea continental shelf extending eastwards from its coastal lines should be Chinese. This formula, when compared with the “50-50” formula proposed by Tokyo, allows Beijing to increase the size of its claimed continental shelf by 30,000 sq km.

However, when China negotiated its territorial disputes over the Heixiazi Island with Russia in the 1990s (over which they fought a battle in 1969), it compromised on its claim over the whole island and accepted a “50-50” formula.

In the Gulf of Tonkin, China accepted the “50-50” formula again, with further compromises over the Vietnam-occupied islands in the Gulf. The eventual result of the boundary demarcation was “53-47”, with Vietnam taking a larger share of the maritime area. People later attributed this willingness to compromise with Russia and Vietnam to then-President Jiang Zemin’s eagerness to settle border disputes.

The maritime settlements with Vietnam also set an inconsistent precedent for China’s historical claims to territory in the South China Sea. Beijing asserts that South East Asian countries should accept its sovereignty over the geographic features within the nine-dashed line because historically they have been Chinese. However, China transferred control of White Dragon Tail Island 70 nm off the coast of Hainan to Vietnam in 1957, despite the fact that a Chinese fishing village had been on the island for almost 100 years. If this island, so close to the Chinese coastline and with historical evidence of Chinese occupation and administration, was not considered to be China’s “historical territory”, questions can be raised about how the numerous South China Sea islands, farther away from the mainland and with less historical evidence, can be considered as such. The other claimants are pointing to the territorial settlements with Vietnam as an “example of Chinese double standards”.

China has also set inconsistent legal precedents for its claim that the Nansha (Spratly) Islands – almost all of which are small islands, rocks, low tide elevations or underwater reefs largely incapable of sustaining long-term habitation – are entitled to an EEZ. In the case of the Japanese island of Okinitorishima, China maintained that small uninhabited islands should not be given a continental shelf or EEZ of their own, and added that similar practice should be followed in the South China Sea. If Beijing holds to this principle, it will be unable to justify its claim over a large part of the waters around the Spratly Islands and within the nine-dashed line. (Taken from http://www.crisisgroup.org/~/media/Files/asia/north-east-asia/223-stirring-up-the-south-china-sea-i.pdf)

The Bouncing Check Law and valid cause for a "stop payment"

What may constitute valid cause or good reason to legally justify “stop payment” of a check under Batas Pambansa (BP) Blg. 22?

The law enumerates the elements of BP Blg. 22 to be (1) the making, drawing, and issuance of any check to apply for account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.

In a case decided by the Supreme Court (Daleon vs. Tan [2010]), it held that placing a check on a “stop payment” may be justified provided that there is a good reason to do so.

These are the facts:

Pursuant to the terms of their agreement on the purchase of the Daleons’ undivided land, the Tans gave the Daleons a down payment of P10.861 million and issued in their favor 12 postdated checks in the amount of P658,750.00 per check to cover the remaining balance of P7.905 million.

Eight days after the parties executed their agreement, one Bartolome Sy caused to be annotated on the title to the property an adverse claim on the undivided share of one of the Daleons.  For this reason, the Tans placed a stop payment order on their first postdated check and repeatedly wrote the Daleons that, until the adverse claim on the property was canceled, they were stopping payment on their checks.

The Daleons deposited the first three checks in their bank but these were returned for the reason “SPO/DAIF” or “stop payment order/drawn against insufficient funds.”  Meanwhile, the Daleons succeeded in getting a court order that directed the cancellation of Bartolome Sy’s adverse claim on their title to the property.  They then deposited the other checks that the Tans gave them but these, too, were returned for the reason “SPO/DAIF.”

Subsequently, the Tans wrote the Daleons, informing them that they were ready to make good on their checks provided the Daleons presented to them a clean title to the property.  In addition, they requested the Daleons to submit to them the documents specified in the contract to sell as a prerequisite to the payment of the last two checks.  Meanwhile, the Tans’ stop payment order on their checks remained in force.

While the issue in this case does not refer to the matter of violation of BP 22 itself, the Supreme Court has declared that, “the Tans had to place that stop payment for a valid reason.  They agreed to buy the property believing that the seller’s title was unblemished by any lien or unfavorable claim.  Bartolome Sy’s adverse claim, which came shortly after the execution of the contract and the initial payment to the Daleons of P10.861 million, was certainly distressing.  Its annotation on the title served as warning to third parties like the Tans that someone claimed an interest or a better right to the property than the registered owner. Certainly, the Tans were justified in placing a stop payment order on their checks to avoid greater loss since it may be assumed that they did not want to buy such an expensive property that had a cloud on its title.”