THE PHILIPPINE CONSTITUTION

Rigid Flexible
THE PHILIPPINE CONSTITUTION

Can be amended only by a Can be changed by

formal and usually difficult ordinary legislation.
CONSTITUTION: process.

DEFINITION, NATURE AND CONCEPTS

NOTE: The Philippine Constitution is written, enacted,
and rigid.
Political Law
Ways to interpret the Constitution
Branch of public law that deals with the organization and
operations of the governmental organs of the State and 1. Verba legis – Wherever possible, the words used in
defines its relations with the inhabitants of the territory. the Constitution must be given their ordinary
(People v. Perfecto, G.R. No. L-18463, Oct. 4, 1922) meaning except where technical terms are
employed.
Scope of Political Law 2. Ratio legis est anima – Where there is ambiguity,
the words of the Constitution should be
1. Political Law interpreted in accordance with the intent of the
2. Constitutional Law framers.
3. Administrative Law 3. Ut magis valeat quam pereat – The Constitution is
4. Law on Municipal Corporations to be interpreted as a whole. (Francisco v. House of
5. Law on Public Officers Representatives, G.R. No. 160261, Nov. 10, 2003)
6. Election laws
7. Public International Law
PARTS OF A WRITTEN CONSTITUTION
CONSTITUTION
(2012 Bar) 1. Constitution of Sovereignty – Provisions pointing
out the modes or procedure in accordance with
The written instrument enacted by direct action of the which formal changes in the Constitution may be
people by which the fundamental powers of the made. (1987 Constitution, Art. XVII)
government are established, limited and defined, and by 2. Constitution of Liberty – Series of prescriptions
which those powers are distributed among the several setting forth the fundamental civil and political
departments for their safe and useful exercise for the rights of the citizens and imposing limitations on
benefit of the body politic. (Malcolm, Philippine the power of the government as a means of
Constitutional Law, p. 6) securing the enjoyment of those rights. (1987
Constitution, Art. III)
Effectivity date of the present Constitution 3. Constitution of Government– Provides for a
structure and system of government; provisions
The 1987 Constitution was ratified in a plebiscite on outlining the organization of the government,
February 2, 1987. (De Leon v. Esguerra, G.R. No. L-78059, enumerating its powers, laying down certain rules
Aug. 31, 1987) relative to its administration and defining the
electorate. [1987 Constitution, Art. VI (Legislative
Classifications of the Constitution Dep’t); Art. VII (Exec. Dep’)]; Art. VIII (Judicial
Dep’t); Art. IX (Constitutional Commissions)]
Written Unwritten
AMENDMENTS AND REVISIONS
Consists of rule, which
Amendment vs. Revision
Precepts are embodied in have not been integrated

one document or set of into a single, concrete

BASIS AMENDMENT REVISION
documents. form but are scattered in
various sources. Isolated or A revamp or
rewriting of the
 piecemeal change
whole
merely by adding,
Enacted Evolved instrument
Definition deleting, or
(Conventional) (Cumulative) altering the
reducing without
substantial
altering the basic
entirety of the
Result of political principles involved.
Constitution.
Formally struck off at a evolution, not inaugurated
definite time and place at any specific time but
Tests to determine whether a proposed change is an
following a conscious or changing by accretion
amendment or a revision
deliberate effort taken by a rather than by any
constituent body or ruler. systematic method.

UNIVERSITY OF SANTO TOMAS

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FACULTY OF CIVIL LAW
 POLITICAL LAW
1. Quantitative test – Asks whether the proposed change is so extensive in its provisions as to change directly the
‘substantial entirety’ of the
Constitution by the deletion or alteration of
numerous existing provisions. One examines only
the number of provisions affected and does not
consider the degree of the change.
2. Qualitative test – Asks whether the change will accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision. (Lambino v. Comelec, G.R. No. 174153, Oct. 25, 2006)

Ways to amend or revise the Constitution

BASIS CONSTITUENT ASSEMBLY CONSTITUTIONAL PEOPLE’S INITIATIVE

(ConAss) CONVENTION (ConCon)

How
By Congress acting as 1. By Congress upon a vote of 2/3 By the people, upon a petition thru
proposed
Constituent Assembly of ALL its members (to call for a a plebiscite (at least 12% of the

upon a vote of ¾ of ALL ConCon); OR TOTAL number of registered

its members (2014 voters, of which every legislative
Bar) 2. Upon a majority vote of ALL district must be represented by 3%
members of Congress to submit of the registered voters therein
to the Electorate the question of (1987 Constitution, Art. XVII, Sec. 2)
calling a ConCon (+Plebiscite) (+Full text of the proposed
(1987 Constitution, Art. XVII, Sec. amentments attached in the
3) petition)

Coverage Amendment or Revision Amendment ONLY

Legal 1. Manner of Proposal; or Propositions can be declared null

Questions and void for:
(Subject to 2. Manner of calling ConCon
Judicial 1. Violation of the Constitution
Review) - This is a case where Congress, acting as a ConAss, calls for a
ConCon but does not provide details for the calling of such ConCon,
and Congress, in exercising its ordinary legislative power, may
supply such details.

Political Substance of the

Questions proposal.

Whether ConAss or ConCon should initiate the amendment

or revision.

Limits No amendment be authorized

oftener than once every 5 years
(1987 Constitution, Art. XVII, Sec. 2).
 2
UNIVERSITY OF SANTO TOMAS
2017 GOLDEN NOTES
 THE PHILIPPINE CONSTITUTION

Ratification the system of initiative. They can only do so with respect

to "laws, ordinances, or resolutions." Secondly, the Act
Amendments or revisions to the Constitution should be does not provide for the contents of a petition for
ratified by the majority in a plebiscite which should be initiative on the Constitution. The use of the clause
held not earlier than 60 days nor later than 90 days after "proposed laws sought to be enacted, approved or
the approval of such amendment. rejected, amended or repealed" denotes that RA 6735
excludes initiative on the amendments of the
Constitution.
Requisites for a valid ratification
Also, while the law provides subtitles for National
1. Held in a plebiscite conducted under Election Law; Initiative and Referendum and for Local Initiative and
2. Supervised by COMELEC; and Referendum, no subtitle is provided for initiative on the
3. Where only registered voters take part. Constitution. This means that the main thrust of the law
is initiative and referendum on national and local laws. If
Doctrine of Proper Submission RA 6735 were intended to fully provide for the
implementation of the initiative on amendments to the
A plebiscite may be held on the same day as a regular Constitution, it could have provided for a subtitle,
election. (Gonzales v. COMELEC, G.R. No. L-28196, Nov. 9, considering that in the order of things, the primacy of
1967) interest, or hierarchy of values, the right of the people to
directly propose amendments to the Constitution is far
The people must be sufficiently informed of the more important than the initiative on national and local
amendments to be voted upon, for them to laws.
conscientiously deliberate thereon, to express their will
in a genuine manner. Submission of piece-meal While RA 6735 specially detailed the process in
amendments is unconstitutional. implementing initiative and referendum on national and
local laws, it intentionally did not do so on the system of
All amendments must be submitted for ratification in initiative on amendments to the Constitution. (Defensor-
one plebiscite only. The people have to be given a proper Santiago v. COMELEC G.R. No. 127325, March 19, 1997)
frame of reference in arriving at their decision.
(Tolentino v. COMELEC, G.R. No. L-34150, Oct. 16, 1971) Referendum

Initiative Power of the electorate to approve or reject legislation

through an election called for that purpose.
Power of the people to propose amendments to the
Constitution or to propose and enact legislation. Kinds of referendum

Kinds of initiative under the Initiative and 1. Referendum on Statutes - Refers to a petition to
Referendum Act (RA 6735) approve or reject a law, or part thereof, passed by
Congress.
1. Initiative on the Constitution – Refers to a petition 2. Referendum on Local Law – Refers to a petition to
proposing amendments to the Constitution. approve or reject a law, resolution or ordinance
2. Initiative on statutes – Refers to a petition to enact enacted by regional assemblies and local legislative
a national legislation. bodies.
3. Initiative on local legislation – Refers to a petition
proposing to enact a regional, provincial, Initiative vs. Referendum (2000 Bar)
municipal, city, or barangay law, resolution or
ordinance. [RA 6735, Sec. 3 (a)] BASIS INITIATIVE REFERENDUM
NOTE: Sec. 3 (b) of RA 6735 provides for: The power of the
Power of the
people to propose
electorate to
a. Indirect Initiative – Exercise of initiative by the amendments to
approve or reject
people through a proposition sent to Congress or the Constitution
Definition legislation through

the local legislative body for action. or to propose and

an election called
b. Direct Initiative – The people themselves filed enact legislations
the petition with the COMELEC and not with through an for that purpose
[RA No. 6735
 Congress. election called for
[1989], Sec. 3(c)]
the purpose.
RA 6735 is INADEQUATE in covering the system of
Local initiative vs. Local referendum
initiative on amendments to the Constitution (2014
Bar)
LOCAL LOCAL REFERENDUM
BASIS
Under the said law, initiative on the Constitution is INITIATIVE
confined only to proposals to amend. The people are not
The legal The legal process
accorded the power to "directly propose, enact, approve, Definition
process whereby whereby the
or reject, in whole or in part, the Constitution" through

UNIVERSITY OF SANTO TOMAS

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Filipino First Policy. (Manila Prince Hotel v. GSIS, G.R. No.

the registered registered voters of 122156, Feb. 3, 1997)
voters of a local the local
government unit government units NOTE: In case of doubt, the provisions of the
may directly may approve, Constitution should be construed as self-executing;
propose, enact, amend or reject any mandatory rather than directory; and prospective rather
or amend any ordinance enacted than retroactive. (Cruz and Cruz, Constitutional Law, p. 8)
ordinance. (LGC, by the Sanggunian.
Sec. 120) (LGC, Sec. 126)

NOTE: The following cannot be subject of an initiative or ---

referendum: Q: During the campaign, a Presidential Candidate,
a. No petition embracing more than one (1) subject shall announced that he would allow the burial of former
be submitted to the electorate. President Marcos at the Libingan Ng Mga Bayani
b. Statutes involving emergency measures, the enactment (LNMB). On August 7, 2016, Secretary of National
of which are specifically vested in Congress by the Defense issued a Memorandum to Chief of Staff of the
Constitution, cannot be subject to referendum until 90 days Armed Forces of the Philippines (AFP), regarding the
after their effectivity. (RA 6735, Sec. 10). interment of Marcos at the LNMB. Dissatisfied with the
foregoing issuance, the petitioners filed their respective
SELF-EXECUTING AND NON-SELF-EXECUTING petitions arguing that the burial of Marcos at the LNMB
PROVISIONS should not be allowed because it has the effect of not
just rewriting history as to the Filipino people's act of
Self-executing provision revolting against an authoritarian ruler but also
condoning the abuses committed during the Martial
Provision which is complete by itself and becomes Law, thereby violating the letter and spirit of the 1987
operative without the aid of supplementary or enabling Constitution, which is a "post-dictatorship charter" and
legislation, or that which supplies sufficient rule by a "human rights constitution." For them, the ratification
means of which the right it grants may be enjoyed or of the Constitution serves as a clear condemnation of
protected; nature and extent of the right conferred and Marcos' alleged "heroism.'
the liability imposed are fixed by the Constitution itself
and there is no language indicating that the subject is Does the issuance and implementation of the
referred to the legislature for action. assailed memorandum and directive violate the
Constitution?
GR: All provisions of the Constitution are SELF-
EXECUTORY. A: No. The President's decision to bury Marcos at the LNMB
Rationale: A contrary rule would give the legislature is in accordance with the Constitution, the law or
discretion to determine when, or whether, they shall be jurisprudence. The Constitution is a product of our collective
effective. These provisions would be subordinated to the history as a people, its entirety should not be interpreted as
will of the lawmaking body, which could make them providing guiding principles to just about anything remotely
entirely meaningless by simply refusing to pass the related to the Martial Law period such as the proposed
needed implementing statute (Manila Prince Hotel v. Marcos burial at the LNMB. Tahada v. Angara already ruled
GSIS, G.R. 122156, Feb. 3, 1997). that the provisions in Article Il of the Constitution are not
self-executing.
XPN: When it is expressly provided that a legislative act
is necessary to enforce a constitutional mandate; or In the same vein, Sec. I of Art. XI of the Constitution is not
those provisions which lay down general principles are a self-executing provision considering that a law should be
usually NOT self-executory (Manila Prince Hotel v. GSIS, passed by the Congress to define and effectuate the principle
G.R. 122156, Feb. 3, 1997).: embodied therein.
a. Art. II: "Declaration of Principles and State Policies".
b. Art. XIII: "Social Justice and Human Rights" Petitioners' reliance on Sec. 3(2) of Art. XIV and Sec. 26
c. Art. XIV: "Education Science and Technology, Arts, Culture of Art. XVIII of the Constitution is also misplaced. Sec.
end Sports” 3(2) of Art. XIV refers to the constitutional duty of
NOTE: Such provisions are not ready for educational institutions in teaching the values of
enforcement through the courts but are used by patriotism and nationalism and respect for human rights,
the judiciary as aids or guides in the exercise of its while Sec. 26 of Art. XVIII is a transitory provision on
power of judicial review, and by the legislature in sequestration or freeze orders in relation to the recovery
its enactment of laws. of Marcos' ill-gotten wealth. Clearly, with respect to these
(Tondo Medical Employees Association v. CA, G.R. No. provisions, there is no direct or indirect prohibition to
167324, July 17, 2007) Marcos' interment at the LNMB.

XPN to the XPN: Sec. 16, Art. II – Right of to a balanced

and healthful ecology (Oposa v. Factoran, G.R. No.
101083, July 30, 1993), Right to information in Art. III,
and

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 GENERAL CONSIDERATIONS – NATIONAL TERRITORY

Fixed portion of the surface of the Earth inhabited by the

(Saturnino C. Ocampo, Et Al. Vs Rear Admiral Ernesto C. people of the State. As an element of a State, it is an area
Enriquez, Et Al., G.R. No. 225973, November 8, 2016) over which a state has effective control.
---
Composition of the Philippine Territory
GENERAL PROVISIONS
1. The Philippine archipelago – That body of water
Flag of the Philippines studded with islands which is delineated in the
Treaty of Paris, as amended by the Treaty of
It shall be red, white, and blue, with a sun and three Washington and the Treaty with Great Britain.
stars, as consecrated and honored by the people and
recognized by law. (1987 Constitution, Art. XVI, Sec. 1) CONSISTS OF INCLUDING ITS
a. Terrestrial
Symbols of nationality 1. Territorial Sea
b. Fluvial
2. Seabed
c. Aerial Domains
1. Philippine Flag – the flag may be changed by 3. Subsoil
constitutional amendment; 4. Insular shelves
2. Name for the country; 5. Other Submarine areas

3. National anthem; and

4. National seal.
2. All other territories over which the Philippines
NOTE: Congress may, by law, adopt new symbols in has sovereignty or jurisdiction – Includes any
numbers 2, 3 and 4 subject to ratification by the people territory that presently belongs or might in the
in a referendum. future belong to the Philippines through any of the
accepted international modes of acquiring
Composition of the Armed Forces of the Philippines territory.

Components of the National Territory

It shall be composed of a citizen armed force which shall
undergo military training and serve, as may be provided
by law. (1987 Constitution, Art. XVI, Sec. 4) 1. Terrestrial Domain
2. Maritime Domain
Bar on the AFP to participate in partisan political 3. Aerial Domain
activities
---
It shall be insulated from partisan politics. No member of Q: William, a private American citizen and frequent
the military shall engage directly or indirectly in any visitor to the Philippines, was inside the U.S.
partisan political activity, except to vote. [1987 embassy when he got into a heated argument with a
Constitution, Art. XVI, Sec. 5(3)]. private Filipino citizen. Then, in front of many
shocked witnesses, he killed the person he was
NOTE: The prohibition also extends to government- arguing with. The police came, and brought him to
owned or controlled corporations (GOCC) or any of their the nearest police station. Upon reaching the station,
subsidiaries. [1987 Constitution, Art. XVI, Sec. 5(4)] the police investigator, in halting English, informed
William of his Miranda rights, and assigned him an
Period of the tour of duty of the Chief of Staff independent local counsel. William protested his
arrest. He argued that since the incident took place
GR: It shall not exceed three (3) years. inside the U.S. embassy, Philippine courts have no
jurisdiction because the U.S. embassy grounds are
XPN: It can be extended by the President during times of not part of Philippine territory; thus, technically, no
war or any other national emergency, provided that the crime under Philippine law was committed. Is
existence of such be declared by the Congress. (1987 William correct? (2009 Bar)
Constitution, Art. XVI, Sec. 5)
A: NO. William is not correct. The premises occupied by
the United States Embassy do not constitute territory of

the United States but of the Philippines. Crimes

GENERAL CONSIDERATIONS committed within them are subject to the territorial
 jurisdiction of the Philippines. Since William has no

diplomatic immunity, the Philippines can prosecute him

if it acquires custody over him. (UPLC Suggested

Answers to the Bar)
NATIONAL TERRITORY
---

(1996, 2004, 2005, 2009 Bar)

NOTE: Foreign embassies retain their status as native
soil. They are still subject to Philippine authority. Its
Territory

UNIVERSITY OF SANTO TOMAS

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jurisdiction may be diminished, but it does not

disappear. So it is with the bases under lease to the Effect of RA 9522 (An Act to Amend Certain Provisions
American armed forces by virtue of the military bases of RA 3046, As Amended by RA 5446, To Define the
agreement of 1947. They are not and cannot be Archipelagic Baseline of the Philippines and For Other
considered as foreign territory. Purposes) on specific description and affirmation of
sovereignty over our national territory
Not even the embassy premises of a foreign power are to
be considered outside the territorial domain of the host RA 9522 amends RA 3046, which defines the baselines of
state. The ground occupied by an embassy is not in fact the territorial sea of the Philippines. The Kalayaan Island
the territory of the foreign State to which the premises Group as constituted under PD 1596 and Bajo de
belong through possession or ownership. The lawfulness Masinloc, also known as Scarborough Shoal is
or unlawfulness of acts they committed is determined by determined as “Regime of Islands” under the Republic of
the territorial sovereign. If an attaché commits an the Philippines consistent with Art. 121 of the United
offense within the precincts of an embassy, his immunity Nations Convention on the Law of the Sea which states:
from prosecution is not because he has not violated the
local law, but rather for the reason that the individual is 1. An island is a naturally formed area of land,
exempt from prosecution. If a person not so exempt, or surrounded by water, which is above water at high tide.
whose immunity is waived, similarly commits a crime 2. Except as provided for in par. 3, the territorial sea, the
therein, the territorial sovereign, if it secures custody of contiguous zone, the exclusive economic zone and the
the offender, may subject him to prosecution, even continental shelf of an island are determined in accordance
though its criminal code normally does not contemplate with the provisions of this Convention applicable to other
the punishment of one who `commits an offense outside land territory.
of the national domain. It is not believed, therefore, that 3. Rocks which cannot sustain human habitation or
an ambassador himself possesses the right to exercise economic life of their own shall have no exclusive economic
jurisdiction, contrary to the will of the State of his zone or continental shelf.
sojourn, even within his embassy with respect to acts
there committed. Nor is there apparent at the present Spratlys Group of Islands (SGI) is not part of the
time any tendency on the part of States to acquiesce in Philippine Archipelago because it is too far to be
his exercise of it. (William C. Reagan v. CIR, G.R. No. L- included within the archipelagic lines encircling the
26379, Dec. 27, 1969) internal waters of Philippine Archipelago. The SGI,
however, is part of the Philippine territory because it
ARCHIPELAGIC DOCTRINE was discovered by a Filipino seaman in the name of
Tomas Cloma who later renounced his claim over it in
Archipelagic State favor of the Republic of the Philippines. Subsequently,
then Pres. Marcos issued a Presidential Decree
A state constituted wholly by one or more archipelagos constituting SGI as part of the Philippine territory
and may include other islands.
and sending some of our armed forces to protect said
Archipelagic Doctrine (2015 Bar) island and maintain our sovereignty over it.

The waters around, between, and connecting the islands SGI and Scarborough Shoal as part of the National
of the archipelago, regardless of their breadth and Territory (2013 Bar)
dimensions, form part of the internal waters of the
Philippines. (1987 Constitution, Art. I) The SGI and Scarborough Shoal fall under the 2 nd phrase
of Art. I, i.e., “and all other territories over which the
Under the Archipelagic Doctrine, we connect the Philippines has sovereignty or jurisdiction.” It is part of
outermost points of our archipelago with straight our national territory because the Philippines exercise
baselines and consider all the waters enclosed thereby as sovereignty (through election of public officials) over the
internal waters. The entire archipelago is regarded as Spratly Group of Islands. Moreover, under the Philippine
one integrated unit instead of being fragmented into so Baselines Law of 2009 (RA 9522), the Spratly Islands and
many thousand islands. (Cruz and Cruz, Philippine the Scarborough Shoal are classified as islands under the
Political Law, p. 24) regime of the Republic of the Philippines. (Philippine
Baselines Law of 2009)
Purposes of the Archipelagic Doctrine

a. Territorial Integrity
b. National Security
c. Economic reasons

NOTE: The main purpose of the archipelagic doctrine is

to protect the territorial interests of an archipelago, its
territorial integrity. Without it, there would be “pockets
of high seas” between some of our islands and islets, thus
foreign vessels would be able to pass through these
“pockets of seas” and would have no jurisdiction over it.

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 GENERAL CONSIDERATIONS – STATE IMMUNITY

jurisdiction and applicable only to US personnel under

VFA and not to special civil actions such as the present
STATE IMMUNITY petition for issuance of a writ of Kalikasan. The principle
of State immunity therefore bars the exercise of
jurisdiction by this Court over the persons of the US
Doctrine of State Immunity (1991, 1994, 1996, 2005, Officials. (Arigo v. Swift, G.R. No. 206510, Sept. 16, 2014)
2006, 2007, 2013 Bar) ---

The State may not be sued without its consent. (1987 Remedy of a person who feels aggrieved by the acts
Constitution, Art. XVI, Sec. 3) of a foreign government

Basis of the Doctrine of State Immunity Under both Public International Law and Transnational
Law, a person who feels aggrieved by the acts of a foreign
GR: All states are sovereign equals and cannot assert sovereign can ask his own government to espouse his
jurisdiction over one another, consonant with the public cause through diplomatic channels. (Holy See v. Rosario,
international law principle of par in parem non habet G.R. No. 101949, Dec. 1, 1994)
imperium. A contrary disposition would "unduly vex the
peace of nations." (Arigo v. Swift, G.R. No. 206510, Sept. Forms of consent
16, 2014)
1. Express consent a. General law
The head of State, who is deemed the personification of i. Act No. 3083 and CA 327 as amended by
the State, is inviolable, and thus, enjoys immunity from Secs. 49-50, PD 1445 – Money claims arising from
suit. (JUSMAG Philippines v. NLRC, G.R. No. 108813, Dec. contracts which could serve as a basis of civil action
15, 1994) between private parties to be first filed with COA before
a suit may be filed in court. The COA must act upon the
Likewise, public officials may not be sued for acts done in claim within 60 days. Rejection of the claim authorizes
the performance of their official functions or within the the claimant to elevate the matter to the Supreme Court
scope of their authority. (DOH v. Phil. Pharmawealth, Inc., on certiorari.
G.R. No. 182358, Feb. 20, 2013) ii. Art. 2180, NCC – Tort committed by special
agent;
NOTE: The rule is that if the judgment against such iii. Art. 2189, NCC – LGUs liable for injuries or
officials will require the state itself to perform an death caused by defective condition of roads or public
affirmative act to satisfy the same, the suit may be works under their control (City of Manila v. Teotico, et al.,
regarded as against the state itself although it has not G.R. No. L-23052, January 29, 1968);
been formally impleaded. (Garcia v. Chief of Staff, G.R. No. iv. Sec. 22(2), RA 7160, LGC of 1991 – LGUs
L-20213, January 31, 1966) have power to sue and be sued; and
v. Sec. 24 of LGC – LGUs and their officials are
XPN: A State may be sued if it gives consent, whether not exempt from liability for death or injury or damage
express or implied. to property.

--- NOTE: The express consent of the State to be sued must

Q: The USS Guardian of the US Navy ran aground on be embodied in a duly enacted statute and may not be
an area near the Tubbataha Reefs, a marine habitat of given by a mere counsel of the government. (Republic v.
which entry and certain human activities are prevented Purisima, G.R. No. L-36084, Aug. 31, 1977)
and afforded protection by Philippine laws and UNCLOS.
Bishop Arigo of Palawan filed a petition for the issuance ---
of Writ of Kalikasan and impleaded US officials in their Q: Kilusang Magbubukid ng Pilipinas (KMP) members
capacity as commanding officers of the US Navy. He clashed with the anti-riot squad which resulted to 13
argues that there is a waiver of immunity from suit deaths and several casualties. Thereafter, President
found in the Visiting Forces Agreement (VFA) between Corazon C. Aquino issued AO 11 creating the Citizens’
the US and the Philippines, and invoke federal statues in Mendiola Commission to conduct the investigation
the US under which agencies of the US have statutorily about the incident. The commission recommended
waived their immunity to any action. Is he correct? compensating the victims. The petitioners (Caylao
group) together with the military personnel involved
A: NO. The VFA is an agreement which defines the in the Mendiola incident instituted an action against
treatment of United States troops and personnel visiting the the Republic of the Philippines before the trial court.
Philippines to promote “common security interests” Respondent Judge Sandoval dismissed the complaint
between the US and the Philippines in the region. The on the ground of state immunity from suit.
invocation of US federal tort laws and even common law is Petitioners argued that the State has impliedly
thus improper considering that it is the VFA which governs waived its immunity from suit with the
disputes involving US military ships and crew navigating recommendation of the Commission to indemnify
Philippine waters in pursuance of the objectives of the
agreement. However, the waiver of State immunity under
the VFA pertains only to criminal
UNIVERSITY OF SANTO TOMAS
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FACULTY OF CIVIL LAW
 POLITICAL LAW

the heirs and victims of the Mendiola incident by the position, which exempts it from suit. (Lim v. Brownell,
government and by the public addresses made by G.R. No. L-8587, March 24, 1960)
then President Aquino in the aftermath of the ---
killings. Is the argument meritorious?
b. When State enters into a business contract.
A: NO. The actions of President Aquino cannot be deemed as
a waiver of State immunity. Whatever acts or utterances that Capacities of the State in entering into contracts
then President Aquino may have done or said, the same are not
tantamount to the State having waived its immunity from suit. 1. In jure gestionis – By right of economic or business
The President's act of joining the marchers, days after the relations; commercial, or proprietary acts. MAY BE SUED.
incident, does not mean that there was an admission by the (US v. Guinto, G.R. No. 76607, Feb. 26, 1990)
State of any liability. Moreover, petitioners rely on President NOTE: The State may be said to have descended to
Aquino's speech promising that the government would the level of an individual and can thus be deemed
address the grievances of the rallyists. By this alone, it cannot to have tacitly given its consent to be sued only
be inferred that the State has admitted any liability, much less when it enters into business contracts.
can it be inferred that it has consented to the suit. (Republic v. Consequently, the restrictive application of State
Sandoval, G.R. No. 84607, March 19, 1993) immunity is proper only in such case
--- (Restrictive Theory of State Immunity from
suit).
b. Special law 2. In jure imperii – By right of sovereign power and in the
i. By virtue of PD 1620, the grant of immunity to exercise of sovereign functions. No implied consent. (US v.
IRRI is clear and unequivocal, and an express waiver by its Ruiz, G.R. No. L-35645, May 22, 1985) NOTE: In exercising the
Director General is the only way by which it may relinquish or power of eminent domain, the State exercises a power jure
abandon this immunity. (Callado, v. IRRI, G.R. No. 106483, May imperii. Yet, it has been held that where property has been
22, 1995) taken without the payment of just compensation, the defense
2. Implied consent of immunity from suit cannot be set up in an action for
a. When the State commences litigation, it becomes payment by the owner. (Republic v. Sandiganbayan, G.R. No.
vulnerable to counterclaim. (Froilan v. Pan Oriental Shipping, 90478, Nov. 21, 1991)
G.R. No. L-6060, Sept. 30, 1954)
---
--- Q: Do all contracts entered into by the government
Q: In a property dispute, the Attorney General of the operate as a waiver of its non-suability?
United States and the defendant-intervenor Republic of
the Philippines each filed an answer alleging by way of A: NO. Distinction must still be made between one which is
affirmative defense that the lower court had no executed in the exercise of its sovereign function and
jurisdiction over the claim since the action in that regard another which is done in its proprietary capacity. A State
constituted a suit against the United Sates to which it had may be said to have descended to the level of an individual
not given its consent. Did the Republic of the Philippines and can be deemed to have actually given its consent to be
by its intervention waive its right of immunity from suit? sued only when it enters into business contracts. It does not
apply where the contract relates to the exercise of its
A: NO. The Republic of the Philippines did not waive its sovereign functions. (Department of Agriculture v. NLRC G.R.
immunity from suit. The Republic of the Philippines No. 104269, Nov. 11, 1993)
intervened in the case merely to unite the defendant Attorney ---
General of the United States in resisting plaintiff’s claims, and
for that reason asked no affirmative relief against any party in A suit is considered as suit against the State when:
the answer in intervention it filed, and in its answer to the
amended complaint, "reproduced and incorporated by 1. The Republic is sued by name;
reference" all the affirmative defenses contained in the answer 2. The suit is against an unincorporated government
of the defendant Attorney General, one of which is that the agency performing propriety functions; and
lower court had no jurisdiction over the claim for rentals 3. The suit is on its face against a government officer but
because of lack of consent to be sued. This is not a case where the case is such that ultimate liability will belong to the
the state takes the initiative against a private party by filing a government. (Republic v. Sandoval, G.R. No. 84607, March 19,
complaint in intervention, thereby surrendering its privileged 1993)
position and coming down to the level of the defendant, but
one where the state, as one of the defendants, merely resisted ---
a claim against it precisely on the ground among others, of its Q: Spouses Bana sued the Philippine National Railways
privileged for damages for the death of their son who fell from an
overloaded train belonging to the PNR. The trial court
dismissed the suit on the ground that the charter of the
PNR, as amended by PD 741, has made the same a
government instrumentality, and thus immune from
UNIVERSITY OF SANTO TOMAS
suit. Is the dismissal proper?
2017 GOLDEN NOTES
 GENERAL CONSIDERATIONS – STATE IMMUNITY

A: NO. PNR is not immune from suit. It did not remove the latter invoked Proclamation No. 1358 whereby it
itself from the operation of Arts. 1732 to 1766 of the reserved certain parcels of land, including the
Civil Code on common carriers. Not all government subject portion herein, for the use of the Loakan
entities, whether corporate or non-corporate, are Airport. They asserted that RTC did not have any
immune from suits. Immunity from suit is determined by jurisdiction to entertain the action without the
the character of the objects for which the entity is State’s consent. The RTC and CA dismissed the
organized. When the government enters into a petition. Can the ATO be sued without the State’s
commercial business, it abandons its sovereign capacity consent?
and is to be treated like any other corporation. In this
case, the State divested itself of its sovereign capacity A: YES. An unincorporated government agency without
when it organized the PNR which is no different from its any separate juridical personality of its own enjoys
predecessors, the Manila Railroad Company. (Malang v. immunity from suit because it is invested with an
PNRC, G.R. No. L-49930, Aug. 7, 1985) inherent power of sovereignty. However, the need to
--- distinguish between an unincorporated government
agency performing governmental function and one
Unincorporated government agency performing performing proprietary functions has arisen. The
governmental function vs. one performing juridical character of ATO is an agency of the
proprietary functions government without performing a purely governmental
or sovereign function but is instead involved in the
UNINCORPORATE UNINCORPORATED management and maintenance of the Loakan Airport, an
D GOVERNMENT GOVERNMENT activity that was not exclusive prerogative of the State in

AGENCY AGENCY its sovereign capacity. Hence, the ATO had no claim to
BASIS
PERFORMING PERFORMING the State immunity from suit. The obligation of ATO to
GOVERNMENTAL PROPRIETARY Spouses Ramos might be enforced against CAAP. (Air
FUNCTIONS FUNCTIONS Transportation Office v. Sps. David, G.R. No. 159402, Feb.

23, 2011)
Immunity has Immunity has not ---
been upheld in its been upheld in its
favor because its favor whose Suability vs. Liability of the State
function is function was not in
governmental or pursuit of a BASIS SUABILITY LIABILITY

incidental to such necessary function

Definition
function. of government but Depends on the Depends on the

was essentially a As to basis consent of the applicable law

business. (Air State to be sued and the

Transportation established facts
Office v. Sps. David,

G.R. No. 159402, Feb. The circumstance The State can

23, 2011) As a that a State is never be held
consequence suable does not liable if it is not
of another necessarily mean suable.
Implications of the phrase “waiver of immunity by
the State does not mean a concession of its liability that it is liable.
Rule on the liabilities of the following:
When the State gives its consent to be sued, all it does
is to give the other party an opportunity to show that
the State is liable. Accordingly, the phrase that “waiver of 1. Public officers– By their acts without or in excess of
immunity by the State does not mean a concession of jurisdiction: any injury caused by him is his own
liability” means that by consenting to be sued, the State personal liability and cannot be imputed to the
does not necessarily admit that it is liable. State.
2. Government agencies– Establish whether or not the
 In such a case, the State is merely giving the plaintiff a State, as principal which may ultimately be held
chance to prove that the State is liable but the State liable, has given its consent.
retains the right to raise all lawful defenses. (Philippine 3. Government– Doctrine of State immunity is
Rock Industries, Inc. v. Board of Liquidators, G.R. No. available.
84992, Dec. 15, 1989)

---
Q: Spouses David and Elisea Ramos discovered that a portion of their land in Baguio City was being used as part of
the runway and running shoulder of the Loakan Airport being operated by Air Transportation Office (ATO). The Spouses
Ramos agreed to convey the affected portion by deed of sale to the ATO for consideration, which ATO failed to pay. In an
action for collection of money against ATO,

UNIVERSITY OF SANTO TOMAS

9
FACULTY OF CIVIL LAW
 POLITICAL LAW
2017 GOLDEN NOTES
Determination of suability of government agencies

GOVERNMENT
SUABILITY
AGENCIES

Incorporated Test of suability is stated in their

agencies charters. If its charter says so, it
is suable.

Unincorporated Suable if the nature of their acts

government is proprietary
agencies

Instances when a public officer may be sued without

the State’s consent

1. To compel him to do an act required by law;

2. To restrain him from enforcing an act claimed to be
unconstitutional;
3. To compel payment of damages from an already
appropriated assurance fund or to refund tax over-payments
from a fund already available for the purpose;
4. To secure a judgment that the officer impleaded may
satisfy the judgment by himself without the State having to do a
positive act to assist him; or
5. Where the government itself has violated its own laws
because the doctrine of State immunity cannot be used to
perpetrate an injustice.

NOTE: The true test in determining whether a suit

against a public officer is a suit against the State is that, if
a public officer or agency is sued and made liable, the
State will have to perform an affirmative act of
appropriating the needed amount to satisfy the
judgment. If the State will have to do so, then, it is a suit
against the State.

GR: Suit must be regarded as one against the state where

the satisfaction of the judgment against the public official
concerned will require the state to perform a positive
act, such as appropriation of the amount necessary to
pay the damages awarded to the plaintiff.

XPNs:
1. The public official is charged in his official capacity for
acts that are unlawful and injurious to the rights of others.
Public officials are not exempt, in their personal capacity, from
liability arising from acts committed in bad faith; or
2. The public official is clearly being sued not in his official
capacity but in his personal capacity, although the acts
complained of may have been committed while he occupied a
public position. (Lansang v. CA, G.R. No. 102667, Feb. 23, 2000)

Garnishment of government funds

GR: Whether the money is deposited by way of general

or special deposit, they remain government funds and
are not subject to garnishment.

XPN: Where a law or ordinance has been enacted

appropriating a specific amount to pay a valid

UNIVERSITY OF SANTO TOMAS

government obligation, then the money can be garnished.

NOTE: Funds belonging to government corporations, which

can sue and be sued and are deposited with a bank, can be
garnished. (PNB v. Pabalan, G.R. No. L-33112, June 15, 1978)

If the local legislative authority refuses to enact a law

appropriating the money judgment rendered by the court,
the winning party may file a petition for mandamus to
compel the legislative authority to enact a law. (Municipality
of Makati v. CA, G.R. Nos. 89898-99, Oct. 1, 1990)

The government cannot be made to pay interest in

money judgments against it, except in the following
instances

1. Exercise of the power of eminent domain

2. Erroneous collection of taxes
3. Where government agrees to pay interest pursuant to law

---
Q: K-Pau Cruz filed an action directly in court against the
government seeking payment for a parcel of land which the
national government utilized for a road widening project.
Can the government invoke the doctrine of non-suitability
of the state?

A: NO. When the government expropriates property for public

use without paying just compensation, it cannot invoke its
immunity from suit. Otherwise, the right guaranteed in Sec. 9,
Art. III of the 1987 Constitution that private property shall not
be taken for public use without just compensation will be
rendered nugatory. (Ministerio v. CFI, G.R. No. L-31635, Aug. 31,
1971)
---
---
Q: Sps. Benigno sought to register their lot. The RTC
granted their petition. Arguing that the lot is inalienable,
the Republic, through the OSG, appealed before the CA but
moved four times to extend the period for filing its
appellant’s brief. CA dismissed the OSG’s appeal. The OSG
filed its brief after moving to reconsider the CA’s denial of
its appeal. However,
CA stood its ground on its original decision. Does the
OSG’s failure to file the Republic’s appeal brief bind the
State?

A: NO. As a matter of doctrine, illegal acts of government agents

do not bind the State, and the Government is never estopped
from questioning the acts of its officials, more so if they are
erroneous, let alone irregular. This principle applies in land
registration cases. Certainly, the State will not be allowed to
abdicate its authority over lands of the public domain just
because its agents and officers have been negligent in the
performance of their duties. (Republic v. Sps. Benigno, G.R. No.
205492, March 11, 2015)
---

GENERAL PRINCIPLES AND STATE POLICIES

 GENERAL CONSIDERATIONS – GENERAL PRINCIPLES AND STATE POLICIES

Doctrine of Constitutional Supremacy

NOTE: Even though the legislature can declare an
Under this doctrine, if a law or contract violates any existence of war and enact measures to support it, the
norm of the Constitution, that law or contract, whether actual power to engage in war is lodged, nonetheless, in
promulgated by the legislative or by the executive the executive.
branch or entered into by private persons for private
purposes, is null and void and without any force and Independent Foreign Policy and a nuclear-free
effect. Since the Constitution is the fundamental, Philippines
paramount and supreme law of the nation, it is deemed
written in every statute and contract. (Manila Prince The State shall pursue an independent foreign policy. In
Hotel v GSIS, G.R. No. 122156, Feb. 3, 1997) its relations with other states, the paramount
consideration shall be national sovereignty, territorial
Republican State (1996 Bar) integrity, national interest, and the right to self-
determination. (1987 Constitution, Art. 2, Sec. 7)
A state wherein all government authority emanates from
the people and is exercised by representatives chosen by The Philippines, consistent with the national interest,
the people. (Dissenting Opinion of Justice Puno, Tolentino adopts and pursues a policy of freedom from nuclear
v. COMELEC, G.R. No. 148334, Jan. 21, 2004) weapons in its territory. (1987 Constitution, Art. II, Sec. 8)

Manifestations of Republicanism NOTE: This pertains to use of nuclear weapons and not
nuclear source of energy.
1. Ours is a government of laws and not of men.
2. Rule of Majority (Plurality in elections) All existing treaties or international agreements which
3. Accountability of public officials have not been ratified shall not be renewed or extended
4. Bill of Rights without the concurrence of at least two-thirds of all the
5. Legislature cannot pass irrepealable laws Members of the Senate. (1987 Constitution, Art. XVIII, Sec.
6. Separation of powers 4)

NOTE: The Philippines is not only a representative or After the expiration in 1991 of the Agreement between
republican state but also shares some aspects of direct the Republic of the Philippines and the United States of
democracy such as initiative and referendum. America concerning military bases, foreign military
bases, troops, or facilities shall not be allowed in the
Constitutional Authoritarianism Philippines except under a treaty duly concurred in by
the Senate and, when the Congress so requires, ratified
As understood and practiced in the Marcos regime under by a majority of the votes cast by the people in a national
the 1973 constitution, it is the assumption of referendum held for that purpose, and recognized as a
extraordinary powers by the President including treaty by the other contracting State. (1987 Constitution,
legislative and judicial and even constituent powers. Art. XVIII, Sec. 25)

Compatibility of constitutional authoritarianism Policies of the State on the following:

with a republican state
1. Working women – 1987 Constitution, Sec. 14, Art.
Constitutional authoritarianism is compatible with a XIII: "The State shall protect working women by
republican state if the Constitution upon which the providing safe and healthful working conditions, taking
Executive bases his assumption of power is a legitimate into account their maternal functions, and such facilities
expression of the people’s will and if the Executive who and opportunities that will enhance their welfare and
assumes power received his office through a valid enable them to realize their full potential in the service of
election by the people. the nation."
2. Ecology – 1987 Constitution, Sec. 16, Art. II: “The
State policy on war (1992, 1997, 2000, 2003 Bar) State shall protect and advance the right of the
people and their posterity to a balanced and
The State renounces war as an instrument of national healthful ecology in accord with the rhythm and
policy. (1987 Constitution, Art. II, Sec. 2) harmony of nature."

NOTE: The Philippines does not renounce defensive war ---

because it is duty bound to defend its citizens. Under the Q: The residents of Taguig City brought a complaint
Constitution, the prime duty of the government is to before Laguna Lake Development Authority (LLDA)
serve and protect the people. about an open garbage dumpsite in their city and
sought its closure due to its harmful effects on health
Voting requirements to declare the existence of a and the pollution it brings to the lake. Upon
state of war investigation, LLDA discovered that the Taguig City
Government has been maintaining the said dumpsite
1. 2/3 vote of both Houses without an Environmental Compliance Certificate
2. In joint session from the Environmental Management Bureau of the
3. Voting separately DENR, and also found the water to have been directly

UNIVERSITY OF SANTO TOMAS

11
FACULTY OF CIVIL LAW
 POLITICAL LAW

contaminated by the dumpsite operations. Then, Mandate on educational institutions. [1987

LLDA, under RA 4850, issued a “cease and desist” Constitution, Art. XIV, Sec. 3(4)]
order against the City Government to completely
stop the dumping of any form or kind of waste Priority to research and development, invention,
matter to the dumpsite. Does the LLDA have the innovation of science and technology. (1987
power and authority to issue a “cease and desist” Constitution, Art. XIV, Sec. 10)
order under RA 4850 enjoining the dumping of
garbage in Taguig City? Incentives, tax deductions, and scholarships to
encourage private participation in programs of basic
A: YES. In the exercise, therefore, of its express powers under and applied scientific research. (1987 Constitution,
its charter as a regulatory and quasi-judicial body with respect Art. XIV, Sec. 11)
to pollution cases in the Laguna Lake region, the authority of
the LLDA to issue a “cease and desist” order is implied and need Encouragement of widest participation of private
not necessarily be express. Moreover, the immediate response groups, local governments, and organizations in the
to the demands of "the necessities of protecting vital public generation and utilization of science and technology.
interests" gives vitality to the statement on ecology embodied (1987 Constitution, Art. XIV, Sec. 12)
in Art. II, Sec. 16 of the Constitution which provides: The State
shall protect and advance the right of the people to a balanced Constitutional provision on transparency in matters
and healthful ecology in accord with the rhythm and harmony of public concern (2000 Bar)
of nature. As a constitutionally guaranteed right of every
person, it carries the correlative duty of non-impairment. The 1987 Constitution provides for a policy of
Hence, the issuance of the cease and desist order by the LLDA is transparency in matters of public interest:
a proper exercise of its power and authority under its charter
and in consonance with the declared policy of the state to 1. Policy of full public disclosure of government
protect and promote the right to health of the people and instill transactions. (1987 Constitution, Art. II, Sec. 28)
health consciousness among them. (Laguna Lake Development 2. Right to information on matters of public concern.
Authority v. CA, G.R. No. 110120, March 16, 1994) (1987 Constitution, Art. III, Sec. 7)
--- 3. Access to the records and books of account of the
Congress. (1987 Constitution, Art. VI, Sec. 20) (2000
3. The symbols of statehood – Flag of the Philippines. (1987 Bar)
Constitution, Art. XVI, Sec. 1) 4. Submission of Statement of Assets, Liabilities, and Net
worth. (1987 Constitution, Art. XI, Sec. 17)
Name of the country, National Anthem, and National 5. Access to information on foreign loans obtained or
Seal. (1987 Constitution, Art. XVI, Sec. 2) guaranteed by the government. (1987 Constitution, Art. XII,
Sec. 21)
4. Cultural minorities – Recognition and Promotion of Rights
of Indigenous Cultural Communities. (1987 Constitution, Art. II, NOTE: These provisions on public disclosures are
Sec. 22) (1994, 1996 Bar) intended to enhance the role of the citizenry in
governmental decision-making as well as in checking
Protection of Ancestral Lands of Indigenous abuse in government. (Valmonte v. Belmonte, G.R. No.
Communities. (1987 Constitution, Art. XII, Sec. 5) 74930, Feb. 13, 1989)

Application of Principles of Agrarian Reform and Doctrine of Incorporation vs. Doctrine of

Stewardship to Indigenous Communities and Transformation
Landless Farmers. (1987 Constitution, Art. XIII, Sec.
65)
DOCTRINE OF DOCTRINE OF
Preservation and Development of the Culture,
BASIS
Traditions, and Institutions of Indigenous
Communities. (1987 Constitution, Art. XIV, Sec. 17) INCORPORATION TRANSFORMATION

Rules of Generally accepted

5. Science and technology – Priority to Education, Science and
International Law rules of
Technology, Arts, Culture, and Sports. (1987 Constitution, Art. II,
Sec. 17) (1992, 1994 Bar) form part of the international law
law of the land and are not per se
Development of national talents consisting of no legislative binding upon the
Filipino scientists, entrepreneurs, professionals, action is required State but must first
managers, high-level technical manpower and to make them be embodied in
skilled workers and craftsmen. (1987 Constitution, applicable in a legislation enacted
Art. XII, Sec. 14)
Definition
country. Thus, the by the lawmaking
Philippines is body and so
bound by transformed into
generally accepted municipal law.
UNIVERSITY OF SANTO TOMAS
principles of
2017 GOLDEN NOTES
international law,
which are
considered to be
automatically part
 GENERAL CONSIDERATIONS – GENERAL PRINCIPLES AND STATE POLICIES

of our own laws. against foreign

invasion.
NOTE: The fact that the international law has been made
part of the law of the land does not by any means imply (Lee Hong Hok v. David, G.R. No. L-30389, Dec. 27, 1972)
the primacy of international law over national law in the
Sovereignty is deemed absolute, subject to
municipal sphere. (Philip Morris, Inc. v. CA, G.R. No. 91332,
restrictions and limitations
July 16, 1993)

Enforceability in the Philippines of Final Judgments While sovereignty has traditionally been deemed
of Foreign Courts absolute and all-encompassing on the domestic level, it is
however subject to restrictions and limitations
We can only recognize and/or enforce a foreign voluntarily agreed to by the Philippines, expressly or
judgment or order after a conclusive and a final finding impliedly as a member of the family of nations.
by Philippine courts that:
1. the foreign court or tribunal has jurisdiction By the doctrine of incorporation, the country is bound by
over the case, generally accepted principles of international law, which
2. the parties were properly notified, and are considered to be automatically part of our own laws.
3. there was no collusion, fraud, or clear mistake (Tañada v. Angara, G.R. No. 118295, May 2, 1997)
of law or fact.
(Republic v. Mupas, G.R. No. 181892, Sept. 8, 2015) Constitutional provisions which ensure civilian
supremacy
It is an established international legal principle that final
judgments of foreign courts of competent jurisdiction are 1. By the installation of the President, the highest
reciprocally respected and rendered efficacious subject civilian authority, as the commander-in-chief of all
to certain conditions that vary in different countries. In the armed forces of the Philippines. (1987
the Philippines, a judgment or final order of a foreign Constitution, Art. VII, Sec. 18).
tribunal cannot be enforced simply by execution. Such 2. Through the requirement that members of the AFP
judgment or order merely creates a right of action, and swear to uphold and defend the Constitution,
its non-satisfaction is the cause of action by which a suit which is the fundamental law of a civil
can be brought upon for its enforcement. (BPI v. government. (1987 Constitution, Art. XVI, Sec. 5,
Guevarra, G.R. No. 167052, March 11, 2015) Par. 1)

Sovereignty NOTE: By civilian supremacy, it is meant that civilian

authority is, at all times, supreme over the military.
Supreme and uncontrollable power inherent in a State (2003, 2006, 2009 Bar)
by which the State is governed.
Mandatory rendition of military services to defend
the State (1995 Bar)
Characteristics of Sovereignty

1. Permanent; One cannot avoid compulsory military service by

2. Exclusive; invoking one’s religious convictions or by saying that he
3. Comprehensive; has a sick father and several brothers and sisters to
4. Absolute; support. Accordingly, the duty of government to defend
5. Indivisible; the State cannot be performed except through an army.
6. Inalienable; and To leave the organization of an army to the will of the
7. Imprescriptible (Laurel v. Misa, G.R. No. L-409, Jan. citizens would be to make this duty to the Government
30, 1947) excusable should there be no sufficient men who
volunteer to enlist therein. The right of the Government
Sovereignty: Imperium vs. Dominium to require compulsory military service is a consequence
of its duty to defend the State and is reciprocal with its

duty to defend the life, liberty, and property of the

BASIS IMPERIUM DOMINIUM
citizen. (People v. Zosa, G.R. No. L-45892-93, July 13, 1938)

The State’s Capacity of the

authority to state to own or
 govern as acquire property.
embraced in the
Definition
concept of
and
sovereignty;
Extent
includes passing
laws governing a
territory,
maintaining peace
and order over it,
and defeating it

UNIVERSITY OF SANTO TOMAS

13
FACULTY OF CIVIL LAW
 POLITICAL LAW

Separation of Church and State 3. Art. XIV, Sec. 3[3]: “At the option expressed in
writing by the parents or guardians, religion shall be allowed
Provisions of the Constitution that support the to be taught to their children or wards in public elementary
principle of separation of Church and State: and high schools within the regular class hours by
instructors designated or approved by the religious
1. Art. III, Sec. 5: “No law shall be made respecting an authorities of the religion to which the children or wards
establishment of religion, or prohibiting the free exercise belong, without additional cost to the
thereof. The free exercise and enjoyment of religious profession Government.”
and worship, without discrimination or preference, shall 4. Art. XIV, Sec. 4[2]: “Educational institutions, other
forever be allowed. No religious test shall be required for the than those established by religious groups and mission
exercise of civil or political rights.” boards, shall be owned solely by citizens of the Philippines
2. Art. VI, Sec. 5[2]: “The party-list representatives shall or corporations or associations at least sixty per centum of
constitute twenty per centum of the total number of the capital of which is owned by such citizens. The Congress
representatives including those under the party list. For three may, however, require increased Filipino equity
consecutive terms after the ratification of this Constitution, one- participation in all educational institutions.”
half of the allocated to party-list representatives shall be filled,
as provided by law, by selection or election from the labor, Theories on the separation of church and state:
peasant, urban poor, indigenous cultural communities, women,
youth, and such other sections as may be provided by law, 1. Separation Standard - May take the form of either
except the religious sector. (a) strict separation or (b) the tamer version of
3. Art. IX-CI, Sec. 2[5]: “Register, after sufficient publication, strict neutrality, or what Justice Carpio refers to as
political parties, organizations, or coalitions which, in addition the second theory of governmental neutrality.
to other requirements, must present their platform or program a. Strict Separationist – The establishment clause was
of government; and accredit citizens' arms of the Commission meant to protect the State from the church, and the State’s
on Elections. Religious denominations and sects shall not be hostility towards religion allows no interaction between the
registered. Those which seek to achieve their goals through two.
violence or unlawful means, or refuse to uphold and adhere to b. Strict Neutrality Approach – It is not hostility
this Constitution, or which are supported by any foreign towards religion, but a strict holding that religion may not be
government shall likewise be refused registration. Financial used as a basis for classification for purposes of
contributions from foreign governments and their agencies to governmental action, whether the action confers rights or
political parties, organizations, coalitions, or candidates related privileges or imposes duties or obligations. Only secular
to elections, constitute interference in national affairs, and, criteria may be the basis of government action. It does not
when accepted, shall be an additional ground for the permit; much less require accommodation of secular
cancellation of their registration with the Commission, in programs to religious belief.
addition to other penalties that may be prescribed by law.” 2. Benevolent Neutrality Approach (2016 Bar)– The
“wall of separation” is meant to protect the church
XPNs to the principle are the following provisions of from the State. It believes that with respect to
the Constitution: governmental actions, accommodation of religion
1. Art. VI, Sec. 28[3]: “Charitable institutions, churches may be allowed, not to promote the government’s
and parsonages or convents appurtenant thereto, mosques, favored form of religion, but to allow individuals
non-profit cemeteries, and all lands, buildings, and and groups to exercise their religion without
improvements, actually, directly, and exclusively used for hindrance. (Estrada v. Escritor, A.M. No. P-02-1651,
religious, charitable, or educational purposes shall be exempt June 22, 2006)
from taxation.”
2. Art. VI, Sec. 29[2]: “No public money or property shall NOTE: In the Philippine context, the Court categorically
be appropriated, applied, paid, or employed, directly or ruled that, “the Filipino people, in adopting the
indirectly, for the use, benefit, or support of any sect, church, Constitution, manifested their adherence to the
denomination, sectarian institution, or system of religion, or of benevolent neutrality approach that requires
any priest, preacher, minister, or other religious teacher, or accommodations in interpreting the religion clauses”
dignitary as such, except when such priest, preacher, minister, (Estrada v. Escritor, ibid.).
or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.” (1992, Kinds of accommodation that result from free
1997 Bar) exercise claim

1. Mandatory – Those which are found to be

constitutionally compelled, i.e. required by the Free Exercise
UNIVERSITY OF SANTO TOMAS
Clause;
2017 GOLDEN NOTES 2. Permissive – Those which are discretionary or
legislative, i.e. not required by the Free Exercise Clause; and
 GENERAL CONSIDERATIONS – SEPARATION OF POWERS

3. Prohibited – Those which are prohibited by the irreparable error or abuse in its exercise to the
religion clauses. detriment of republican institutions. The purpose was
not to avoid friction, but, by means of the inevitable
NOTE: Based on the foregoing, and after holding that the friction incident to the distribution of governmental
Philippine Constitution upholds the Benevolent powers among the three departments, to save the people
Neutrality Doctrine which allows for accommodation, the from autocracy.
Court laid down the rule that in dealing with cases
involving purely conduct based on religious belief, it Powers vested in the three branches of government
shall adopt the Strict-Compelling State interest test
because it is most in line with the benevolent neutrality-
accommodation. EXECUTIVE LEGISLATIVE JUDICIARY
Difference between Mandatory accommodation, Implementation Making of laws
Permissive accommodation and Prohibited of laws Interpretation of
accommodation and power of the
(Power of the laws (Power of
purse
MANDATORY PERMISSIVE PROHIBITED sword) judicial review)
ACCOMMODATIO ACCOMODATIO ACCOMMODATIO
N N N NOTE: Legislative power is given to the legislature
whose members hold office for a fixed term (Sec. 1, Art.
Basis and Action Taken
VI); Executive power is given to a separate Executive
Based on the Means that the Results when the who holds office for a fixed term (Sec. 1, Art. VII); and
premise that state may, but Court finds no Judicial power is held by an independent Judiciary. (Sec.
when religious is not required basis for a 1, Art. VIII)
conscience to, mandatory
conflicts with a accommodate accommodation, ---
Q: A group of losing litigants in a case decided by the
government religious or it determines
SC filed a complaint before the Ombudsman charging
obligation or interests. that the the Justices with knowingly and deliberately
prohibition, the legislative rendering an unjust decision in utter violation of the
government accommodation penal laws of the land. Can the Ombudsman validly
sometimes may runs afoul of the take cognizance of the case?
have to give way. establishment or
This the free exercise A: NO. Pursuant to the principle of separation of powers,
the correctness of the decisions of the SC as final arbiter
accommodation clause. In this
of all justifiable disputes is conclusive upon all other
occurs when all case, the Court departments of the government; the Ombudsman has no
three conditions finds that power to review the decisions of the SC by entertaining a
of the establishment complaint against the Justices of the SC for knowingly
compelling State concerns prevail rendering an unjust decision. (In re: Laureta, G.R. No. L-
interest test are over potential 68635, May 14, 1987)
met. accommodation ---
---
interests.
Q: May the RTC or any court prohibit a committee of
the Senate like the Blue Ribbon Committee from
NOTE: The purpose of accommodations is to remove a
requiring a person to appear before it when it is
burden on, or facilitate the exercise of, a person’s or conducting investigation in aid of legislation?
institution’s religions.
A: NO. The RTC or any court may not do so because that
SEPARATION OF POWERS
would be violative of the principle of separation of
powers. The principle essentially means that legislation
Doctrine of Separation of Powers (2003, 2009, 2010 belongs to Congress, execution to the Executive and
Bar) settlement of legal controversies to the Judiciary. Each is
prevented from invading the domain of the others.
Legislation belongs to the Congress, implementation to (Senate Blue Ribbon Committee v. Majaducon, G.R. No.
the executive, and settlement of legal controversies and 136760, July 29, 2003)
adjudication of rights to the judiciary. Each is therefore ---
prevented from invading the domain of the others. ---
Q: The Panel of Prosecutors issued a joint resolution
Purposes of Separation of Powers based on the affidavits of Kenny Dalandag, charging
several individuals with multiple murder in relation
1. Secure action; to the Maguindanao massacre. Kenny Dalandag was
2. Forestall over-action;
3. Prevent despotism; and
4. Obtain efficiency.

NOTE: To prevent the concentration of authority in one

person or group of persons that might lead to
 UNIVERSITY OF SANTO TOMAS
15
FACULTY OF CIVIL LAW
 POLITICAL LAW

then admitted to the Witness Protection Program of Philippine Truth Commission, G.R. No. 192935, 7
the DOJ. Petitioner Andal Ampatuan, Jr., one of the December 2010, Bersamin, J. separate opinion)
principal suspects, wrote to respondent Secretary of ---
Justice De Lima and Asst. Chief State Prosecutor
Fadullon, requesting that Dalandag be included in Principle of Blending of Powers
the information for murder considering he already
confessed his participation in the massacre. Refers to an instance when powers are not confined
Respondent refused. Petitioner Ampatuan then filed exclusively within one department but are assigned to or
a petition for mandamus. May the respondents be shared by several departments.
compelled by the writ of mandamus to charge
Dalandag as an accused for multiple murder in Examples of the Blending of Powers
relation to the Maguindanao massacre even if he is
under the Witness Protection Program? a. Power of appointment which can be exercised by
each department and be rightfully exercised by each
A: NO. Consistent with the principle of separation of powers department over its own administrative personnel;
enshrined in the Constitution, the Court deems it a sound b. General Appropriations Law – President prepares the
judicial policy not to interfere in the conduct of preliminary budget which serves as the basis of the bill adopted by
investigations, and to allow the Executive Department, through Congress;
the Department of Justice, exclusively to determine what c. Amnesty granted by the President requires the
constitutes sufficient evidence to establish probable cause for concurrence of the majority of all the members of the
the prosecution of supposed offenders. By way of exception, Congress; and
however, judicial review may be allowed where it is clearly d. Power of the COMELEC to deputize law-enforcement
established that the public prosecutor committed grave abuse agencies and instrumentalities of the government for the
of discretion, that is, when he has exercised his discretion “in an purpose of ensuring free, orderly, honest, peaceful and
arbitrary, capricious, whimsical or despotic manner by reason credible elections in accordance with the power granted to it
of passion or personal hostility, patent and gross enough as to by the Constitution to enforce and administer all laws and
amount to an evasion of a positive duty or virtual refusal to regulations relative the conduct of elections. [Art. IX-C, Sec.
perform a duty enjoined by law.” 2(1)] (Concurring and Dissenting Opinion of Justice Puno,
Macalintal v. COMELEC, G.R. No. 157013, July 10, 2003)
Kenny Dalandag who admitted his participation in the
commission of the Maguindanao massacre was no ---
hindrance to his admission into the Witness Protection Q: A provision in the 2014 General Appropriations Act
Program as a state witness, for all that was necessary (GAA) granted the legislators lump-sum allocations and
was for him to appear not the most guilty. Accordingly, gave them post-enactment measures, such as project
he could not anymore be charged for his participation in identification, execution and operation aspects of the
the Maguindanao massacre, as to which his admission identified projects. Is such provision violative of the
operated as an acquittal, unless he later on refuses or principle of separation of powers?
fails to testify in accordance with the sworn statement
that became the basis for his discharge against those A: YES. There is a violation of the principle when there is
now charged for the crimes. (Ampatuan, Jr., v. De Lima, impermissible (a) interference with and/or (b) assumption
G.R. No. 197291, April 3, 2013) of another department's functions.
---
--- These post-enactment measures, which govern the areas
Q: Pres. Benigno Aquino III signed E.O. No. 1 establishing of project identification, fund release and fund
the Philippine Truth Commission, a special body to realignment are not related to functions of congressional
investigate reported cases of graft and corruption allegedly oversight and, hence, allow legislators to intervene
committed during the Arroyo administration. Is E.O. No. 1 and/or assume duties that properly belong to the sphere
constitutional? of budget execution. Legislators have been, in one form
or another, authorized to participate in "the various
A: NO. The President has no power to create a public office, It is operational aspects of budgeting” in violation of the
not shared by Congress with the President, until and unless separation of powers principle.
Congress enacts legislation that delegates a part of the power to
the President, or any other officer or agency. It is already settled From the moment the law becomes effective, any
that the provision of law that empowers Congress or any of its
President’s power of control can only mean the power of members to play any role in the implementation or
an officer to alter, modify, or set aside what a enforcement of the law violates the principle of
subordinate officer had done in the performance of his separation of powers and is thus unconstitutional. Any
duties, and to substitute the judgment of the former for post-enactment congressional measure should be limited
that of the latter. As such, the creation by the President of to scrutiny and investigation. Any action or step beyond
a public office like the Truth Commission, without either that will undermine the separation of powers
a provision of the Constitution or a proper law enacted
by Congress authorizing such creation, is not an act that
the power of control includes. (Biraogo V. The

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 GENERAL CONSIDERATIONS – CHECKS AND BALANCES, DELEGATION OF POWERS

guaranteed by the Constitution. (Belgica v. Ochoa, G.R. in a manner that would give effect to their letter and
No. 208566, Nov. 19, 2013) spirit, especially when the law is clear as to its intent and
--- purpose. Succinctly put, the Court should shy away from
--- encroaching upon the primary function of a co-equal
Q: Amog was elected Congressman. Before the end of branch of the Government; otherwise, this would lead to
her first year in office, she inflicted physical injuries an inexcusable breach of the doctrine of separation of
on a colleague, Camille Gonzales, in the course of a powers by means of judicial legislation. (Corpuz v. People,
heated debate. Charges were filed in court against G.R. No. 180016, April 29, 2014)
her as well as in the House Ethics Committee. Later, ---
the HoR, dividing along party lines, voted to expel
her. Claiming that her expulsion was railroaded and CHECKS AND BALANCES
tainted by bribery, she filed a petition seeking a
declaration by the SC that the House gravely abused Principle of Checks and Balances
its discretion and violated the Constitution. She
prayed that her expulsion be annulled and that she Allows one department to resist encroachments upon its
should be restored by the Speaker to her position as prerogatives or to rectify mistakes or excesses
Congressman. Is Avi Amog’s petition before the committed by the other departments.
Supreme Court justiciable?
Executive check on the other two branches
A: NO. The petition is not justiciable because as stated in

Alejandrino v. Quezon, et al. (46 Phil. 83), the Supreme EXECUTIVE CHECK

Court held that it could not compel the Senate to

Legislative Judiciary
reinstate a Senator who assaulted another Senator and
- Through its power of pardon, it
was suspended for disorderly behavior, because it could
may set aside the judgment of
not compel a separate and co-equal department to take Through its
the judiciary.
any particular action. In Osmeña v. Pendatun (109 Phil. veto power
- Also by power of appointment
863), it was held that the Supreme Court could not
– power to appoint members of
interfere with the suspension of a Congressman for
the Judiciary.
disorderly behavior, because the House of
Representatives is the judge of what constitutes
Legislative check on the other two branches
disorderly behavior. The assault of a fellow Senator
constitutes disorderly behavior. However, under Sec. 1,
Art. VIII of the 1987 Constitution, the Supreme Court LEGISLATIVE CHECK
may inquire whether or not the decision to expel Executive Judiciary
AviAmog is tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction. Revoke or amend the
--- decisions by either:
--- - Enacting a new law
Override the veto of the
Q: Paul Martin was convicted of estafa. When his case - Amending the old law,
President
reached the Supreme Court, some Justices proposed giving it certain
to alter the penalties provided for under RPC on the definition and
basis of the ratio of P1.00 to P100.00, believing that interpretation different
it is not fair to apply the range of penalties, which from the old.
was based on the value of money in 1932, to crimes Impeachment of SC
Reject certain
committed at present. However, other justices members
appointments made by
opposed the said proposal for it amounts to judicial
the president
legislation. Is the opposition correct?
A: YES. The opposition is correct because the Court Define, prescribe, apportion
Revoke the
cannot modify the said range of penalties because that jurisdiction of lower courts:
proclamation of martial
would constitute judicial legislation. What the - Prescribe the
law or suspension of
legislature's perceived failure in amending the penalties qualifications of lower
the privilege of the writ
provided for in the said crimes cannot be remedied court judges
of habeas corpus
through this Court's decisions, as that would be - Impeachment
encroaching upon the power of another branch of the - Determination of
government. salaries of judges.
Impeachment

Verily, the primordial duty of the Court is merely to

Determine the salaries
apply the law in such a way that it shall not usurp
of the president or vice
legislative powers by judicial legislation and that in the
course of such application or construction, it should not president

make or supervise legislation, or under the guise of

interpretation, modify, revise, amend, distort, remodel,
or rewrite the law, or give the law a construction which
is repugnant to its terms. The Court should apply the law

UNIVERSITY OF SANTO TOMAS

17
FACULTY OF CIVIL LAW
 POLITICAL LAW

Resolution No. 35 is a part of the Court’s exercise of its

Judicial check on the other two branches discretionary authority to determine the manner the
granted retirement privileges and benefits can be availed
It may declare (through the SC as the final arbiter) the of. (Re: COA Opinion on computation of the Appraised
acts of both the legislature and executive as Value of the Properties purchased by retired
unconstitutional or invalid so long as there is grave Chief/Associate Justices of the Supreme Court, A.M. No. 11-
7-10-SC, July 31, 2012)
Test to determine whether a given power has been ---
validly exercised by a particular department:
DELEGATION OF POWERS
G.R.: Whether the power has been constitutionally
conferred upon the department claiming its exercise. Non-delegation of power

XPN: Doctrine of Necessary Implication (2010 Bar) GR: A delegated power cannot be re-delegated.
Exercise of the power may be justified in the absence of
an express conferment, because the grant of express NOTE: Delegated power constitutes not only a right but
power carried with it all other powers that may be a duty to be performed by the delegate through the
reasonably inferred from it. instrumentality of his own judgment and not through the
intervening mind of another.
---
Q: An appropriations law granting the legislators lump- XPNs: Permissible delegations: (PETAL)
sum funds in which they have full discretion on what 1. Delegation to the People through initiative and
project it would fund and how much the project would cost, referendum. (1987 Constitution, Art. VI, Sec. 1)
was passed. Is such law unconstitutional? 2. Emergency powers delegated by Congress to the
President. [1987 Constitution, Art. VI, Sec. 23(2)]
A: NO. The appropriations merely provide for a singular lump-
sum amount to be tapped as a source of funding for multiple Requisites:
purposes. It necessitates further determination of both the a. There must be war or other national emergency;
actual amount to be expended and the actual purpose which b. The delegation is for a limited period only;
must still be chosen from the multiple purposes stated in the c. Delegation is subject to restrictions as Congress
law, such appropriation law does not indicate a "specific may prescribe; and
appropriation of money" and hence, without a proper line-item d. Emergency powers must be exercised to carry a
which the President may veto. national policy declared by Congress.
3. Congress may delegate Tariff powers to the President
This setup connotes that the appropriation law leaves [1987 Constituion, Art. VI, Sec. 28 (2)]
the actual amounts and purposes of the appropriation
for further determination and, therefore, does not NOTE: The Tariff and Customs Code is the enabling law
readily indicate a discernible item which may be subject that grants such powers to the President. Power to
to the President’s power of item veto. impose tariffs in the first place is not inherent in the
President but arises only from congressional grant.
Also, the fact that individual legislators are given post-
enactment roles in the implementation of the budget 4. Delegation to Administrative bodies– Also known as the
makes it difficult for them to become disinterested power of subordinate legislation/ quasi-legislative
"observers" when scrutinizing, investigating or powers.
monitoring the implementation of the appropriation law.
To a certain extent, the conduct of oversight would be NOTE: Congress can only delegate rule-making power to
tainted as said legislators, who are vested with post- administrative agencies. It is the authority vested by
enactment authority, would, in effect, be checking on Congress to the administrative bodies to “fill in the
activities in which they themselves participate. (Belgica details” which Congress cannot provide due to lack of
v. Ochoa, G.R. No. 208566, Nov. 19, 2013) opportunity or competence. This includes the making of
--- supplementary rules and regulations. They have the
--- force and effect of law.
Q: Can the Commission on Audit (COA) interfere with the
manner of availing retirement privilege of Judiciary? 5. Delegation to Local Governments – the grant of
authority to prescribe local regulations.
A: NO. Any kind of interference on how retirement privileges Tests to determine whether the delegation of
and benefits are exercised and availed of not only violates the legislative power is valid (2005, 2016 Bar)
fiscal autonomy and independence of the Judiciary, but also
encroaches upon the constitutional duty and privilege of the a. Completeness Test – The law must be complete in all
Chief Justice and the Supreme Court En Banc to manage the essential terms and conditions when it leaves the legislature
Judiciary’s own affairs. The use of the formula provided in so that there will be nothing left
Constitutional Fiscal Autonomy Group (CFAG) Joint

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 GENERAL CONSIDERATIONS – FORMS OF GOVERNMENT

for the delegate to do when it reaches him except ---

to enforce it. Q: Rosalie Jaype-Garcia filed a petition before the RTC
b. Sufficient Standard Test – fixes a standard, the of Bacolod City for the issuance of a Temporary
limits of which are sufficiently determinate or at least Protection Order against her husband, Jesus Garcia,
determinable to which the delegate must conform in the pursuant to RA 9262. She claimed to be a victim of
performance of his functions. (Defensor-Santiago v. physical abuse and emotional, psychological, and
COMELEC, G.R. No. 127325, March 19, 1997) economic violence. During the pendency of the civil
case, Jesus Garcia filed a petition before the SC, alleging
NOTE: The Sufficient Standard Test maps out the that RA 9262 is unconstitutional because of undue
boundaries of the delegate’s authority and indicating the delegation of judicial power to barangay officials by
circumstances under which it is to be pursued and allowing them to issue a Barangay Protection Order. Is
effected. Its purpose is to prevent total transference of RA 9262 unconstitutional for undue delegation of
legislative power. judicial power to barangay officials?

Invalid delegation of legislative power A: NO. There is no undue delegation of judicial power to
barangay officials with respect to the authority to issue
If there are gaps that will prevent its enforcement, the BPO. The BPO issued by the Punong Barangay or, in his
delegate is given the opportunity to step into the shoes of unavailability, by any available Barangay Kagawad, merely
the legislature and exercise discretion in order to repair orders the perpetrator to desist from (a) causing physical
the omissions. harm to the woman or her child; and (b) threatening to
cause the woman or her child physical harm. Such function
NOTE: This is tantamount to an abdication of power in of the Punong Barangay is, thus, purely executive in nature,
favor of the delegate, which is in violation of the doctrine in pursuance of his duty under the Local Government Code
of separation of powers. to "enforce all laws and ordinances," and to "maintain
public order in the barangay." (Garcia v. Drilon, G.R. No.
--- 179267, June 25, 2013)
Q: A law, which delegated some appropriation ---
powers to the President, was passed. The law contains
provisions such as “and for such other President’s authority to declare a state of national
purposes as may be hereafter directed by emergency vs. President’s authority to exercise
the President” and “to finance the emergency powers
priority infrastructure development projects and to
finance the restoration of damaged or destroyed EXERCIS
facilities due to calamities, as may be directed and DECLARE A E
authorized by the Office of the President of the
STATE OF EMERGENCY POWERS
Philippines.” Are the provisions valid?

A: NO. These provisions constitute an undue delegation BASIS

of legislative power insofar as it does not lay down a NATIONAL
sufficient standard to adequately determine the limits of the EMERGENCY
President’s authority with respect to the purpose for which
the law may be used (sufficient standard test). It gives the Granted by the Requires a
President wide latitude to use the funds for any other Constitution, no delegation from
purpose he may direct and, thus, allows him to unilaterally legitimate Congress. (David v.
appropriate public funds beyond the purview of the law. Source of objection can GMA G.R. No.
Ma
The law does not supply a definition of “priority Authority be raised. 171396, y 3,
infrastructure development projects” and hence, leaves 2006)
the President without any guideline to construe the
same. Thus, the phrase “to finance the priority NOTE: Not
infrastructure development projects”, being too broad, mandatory on
must be stricken down as unconstitutional since it lies Congress.
independently unfettered by any sufficient standard of
the delegating law. (Belgica v. Ochoa, G.R. No. 208566,
Nov. 19, 2013)
---

NOTE: Having established that the BSP Monetary Board

is indeed a quasi-judicial body exercising quasi-judicial
functions, then its decision in MB Resolution No. 1139
cannot be the proper subject of declaratory relief. (MB v.
Philippine Veterans Bank, G. R. No. 189571, Jan. 21, 2015)
 UNIVERSITY OF SANTO TOMAS
19
FACULTY OF CIVIL LAW
 POLITICAL LAW

FORMS OF GOVERNMENT EDSA 1 vs. EDSA 2

Classifications of government BASIS EDSA 1 EDSA 2

1. As to the centralization of control

Exercise of the Exercise of the
a. Unitary government – One in which the control of
national and local, internal and external, affairs is exercised by people power people power of
the central or national government; of revolution freedom of speech
b. Federal government – One in which the powers of the which and freedom of
government are divided between two sets of organs, one for overthrew the assembly to
national affairs and the other for local affairs, each organ being
supreme within its own sphere; consists of autonomous local whole petition the
government units merged into a single State, with the national
Nature
government exercising a limited degree of power over the
domestic affairs but generally full discretion of the external government. government for
affairs of the State.
2. As to the existence or absence of title and/or control redress of
a. De jure – Has a rightful title but no power or control, grievances which
One that is established of a legitimate sovereign. only affected the
b. De facto – Actually exercises power or control but office of the
without legal title (Lawyers League for a Better Philippines v.
President.
Aquino, G.R. No. 73748, May 22, 1986).

Kinds of de facto government

Extra- Intra-
i. De facto proper – Government that gets constitutio constitutional.
possession and control of, or usurps, by force or by the voice of nal.
the majority, the rightful legal government and maintains itself Resignation of
against the will of the latter; Legitimacy of sitting President
ii. Government of paramount force – Established
Constitu-
and maintained by military forces who invade and occupy a
territory of the enemy in the course of war; and the new that it caused and
iii. Independent government – Established by the tionality
inhabitants of the country who rise in insurrection against the government succession of the
parent State (Co Kim Cham v. Valdez Tan Keh, G.R. No. L- 5, Sept.
17, 1945) that resulted VP are subject to
cannot be the judicial review.
subject of
judicial review.

As to political legal question

issue(s) question
raised

Cory The oath that

Aquino Arroyo took
governme at the EDSA
nt was Shrine is the
installed oath under
through a the 1987
direct Constitution.
exercise of In her oath,

the power she

UNIVERSITY OF SANTO TOMAS Source of of the categorically
2017 GOLDEN NOTES Authority Filipino swore to
people “in preserve and
defiance defend the
of the 1987
provisions Constitution.
of the
1973
Constituti
on, as
 amended.”

Revolutio Not
As to
nary in revolutionary
character
character. in character.

(Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001)

 LEGISLATIVE DEPARTMENT

government is the power to dissolve the legislature

Constitutional provisions which guarantee People and call for new elections.
Power
Functions of the Government
1. Guarantees the right of the people to peaceably
assemble and petition the government for redress of 1. Constituent – Mandatory for the government to
grievances. (1987 Constitution, Art. III, Sec. 4) perform because they constitute the very bonds of
2. Requires Congress to pass a law allowing the society.
people to directly propose and enact laws through initiative 2. Ministrant – Intended to promote the welfare,
and to approve or reject any act or law or part of it passed by progress and prosperity of the people.
Congress or a local legislative body. (1987 Constitution, Art.
VI, Sec. 32) NOTE: Distinction of function is no longer relevant
a) Provides that the right of the people and because the Constitution obligates the State to promote
their organizations to participate at all levels of social, social justice and has repudiated the laissez faire policy.
political, and economic decision-making shall not be (ACCFA v. Federation of Labor Unions, G.R. No. L-21484,
abridged and that the State shall, by law, facilitate the Nov. 29, 1969)
establishment of adequate consultation mechanisms. (1987
Constitution, Art. XIII, Sec. 16)
b) Provides that subject to the enactment of
an implementing law, the people may directly propose
amendments to the Constitution through initiative. (1987
Constitution, Art. XVII, Sec. 2) LEGISLATIVE DEPARTMENT
Parliamentary government – There is fusion of both
executive and legislative powers in Parliament, although
the actual exercise of the executive powers is vested in a WHO MAY EXERCISE LEGISLATIVE POWER
Prime Minister who is chosen by, and accountable to the
Parliament. The following may exercise legislative power

Essential characteristics of a parliamentary form of 1. Congress

government 2. Regional/Local Government Units
3. The People through initiative and referendum.
(2002 Bar)
c) The members of the governm
3. As to the concentration of powers in a government Limitations on the legislative power of Congress
branch
a. Presidential government– There is separation of 1. Substantive: limitations on the content of laws.
executive and legislative powers 2. Procedural: limitations on the manner of passing
laws.
NOTE: The principal identifying feature of a 3. Congress cannot pass irrepealable laws.
presidential form of government is the 4. Congress, as a general rule, cannot delegate its
separation of powers doctrine. In presidential legislative power.
system, the President is both the head of State
and the head of government. XPN: See Delegation of Legislative Powers.
2. ent or cabinet or the executive arm are, as a rule,
simultaneously members of the legislature; ---
3. The government or cabinet consisting of the Q: Is the supermajority vote requirement under RA
political leaders of the majority party or of a coalition who 9054, the second Organic Act of ARMM which reset
are also members of the legislature, is in effect a committee the regular elections for the ARMM regional officials
of the legislature; to the second Monday of September 2001
4. The government or cabinet has a pyramidal unconstitutional by giving it a character of an
structure at the apex of which is the Prime Minister or his irrepealable law?
equivalent;
5. The government or cabinet remains in power only A: YES. The supermajority (2/3) voting requirement
for so long as it enjoys the support of the majority of the required under Sec. 1, Art. XVII of RA 9054 (second
legislature; and Organic Act of ARMM) has to be struck down for giving
6. Both the government and the legislature are said law the character of an irrepealable law by requiring
possessed of control devices which each can demand of the more than what the Constitution demands.
other immediate political responsibility. In the hands of the
legislature is the vote of non-confidence (censure) whereby Sec. 16(2), Art. VI of the Constitution provides that a
government may be ousted. In the hands of the “majority of each House shall constitute a quorum to do
business.” In other words, as long as majority of the
members of the House of Representatives or the Senate
are present, these bodies have the quorum needed to
conduct business and hold session. Within a quorum, a

UNIVERSITY OF SANTO TOMAS

21
FACULTY OF CIVIL LAW
 POLITICAL LAW
2017 GOLDEN NOTES
vote of majority is generally sufficient to enact laws or
approve acts.

In contrast, Sec. 1, Art. XVII of RA 9054 requires a vote of

no less than 2/3 of the Members of the House of
Representatives and of the Senate, voting separately, in
order to effectively amend RA 9054. Clearly, this
requirement is higher than what the Constitution
requires for the passage of bills, and served to restrain
the plenary powers of Congress to amend, revise or
repeal the laws it had passed.

While a supermajority is not a total ban against repeal, it

is a limitation in excess of what the Constitution requires
on the passage of bills and is constitutionally obnoxious
because it significantly constricts the future legislators’
room for action and flexibility. (Abas Kida v. Senate, G.R.
No. 196271, Oct. 18, 2011)
---

NOTE: Every legislative body may modify or abolish the

acts passed by itself or its predecessors. This legislature
cannot bind a future legislature to a particular mode of
repeal. It cannot declare in advance the intent of
subsequent legislatures or the effect of subsequent
legislation upon existing statutes. (Abas Kida v. Senate,
ibid.)

Classes of legislative power

1. Original: Possessed by the people in their sovereign

capacity i.e. initiative and referendum.
2. Delegated: Possessed by Congress and other
legislative bodies by virtue of the Constitution.
3. Constituent: The power to amend or revise the
Constitution.
4. Ordinary: The power to pass ordinary laws.

HOUSES OF CONGRESS

Composition of Congress

The Philippine Congress is bicameral in nature,

composed of:
1. Senate
2. House of Representatives
a. District representatives
b. Party-list representatives

Composition, qualifications, and term of office of

members of Congress

HOUSE OF
SENATE
REPRESENTATIVES
Composition

Senators (elected at Not more than 250

large by qualified members, unless otherwise
voters of the provided by law
Philippines as may be NOTE: Congress itself may
provided by law) by law increase the
composition of the HoR

Qualifications

UNIVERSITY OF SANTO TOMAS

 plenary pardon o granted amnesty (BP 881, Sec. 12).
(1993, 1999 Bar)
1. Natural-born citizen of 1. Natural-born citizen of
the Philippines; the Philippines; 22
2. At least 35 years of age 2. Except youth party-list
on the day of election; representatives,
3. Able to read and write; least 25 years of age
4. A registered voter; on the day of election;
5. Resident of the 3. Able to read and write;
Philippines for not less 4. Except the party-list
than 2 years representatives,
immediately preceding registered voter in the
the day of election. district in which he
shall be elected;
NOTE: Enumeration is 5. Resident thereof for a
exclusive period of not less than
1 year immediately
preceding the day
the election.

NOTE: Enumeration
exclusive.

Term of office
(2001 Bar)

6 years which shall 3 years, which shall begin,

commence, unless unless otherwise provided
otherwise provided by law, by law, at noon on the 30
at noon on the 30th day of day of June next following
June next following their their election.
election.
Term limit: Not more than
Term limit: Not more than 2 consecutive terms.
consecutive terms.

Disqualifications of members of Congress

SENATE HOUSE OF
REPRESENTATIVES
No Senator shall serve for
more than two (2) all not serve for more than
consecutive terms. three (3) consecutive
Voluntary renunciation of terms. Voluntary
the office for any length of renunciation of the office
time shall not be for any length of time shall
considered as an not be considered as an
interruption in the interruption in
continuity of his service continuity of his service for
for the full term for which the full term for which he
he was elected (Art. VI, was elected (Art. VI, Sec. 7).
(2001 Bar)
Sec. 4).

One who has been declared by competent authority

as insane or incompetent

One who has been sentenced by final judgment for:

(SIR-18-M)
a. Subversion;
b. Insurrection;
c. Rebellion;
d. Any offense for which he has been sentenced to a
penalty of not more than 18 months; or
e. A crime involving Moral turpitude, unless given
 LEGISLATIVE DEPARTMENT
by another qualified person
in the party or organization
Expulsion of members of Congress

MEMBERS OF THE HOUSE

SENATORS
OF REPRESENTATIVES
Expulsion by the Senate
with the concurrence of xpulsion by the House with
the concurrence of 2/3 of
2/3 of all its members
all its members (1987
(1987 Constitution, Art.
Constitution, Art. VI, Sec.
VI, Sec. 16, par. 3).
16, par. 3).

NOTE: The Congress cannot validly amend or otherwise

modify these qualification standards, as it cannot
disregard, evade, or weaken the force of a constitutional
mandate, or alter or enlarge the Constitution. (Social
Justice Society v. DDB and PDEA, G.R Nos. 157870, 158633,
161658, Nov. 3, 2008)

Rule on voluntary renunciation of office

Voluntary renunciation of office for any length of time

shall not be considered as an interruption in the
continuity of his service for the full term for which he
was elected. (1987 Constitution, Art. VI, Secs. 4 and 7)

Composition of the HoR (2002, 2007 Bar)

DISTRICT PARTY-LIST
REPRESENTATIVE REPRESENTATIVE

As to who will vote

Elected by the Elected nationally (those

constituents of his garnering at least 2% of all
respective district. votes cast for the party-list
system are entitled to 1 seat,
which is increased
according to proportional
representation, but is in no
way to exceed 3 seats per
organization.)

Residency requirement

Must be a resident of his No special residency

legislative district for at requirement.
least 1 year immediately
before the election.

Name in the ballot

Elected personally, by Voted upon by party or

name. organization.

Effect of change in party affiliation

Does not lose seat Loses his seat, in which

case he will be substituted
 prevent a district party-list representative
representative from from listing as
based on the list submitted running under his new representative under his
to the COMELEC. party. new party or organization.

DISTRICT REPRESENTATIVES AND QUESTIONS OF

As to vacancy APPORTIONMENT

District representatives
A special election may be A substitution will be made
held provided that the within the party, based on Those who are elected from legislative districts
vacancy takes place at the list submitted to the apportioned among the provinces, cities and the
least 1 year before the COMELEC. Metropolitan Manila area.
next election.
Apportionment of legislative districts
Effect of defeat in the election
Legislative districts are apportioned among the
provinces, cities, and the Metropolitan Manila area. They
A district representative A party-list representative are apportioned in accordance with the number of their
is not prevented from cannot sit if he ran and lost respect inhabitants and on the basis of a uniform and
running again as a in the previous election. progressive ratio. (1987 Constitution, Art. VI, Sec. 5)
district representative if
he lost in the previous Each city with a population of at least 250,000 shall have
election. at least one representative. Each province shall have at
least one representative.

Effect of change in party affiliation to the While Sec. 5(3) of Art. VI requires a city to have a
upcoming elections minimum population of 250,000 to be entitled to one
representative; it does not have to increase its
population by another 250,000 to be entitled to an
A change in affiliation A change in affiliation additional district. (Senator Aquino III v. COMELEC, G.R.
within months prior to within 6 months prior to No. 189793, April 7, 2010)
election does not election prohibits the

UNIVERSITY OF SANTO TOMAS

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FACULTY OF CIVIL LAW
 POLITICAL LAW

a highly-urbanized city automatically creates a new

NOTE: When one of the municipalities of a congressional legislative district and, consequently, increases the
district is converted to a city large enough to entitle it to membership of the HoR. (Mariano, Jr. v. COMELEC, G.R. No.
one legislative district, the incidental effect is the 118577, March 7, 1995)
splitting of district into two. The incidental arising of a
new district in this manner need not be preceded by a NOTE: The Constitution does not require a plebiscite for
census. (Tobias v. Abalos, G.R. No. L-114783, Dec. 8, 1994) the creation of a new legislative district by a legislative
reapportionment. It is required only for the creation of
Essence of apportionment new local government units. (Bagabuyo v. COMELEC,
2008) (2015 Bar)
The underlying principle behind the rule for
apportionment is the concept of equality of Gerrymandering (2014 Bar)
representation, which is a basic principle of
republicanism. One man’s vote should carry as much Formation of one legislative district out of separate
weight as the vote of every other man. territories for the purpose of favoring a candidate or a
party. It is not allowed because the Constitution provides
NOTE: The question of the validity of an apportionment that each district shall comprise, as far as practicable,
law is a justiciable question. (Macia v. Comelec, G.R. No. L- contiguous, compact and adjacent territory.
18684, Sept. 14, 1961)
PARTY-LIST SYSTEM
Conditions for apportionment
Party-list system
1. Elected from legislative districts which are apportioned in
accordance with the number of inhabitants of each area and on Mechanism of proportional representation in the
the basis of a uniform and progressive ratio. election of representatives to the HoR from national,
2. Uniform– Every representative of Congress shall regional and sectoral parties or organizations or
represent a territorial unit with more or less a population of coalitions thereof registered with the COMELEC.
250,000. All the other representatives shall have the same or
nearly the same political constituency so much so that their NOTE: Party-list representatives shall constitute 20% of
votes will constitute the popular majority. the total number of representatives in the HoR including
3. Progressive – It must respond to the change in times. The those under the party list. (1987 Constitution, Art. VI, Sec.
number of House representatives must not be so big as to be 5, par. 2) (2007 Bar)
unwieldy. (Let us say, there is a growth in population. The ratio
may then be increased. From 250,000 constituents/1 Purpose of the party-list system
representative it may be reapportioned to 300, 000
constituents/1 representative) To make the marginalized and the underrepresented not
4. Each city with a population of at least 250,000 or each merely passive recipients of the State’s benevolence, but
province shall at least have one representative. active participants in the mainstream of representative
GR: There must be proportional representation democracy. (Ang Bagong Bayani v. COMELEC, G.R. No.
according to the number of their 147589, June 26, 2001)
constituents/inhabitants.
XPN: In one city-one representative/one To democratize political power by giving political parties
province-one representative rule. that cannot win in legislative district elections a chance
5. Legislative districts shall be reapportioned by Congress to win seats in the HoR. (Atong Paglaum v. COMELEC, G.R.
within 3 years after the return of each census. (Senator Aquino 203766, April 2, 2013)
III v. COMELEC, G.R. No. 189793, April 7, 2010)
Different parties under the party-list system
Manner of reapportionment
No votes cast in favor of political party, organization or
Reapportionment may be made thru a special law. The coalition shall be valid except for those registered under
Constitution did not preclude Congress from increasing the party-list system.
its membership by passing a law, other than a general
reapportionment of the law. To hold that 1. Political party– Organized group of citizens advocating
reapportionment can only be made through a general ideology or platform, principles and policies for the general
apportionment law, with a review of all the legislative conduct of government and which, as the most immediate
districts allotted to each local government unit means of securing their adoption, regularly nominates and
nationwide, would create an inequitable situation where supports certain of its leaders and members as candidate in
a new city or province created by Congress will be public office. (Ang Bagong Bayani v. COMELEC and Bayan
denied legislative representation for an indeterminate Muna v. COMELEC, G.R. Nos. 147589 and 147613, June 26,
period of time. Thus, a law converting a municipality into 2001, June 26, 2001)
2. National party – Its constituency is spread over the
geographical territory of at least a majority of regions.
UNIVERSITY OF SANTO TOMAS
2017 GOLDEN NOTES
 LEGISLATIVE DEPARTMENT

3. Regional party – Its constituency is spread over the

geographical territory of at least a majority of the cities and NOTE: Major political parties cannot participate in the
provinces comprising the region. party-list elections since they neither lack “well-defined
4. Sectoral party – Organized group of citizens political constituencies” nor represent “marginalized and
belonging to any of the following sectors: labor, peasant, underrepresented” sectors. (Atong Paglaum v. COMELEC,
fisherfolk, urban poor, indigenous, cultural communities, ibid.)
elderly, handicapped, women, youth, veterans, overseas
workers and professionals, whose principal advocacy However, the participation of major political parties may
pertains to the special interest and concerns of their sectors. be through their sectoral wings, a majority of whose
5. Sectoral Organization – Refers to a group of members are “marginalized and underrepresented” or
citizens who share similar physical attributes or lacking in “well-defined political constituencies”. (Atong
characteristics, employment, interest or concerns. Paglaum v. COMELEC, ibid.)
6. Coalition – Refers to an aggregation of duly
registered national, regional, sectoral parties or Qualifications of party-list nominees
organizations for political and/or election purposes.
A party-list nominee must be a bona fide member of the
Composition of the party-list system party or organization which he or she seeks to represent.
In the case of sectoral parties, to be a bona fide party-list
1. National parties or organizations nominee one must either belong to the sector
2. Regional parties or organizations; and represented, or have a track record of advocacy for such
3. Sectoral parties or organizations. sector. (Atong Paglaum v. COMELEC, ibid.)

National and regional parties or organizations are Guidelines in determining who may participate in
different from sectoral parties or organizations. National the party-list elections
and regional parties or organizations need not be
organized along sectoral lines and need not represent 1. Three different groups may participate:
any particular sector. a. National;
b. Regional; and
The party-list system is not solely for the benefit of c. Sectoral parties or organizations.
sectoral parties
2. National parties or organizations and regional
Sec. 5(1), Art. VI of the Constitution is crystal-clear that parties or organizations do not need to organize along
there shall be “a party-list system of registered national, sectoral lines and do not need to
regional, and sectoral parties or organizations.” The represent any "marginalized and
commas after the words “national (,)” and “regional (,)” underrepresented" sector.
separate national and regional parties from sectoral
parties. Had the framers of the 1987 Constitution 3. All political parties must register under the party-
intended national and regional parties to be at the same list system and do not field candidates in legislative
time sectoral, they would have stated “national and district elections.
regional sectoral parties.” They did not, precisely A political party, whether major or not, that
because it was never their intention to make the party- fields candidates in legislative district elections
list system exclusively sectoral. National and regional can participate in party-list elections only
parties are separate from sectoral parties and need not through its sectoral wing that must separately
be organized along sectoral lines nor represent any register under the party-list system. The
particular sector. (Atong Paglaum v. COMELEC, G.R. No. sectoral wing is by itself an independent
203766, April 2, 2013) sectoral party; it is linked to a political party
through a coalition. (2015 Bar)
National and Regional parties need not represent the
“marginalized and underrepresented” sectors 4. Sectoral parties or organizations may either be
“marginalized and underrepresented” or
To require all national and regional parties under the lacking in “well-defined political
party-list system to represent the “marginalized and constituencies.” It is enough that their principal
underrepresented” is to deprive and exclude, by judicial advocacy pertains to the special interests and
fiat, ideology-based and cause-oriented parties from the concerns of their sector.
party-list system. To exclude them from the party-list
system is to prevent them from joining the NOTE: Those “marginalized and underrepresented”
parliamentary struggle, leaving as their only option include labor, peasant, fisherfolk, urban poor,
armed struggle. To exclude them from the party-list indigenous cultural communities, handicapped,
system is, apart from being obviously senseless, patently veterans, and overseas workers. (LUV-OF-HIP)
contrary to the clear intent and express wording of the
1987 Constitution and RA 7941. (Atong Paglaum v. Those lacking in “well-defined political
COMELEC, ibid.) constituencies” include professionals, the elderly,
women, and the youth. (PEWY)

5. A majority of the members of sectoral parties or

UNIVERSITY OF SANTO TOMAS

25
FACULTY OF CIVIL LAW
 POLITICAL LAW

organizations that represent the “marginalized and representative under his new party or organization.
underrepresented” or those representing parties (Amores v. HRET, Ibid.)
or organizations that lack “well-defined political
constituencies” must belong to the sector they Vacancy in the seat reserved for party-list
respectively represent. representatives

6. The nominees of SECTORAL parties or It shall be automatically occupied by the next

organizations that represent the “marginalized and representative from the list of nominees in the order
underrepresented” or that represent those who lack submitted by the same party to the COMELEC and such
“well-defined political constituencies,” either must representative shall serve for the unexpired term. If the
belong to their respective sectors, or must have a track list is exhausted, the party, organization, or coalition
record of advocacy for their respective sectors. concerned shall submit additional nominees.

7. The nominees of NATIONAL and REGIONAL Formula mandated by the Constitution in

parties or organizations must be bona-fide members of determining the number of party-list representatives
their respective parties or organizations.

8. National, regional, and sectoral parties or The number of seats available to party-list
organizations shall not be disqualified if some of their representatives is based on the ratio of party-list
nominees are disqualified, provided that they have at representatives to the total number of representatives.
least one nominee who remains qualified. (Ibid.) Accordingly, we compute the number of seats available
to party-list representatives from the number of
legislative districts.
Number of seats
available to party-list
representatives

NOTE: It is the parties or organizations which are voted

( )
for, not their candidates. However, it is the party-list
representatives who are seated or elected into office, not
their parties or organizations. (Abayon v. HRET, G.R. No.
189466, Feb. 11, 2010)
Qualifications of a party-list nominee Simpler formula: No. of seats available to legislative
districts DIVIDED BY 4
1. Natural- born citizen of the Philippines;
2. Registered voter; The above formula allows the corresponding increase in
3. Resident of the Philippines for at least 1 year immediately the number of seats available for party-list
preceding the day of the election; representatives whenever a legislative district is created
4. Able to read and write; by law.
5. Bona fide member of the party or organization which he
seeks to represent at least 90 days preceding election day; and After prescribing the ratio of the number of party-list
6. At least 25 years of age. (For youth sector nominees, at representatives to the total number of representatives,
least 25 years and not more than 30 years of age) the Constitution left the manner of allocating the seats
available to party-list representatives to the wisdom of
NOTE: There is absolutely nothing in RA 7941 that the legislature. (BANAT v. COMELEC, G.R. No. 179271,
prohibits COMELEC from disclosing or even publishing April 21, 2009)
through any medium other than the “Certified List” the
names of the party-list nominees. As may be noted, no Guidelines in the allocation of seats for party-list
national security or like concerns is involved in the representatives under Sec. 11 of RA 7941 (2014 Bar)
disclosure of the names of the party-list groups in
question. (Bantay RA 7941 v. COMELEC, G.R. No. 177271, 1. The parties, organizations, and coalitions shall be
G.R. No. 177314, May 4, 2007) ranked from the highest to the lowest based on the number
of votes they garnered during the elections.
Effect of the change in affiliation of any party-list 2. The parties, organizations, and coalitions receiving at
representative least 2% of the total votes cast for the party-list system shall
be entitled to one guaranteed seat each.
Any elected party-list representative who changes his 3. Those garnering sufficient number of votes, according
party-list group or sectoral affiliation during his term of to the ranking in paragraph 1, shall be entitled to additional
office shall forfeit his seat. (Amores v. HRET, G.R. No. seats in proportion to their total number of votes until all the
189600, June 29, 2010) additional seats are allocated.
4. Each party, organization, or coalition shall be entitled
NOTE: If he changes his political party or sectoral to not more than 3 seats.
affiliation within 6 months before an election, he shall
not be eligible for nomination as party-list

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 LEGISLATIVE DEPARTMENT

NOTE: In computing the additional seats, the guaranteed

seats shall no longer be included because they have Legislative Privilege
already been allocated at one seat each to every two-
percenter. Thus, the remaining available seats for Provides that no member shall be questioned or held
allocation as “additional seats” are the maximum seats liable in any forum other than his respective
reserved under the party-list system less the guaranteed Congressional body for any debate or speech in Congress
seats. Fractional seats are disregarded in the absence of a or in any committee thereof. (1987 Constitution, Art. VI,
provision in RA 7941 allowing for a rounding off of Sec. 11; Pobre v. Sen. Santiago, Aug. 25, 2009)
fractional seats. (BANAT v. COMELEC, Ibid.)
Limitations on Legislative Privilege
2% threshold as regards the allocation of additional
seats is not valid anymore 1. Protection is only against the forum other than the
Congress itself. Thus, for defamatory remarks, which are
The Court strikes down the 2% threshold only in relation otherwise privileged, a member may be sanctioned by
to the distribution of the additional seats as found in the either the Senate or the HoR, as the case may be.
2nd clause of Sec. 11(b) of RA 7941. The 2% threshold 2. The “speech or debate” must be made in
presents an unwarranted obstacle to the full performance of their duties as members of Congress.
implementation of Sec. 5(2), Art. VI of the Constitution
and prevents the attainment of the “broadest possible Requirements for the privilege of speech and debate
representation of party, sectoral or group interests in the to operate
House of Representatives” (BANAT v. COMELEC, Ibid.).
1. Remarks or comments are made while in session;
NOTE: The 2% threshold is constitutional only insofar as and
the determination of the guaranteed seat is concerned. 2. Must be made in connection with the discharge of
official duties
The Minero Ruling is erroneous
Coverage of speech or debate
The Minero Ruling provides that a party list organization
which does not participate in an election, necessarily It includes utterances made by Congressmen in the
gets, by default, less than 2% of the party-list votes. Said performance of their official functions, such as speeches
ruling is an erroneous application of Sec. 6(8) of RA 7941 delivered, statements made, or votes cast in the halls of
[Party-List System Act]. Congress, while the same is in session, as well as bills
introduced in Congress, whether the same is in session
Its basic defect lies in its characterization of the non- or not, and other acts performed by Congressmen, either
participation of a party-list organization in an election as in Congress or outside the premises housing its offices, in
similar to a failure to garner the 2% threshold party-list the official discharge of their duties as members of
vote. Congress and of Congressional Committees duly
authorized to perform its functions as such, at the time of
The Court cannot sustain PGBI’s delisting from the roster the performance of the acts in question. (Jimenez v.
of registered parties, organizations or coalitions under Cabangbang, G.R. No. L-15905, Aug. 3, 1966)
the party-list system. Clearly, the Court cannot allow
PGBI to be prejudiced by the continuing validity of an Purpose of legislative privilege
erroneous ruling. Thus, the Court now abandons Minero
and strikes it out from our ruling case law. (PGB v. To ensure the effective discharge of functions of
COMELEC, G.R. No. 190529, April 29, 2010) Congress.

LEGISLATIVE PRIVILEGES, INHIBITIONS AND NOTE: The purpose of the privilege is to ensure the
DISQUALIFICATIONS effective discharge of functions of Congress. The
privilege may be abused but it is said that such is not so
Immunity From Arrest damaging or detrimental as compared to the denial or
withdrawal of such privilege.
Grants the legislators the privilege from arrest while
Congress is “in session” with respect to offenses The senator-lawyer’s privilege speech is not actionable
punishable by NOT more than 6 years of criminally or be subject to a disciplinary proceeding
imprisonment. (1987 Constitution, Art. VI, Sec. 11), under the Rules of Court. The Court, however, would be
whether or not he is attending the session. (People v. remiss in its duty if it let the Senator’s offensive and
Jalosjos, G.R. Nos. 132875-76, Feb. 3, 2000) disrespectful language that definitely tended to degrade
the institution pass-by. It is imperative on the Court’s
Purpose of Parliamentary Immunities part to re-instill in Senator/Atty. (Santiago) her duty to
respect courts of justice, especially this Tribunal, and
It is not for the benefit of the officials; rather, it is to remind her anew that parliamentary non-accountability
protect and support the rights of the people by ensuring thus granted to members of Congress is not to protect
that their representatives are doing their jobs according them against prosecutions for their own benefit, but to
to the dictates of their conscience and to ensure the
attendance of Congressman.

UNIVERSITY OF SANTO TOMAS

27
FACULTY OF CIVIL LAW
 POLITICAL LAW
28
enable them, as the people’s representatives, to perform UNIVERSITY OF SANTO TOMAS
the functions of their office without fear of being made 2017 GOLDEN NOTES
responsible before the courts or other forums outside
the congressional hall. It is intended to protect members
of congress against government pressure and
intimidation aimed at influencing the decision-making
prerogatives of Congress and its members. (Pobre v. Sen.
Defensor-Santiago, A.C. No. 7399, Aug. 25, 2009)

Congress “in recess”

If the recess was called for in between a regular or

special session, the Congress is still considered in
session. But if the recess was the 30-day compulsory
recess, Congress is not in session. (1987 Constitution,
Art. VI, Sec. 15)

Prohibitions attached to a legislator during his term

INCOMPATIBLE OFFICE FORBIDDEN OFFICE

1st sentence of Sec. 13, 2nd sentence of

Art.VI Sec. 13, Art.
VI

Senator or any member of HoR

May not hold any other Cannot be appointed to any

office or employment in office which have been
the Government, during created, or the emoluments
his term without thereof increased during the
forfeiting his seat term for which he was
elected

NOTE: After such term, and

even if he is re-elected, the
disqualification no longer
applies and he may
therefore be appointed to
the office

Automatically forfeits seat Even if he is willing to forfeit

upon the member’s his seat, he may not be
assumption of such other appointed to said office
office
Purpose: to prevent
XPN: holds other office in trafficking in public office.
ex-officio capacity

More of an inhibition More of a prohibition

Rule on increase in salaries of members of Congress

Increase in the salaries shall take effect after the

expiration of the full term of all the members of the
Senate and the House of Representatives approving such
increase. (1987 Constitution, Art. VI, Sec. 10)

Particular inhibitions attached to the respective

 offices of Senators and Representatives

1. From “personally” appearing as counsel before any

court of justice or before the Electoral Tribunals, or quasi-
judicial or other administrative bodies (1987 Constitution, Art.
VI, Sec. 14). (2004 Bar)
2. Upon assumption of office, all members of the Senate
and HoR must make a full disclosure of their financial and
business interests. They shall notify the House concerned of a
potential conflict in interest that may arise from the filing of a
proposed legislation of which they are authors (1987
Constitution, Art. VI, Sec. 12). (2004, 2010
Bar)

Disqualifications attached to Senators and

Representatives and their applications

DISQUALIFICATION WHEN APPLICABLE

Incompatible Office
During his term

If he does so, he forfeits his

seat. (1987 Constitution, Art.
VI, Sec. 13)
Forbidden Office If the office was created or
the emoluments thereof
increased during the term
for which he was elected.
(1987 Constitution, Art. VI,
Sec. 13)
Cannot personally appear During his term of office.
as counsel before any (1987 Constitution, Art. VI,
court of justice, electoral Sec. 14)
tribunal, quasi-judicial
and administrative
bodies. (2004 Bar)
Cannot be financially During his term of office.
interested, directly or (1987 Constitution, Art. VI,
indirectly, in any contract Sec. 14)
with or in any franchise,
or special privilege
granted by the
Government. (2004 Bar)
Cannot intervene in any When it is for his pecuniary
matter before any office benefit or where he may be
of the Gov’t. (2004 Bar) called upon to act on
account of his office. (1987
Constitution, Art. VI, Sec. 14)

QUORUM AND VOTING MAJORITIES

Quorum

Such number which enables a body to transact its business

and gives such body the power to pass a law or ordinance
or any valid act that is binding.

NOTE: In computing quorum, members who are outside

the country and, thus, outside of each House’s jurisdiction
are not included. The basis for determining the existence
of a quorum in the Senate shall be the total number of
Senators who are within the coercive
 LEGISLATIVE DEPARTMENT

jurisdiction of the Senate. (Avelino v. Cuenco, G.R. No. L- Constitution, Art. VI , Sec.
2821, March 4, 1949) 16, Par. 1)

Effect if there is no quorum

Each House may adjourn from day to day and may

compel the attendance of absent members in such
manner and under such penalties as each House may
provide.

NOTE: The members of the Congress cannot compel

absent members to attend sessions if the reason of
absence is a legitimate one. The confinement of a
Congressman charged with a non-bailable offense is
certainly authorized by law and has constitutional
foundations. (People v. Jalosjos, G.R. No. 132875-76, Feb.
3, 2000)

Instances when the Constitution requires that the

yeas and nays of the Members be taken every time a
House has to vote

1. Upon the last and third readings of a bill (1987

Constitution, Art. VI, Sec. 26, par. 2);
2. At the request of 1/5 of the members present (1987
Constitution, Art. VI, Sec. 16, par. 4); and
3. In repassing a bill over the veto of the President.
(1987 Constitution, Art. VI, Sec. 27, par. 1)

Instances when Congress is voting separately and

voting jointly

SEPARATE JOINT
 Choosing the President  When revoking or
in case of a tie (1987 extending the
Constitution, Art. VII, Sec. proclamation
4) suspending the
 Determining President’s privilege of writ of
inability to discharge the habeas corpus (1987
powers and duties of his Constitution, Art. VII,
office (1987 Constitution, Sec. 18)
Art. VII, Sec. 11)  When revoking or
 Confirming nomination extending the
of Vice-President (1987 declaration of martial
Constitution, Art. VII, Sec. law. (1987
9) Constitution, Art. VII,
 Declaring the existence Sec. 18)
of a state of war in joint
session (1987
Constitution, Art. VI, Sec.
23, Par. 1)
 Proposing Constitutional
amendments. (1987
Constitution, Art. XVII,
Sec. 1)

Instances when Congress votes by majority

INSTANCES WHEN NUMBER OF VOTES

CONGRESS VOTES REQUIRED
Elect the Senate
Majority vote of all its
President or House of respective members (1987
Representatives Speaker
 Non-intervention of courts in the implementation of
Commission on Majority vote of all the the internal rules of Congress
Appointments ruling members (1987
Constitution, Art. VI, Sec. As part of their inherent power, Congress can determine
their own rules. Hence, the courts cannot intervene in
18)
the implementation of these rules insofar as they affect
Passing a law granting Majority of all the the members of Congress. (Osmeña v. Pendatun G.R. No L-
any tax exemption members of Congress 17144, Oct. 28, 1960)
(1987 Constitution, Art. VI ,
Sec. 28, Par. 4) Elected officers of Congress

Instances when Congress votes other than majority 1. Senate President

2. Speaker of the House
3. Such officers as deemed by each house to be
necessary
INSTANCES WHEN NUMBER OF VOTES
CONGRESS VOTES REQUIRED Vote required in election of officers
To suspend or expel a
2/3 of all its members Majority vote of all respective members. (1987
member in accordance Constitution, Art. VI, Sec. 16, par. 1)
(1987 Constitution, Art.
Regular session of Congress
with its rules and
VI, Sec. 16, Par. 3) Congress convenes once every year on the 4 th Monday of
proceedings July, unless otherwise provided for by law. It continues in
session for as long as it sees fit, until 30 days before the
To enter the Yeas and 1/5 of the members
opening of the next regular session, excluding Saturdays,
Nays in the Journal present Sundays, and legal holidays. (1987 Constitution, Art. VI,
(1987 Constitution, Art. Sec. 15) (1996 Bar)
VI, Sec. 16, Par. 4)
Instances when there are special sessions
To declare the existence 2/3 of both houses in
of a state of war joint session voting 1. Due to vacancies in the offices of the President and
separately Vice President at 10 o’clock a.m. on the third day
(1987 Constitution, Art.
VI, Sec. 23)
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FACULTY OF CIVIL LAW
 POLITICAL LAW

after the vacancies (1987 Constitution, Art. VII, Sec. preliminary preventive measure and is not imposed
10) upon the petitioner for misbehavior as a member of
2. To decide on the disability of the President because a Congress. (Santiago v. Sandiganbayan, G.R. No. 128055,
majority of all the members of the cabinet have April 18, 2001)
“disputed” his assertion that he is able to discharge
the powers and duties of his office (1987 Preventive suspension is not a penalty (2015 Bar)
Constitution, Art. VII, Sec. 11)
3. To revoke or extend the Presidential Proclamation of A court-ordered preventive suspension is a preventive
Martial Law or suspension of the privilege of the writ of habeas measure that is different and distinct from the suspension
corpus (1987 Constitution, Art. VII, Sec. 18) ordered by the HoR for disorderly behavior which is a
4. Called by the President at any time when Congress is not penalty. Such House-imposed sanction is intended to
in session (1987 Constitution, Art. VI, Sec. 15) enforce discipline among its members. (Paredes, Jr. v.
5. To declare the existence of a state of war in a joint Sandiganbayan, G.R. No. 118354, Aug. 8, 1995)
session, by vote of 2/3 of both Houses (1987 Constitution, Art.
VI, Sec. 23, par. 1)
6. When the Congress acts as the Board of Canvassers for NOTE: The suspension under the Anti-Graft Law is
the Presidential and Vice-Presidential elections (1987 mandatory, imposed not as a penalty but as a
Constitution, Art. VII, Sec. 4) precautionary measure to prevent the accused public
7. During impeachment proceedings. (1987 Constitution, officer from frustrating his prosecution. It is incidental to
Art. XI, Sec. 3, par. 4 and 6) the criminal proceedings before the court.

Mandatory recess The House-imposed sanction on the other hand, is a

penalty for disorderly behavior.
The 30-day period prescribed before the opening of the
next regular session, excluding Saturdays, Sundays, and Thus, the order of suspension in the Anti-Graft Law is
legal holidays. This is the minimum period of recess and distinct from the power of the Congress under the
may be lengthened by the Congress in its discretion. It Constitution to discipline its own ranks. (De Venecia Jr., v.
may, however, be called in special session at any time by Sandiganbayan, G.R. No. 130240, Feb. 5, 2002)
the President. (1987 Constitution, Art. VI, Sec. 15)
ELECTORAL TRIBUNAL
Rule on Adjournment (1990, 1996, 1998, 2002, 2006 Bar)
Neither House during the sessions of the Congress shall, Composition of the Electoral Tribunal (ET)
without the consent of the other, adjourn for more than 3
days, nor to any other place than that in which the two 1. 3 Supreme Court Justices designated by the Chief
Houses shall be sitting. (1987 Constitution, Art. VI, Sec. 16, Justice;
par. 5) 2. 6 members of the Chamber concerned (Senate or HoR)
chosen on the basis of proportional representation from the
Adjournment sine die political parties and parties registered under the party-list
system. (1987 Constitution, Art. VI, Sec. 17)
An interval between the session of one Congress and that
of another. NOTE: The senior Justice in the Electoral Tribunal shall
be its chairman.
DISCIPLINE OF MEMBERS
Jurisdiction of the ETs
Disciplinary power of Congress
Each electoral tribunal shall be the sole judge of all
Each house may punish its members for disorderly contests relating to the election, returns, and
behavior and, with concurrence of 2/3 of all its members, qualifications of their respective members (1987
suspend, for not more than 60 days, or expel a member. Constitution, Art. VI, Sec. 17). This includes determining
(1987 Constitution, Art. VI, Sec. 16, par. 3) the validity or invalidity of a proclamation declaring a
(1993, 2002 Bar) particular candidate as the winner. Each ET is also vested
with rule-making power. (Lazatin v. HRET, G.R. No. L-
Determination of disorderly behavior 84297, Dec. 8, 1988)
It is the prerogative of the House concerned and cannot NOTE: It is independent of the Houses of Congress and
be judicially reviewed. (Osmeña v. Pendatun, G.R. No. L- its decisions may be reviewed by the Supreme Court only
17144, Oct. 28, 1960) upon showing of grave abuse of discretion.
NOTE: Members of Congress may also be suspended by Electoral contest
the Sandiganbayan or by the Office of the Ombudsman.
The suspension in the Constitution is different from the Where a defeated candidate challenges the qualification
suspension prescribed in RA 3019 (Anti-Graft and and claims for himself the seat of the proclaimed winner.
Corrupt Practices Act). The latter is not a penalty but a

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 LEGISLATIVE DEPARTMENT

In the absence of an election contest, ET is without be made (1) before the Speaker of the House of
jurisdiction. Representatives, and (2) in open session. Here, although
she made the oath before Speaker Belmonte, there is no
When the winning candidate is considered as indication that it was made during plenary or in open
member of the Senate or HoR session and, thus, it remains unclear whether the
required oath of office was indeed complied with. (Reyes
Once he has: (POA) v. COMELEC, G.R. No. 207264, June 25, 2013)
1. been Proclaimed ---
2. taken his Oath; and
Power of each House over its members in the
NOTE: must be made: absence of election contest
a. Before the (Senate President or) Speaker of the
HoR, as the case may be; and The power of each House to expel its members or even to
b. In open session (Reyes v. COMELEC, G.R. No. defer their oath-taking until their qualifications are
207264, June 25, 2013) determined may be exercised even without an election
contest.
3. Assumed office
---
NOTE: The term of office of a Member of the House of Q: Imelda ran for HoR. A disqualification case was
Representatives begins only “at noon on the thirtieth day filed against her on account of her residence. The
of June next following their election.” case was not resolved before the election. Imelda
won the election. However, she was not proclaimed.
NOTE: Only then shall end, and the SET or HRET’s own Imelda now questions the COMELEC’s jurisdiction
jurisdiction begin. The phrase “election, returns, and over the case. Does the COMELEC have jurisdiction
qualifications” should be interpreted in its totality as over the case?
referring to all matters affecting the validity of the
contestee’s title. (Vinzons-Chato v. COMELEC, G.R. No. A: YES. The COMELEC retains jurisdiction. Since Imelda
172131, April 2, 2007) has not yet been proclaimed, she is not yet a member of
the HoR. HRET’s jurisdiction as the sole judge of all
By analogy with the cases of district representatives, contests relating to elections, etc. of members of
once the party or organization of the party-list nominee Congress begins only after a candidate has become a
becomes a member of the HoR, HRET has authority to member of the HoR. (Romualdez-Marcos v. COMELEC,
pass upon election contests relating to his qualifications. G.R. No. 119976, Sept. 18, 1995)
(Abayon v. HRET, G.R. No. 189466, Feb. 11, 2010) ---
---
--- Q: Ating Koop party-list expelled its first
Q: Gemma ran for Congresswoman of Muntinlupa in nominee/representative Lico for refusing to honor
the May 2013 elections. However, before the elections, the term-sharing agreement. A petition was filed
the COMELEC cancelled her CoC after hearing a with the COMELEC which sought his removal from
complaint filed against her. Later, she was declared being Ating Koop’s representative. COMELEC 2nd
winner as Congresswoman of Muntinlupa. The decision Division expelled Lico. COMELEC En Banc, however,
said she took her oath already and had not assumed her dismissed the petition on the ground that it had no
office as Congresswoman. Subsequently, COMELEC jurisdiction to expel Lico from the HoR, considering
issued a certificate of finality on its earlier resolution that his expulsion from Ating Koop affected his
cancelling Gemma’s qualifications as member of the House, and therefore
COC. Gemma comes before the Court arguing that it was the HRET that had jurisdiction over the
COMELEC has lost jurisdiction over the case and it is Petition. Notwithstanding, COMELEC En Banc still
the HRET that has jurisdiction as she is already affirmed the validity of Lico’s expulsion from Ating
declared a winner. Is Gemma’s contention tenable? Koop. Is COMELEC En Banc’s decision correct?

A: NO. Gemma cannot be considered a Member of the A: NO. While the COMELEC correctly dismissed the
House of Representatives because, primarily, she has not yet Petition to expel petitioner Lico from the House of
assumed office. The jurisdiction of the HRET begins only Representatives for being beyond its jurisdiction, it
after the candidate is considered a Member of the House of nevertheless proceeded to rule upon the validity of his
Representatives, as stated in Art. VI, Sec. 17 of the 1987 expulsion from Ating Koop – a matter beyond its
Constitution. To be considered a Member of the House of purview. Without legal basis, however, is the action of
Representatives, there must be a concurrence of the the COMELEC in upholding the validity of the expulsion
following requisites: (1) a valid proclamation, (2) a proper of petitioner Lico from Ating Koop, despite its own ruling
oath, and (3) assumption of office. that the HRET has jurisdiction over the disqualification
issue. These findings already touch upon the
The term of office of a Member of the House of qualification requiring a party-list nominee to be a bona
Representatives begins only “at noon on the thirtieth day fide member of the party-list group sought to be
of June next following their election.” Thus, until such represented. The petition for Lico's expulsion from the
time, the COMELEC retains jurisdiction. Consequently, House of Representatives is anchored on his expulsion
before there is a valid or official taking of the oath it must from Ating Koop, which necessarily affects his title as

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 POLITICAL LAW

member of Congress. A party-list nominee must have

been, among others, a bona fide member of the party or Art. VI, Sec. 17 provides that the SET/HRET is the sole
organization for at least ninety (90) days preceding the judge of all contests. Hence, from its decision, there is no
day of the election. Needless to say, bona fide appeal. Appeal is not a constitutional right but merely a
membership in the party-list group is a continuing statutory right.
qualification x x x. Under Section 17, Article VI of the
Constitution, the HRET is the sole judge of all contests Remedy from an adverse decision of the ET
when it comes to qualifications of the members of the
House of Representatives. Consequently, the COMELEC A special civil action for certiorari under Rule 65 of the
failed to recognize that the issue on the validity of Rules of Court may be filed. This is based on grave abuse
petitioner Lico's expulsion from Ating Koop is integral to of discretion amounting to lack or excess of jurisdiction.
the issue of his qualifications to sit in Congress. This shall be filed before the Supreme Court.

Our ruling here must be distinguished from Regina COMMISSION ON APPOINTMENTS

Ongsiako Reyes v. Commission on Elections. In Reyes, the (2002 Bar)
petitioner was proclaimed winner of the 13 May 2013
Elections, and took her oath of office before the Speaker Composition of the Commission on Appointments
of the House of Representatives. However, the Court (CA)
ruled on her qualifications since she was not yet a
member of the House of Representatives: petitioner 1. Senate President as ex-officio chairman
Reyes had yet to assume office, the term of which would 2. 12 Senators
officially start at noon of 30 June 2013, when she filed a 3. 12 members of the HoR. (1987 Constitution, Art. VI,
Petition for Certiorari dated 7 June 2013 assailing the Sec. 18)
Resolutions ordering the cancellation of her Certificate of
Candidacy. In the present case, all three requirements of NOTE: A political party must have at least 2 senators in
proclamation, oath of office, and assumption of office the Senate to be able to have a representative in the CA.
were satisfied.
Thus, where there are two or more political parties
Moreover, in Reyes, the COMELEC En Banc Resolution represented in the Senate, a political party/coalition with
disqualifying petitioner on grounds of lack of Filipino a single senator in the Senate cannot constitutionally
citizenship and residency had become final and claim a seat in the Commission on Appointments. It is not
executory when petitioner elevated it to this Court. mandatory to elect 12 senators to the Commission; what
Therefore, there was no longer any pending case on the the Constitution requires is that there must be at least a
qualifications of petitioner Reyes to speak of. Here, the majority of the entire membership. (Guingona, Jr. v.
question of whether petitioner Lico remains a member of Gonzales, G.R. No. 106971, Oct. 20, 1992)
the House of Representatives in view of his expulsion
from Ating Koop is a subsisting issue. Finally, in Reyes,
We found the question of jurisdiction of the HRET to be a Membership in the CA
non-issue, since the recourse of the petitioner to the
Court appeared to be a mere attempt to prevent the The members of the Commission shall be elected by each
COMELEC from implementing a final and executory House on the basis of proportional representation from
judgment. In this case, the question on the validity of the political party and party list. Accordingly, the sense
petitioner Lico's expulsion from Ating Koop is a genuine of the Constitution is that the membership in the CA
issue that falls within the jurisdiction of the HRET, as it must always reflect political alignments in Congress and
unmistakably affects his qualifications as party-list must therefore adjust to changes. It is understood that
representative. (Lico v. COMELEC, G.R. No. 205505, Sept. such changes in party affiliation must be permanent and
29, 2015) not merely temporary alliances. Endorsement is not
--- sufficient to get a seat in CA. (Daza v. Singson, G.R. No.
86344, Dec. 21, 1989)
Valid grounds or just causes for termination of
membership to the tribunal NOTE: The provision of Sec. 18, Art. VI of the
Constitution, on proportional representation is
1. Expiration of Congressional term of office mandatory in character and does not leave any
2. Death or permanent disability discretion to the majority party in the Senate to disobey
3. Resignation from the political party he represents in the or disregard the rule on proportional representation;
tribunal otherwise, the party with a majority representation in
4. Formal affiliation with another political party the Senate or the HoR can by sheer force of numbers
5. Removal from office for other valid reasons. (Bondoc v. impose its will on the hapless minority. By requiring a
Pineda, G.R. No. 97710, Sept. 26, 1991) proportional representation in the CA, Sec. 18 in effect
works as a check on the majority party in the Senate and
NOTE: Unlike the Commission on Appointments, the ET helps maintain the balance of power. No party can claim
shall meet in accordance with their rules, regardless of more than what it is entitled to under such rule.
whether Congress is in session or not. (Guingona, Jr., et al., v. Gonzales, et al., G.R. No. 106971,
March 1, 1993)
ET decisions are not appealable

UNIVERSITY OF SANTO TOMAS

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 LEGISLATIVE DEPARTMENT

Presidential appointments subject to confirmation

by the Commission Legislative powers of Congress

1. Heads of the Executive departments XPN: Vice- 1. General plenary power (Art. VI, Sec. 1)
President who is appointed to the post 2. Specific power of appropriation
2. Ambassadors, other public ministers, or consuls 3. Taxation and expropriation
3. Officers of the AFP from the rank of colonel or 4. Legislative investigation
naval captain 5. Question hour
4. Other officers whose appointments are vested in
him by the Constitution (i.e. COMELEC members, etc.) Doctrine of Shifting Majority

NOTE: The enumeration is exclusive. For each House of Congress to pass a bill, only the votes
of the majority of those present in the session, there
Rules on voting being a quorum, is required.

1. The CA shall rule by a majority vote of all the Rules regarding the passage of bills
members.
2. The chairman shall only vote in case of tie. 1. No bill passed by either House shall become a law
3. The CA shall act on all appointments within 30 unless it has passed 3 readings on separate days.
session days from their submission to Congress. (1987 2. Printed copies of the bill in its final form should be
Constitution, Art. VI, Sec. 18) distributed to the Members 3 days before its passage
3. Upon the last reading of a bill, no amendment
Limitations in the confirmation of appointment thereto shall be allowed.
4. The vote on the bill shall be taken immediately
1. Congress cannot by law prescribe that the after the last reading of a bill.
appointment of a person to an office created by such law be 5. The yeas and the nays shall be entered in the
subject to confirmation by the Commission. Journal.
2. Appointments extended by the President to the
above-mentioned positions while Congress is not in session XPN: The certification of the President, due to the
shall only be effective until disapproval by the Commission necessity of its immediate enactment to meet a public
or until the next adjournment of Congress. (Sarmiento III, v. calamity or emergency, dispenses with the reading on
Mison, G.R. No. L-79974, Dec. 17, 1987) separate days and the printing of the bill in the final form
before its final approval. (Tolentino v. Secretary of
Guidelines in the meetings of the Commission on Finance, G.R. No. 115455, Oct. 30, 1995)
Appointments
Instances when a bill becomes a law (1991, 1993,
1. Meetings are held either at the call of the Chairman 1996 Bar)
or a majority of all its members.
2. Since the Commission is also an independent 1. Approved and signed by the President
constitutional body, its rules of procedure are also outside 2. Presidential veto overridden by 2/3 vote of all
the scope of congressional powers as well as that of the members of both Houses
judiciary. (Bondoc v. Pineda, G.R. No. 97710, Sept. 26, 1991) 3. Failure of the President to veto the bill and to
return it with his objections to the House where it
NOTE: The ET and the CA shall be constituted within 30 originated, within 30 days after the date of receipt
days after the Senate and the HoR shall have been 4. A bill calling a special election for President and
organized with the election of the Senate President and Vice-President under Sec. 10. Art. VII becomes a law
the Speaker of the House. upon its approval on the third reading and final reading.

LEGISLATIVE INQUIRIES AND OVERSIGHT

POWERS OF CONGRESS FUNCTIONS

Legislative Inquiries/Inquiries In Aid Of Legislation

LEGISLATIVE
The Senate or the House of Representatives or any of its
Legislative power respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
The power or competence to propose, enact, ordain, procedure. The rights of persons appearing in, or
amend/alter, modify, abrogate or repeal laws. It is vested affected by, such inquiries shall be respected. (1987
in the Congress which shall consist of a Senate and a Constitution, Art. VI, Sec. 21)
House of Representatives, except to the extent reserved to
the people by the provision on initiative and referendum. Matters that can be the subject of inquiries in aid of
legislation

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Indefinite. The field of legislation is very wide, and convenient ploy of instituting a criminal or an
because of such, the field of inquiry is also very broad administrative complaint. Thus, the Vice Chairman of
and may cover administrative, social, economic, political SCB is not correct in refusing to attend the investigation
problem (inquiries), discipline of members, etc. Suffice it proceeding on the ground that criminal and civil cases
to say that it is “intrinsic” in and co-extensive with involving the same issues are pending in courts.
legislative power. (Arnault v. Nazareno, G.R. No. L-3820, (Standard Chartered Bank v. Senate, G.R. No. 167173, Dec.
July 18, 1950) 27, 2007)
---
“In aid of legislation” does not mean that there is pending
legislation regarding the subject of the inquiry. In fact, Distinction between Standard Chartered Bank v.
investigation may be needed for purposes of proposing Senate and Bengzon v. Senate Blue Ribbon Committee
future legislation.
It is true that in Bengzon, the Court declared that the
NOTE: If the stated purpose of the investigation is to issue to be investigated was one over which jurisdiction
determine the existence of violations of the law, the had already been acquired by the Sandiganbayan, and to
investigation is no longer “in aid of legislation” but “in allow the Senate Blue Ribbon Committee to investigate
aid of prosecution.” This violates the principle of the matter would create the possibility of conflicting
separation of powers and is beyond the scope of judgments; and that the inquiry into the same justiciable
Congressional powers. controversy would be an encroachment on the exclusive
domain of judicial jurisdiction that had set in much
Limitations on legislative investigation earlier.

1. The persons appearing in or affected by such legislative There are a number of cases already pending in various
inquiries shall be respected. courts and administrative bodies involving Standard
2. The Rules of procedures to be followed in such inquiries Chartered Bank, relative to the alleged sale of
shall be published for the guidance of those who will be unregistered foreign securities. There is a resemblance
summoned. This must be strictly followed so that the inquiries between this case and Bengzon. However, the similarity
are confined only to the legislative purpose and to avoid abuses. ends there.
3. The investigation must be in aid of legislation.
4. Congress may not summon the President as witness or Central to the Court’s ruling in Bengzon – that the Senate
investigate the latter in view of the doctrine of separation of Blue Ribbon Committee was without any constitutional
powers except in impeachment cases. mooring to conduct the legislative investigation – was
the Court’s determination that the intended inquiry was
NOTE: It is the President’s prerogative, whether to not in aid of legislation. The Court found that the
divulge or not the information, which he deems speech of Senator Enrile, which sought such
confidential or prudent in the public interest. investigation, contained no suggestion of any
contemplated legislation; it merely called upon the
5. Congress may no longer punish the witness in contempt Senate to look into possible violations of Sec. 5, RA No.
after its final adjournment. The basis of the power to impose 3019. Thus, the Court held that the requested probe
such penalty is the right to self-preservation. And such right is failed to comply with a fundamental requirement of Sec.
enforceable only during the existence of the legislature. (Lopez 21, Art. VI.
v. Delos Reyes, G.R. No. L-34361, Nov. 5, 1930)
6. Congress may no longer inquire into the same justiciable Unfortunately for SCB, this distinguishing factual milieu
controversy already before the court. (Bengzon v. Senate Blue in Bengzon does not obtain in the instant case. The
Ribbon Committee, G.R. No. 89914, Nov. 20, 1991) unmistakable objective of the investigation, as set forth
in the said resolution, exposes the error in SCB’s
--- allegation that the inquiry, as initiated in a privilege
Q: Sen. Jogie Querots accused the Vice Chairman of the speech by the very same Senator Enrile, was simply “to
Standard Chartered Bank (SCB) of violating the Securities denounce the illegal practice committed by a foreign
Regulation Code for selling unregistered foreign securities. bank in selling unregistered foreign securities.” This
This has led the Senate to conduct investigation in aid of fallacy is made more glaring when we consider that, at
legislation. SCB refused to attend the investigation the conclusion of his privilege speech, Senator urged the
proceedings on the ground that criminal and civil cases Senate “to immediately conduct an inquiry, in aid of
involving the same issues were pending in courts. Decide. legislation, so as to prevent the occurrence of a
similar fraudulent activity in the future”. (Standard
A: The mere filing of a criminal or administrative complaint Chartered Bank v. Senate, G.R. No. 167173, Dec. 27, 2007)
before a court or a quasi-judicial body should not automatically
bar the conduct of legislative investigation. Otherwise, it would Contempt powers of Congress
be extremely easy to subvert any intended inquiry by Congress
through the Even if the Constitution only provides that Congress may
punish its members for disorderly behavior or expel the
same, it is not an exclusion of power to hold other
persons in contempt.
UNIVERSITY OF SANTO TOMAS
2017 GOLDEN NOTES
 LEGISLATIVE DEPARTMENT
Oversight power of Congress
NOTE: Congress has the inherent power to punish Embraces all activities undertaken by Congress to
recalcitrant witnesses for contempt, and may have them enhance its understanding of and influence over
incarcerated until such time that they agree to testify. the implementation of legislation it has enacted.
The continuance of such incarceration only subsists It concerns post-enactment measures undertaken
for the lifetime, or term, of such body. Thus, each by Congress. (Opinion of J. Puno, Macalintal v.
House lasts for only 3 years. But if incarcerated by the COMELEC, G.R. No. 157013, July 10, 2003)
Senate, it is indefinite because the Senate, with its
staggered terms as an institution, is a continuing body.
(2014 Bar)

Legislative contempt vis-à-vis pardoning power of

the President

Legislative contempt is a limitation on the President’s

power to pardon by virtue of the doctrine of separation
of powers.

Question Hour

Where the heads of departments may, upon their own

initiative, with the consent of the President, or upon the
request of either House, as the rules of each House shall
provide, appear before and be heard by such House on
any matter pertaining to their departments. Written
questions shall be submitted to the President of the
Senate or the Speaker of the HoR at least 3 days before
their scheduled appearance. Interpellations shall not be
limited to written questions, but it may cover matters
related thereto. When the security of the State or the
public interest so requires and the President so states in
writing, the appearance shall be conducted in executive
session. (1987 Constitution, Art. VI, Sec. 22)

Question hour vs. Legislative investigation

LEGISLATIVE
QUESTION HOUR
INVESTIGATION
(SEC. 22, ART. VI)
(SEC. 21, ART. VI)
As to persons who may appear

Only a
department Any person
head

As to who conducts the investigation

Committees/Entir
Entire body
e Body

As to subject matter

Matters related to
Any matter for the
the
purpose of
department
legislation
only
 c. Power of Confirmation (1987 Constitution,
Art. VI, Sec. 18)
Scope of the power of oversight But legislative scrutiny does not end in budget
hearings. Congress can ask the heads of
1. Monitor bureaucratic compliance with program departments to appear before and be heard by
objectives; either the House on any matter pertaining to their
2. Determine whether agencies are properly administered; department.
3. Eliminate executive waste and dishonesty;
4. Prevent executive usurpation of legislative authority; and Likewise, Congress exercises legislative scrutiny
5. Assess executive conformity with the congressional thru its power of confirmation to find out whether
perception of public interest. (Opinion of J. Puno, Macalintal v. the nominee possesses the necessary
COMELEC, Ibid) qualifications, integrity and probity required of all
public servants.
Bases of oversight power of Congress
2. Congressional Investigation — Involves a more
1. Intrinsic in the grant of legislative power itself; intense digging of facts through inquiries in aid of
2. Integral to the system of checks and balances; and legislation under Sec. 21, Art. VI.
3. Inherent in a democratic system of government.
3. Legislative Supervision — most encompassing
Categories of Congressional Oversight Functions form; connotes a continuing and informed
awareness on the part of congressional committee
1. Scrutiny — to determine economy and efficiency of the regarding executive operations in a given
operation of government activities. administrative area It allows Congress to
scrutinize the exercise of delegated law-making
Congress may request information and report from the authority, and permits Congress to retain part of
other branches of government and give recommendations that delegated authority through:
or pass resolutions for consideration of the agency
involved through: Legislative veto – Congress retains a “right” or
a. Power of appropriation and budget hearing (1987 “power” to approve or disapprove any regulation
Constitution, Art. VII, Sec. 22) enacted by administrative body before it takes
b. Question Hour (1987 Constitution, Art. VI, Sec. 22) effect. It is in the form of an inward-turning

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delegation designed to attach a congressional leash A: YES. The Rules must be published before the Rules can
to an agency to which Congress has by law initially take effect. Thus, even if publication is not required under
delegated broad powers. (ABAKADA Guro Party-list the Constitution, publication of the Rules of the Senate
v. Purisima, G.R. No. 166715, Aug. 14, 2008) Committee of the Whole is required because the Rules
expressly mandate their publication. To comply with due
Legislative veto violates the doctrine of separation of process requirements, the Senate must follow its own
powers, thus, unconstitutional internal rules if the rights of its own members are affected.
(Pimentel v. Senate Committee of the Whole, ibid.)
In exercising discretion to approve or disapprove the IRR ---
based on a determination of whether or not it conformed
to the law, Congress arrogated judicial power unto itself, Senate is no longer a continuing legislative body
a power exclusively vested in the Supreme Court by the
Constitution. Thus, violating the doctrine of separation of The present Senate under the 1987 Constitution is no
powers. longer a continuing legislative body. It has 24 members,
12 of whom are elected every 3 years for a term of 6
From the moment the law becomes effective, any years each. Thus, the term of 12 Senators expires every 3
provision of law that empowers Congress or any of its years, leaving less than a majority of Senators to
members to play any role in the implementation or continue into the next Congress since the Rules of
enforcement of the law violates the principle of Procedure must be republished by the Senate after every
separation of powers and is thus unconstitutional. expiry of the term of the 12 Senators. (Garcillano v. HoR
(ABAKADA Guro Party-list v. Purisima, Ibid.) Committee on Public Information, G.R. No. 170338, Dec.
23, 2008)
Senate is not allowed to continue the conduct of
legislative inquiry without a duly published rules of Senate as an INSTITUTION is continuing (2014 Bar)
procedure
There is no debate that the Senate as an institution is
The phrase “duly published rules of procedure” requires "continuing", as it is not dissolved as an entity with each
the Senate of every Congress to publish its rules of national election or change in the composition of its
procedure governing inquiries in aid of legislation members. However, in the conduct of its day-to-day
because every Senate is distinct from the one before it or business the Senate of each Congress acts separately and
after it. (Garcillano v. HoR Committee on Public independently of the Senate of the Congress before it.
Information, G.R. No. 170338, Dec. 23, 2008)
Undeniably, all pending matters and proceedings, i.e.
Invalidity of Publication in the Internet unpassed bills and even legislative investigations, of the
Senate of a particular Congress are considered
The Electronic Commerce Act of 2009 merely recognizes terminated upon the expiration of that Congress and it is
the admissibility in evidence of electronic data messages merely optional on the Senate of the succeeding
and/or documents. It does not make the internet a Congress to take up such unfinished matters, not in the
medium for publishing laws, rules and regulations. same status, but as if presented for the first time. The
(Garcillano v. HoR Committee on Public Information, ibid.) logic and practicality of such a rule is readily apparent
considering that the Senate of the succeeding Congress
Publication of the internal rules of Congress (which will typically have a different composition as that
of the previous Congress) should not be bound by the
The Constitution does not require publication of the acts and deliberations of the Senate of which they had no
internal rules of the House or Senate. Since rules of the part (Neri v. Senate Committee, GR. No. 180643, Sept. 4,
House or Senate affect only their members, such rules 2008).
need not be published, unless such rules expressly
provide for their publication before the rules can take THE BICAMERAL CONFERENCE COMMITTEE
effect. (Pimentel v. Senate Committee of the Whole, G.R.
No. 187714, March 8, 2011) Purpose of the Bicameral Conference Committee

--- In a bicameral system, bills are independently processed

Q: During a hearing of the Senate Committee of the Whole, by both Houses of Congress. It is not unusual that the
some proposed amendments to the Rules of the Ethics final version approved by one House differs from what
Committee that would constitute the Rules of the Senate has been approved by the other.
Committee of the Whole were adopted. Senator Sonia
raised as an issue the need to publish the proposed The “conference committee,” consisting of members
amended Rules of the Senate Committee of the Whole, as nominated from both Houses, is an extra-constitutional
directed by the amended Rules itself. However, the Senate creation of Congress whose function is to propose to
Committee of the Whole proceeded without publication of Congress ways of settling, reconciling or threshing out
the amended Rules. Is the publication of the Rules of the conflicting provisions found in the Senate version and in
Senate Committee of the Whole required for their the House version of a bill. (Opinion of J. Callejo, Sr.,
effectivity? ABAKADA v. Ermita, G.R. No. 168056, Sept. 1, 2005)

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Extent of the power of the Committee i. Delegation to the President [1987

Constitution, Art. VI, Sec. 23(2) and Sec.
The conferees are not limited to reconciling the 28(2)]
differences in the bill but may introduce new provisions ii. Delegation to the people (1987
germane to the subject matter or may report out an Constitution, Art VI, Sec. 32)
entirely new bill on the subject. (Tolentino v. Sec. of
Finance, G.R. No, 115455, Aug. 25, 1994) Procedural
1. Only one subject, to be stated in the title of the bill
Scope of the powers of the Committee [1987 Constitution, Art. VI, Sec. 26(1)].
2. Three (3) readings on separate days; printed
1. Adopt the bill entirely copies of the bill in its final form to be distributed
2. Amend or Revise to its members 3 days before its passage, except if
3. Reconcile the House and Senate Bills the President certifies to its immediate enactment
4. Propose entirely new provisions not found in to meet a public calamity or emergency; upon its
either the Senate or House bills last reading, no amendment shall be allowed and
the vote thereon shall be taken immediately and
Reconcile or harmonize disagreeing provisions the yeas and nays entered into the Journal. [1987
Constitution, Art. VI, Sec. 2(2)].
The changes introduced by the Bicameral Conference 3. Appropriation bills, revenue bills, tariff bills, bills
Committee are meant only to reconcile and harmonize authorizing the increase of public debt, bills of
the disagreeing provisions for it does not inject any idea local application and private bills shall originate
or intent that is wholly foreign to the subject embraced exclusively in the House of Representatives. (1987
by the original provisions. Constitution, Art. VI, Sec. 24)

To reconcile or harmonize disagreeing provisions, the NOTE: During the First Reading, only the title of the bill
Bicameral Conference Committee may then (a) adopt the is read, then it is passed to the proper committee for
specific provisions of either the House bill or Senate bill, study. On the Second Reading, the entire text is read,
(b) decide that neither provisions in the House bill or the and debates and amendments are held. On the Third
provisions in the Senate bill would be carried into the Reading, only the title is read, and votes are taken
final form of the bill, and/or (c) try to arrive at a immediately thereafter.
compromise between the disagreeing provisions.
One bill-one subject rule
Thus, the changes made by the Bicameral Conference
Committee in the versions passed by the Senate and Every bill passed by the Congress shall embrace only one
House of the RVAT Law such as the inclusion of the subject. The subject shall be expressed in the title of the
stand-by authority of the President, omission of the no bill. This rule is mandatory.
pass-on provision included in both Senate and House
versions, inclusion of provisions on other kinds of taxes NOTE: The purposes of such rule are:
and VAT only found in the Senate bill are valid. (Escudero 1. To prevent hodgepodge or log-rolling legislation;
v. Purisima, G.R. No. 168463, Sept. 1, 2005; ABAKADA v. 2. To prevent surprise or fraud upon the legislature;
Ermita, GR 168056, Sept. 1, 2005) and
3. To fairly apprise the people of the subjects of
LIMITATIONS ON LEGISLATIVE POWER legislation. (Central Capiz v. Ramirez, G.R. No.
16197, March 12, 1920)
Substantive
a) Express: Determination of the sufficiency of the title

a. Bill of Rights (1987 Constitution, Art. III)

b. On Appropriations [1987 Constitution, Art. VI,It suffices if the title should serve the purpose of the
Secs. 25 and 29(1&2)] constitutional demand that it informs the legislators, the
c. On Taxation (1987 Constitution, Art. VI, Secs. 28 persons interested in the subject of the bill, and the
and 29, par. 3) public, of the nature, scope and consequences of the
d. On Constitutional appellate jurisdiction of SC proposed law and its operation; thus, prevent surprise or
(1987 Constitution, Art. VI, Sec. 30) fraud upon the legislators.
e. No law granting a title of royalty or nobility
shall be enacted (1987 Constitution, Art. VI, Sec.Test: Whether or not it is misleading; either in referring
31). to or indicating one subject where another or different
f. No specific funds shall be appropriated or paid one is really embraced in the act, or in omitting any
for use or benefit of any religion, sect, etc., expression or indication of the real subject or scope of
except for priests, etc., assigned to AFP, penal the act. (Lidasan v. COMELEC, G.R. No. L-28089, Oct. 25,
institutions, etc. (1987 Constitution, Art. VI, Sec. 1967)
29[2])
b) Implied: Number of readings before becoming a law (1996
 a. Prohibition against irrepealable laws Bar)
b. Non-delegation of powers
XPNs to Non-Delegation Doctrine:

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Each bill must pass 3 readings each in both Houses. In b. Revenue or tariff
other words, there must be a total of 6 readings. c. authorizing Increase of the public debt,
d. Local application, and
GR: Each reading shall be held on separate days and e. Private bills. (1987 Constitution, Art. VI, Sec. 24)
printed copies thereof in its final form shall be
distributed to its Members, 3 days before its passage. NOTE: It does not prohibit the filing in the Senate of a
substitute bill, so long as the action by the Senate is
XPN: If a bill is certified as urgent by the President as to withheld pending the receipt of the House bill. (Tolentino
the necessity of its immediate enactment to meet a v. Sec. of Finance, G.R. No. 115455, Aug. 25, 1994)
public calamity or emergency, the 3 readings can be held
on the same day [1987 Constitution, Art. VI, Sec. 26(2)] 2. The President shall have the power to veto any
particular item/s in an ART bill, but the veto shall not affect
Reasons for the “three readings on separate days” the item/s to which he does not object. [1987 Constitution,
rule Art. VI, Sec. 27(2)]

To prevent hasty and improvident legislation, and afford Power of appropriation

the legislators time to study and deliberate the measures.
The spending power, also called the “power of the
purse”, belongs to Congress, subject only to the veto
The two-fold purpose: power of the President. It carries with it the power to
1. To inform the legislators of the matters they shall vote on; specify the project or activity to be funded under the
and appropriation law.
2. To give them notice that a measure is in progress through
enactment process. (Abas Kida, v. Senate, G.R. No. 196271, Oct. Appropriation law
18, 2011)
A statute enacted for the specific purpose of authorizing
LIMITATIONS ON APPROPRIATION, REVENUE, AND the release of public funds from the treasury.
TARIFF MEASURES
Classifications of appropriations
Appropriation bill
1. General appropriation law – Passed annually, and
Primarily made for the appropriation of a sum of money intended for the financial operations of the entire
from the public treasury. government during one fiscal period;

Revenue bill Contains an estimate of revenues and funding

sources, which are usually (1) taxes, (2) capital
Specifically designed to raise money or revenue through revenues (like proceeds from the sales of assets),
imposition or levy. (3) grants, (4) extraordinary income (like dividends
of government corporations) and (5) borrowings. (Araullo v.
Bill of local application Aquino III, G.R. No. 209287, July 1, 2014)

A bill limited to specific localities, such as the creation of GAA is not self-executory
a town. Hence, it is one involving purely local or
municipal matters, e.g. the charter of a city. The execution of the GAA was still subject to a
program of expenditure to be approved by the
Private bills President, and such approved program of
expenditure was the basis for the release of funds.
Those which affect private persons, such as a bill The mere approval by Congress of the GAA does
granting citizenship to a specific foreigner, or a bill not instantly make the funds available for spending
granting honorary citizenship to a distinguished by the Executive Department. The funds
foreigner. authorized for disbursement under the GAA are
usually still to be collected during the fiscal year.
Tariff bills Thus, it is important that the release of funds be
duly authorized, identified, or sanctioned to avert
Those that specify the rates or duties to be imposed on putting the legitimate Program, Activity, Projects
imported articles. (PAPs) of the Government in fiscal jeopardy.
(TESDA v. COA, G.R. No. 196418, Feb. 10, 2015)
Constitutional limitations on the legislative’s power
to enact laws on appropriation, revenue and tariff NOTE: The requirement of availability of funds
(ART) measures before the execution of a government contract,
however, has been modified by R.A. No. 9184
1. Bills which shall originate exclusively in the HoR, but the [Government Procurement Reform Act] which
Senate may propose or concur with amendments: (APRIL) requires not only the sufficiency of funds at the
(1996 Bar) time of the signing of the contract, but also upon
a. Appropriation,

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 LEGISLATIVE DEPARTMENT

the commencement of the procurement process.

Unless R.A. No. 9184 is amended or repealed, all Budget
future government projects must first have a
sufficient appropriation before engaging the Financial program of the national government for the
procurement activity. (Jacomille v. Abaya, G.R. No. designated calendar year, providing for the estimates of
212381, April 22, 2015) receipts of revenues and expenditures.

2. Special appropriation law – Designed for a specific Budget proposal

purpose.
The President shall propose the budget and submit it to
Implied limitations on appropriation power Congress. It shall indicate the expenditures, sources of
financing, receipts from previous revenues and proposed
1. Must specify a public purpose; revenue measures. It will serve as a guide for Congress:
2. Sum authorized for release must be determinate, 1. In fixing the appropriations;
or at least determinable. (Guingona v. Carague, G.R. No. 2. In determining the activities which should be
94571, April 22, 1991) funded. (1987 Constitution, Art. VII, Sec. 22)

Constitutional limitations on special appropriations NOTE: The proposed budget is not final. The President
measures may propose the budget but still the final say on the
matter of appropriation is lodged in the Congress.
1. Must specify public purpose for which the sum was (Philippine Constitution Association v. Enriquez, G.R. No.
intended; 113105, Aug. 19, 1994)
2. Must be supported by funds actually available as
certified by the National Treasurer or to be raised by Modification of Congress of the budget proposal
corresponding revenue proposal therein. [1987 Constitution,
Art. VI, Sec. 25(4)] Congress may only reduce but not increase the budget.

Constitutional rules on General Appropriations Laws Each legislator cannot exercise the appropriation
power of the Congress
1. Congress may not increase appropriations
recommended by the President for the operations of the Legislative power shall be exclusively exercised by the
government; body to which the Constitution has conferred the same.
2. Form, content and manner of preparation of The power to appropriate must be exercised only
budget shall be provided by law; through legislation, pursuant to Sec. 29(1), Art. VI of the
3. No provision or enactment shall be embraced in Constitution. (Belgica v. Ochoa, G.R. No. 208566, Nov. 19,
the bill unless it releases specifically to some particular 2013)
appropriations therein;
4. Procedure for approving appropriations for ---
Congress shall be the same as that of other departments in Q: The budget of a predominantly Muslim province
order to prevent sub-rosa appropriations by Congress; and provides the Governor with a certain amount as his
5. Prohibition against transfer of appropriations. discretionary funds. Recently, however, the
Nonetheless, the following may, by law, be authorized to Sangguniang Panlalawigan passed a resolution
augment any item in the general appropriations law for their appropriating P100,000 as a special discretionary
respective offices from savings in other items of their fund of the Governor, to be spent by him in leading a
respective appropriations (Doctrine of Augmentation): pilgrimage of his province mates to Mecca, Saudi
a. President Arabia, Islam's holiest city.
b. Senate President
c. Speaker of the HoR Philconsa, on constitutional grounds, has filed suit to
d. Chief Justice nullify the resolution of the Sangguniang
e. Heads of Constitutional Commissions; Panlalawigan giving the special discretionary fund to
6. Prohibitions against appropriations for sectarian the Governor for the stated purpose. How would you
benefit; and decide the case? Give your reasons.
7. Automatic re-appropriation – If, by the end of any
fiscal year, the Congress shall have failed to pass the general A: The resolution is unconstitutional because:
appropriations bill for the ensuing fiscal year, the general
appropriations law for the preceding fiscal year shall be 1. It violates Art. VI, Sec. 29(2) which prohibits the
deemed reenacted and shall remain in force and effect until appropriation of public money or property, directly or
the general appropriations bill is passed by the Congress indirectly, for the use, benefit or support of any system of
(1987 Constitution, Art. VI, Sec. 25[7]). religion;
Ratio: For the purpose of preventing the 2. It contravenes Art. VI, Sec. 25(6) which limits the
disruption in government operations and appropriation of discretionary funds only for public
unauthorized disbursement of funds purposes; and
3. It constitutes a clear violation of the Non-
establishment Clause of the Constitution

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constitutionality of the DAP was challenged, claiming

The use of discretionary funds for a purely religious that it contravened Section 29(1), Art. VI of the 1987
purpose is unconstitutional, and the fact that the Constitution under the guise of the President
disbursement is made by resolution of a local legislative exercising his constitutional authority under Section
body and not by Congress does not make it any less 25(5) of the 1987 Constitution to transfer funds out
offensive to the Constitution. Above all, the resolution of savings to augment the appropriations of offices
constitutes a clear violation of the Non-establishment within the Executive Branch of the Government. Is
Clause of the Constitution. the DAP constitutional?
---
A: NO. The transfers made through the DAP were
Deficit in the final budget cannot be automatically unconstitutional. It is true that the President (and even the
taken from the National Treasury heads of the other branches of the government) are allowed
by the Constitution to make realignment of funds, however,
Congress will still have to enact a law before money can such transfer or realignment should only be made “within
be paid out of the National Treasury [Art. VI, Sec. 29(1)] their respective offices”. Thus, no cross-border
transfers/augmentations may be allowed. But under the
--- DAP, this was violated because funds appropriated by the
Q: Daraga Press filed with COA a money claim for the GAA for the Executive were being transferred to the
payment of textbooks it allegedly delivered to DepEd- Legislative and other non-Executive agencies.
ARMM. COA denied the money claim because it found no
appropriation for the purchase of said textbooks. Is COA’s
Further, transfers “within their respective offices” also
denial correct?
contemplate realignment of funds to an existing project
in the GAA. Under the DAP, even though some projects
A: YES. There was no appropriation for the purchase of the
were within the Executive, these projects are non-
subject textbooks as the Special Allotment Release Order
existent insofar as the GAA is concerned because no
(SARO) in the amount of P63,638,750.00, upon which Daraga
funds were appropriated to them in the GAA. Although
Press anchors its claim, pertains to the payment of personal
some of these projects may be legitimate, they are still
services or salaries of the teachers, not for the purchase of
non-existent under the GAA because they were not
textbooks. ince there was no appropriation for the purchase of
provided for by the GAA. As such, transfer to such
the subject textbooks, the respondent COA had reason to deny
projects is unconstitutional and is without legal basis.
the money claim as Section 29(1), Article VI of the 1987
Constitution provides that: "No money shall be paid out of the
Treasury except in pursuance of an appropriation made by These DAP transfers are not “savings” contrary to what
law." (Daraga Press, Inc. v. Commission on Audit, G.R. No. 201042, was being declared by the Executive. Under the
June 16, 2015) definition of “savings” in the GAA, savings only occur,
--- among other instances, when there is an excess in the
funding of a certain project once it is completed, finally
Doctrine of Augmentation (1996, 1998 Bar) discontinued, or finally abandoned. The GAA does not
refer to “savings” as funds withdrawn from a slow
No law shall be passed authorizing any transfer of moving project. Thus, since the statutory definition of
appropriations; however, the President, the President of savings was not complied with under the DAP, there is
no basis at all for the transfers. Further, savings should
only be declared at the end of the fiscal year. But under
the DAP, funds are already being withdrawn from certain
the Senate, the Speaker of the House of Representatives, projects in the middle of the year and then being
the Chief Justice of the Supreme Court, and the heads of declared as “savings” by the Executive particularly by the
Constitutional Commissions may, by law, be authorized DBM.
to augment any item in the general appropriations law
for their respective offices from savings in other items of Unprogrammed funds from the GAA cannot be used as
their respective appropriations. (1987 Constitution, Art. money source for the DAP because under the law, such
VI, Sec. 25[5]; Demetria v. Alba, G.R. No. 71977, February funds may only be used if there is a certification from the
27, 1987 and Araullo v. Aquino III, G.R. No. 209287, July 1, National Treasurer to the effect that the revenue
2014) collections have exceeded the revenue targets. In this
case, no such certification was secured before
--- unprogrammed funds were used. (Araullo v. Aquino III,
Q: The Disbursement Acceleration Program (DAP) was G.R. No. 209287, Feb. 3, 2015)
instituted by the Department of Budget and Management in ---
2011 to ramp up spending after sluggish disbursements
had caused the growth of the gross domestic product (GDP) PRESIDENTIAL VETO AND CONGRESSIONAL
to slow down. It allowed the Executive to allocate public OVERRIDE
money pooled from programmed and unprogrammed
funds of its various agencies notwithstanding the original Rule on presentment
revenue targets being exceeded. In a petition, the

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 EXECUTIVE DEPARTMENT

Every bill passed by Congress must be presented to the produces a veto even if Congress is in recess. The
President for approval or veto. In the absence of President must still act to veto the bill and communicate
presentment to the President, no bill passed by Congress his veto to Congress without need of returning the
can become a law. vetoed bill with his veto message.

Rule on presidential veto Rider

GR: If the President disapproves a bill enacted by A provision in a bill which does not relate to a particular
Congress, he should veto the entire bill. He is not allowed appropriation stated in the bill. Since it is an invalid
to veto separate items of a bill. provision under Art. VI, Sec. 25[2], the President may
veto it as an item.
XPN: Item-veto is allowed in case of Appropriation,
Revenue, and Tariff bills [1987 Constitution, Art. VI, Sec. Congressional override
27(2)] (1991, 2010 Bar)
If, after reconsideration, 2/3 of all members of such
XPNs to the XPN: House agree to pass the bill, it shall be sent to the other
1. Doctrine of inappropriate provisions – A House by which it shall likewise be reconsidered and if
provision that is constitutionally inappropriate for an approved by 2/3 of all members of that House, it shall
appropriation bill may be singled out for veto even if it is not become a law without the need of presidential approval.
an appropriation or revenue item. (Gonzales v. Macaraig, G.R.
No. 87636, Nov. 19, 1990) NON-LEGISLATIVE POWERS
2. Executive impoundment – Refusal of the
President to spend funds already allocated by Congress for Non-legislative powers of Congress
specific purpose. It is the failure to spend or obligate budget
authority of any type. (Philconsa v. Enriquez, G.R. No. 113105, 1. Power to declare the existence of state of war
Aug. 19, 1994) (1987 Constitution, Art. VI, Sec. 23, Par. 1)
2. Power to act as Board of Canvassers in election of
--- President (1987 Constitution, Art. VII, Sec. 10)
Appropriation Item or Line-item 3. Power to call a special election for President and
Vice-President (1987 Constitution, Art. VII, Sec. 10)
An indivisible sum of money dedicated to a stated 4. Power to judge President’s physical fitness to
purpose. It is indivisible because the amount cannot be discharge the functions of the Presidency (1987
divided for any purpose other than the specific purpose Constitution, Art. VII, Sec. 11)
stated in the item. It is an item, which, in itself, is a 5. Power to revoke or extend suspension of the
specific appropriation of money, not some general privilege of the writ of habeas corpus or declaration of
provision of law, which happens to be put into an martial law (1987 Constitution, Art. VII, Sec. 18)
appropriation bill. 6. Power to concur in Presidential amnesties.
Concurrence of majority of all the members of Congress
An item of appropriation must be an item characterized (1987 Constitution, Art. VII, Sec. 19)
by singular correspondence – meaning an allocation of a 7. Power to concur in treaties or international
specified singular amount for a specified singular agreements; concurrence of at least 2/3 of all the
purpose, otherwise known as a "line-item.". (Araullo v. members of the Senate (1987 Constitution, Art. VII, Sec.
Aquino III, G.R. No. 209287, July 1, 2014) 21)
8. Power to confirm certain appointments/
--- nominations made by the President (1987 Constitution,
Art. VII, Secs. 9 and 16)
NOTE: For the President to exercise his item-veto power, 9. Power of Impeachment (1987 Constitution, Art. XI,
it is necessary that there exists a proper "item" which Sec. 2)
may be the object of the veto. Consequently, to ensure 10. Power relative to natural resources (1987
that the President may be able to exercise said power, Constitution, Art. XII, Sec. 2)
the appropriations bill must contain "specific 11. Power of internal organization (1987 Constitution,
appropriations of money" and not only "general Art. VI, Sec. 16)
provisions" which provide for parameters of a. Election of officers
appropriation. (Araullo v. Aquino III, ibid.) b. Promulgate internal rules
c. Disciplinary powers
Instances of pocket veto (2010 Bar) 12. Informing Function

1. When the President fails to act on a bill; and Congressional grant of emergency powers to the
2. When the reason he does not return the bill to the President (2010 Bar)
Congress is that Congress is not in session.
Under Art. VI, Sec. 23(2), Congress may grant the
Pocket veto is NOT applicable in the Philippines President emergency powers subject to the following
because inaction by the President for 30 days never conditions: (WaLiReN)
1. There is a War or other national emergency;

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2. The grant of emergency powers must be for a 2. The President shall not be eligible for any re-election.
Limited period; NOTE: The Vice-President may serve for more
3. The grant of emergency powers is subject to such than 2 successive terms.
Restrictions as Congress may prescribe; and 3. No person who has succeeded as President and has
4. The emergency powers must be exercised to carry served as such for more than four years shall be qualified for
out a National policy declared by Congress. election to the same office at any time. (1987 Constitution, Art. VII,
Sec. 4)
INFORMING FUNCTIONS
NOTE: Vice-President shall have the same qualifications
Informing function of Congress and term of office and be elected with, and in the same
manner, as the President. He may be removed from office
The informing function of the legislature includes its in the same manner as the President. (1987 Constitution,
function to conduct legislative inquiries and Art. VII, Sec. 3)
investigation and its oversight power.

The power of Congress does not end with the finished PRIVILEGES, INHIBITIONS AND DISQUALIFICATIONS
task of legislation. Associated with its principal power to
legislate is the auxiliary power to ensure that the laws it
enacts are faithfully executed. IMMUNITY AND PRIVILEGES

The power of oversight has been held to be intrinsic in Privileges of the President and Vice-President
the grant of legislative power itself and integral to the
checks and balances inherent in a democratic system of
government. Woodrow Wilson emphasized that “Even PRESIDENT VICE-PRESIDENT
more important than legislation is the instruction and
guidance in political affairs which the people might 1. Official residence;
receive from a body which kept all national concerns 2. Salary is determined by 1. Salary shall not be
suffused in a broad daylight of discussion.” (Opinion of J. decreased during
Puno, Macalintal v. COMELEC, G.R. No. 157013, July 10, law and not to be
2003) his tenure;
decreased during his
2. If appointed to a
POWER OF IMPEACHMENT
tenure. (1987
(Please see discussion on Accountability of Public Officials
under Law on Public Officers) Cabinet post, no need
Constitution, Art. VII,
for Commission on
Sec. 6)
EXECUTIVE DEPARTMENT Appointments’
3. Immunity from suit for
confirmation. (1987
Head of the Executive Department official acts.
Constitution, Art. VII,
The President is both the head of State and head of
government; hence, executive power is exclusively Sec. 3)
vested on him.

Qualifications of the President PRESIDENTIAL IMMUNITY

1. Natural-born citizen of the Philippines; Presidential or executive immunity

2. A registered voter;
3. Able to read and write; The President is immune from suit during his
4. At least forty years of age on the day of the incumbency.
election; and
5. A resident of the Philippines for at least ten years Rules on executive immunity
immediately preceding such election. (1987 Constitution,
Art. VII, Sec. 2) A. Rules on immunity DURING tenure (not term):
1. The President is immune from suit during his tenure.
Term of Office of the President (In re: Bermudez, G.R. No. 76180, Oct. 24, 1986)
2. An impeachment complaint may be filed against him
1. The President shall be elected by direct vote of the during his tenure. (1987 Constitution, Art. XI)
people for a term of 6 years which shall begin at noon on 3. The President may not be prevented from instituting
the 30th day of June next following the day of the election suit. (Soliven v. Makasiar, G.R. No. 82585, Nov. 14, 1988)
and shall end at noon of the same date, 6 years 4. There is nothing in our laws that would prevent the
thereafter. President from waiving the privilege. He may shed the protection
afforded by the privilege. (Soliven v. Makasiar, ibid.)
5. Heads of departments cannot invoke the
UNIVERSITY OF SANTO TOMAS 2017
President’s immunity. (Gloria v. CA, G.R. No.
GOLDEN NOTES
119903, Aug. 15, 2000)
B. Rule on immunity AFTER tenure:

42
 EXECUTIVE DEPARTMENT

Once out of office, even before the end of the 6-year committed by his subordinates for failing to prevent or
term, immunity for non-official acts is lost. punish the perpetrators (as opposed to crimes he
Immunity cannot be claimed to shield a non-sitting ordered). (Rubrico v. GMA, G.R. No. 183871, Feb. 18, 2010)
President from prosecution for alleged criminal acts
done while sitting in office. (Estrada v. Desierto, G.R. Elements of command responsibility
Nos. 146710-15, March 2, 2001)
1. The existence of a superior-subordinate
When a non-sitting President is not immune from relationship between the accused as superior and
suit for acts committed during his tenure the perpetrator of the crime as his subordinate;
2. The superior knew or had reason to know that the
A non-sitting President does not enjoy immunity from crime was about to be or had been committed;
suit, even though the acts were done during her tenure. 3. The superior failed to take the necessary and
The intent of the framers of the Constitution is clear that reasonable measures to prevent the criminal acts
the immunity of the president from suit is concurrent or punish the perpetrators thereof. (Rodriguez v.
only with his tenure and not his term. Former President GMA, G.R. Nos. 191805 & 193160, Nov. 15, 2011)
Arroyo cannot use the presidential immunity from suit to
shield herself from judicial scrutiny that would assess Application of the doctrine of command
whether, within the context of amparo proceedings, she responsibility in amparo proceedings
was responsible or accountable for the abduction of
Rodriguez. (Rodriguez v. GMA, G.R. Nos. 191805 & 193160, It should, at most, be only to determine the author who,
Nov. 15, 2011) at the first instance, is accountable for, and has the duty
to address, the disappearance and harassments
When a former President cannot be impleaded complained of, so as to enable the Court to devise
remedial measures that may be appropriate under the
Impleading the former President as an unwilling co- premises to protect rights covered by the writ
petitioner, for an act she made in the performance of the of amparo. (Rubrico v. GMA, G.R. No. 183871, Feb. 18,
functions of her office, is contrary to the public policy 2010)
against embroiling the President in suits, “to assure the
exercise of Presidential duties and functions free from President may be held liable for extrajudicial killings
any hindrance or distraction, considering that being the and enforced disappearances as Commander-in-
Chief Executive of the Government is a job that, aside Chief
from requiring all of the office holder’s time, also
demands undivided attention. Therefore, former The President may be held accountable under the
President GMA cannot be impleaded as one of the principle of command responsibility. Being the
petitioners in this suit. Thus, her name is stricken off the commander-in-chief of all armed forces, he necessarily
title of this case. (Resident Marine Mammals v. Reyes, G.R. possesses control over the military that qualifies him as
No. 180771, April 21, 2015) a superior within the purview of the command
responsibility doctrine.
Purpose of presidential immunity
On the issue of knowledge, it must be pointed out that
1. Separation of powers – viewed as demanding the although international tribunals apply a strict standard
executive’s independence from the judiciary, so of knowledge, i.e. actual knowledge, the same may
that the President should not be subject to the nonetheless be established through circumstantial
judiciary’s whim. (Almonte, v. Vasquez, G.R. No. evidence. In the Philippines, a more liberal view is
95367, May 23, 1995) adopted and superiors may be charged with constructive
2. Public convenience – The grant is to assure the knowledge.
exercise of presidential duties and functions free
from any hindrance or distraction, considering that Knowledge of the commission of irregularities, crimes or
the presidency is a job that, aside from requiring offenses is presumed when:
all of the office-holders’ time, demands undivided 1. The acts are widespread within the government
attention. (Soliven v. Makasiar, G.R. No. 82585, Nov. official’s area of jurisdiction;
14, 1988) 2. The acts have been repeatedly or regularly
committed within his area of responsibility; or
NOTE: The immunity of the President from suit is 3. Members of his immediate staff or office personnel
personal to the President. It may be invoked only by the are involved.
President and not by any other person. Such privilege
pertains to the President by the virtue of the office and As to the issue of failure to prevent or punish, it is
may be invoked only by the holder of that office; and not important to note that as the commander-in-chief of the
by any other person in his behalf. (Soliven v. Makasiar, armed forces, the President has the power to effectively
ibid.) command, control and discipline the military. (Rodriguez
 v. GMA, G.R. Nos. 191805 & 193160, Nov. 15, 2011)
Principle of command responsibility
PRESIDENTIAL PRIVILEGE
It is “an omission mode of individual criminal liability,”
whereby the superior is made responsible for crimes

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FACULTY OF CIVIL LAW
 POLITICAL LAW

Presidential or Executive Privilege (2009, 2010, necessary legal means to compel his appearance. (Senate
2015 Bar) v. Ermita, ibid.)

It is the power of the President and high-level executive Requirements in invoking the privilege
branch officers to withhold certain types of information
from Congress, the courts, and ultimately the public. 1. There must be a formal claim of the privilege; and
2. The claim has specific designation and description of
Invocation of the privilege the documents within its scope and with the precise and
certain reasons for preserving their confidentiality.
It must be invoked in relation to specific categories of
information and not to categories of persons. Reason: Without this specificity, it is impossible for a
court to analyze the claim short of disclosure of the very
NOTE: A claim of the executive privilege may be valid or thing sought to be protected.
not depending on the ground invoked to justify it and the
context in which it is made. Noticeably absent is any NOTE: Congress, however, must not require the
recognition that executive officials are exempt from the Executive to state the reasons for the claim with such
duty to disclose information by the mere fact of being particularity as to compel disclosure of the information,
executive officials. (Senate v. Ermita, G.R. No. 169777, which the privilege is meant to protect. (Senate v. Ermita,
April 20, 2006) ibid.)

Consequently, in case where the privilege is invoked Limitation of executive privilege

through executive orders (EOs) prohibiting executive
officials from participating in legislative inquiries, the Claim of executive privilege is subject to balancing
Court held that “to the extent that investigations in aid of against other interest. Simply put, confidentiality in
legislation are generally conducted in public, any executive privilege is not absolutely protected by the
executive issuance tending to unduly limit disclosures of Constitution. Neither the doctrine of separation of
information in such investigations necessarily deprives powers nor the need for confidentiality of high-level
the people of information which, being presumed to be in communications can sustain an absolute, unqualified
aid of legislation, is presumed to be a matter of public Presidential privilege of immunity from judicial process
concern. The citizens are thereby denied access to under all circumstances. (Neri v. Senate, G.R. No. 180643,
information which they can use in formulating their own March 25, 2008)
opinions on the matter before Congress— opinions
which they can then communicate to their EO 464 requiring all Executive department heads to
representatives and other government officials through secure the consent of the President before appearing
the various legal means allowed by their freedom of in Question Hour is valid
expression.” (Senate v. Ermita, ibid.) (2009, 2010, 2015
Bar) The requirement to secure presidential consent, limited
as it is only to appearances in the question hour, is valid
Persons who can invoke executive privilege on its face. For unlike inquiries in aid of legislation under
Sec. 21, Art. VI of the Constitution where such
1. President appearance is mandatory, under Sec. 22, the appearance
NOTE: Being an extraordinary power, the privilege of department heads in the question hour is
must be wielded only by the highest official in the discretionary on their part.
executive department. Thus, the President may not
authorize her subordinates to exercise such power. Dictated by the basic rule of construction that issuances
must be interpreted, as much as possible, in a way that
2. Executive Secretary, upon proper authorization from the will render it constitutional, the said provision must be
President construed as applicable only to appearances in question
NOTE: Executive Secretary must state that the hour under Sec. 22, not in inquiries in aid of legislation
authority is “By order of the President,” which under Sec. 21. Congress is not bound in the latter
means he personally consulted with the President. instance to respect the refusal of the department head to
appear in such inquiry, unless a valid claim of privilege is
Requirement if an official is summoned by Congress subsequently made, either by the President herself or by
on a matter which in his own judgment might be the Executive Secretary. (Senate v. Ermita, G.R. No.
covered by executive privilege 169777, April 20, 2006)

He must be afforded reasonable time to inform the Kinds of executive privilege

President or the Executive Secretary of the possible need
for invoking the privilege, in order to provide the same 1. State secret privilege– Invoked by Presidents on the
with fair opportunity to consider whether the matter ground that the information is of such nature that its
indeed calls for a claim of executive privilege. If, after the disclosure would subvert crucial military or diplomatic
lapse of that reasonable time, neither the President nor objectives.
the Executive Secretary invokes the privilege, Congress is 2. Informer’s privilege– Privilege of the government not
no longer bound to respect the failure of the official to to disclose the identity of persons who furnish
appear before Congress and may then opt to avail of the

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2017 GOLDEN NOTES
 EXECUTIVE DEPARTMENT
1. The protected communication must relate to a
“quintessential and non-delegable presidential power.”
information in violations of law to officers charged 2. The communication must be authored or
with the enforcement of the law. “solicited and received” by a close advisor of the
3. Generic privilege for internal deliberation– Said to President or the President himself. The judicial test is
attach to intra-governmental documents reflecting advisory that an advisor must be in “operational proximity” with
opinions, recommendations and deliberations comprising part the
of a process by which governmental decisions and policies are President.
formulated.
4. Presidential communications privilege;
5. Deliberative process privilege. (In Re: Sealed Case No.
96-3124, June 17, 1997)

Test to determine the validity of a claim of privilege

Whether the requested information falls within one of

the traditional privileges and whether that privilege
should be honored in a given procedural setting.

Presidential communications privilege vs.

Deliberative process privilege

BASIS PRESIDENTIAL DELIBERATIVE

COMMUNICATIONS PROCESS
PRIVILEGE PRIVILEGE
Includes
advisory
Pertains to opinions,
communications, recommend
documents or ations and
other materials deliberation
that reflect s
Scope of
presidential comprising
the
decision-making part of a
privilege
and deliberations process by
that the President which
believes should government
remain al decisions
confidential and policies
are
formulated
To Applies to
who Applies to decision-
m decision-making of making of
appli the President executive
cable officials
Rooted in the
constitutional
Rooted in
Foun principle of
common
datio separation of
law
n powers and the
privileges
President’s unique
constitutional role

Presidential Communications Privilege

Elements:
 A petition was filed with the SC which seeks to obtain
3. The presidential communications privilege remains a a copy of the Philippine and Japanese offers
qualified privilege that may be overcome by a showing of submitted during the negotiation process and all
adequate need, such that the information sought “likely pertinent attachments and annexes thereto. Arlos
contains important evidence” and by the unavailability of the invoked executive privilege based on the ground that
information elsewhere by an appropriate investigating the information sought pertains to diplomatic
authority. negotiations then in progress. On the other hand,
Akbayan for their part invoked their right to
information on matters of public concern. Are
Presumed privilege status of presidential communications matters involving diplomatic negotiations covered
by executive privilege?
The presumption is based on the President’s generalized
interest in confidentiality. The privilege is necessary to A: YES. The Court held that while it is clear that the final
guarantee the candor of presidential advisors and to provide
text of the JPEPA may not be kept perpetually
the President and those who assist him with freedom to explore
confidential, the offers exchanged by the parties during
alternatives in the process of shaping policies and making
the negotiations continue to be privileged even after the
decisions and to do so in a way many could be unwilling to
JPEPA is published. Disclosing these offers could impair
express except privately. The presumption can be overcome
the ability of the Philippines to deal not only with Japan
only by mere showing of public need by the branch seeking
but also with other foreign governments in future
access to conversations. The courts are enjoined to resolve the
negotiations. Thus, the DTI USec. correctly invoked
competing interests of the political branches of the government
executive privilege based on the ground that the
“in a manner that preserves the essential functions of each
information sought pertains to diplomatic negotiations
Branch.”
then in progress. (AKBAYAN v. Aquino, G.R No. 170516,
July 16, 2008)
--- ---
Q: The HoRs’ House Committee conducted an inquiry on the
Japan-Philippines Economic Partnership Agreement
NOTE: Such privilege is only presumptive.
(JPEPA), then being negotiated by the Philippine
Government. The House Committee requested DTI USec.
Matters involving diplomatic negotiations are covered by
Aquino to furnish it with a copy of the latest draft of the
executive privilege. However, such privilege is only
JPEPA. Arlos replied that he shall provide a copy thereof
once the negotiations are completed.
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presumptive. Recognizing a type of information as ambassadors and consuls.

privileged does not mean that it will be considered
privileged in all instances. Only after a consideration of ---
the context in which the claim is made may it be Q: Alfredo, the Chief Presidential Legal Counsel (CPLC),
determined if there is a public interest that calls for the was also appointed as Chairman of the PCGG. May the
disclosure of the desired information, strong enough to two offices be held by the same person?
overcome its traditionally privileged status. (AKBAYAN v.
Aquino, ibid.) A: NO. When the Chief Presidential Legal Counsel was also
appointed as Chairman of the PGCC, the Court held that the
Prohibitions attached to the President, Vice- two offices are incompatible. Without question, the PCGG is
President, Cabinet Members, and their deputies or an agency under the Executive Department. Thus, the
assistants, unless otherwise provided in the actions of the PCGG Chairman are subject to the review of
Constitution (1996, 1998, 2002, 2004 Bar) the CPLC. (Public Interest Group v. Elma, G.R. No. 138965,
June 30, 2006)
1. Shall not receive any other emolument from the ---
government or any other source. (1987 Constitution, Art. VII, ---
Sec. 6) Q: The President appointed Kristina as the Acting
2. Shall not hold any other office or employment during their Secretary of Justice. After a couple of days, the President
tenure unless: designated her as the Acting Solicitor General in a
a. Otherwise provided in the Constitution (e.g. VP can be concurrent capacity. Paulina contested the appointment
appointed as a Cabinet Member without the need of of Kristina on the ground that the appointment violated
confirmation by Commission on Appointments; Sec. of Justice Sec. 13, Art. VII of the Constitution which expressly
sits in the Judicial and Bar Council) prohibits the President, Vice-President, the Members of
b. The positions are ex-officio and they do not receive the Cabinet, and their deputies or assistants from
any salary or other emoluments therefore (e.g. Sec. of Finance holding any other office or employment during their
as head of the Monetary Board) tenure unless otherwise provided in the Constitution.
On the other hand, Kristina claims that according to Sec.
NOTE: This prohibition must not, however, be 7, par. (2), Art. IX-B of the Constitution, her appointment
construed as applying to posts occupied by the to such positions is outside the coverage of the
Executive officials without additional compensation prohibition under Sec. 13 of Art. VII as it falls into one of
in an ex-officio capacity, as provided by law and as the exceptions as being allowed by law or by the
required by the primary functions of the said primary functions of her position. Does the designation
official’s office. (National Amnesty Commission v. of Anthony as the Acting Secretary of Justice,
COA, G.R. No. 156982, Sept. 2, 2004) concurrently with his position as Acting Solicitor
General, violate the constitutional prohibition against
3. Shall not practice, directly or indirectly, any other dual or multiple offices for the Members of the Cabinet
profession during their tenure and their deputies and assistants?
4. Shall not participate in any business
5. Shall not be financially interested in any contract with, or A: YES. There is violation of the Constitution in case an
in any franchise, or special privilege granted by the Acting Secretary of Justice is designated as Acting Solicitor
Government, including GOCCs General because while all other appointive officials in the
6. Shall avoid conflict of interest in conduct of office civil service are allowed to hold other office or employment
7. Shall avoid nepotism. (1987 Constitution, Art. VII, Sec. 13) in the government during their tenure when such is allowed
by law or by the primary functions of their positions,
NOTE: The spouse and relatives by consanguinity or members of the Cabinet, their deputies and assistants may
affinity within the 4th civil degree of the President shall do so only when expressly authorized by the Constitution
not, during his tenure, be appointed as: itself. In other words, Sec. 7, Art. IX-B is meant to lay down
a. Members of the Constitutional the general rule applicable to all elective and appointive
Commissions; public officials and employees, while Sec. 13, Art. VII is
b. Office of the Ombudsman; meant to be the exception applicable only to the President,
c. Secretaries; the Vice-President, and Members of the Cabinet, their
d. Undersecretaries; deputies and assistants.
e. Chairmen or heads of bureaus or offices, including
GOCCs and their subsidiaries. On its face, the language of Sec. 13, Art. VII is prohibitory
so that it must be understood as intended to be a positive
If the spouse, etc., was already in any of the above offices and unequivocal negation of the privilege of holding
at the time before his/her spouse became President, multiple government offices or employment.
he/she may continue in office. What is prohibited is
appointment and reappointment, not continuation in The phrase "unless otherwise provided in this
office. Constitution" must be given a literal interpretation to
refer only to those particular instances cited in the
Spouses, etc., can be appointed to the judiciary and as Constitution itself, to wit:

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2017 GOLDEN NOTES
 EXECUTIVE DEPARTMENT

a. The Vice-President being appointed as a member of and power to suspend the privilege of the writ of
the Cabinet under Sec. 3, par. (2), Art. VII; or acting as habeas corpus) (1987 Constitution, Art. VII, Sec. 18)
President in those instances provided under Sec. 7, pars. (2) 4. Pardoning power (1987 Constitution, Art. VII, Sec.
and (3), Art. VII; and 19)
b. The Secretary of Justice being ex-officio member of 5. Borrowing power (1987 Constitution, Art. VII, Sec.
the Judicial and Bar Council by virtue of Sect. 8 (1), Art. VIII 20)
(Funa v. Agra, G.R. No. 191644, Feb. 19, 2013). 6. Diplomatic/Treaty-making power (1987
Constitution, Art. VII, Sec. 21)
Sec. 13, Art. VII undoubtedly covers the Acting Secretary 7. Budgetary power (1987 Constitution, Art. VII, Sec.
of Justice as being concurrently designated as Acting 22)
Solicitor General; therefore, he could not validly hold any 8. Informing power (1987 Constitution, Art. VII, Sec.
other office or employment during his tenure as the 23)
Acting Solicitor General, because the Constitution has not 9. Veto power (1987 Constitution, Art. VI, Sec. 27)
otherwise so provided. 10. Power of general supervision over local
--- governments (1987 Constitution, Art. X, Sec. 4)
11. Power to call special session (1987 Constitution,
Art. VI, Sec. 15)
POWERS OF THE PRESIDENT
Administrative power

EXECUTIVE AND ADMINISTRATIVE POWERS IN Power concerned with the work of applying policies and
GENERAL enforcing orders as determined by proper governmental
organs. It enables the President to fix a uniform standard
Executive Power of administrative efficiency and check the official
conduct of his agents. To this end, he can issue
Power vested in the President of the Philippines. The administrative orders, rules and regulations. (Ople v.
President shall have control of all executive departments, Torres, G.R. No. 127685, July 23, 1998)
bureaus and offices. He shall ensure that laws are
faithfully executed (1987 Constitution, Art. VII, Sec. 17). Power of administrative reorganization

The President has the continuing authority to reorganize

Faithful Execution Clause the national government, which includes the power to
group, consolidate bureaus and agencies, to abolish
The power to take care that the laws be faithfully offices, to transfer functions, to create and classify
executed makes the President a dominant figure in the functions, services and activities and to standardize
administration of the government. The law he is salaries and materials; it is effected in good faith if it is
supposed to enforce includes the Constitution, statutes, for the purpose of economy or to make bureaucracy
judicial decisions, administrative rules and regulations more efficient. (MEWAP v. Exec. Sec., G.R. No. 160093, July
and municipal ordinances, as well as treaties entered 31, 2007)
into by the government.
POWER OF APPOINTMENT
Scope of executive power (1991, 1994, 1999, 2002, 2005 Bar)

1. Executive power is vested in the President of the Appointment

Philippines. (1987 Constitution, Art. VII, Sec. 1).
2. It is not limited to those set forth in the The selection of an individual who is to exercise the
Constitution (Residual powers). (Marcos v. Manglapus, G.R. functions of a given office. It may be made verbally but it
No. 88211, Oct. 27, 1989) is usually done in writing through what is called the
3. Privilege of immunity from suit is personal to the commission.
President and may be invoked by him alone. It may also be
waived by the President, as when he himself files suit. NOTE: The appointing power of the President is
(Soliven v. Makasiar, G.R. No. 82585, Nov. 14, 1988) executive in nature. While Congress and the Constitution
in certain cases may prescribe the qualifications for
Specific powers of the President particular offices, the determination of who among those
who are qualified will be appointed is the President’s
1. Appointing power (1987 Constitution, Art. VII, Sec. prerogative (Pimentel v. Ermita, G.R. No. 164978, Oct. 13,
16) 2005).
2. Power of control over all executive departments,
bureaus and offices (1987 Constitution, Art. VII, Sec. 17) Kinds of Presidential appointments
3. Commander-in-Chief powers (calling-out power,
power to place the Philippines under martial law, 1. Appointments made by an Acting President;
2. Midnight Appointment; (1987 Constitution, Art. VII,
Sec. 15)
3. Regular Presidential Appointments, with or without
the confirmation by the CA; or

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 POLITICAL LAW

4. Ad-interim Appointments. prescribed by law for the position, the appointment may
not be subject to judicial review.
Elements in making a valid, complete, and effective
Presidential appointment: (ATVA) Rule on the effectivity of appointments made by an
Acting President
1. Authority to appoint and evidence of the exercise of the
authority; Shall remain effective unless revoked by the elected
2. Transmittal of the appointment paper signed by the President within 90 days from his assumption/re-
President and evidence of the transmittal; assumption. (1987 Constitution, Art. VII, Sec. 14)

NOTE: It is not enough that the President signs the Designation

appointment paper. There should be evidence that
the President intended the appointment paper to The imposition of additional duties on a person already
be issued. Release of the appointment paper in the public service. It is considered only as an acting or
through the Malacanang Records Office (MRO) is temporary appointment, which does not confer security
an unequivocal act that signifies the President’s of tenure on the person named. (Binamira v. Garrucho,
intent of its issuance G.R. No. 92008, July 30, 1990)

3. A Vacant position at the time of appointment; NOTE: The President has the power to temporarily
designate an officer already in the government service or
NOTE: The incumbent must first be legally any other competent person to perform the functions of
removed, or his appointment validly terminated, an office in the executive branch. Temporary designation
before one could be validly installed to succeed cannot exceed one year.
him.
Appointments made solely by the President
4. Receipt of the appointment paper and Acceptance of the
appointment by the appointee who possesses all the 1. Those vested by the Constitution on the President
qualifications and none of the disqualifications alone;
2. Those whose appointments are not otherwise
NOTE: The possession of the original appointment provided by law;
paper is not indispensable to authorize an 3. Those whom he may be authorized by law to appoint;
appointee to assume office. If it were and
indispensable, then a loss of the original 4. Those other officers lower in rank whose appointment
appointment paper, which could be brought about is vested by law in the President alone. (1987 Constitution,
by negligence, accident, fraud, fire or theft, Art. VII, Sec. 16)
corresponds to a loss of the office. Howe ver, in
case of loss of the original appointment paper, the Presidential appointments that need prior
appointment must be evidenced by a certified true recommendation or nomination by the Judicial and
copy issued by the proper office, in this case the Bar Council
Malacanang Records Office.
1. Members of the Supreme Court and all lower courts
NOTE: Acceptance is indispensable to complete an (1987 Constitution, Art. VIII, Sec. 9)
appointment. Assuming office and taking the oath 2. Ombudsman and his 5 deputies
amount to acceptance of the appointment. An oath
of office is a qualifying requirement for a public COMMISSION ON APPOINTMENTS CONFIRMATION
office, a prerequisite to the full investiture of the
office. Appointments where confirmation of the
Commission on Appointments is required (HA2O)
Concurrence of all these elements should always
apply, regardless of when the appointment is made, 1. Heads of executive departments
whether outside, just before, or during the appointment GR: Appointment of cabinet secretaries
ban. These steps in the appointment process should requires confirmation.
always concur and operate as a single process. There is
no valid appointment if the process lacks even one step. XPN: Vice-president may be appointed as a
And there is no need to further distinguish between an member of the Cabinet and such appointment
effective and an ineffective appointment when an requires no confirmation. [1987 Constitution,
appointment is valid. (Velicaria-Garafil v. Office of the Art. VII, Sec. 3(2)]
President, G.R. No. 203372, June 16, 2015)
2. Ambassadors, other public ministers and consuls–
Non-justiciability of appointments Those connected with the diplomatic and consular services
of the country.
Appointment is a political question. So long as the 3. Officers of AFP from the rank of colonel or naval
appointee satisfies the minimum requirements captain
NOTE: PNP of equivalent ranks and the Philippine
Coast Guard is not included.

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2017 GOLDEN NOTES
 EXECUTIVE DEPARTMENT

4. Other officers of the government whose NOTE: Being a permanent appointment, an ad interim
appointments are vested in the President in the Constitution appointee pending action by the Commission on
(1987 Constitution, Art. VII, Sec. 16), such as: Appointments enjoys security of tenure. (Marombhosar
a. Chairmen and members of the CSC, v. CA, G.R. No. 126481, Feb. 18, 2000)
COMELEC and COA [1987 Constitution, Art. IX-B, C, D, Sec.
1(2)] Ad interim appointment vs. Appointment in an Acting
b. Regular members of the JBC [1987 Capacity
Constitution, Art. VIII, Sec. 8(2)]

NOTE: The enumeration is exclusive. APPOINTMENT

AD INTERIM
Appointing procedure for those that need
BASIS IN AN ACTING
Commission’s confirmation
APPOINTMENT
1. Nomination by the President CAPACITY
2. Confirmation by the CA
Made at any
3. Issuance of commission
4. Acceptance by the appointee time there is
i.e.
NOTE: At any time, before all four steps have been Made during the vacancy, ,
complied with, the President can withdraw the When made
nomination and appointment. (Lacson v. Romero,.R. No. recess of Congress whether
L-3081, Oct. 14, 1949) Congress is
in session or
Procedure for those that do not need the
Commission’s confirmation not
As to Requires Does not
1. Appointment confir confirmation require
2. Acceptance
matio of the confirmatio
Ad interim Appointment n of Commission n of the
the Commission
Power of the President to make appointments during Commi
the recess of Congress, but such appointments shall be ssion
effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Perman Tempo
Congress. (Matibag v. Benipayo, G.R. No. 149036, April 2, ent rar
2002) in y
Nature
Purpose of ad interim appointment nat in
ure nat
Ad interim appointments are intended to prevent a
hiatus in the discharge of official duties. Obviously, the ure
public office would be immobilized to the prejudice of
the people if the President had to wait for Congress and Appointee Appointee
the Commission of Appointments to reconvene before he As to
could fill a vacancy occurring during the recess. (Guevara
enjoys does not
v. Inocentes, G.R. No. L-25577, March 15, 1966)
securit
Nature of ad interim appointment security of enjoy
y of
Ad interim appointments are permanent appointments. It tenure security of
is permanent because it takes effect immediately and can tenure
no longer be withdrawn by the President once the tenure
appointee qualified into office. The fact that it is subject
to confirmation by the CA does not alter its permanent Permanent Appointment vs. Temporary
character. In cases where the term of said ad interim Appointment
appointee had expired by virtue of inaction by the
Commission on Appointments, he may be reappointed to
the same position without violating the Constitutional BASIS PERMANENT TEMPORARY
provision prohibiting an officer whose term has expired APPOINTMENT APPOINTMENT
from being re-appointed. (Matibag v. Benipayo, G.R. No.
130657, April 1, 2002)
As to Extended to Given to
persons persons persons
appointed possessing without such
the requisite eligibility;

eligibility
 appoin appointing
Not Revocable at
tee power has
revocable at will without
full
discretion to
will the necessity
change
As to of just cause
acts of or a valid
(See further discussion under Law on Public Officers)
the investigation;

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 POLITICAL LAW

President may appoint Acting Secretaries without A: NO. Art. VII is devoted to the Executive Department. Had
the consent of the Commission while the Congress is the framers intended to extend the prohibition contained in
in session Sec. 15, Art. VII to the appointment of Members of the
Supreme Court, they could have explicitly done so. They
Congress, through a law, cannot impose on the President could not have ignored the meticulous ordering of the
the obligation to appoint automatically the provisions. They would have easily and surely written the
undersecretary as her temporary alter ego. An alter ego, prohibition made explicit in Sec. 15, Art. VII as being equally
whether temporary or permanent, holds a position of applicable to the appointment of Members of the Supreme
great trust and confidence. The office of a department Court in Art. VIII itself, most likely in Sec. 4 (1), Art. VIII. That
secretary may become vacant while Congress is in such specification was not done only reveals that the
session. Since a department secretary is the alter ego of prohibition against the President or Acting President making
the President, the acting appointee to the office must appointments within two months before the next
necessarily have the President’s confidence. (Pimentel v. presidential elections and up to the end of the
Ermita, G.R. No. 164978, Oct. 13, 2005) President’s or Acting President’s term does not refer to
the Members of the Supreme Court. (De Castro v. JBC,
NOTE: Acting appointments cannot exceed one year G.R. No. 191002, March 17, 2010)
[EO 292, Book III, Title I, Chapter 5, Sec. 17 (3)] ---
---
Limitations on the appointing power of the President Q: President Arroyo appointed Atty. Velicaria-Garafil as
State Solicitor II on 5 March 2010. The appointment
1. The spouse and relatives by consanguinity or affinity paper was transmitted on 8 March 2010 and was
within the 4th civil degree of the President shall not, during his received by the Malacañang Records Office (MRO) on 13
"tenure" be appointed as: May 2010. Atty. Velicaria-Garafil, on the other hand,
a. Members of the Constitutional Commissions; took her oath of office on 22 March 2010 and assumed
b. Member of the Office of Ombudsman; thereto 6 April 2010. The cut-off date for valid
c. Secretaries; presidential appointments was on 10 March 2010 or two
d. Undersecretaries; months preceding the 10 May 2010 elections. Upon
e. Chairmen or heads of bureaus or offices, including assumption of President Aquino III, he issued E.O. No. 2
government-owned or controlled corporations and their recalling, withdrawing, and revoking all midnight
subsidiaries. (1987 Constitution, Art. VII, Sec. 13[2]) appointments of President Arroyo which includes all
2. Appointments made by the acting-President shall remain appointments bearing dates prior to 11 March 2010
effective unless revoked within 90 days from assumption of where the appointee has accepted, or taken his oath, or
office by elected President. (1987 Constitution, Art. VII, Sec. 14) assumed public office on or after 11 March 2010. Atty.
3. GR: Two months immediately before the next Velicaria-Garafil asserts the validity of her appointment
Presidential elections (2nd Monday of May), and up to the end and now questions the constitutionality of E.O. No. 2.
of his "term" (June 30), a President (or Acting President) shall Decide.
not make appointments. XPN: Temporary appointments, to
executive positions, when continued vacancies therein will A: E.O. No. 2 is constitutional. Atty. Velicaria-Garafil’s
prejudice public service (1987 Constitution, Art. VII, Sec. 15), e.g. appointment is a midnight appointment and is void for
Postmaster; or endanger public safety, e.g. Chief of Staff. (1991, violation of Art. VII, Sec. 15 of the 1987 Constitution.
1997 Bar) Appointment to a government post is a process that takes
several steps to complete. Any valid appointment, including
MIDNIGHT APPOINTMENTS one made under the exception provided in Section 15,
Article VII of the 1987 Constitution, must consist of the
Prohibited appointments under Sec. 15, Art. VII of President signing an appointee’s appointment paper to a
the Constitution vacant office, the official transmittal of
the appointment paper (preferably through the MRO),
1. Those made for buying votes– Refers to those receipt of the appointment paper by the appointee, and
appointments made within two months preceding the acceptance of the appointment by the appointee
Presidential election and are similar to those which are evidenced by his or her oath of office or his or her
declared election offenses in the Omnibus Election Code; and assumption to office. The purpose of the prohibition on
2. Those made for partisan considerations– Consists of the midnight appointments is to prevent a President, whose
so-called “midnight” appointments. (In Re: Hon. Valenzuela term is about to end, from preempting his successor by
and Hon. Vallarta, A.M. No. 98-5-01-SC, Nov. 9, 1998) appointing his own people to sensitive positions.
(Velicaria-Garafil v. Office of the President, G.R. No.
--- 203372, June 16, 2015)
Q: Does the prohibition against appointments provided ---
under Sec. 15, Art VII of the Constitution apply to ---
appointments to the judiciary? Q: Supposing that Atty. Velicaria-Garafil’s
appointment and its transmittal are made before the
ban (11 March 2010) but she took her oath and assumed
(acceptance of appointment) as State
UNIVERSITY OF SANTO TOMAS
2017 GOLDEN NOTES
 EXECUTIVE DEPARTMENT

Solicitor II only after the ban, is the appointment still 2. Being executive in nature, it is implied from the
a midnight appointment? constitutional provision vesting the executive
power in the President.
A: YES. The President exercises only one kind of 3. It may be implied from his function to take care
appointing power. There is no need to differentiate the that laws be properly executed; for without it, his
exercise of the President’s appointing power outside, just orders for law enforcement might not be
before, or during the appointment ban. The Constitution effectively carried out.
allows the President to exercise the power of 4. The power may be implied from the President’s
appointment during the period not covered by the control over the administrative departments,
appointment ban, and disallows (subject to an exception) bureaus, and offices of the government. Without
the President from exercising the power of appointment the power to remove, it would not be always
during the period covered by the appointment ban. The possible for the President to exercise his power of
concurrence of all steps in the appointment process control.
is admittedly required for appointments outside the
appointment ban. There is no justification whatsoever NOTE: Members of the career service of the Civil Service
to remove acceptance as a requirement in the who are appointed by the President may be directly
appointment process for appointments just before the disciplined by him. (Villaluz v. Zaldivar, G.R. No. L-22754,
start of the appointment ban, or during the appointment Dec. 31, 1965) provided that the same is for cause and in
ban in appointments falling within the exception. The accordance with the procedure prescribed by law.
existence of the appointment ban makes no difference in
the power of the President to appoint; it is still the same Members of the Cabinet and such officers whose
power to appoint. In fact, considering the purpose of continuity in office depend upon the President may be
the appointment ban, the concurrence of all steps in replaced at any time. Legally speaking, their separation
the appointment process must be strictly applied on is effected not by the process of removal but by the
appointments made just before or during the expiration of their term. (Aparri v. CA, G.R. No. L-30057,
appointment ban. (Velicaria-Garafil v. Office of the Jan. 31, 1984)
President, ibid.)
--- The President has no disciplinary authority over the
Ombudsman
Prohibition on midnight appointments only applies
to presidential appointments Sec. 8(2) of RA 6770 vesting disciplinary authority on the
President over the Deputy Ombudsman violates the
The prohibition on midnight appointments only applies independence of the Office of the Ombudsman and is,
to presidential appointments. It does not apply to thus, unconstitutional.
appointments made by local chief executives.
Nevertheless, the Civil Service Commission has the Subjecting the Deputy Ombudsman to discipline and
power to promulgate rules and regulations to removal by the President, whose own alter egos and
professionalize the civil service. It may issue rules and officials in the Executive Department are subject to the
regulations prohibiting local chief executives from Ombudsman's disciplinary authority, cannot but
making appointments during the last days of their seriously place at risk the independence of the Office of
tenure. Appointments of local chief executives must the Ombudsman itself. The law directly collided not only
conform to these civil service rules and regulations in with the independence that the Constitution guarantees
order to be valid (Provincial Government of Aurora v. to the Office of the Ombudsman, but inevitably with the
Marco, G.R. No. 202331, April 22, 2015). principle of checks and balances that the creation of an
Ombudsman office seeks to revitalize. What is true for
POWER OF REMOVAL the Ombudsman must be equally and necessarily true for
her Deputies who act as agents of the Ombudsman in the
Power of Removal performance of their duties (Gonzales III v. Ochoa, G. R.
No. 196231; Barreras-Sulit v. Ochoa, G.R. No. 196232; Feb.
GR: From the express power of appointment, the 26, 2014).
President derives the implied power of removal.
POWER OF CONTROL AND SUPERVISION
XPN: Not all officials appointed by the President are also
removable by him since the Constitution prescribes Power of Control
certain methods for the separation from the public
service of such officers The power of an officer to alter or modify or nullify or to
e.g. impeachment set aside what a subordinate has done in the
performance of his duties and to substitute one’s own
Source of the President’s Power of Removal judgment for that of a subordinate.

The President derives his implied power of removal from ---

other powers expressly vested in him. Q: Emmanuel sued PGA Cars before the DTI pursuant
1. It is implied from his power to appoint. to the Consumer Act (R.A. 7394) due to the defect in
the BMW he bought from the latter. DTI sided with
Emmanuel. PGA Cars appealed before the Office of

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 POLITICAL LAW

the President (OP) which reversed the DTI’s

decision. Emmanuel elevated the matter before the “Doctrine of Qualified Political Agency” or “Alter Ego
CA through Rule 65 and argued that the OP had no Principle” (2014, 2015 Bar)
appellate jurisdiction over DTI’s decision. The OP
countered that it has an appellate jurisdiction over The acts of the secretaries of the Executive departments
DTI on the ground that the President’s power of performed and promulgated in the regular course of
control over the executive department grants him business are presumptively the acts of the Chief
the power to amend, modify, alter or repeal Executive. (Villena v. Sec. of the Interior, G.R. No. L-46570,
decisions of the department secretaries. Decide. April 21, 1939)

A: Emmanuel is correct. The executive power of control over Essence of the Alter Ego doctrine
the acts of department secretaries is laid down in Section 17,
Article VII of the 1987 Constitution. The power of control has Since the President is a busy man, he is not expected to
been defined as the "power of an officer to alter or modify or exercise the totality of his power of control all the time.
nullify or set aside what a subordinate officer had done in the He is not expected to exercise all his powers in person.
performance of his duties and to substitute the judgment of the He is expected to delegate some of them to men of his
former for that of the latter." confidence, particularly to members of his Cabinet.

Such "executive control" is not absolute. The definition NOTE: Applying this doctrine, the power of the President
of the structure of the executive branch of government, to reorganize the National Government may be validly
and the corresponding degrees of administrative control delegated to his Cabinet Members exercising control
and supervision is not the exclusive preserve of the over a particular executive department. (DENR v. DENR
executive. It may be effectively limited by the Region XII Employees, G.R. No. 149724, Aug. 19, 2003)
Constitution, by law, or by judicial decisions. All the more
in the matter of appellate procedure as in the instant ---
case. Appeals are remedial in nature; hence, Q: The Toll Regulatory Board (TRB) and PNCC executed
constitutionally subject to this Court’s rulemaking the Amendment to the Supplemental Toll Operation
power. The Rules of Procedure was issued by the Court Agreement (ASTOA). The ASTOA incorporated the
pursuant to Section 5, Article VIII of the Constitution, amendments to cover the design and construction of
which expressly empowers the Supreme Court to Stage 2 of the South Metro Manila Skyway. The DOTC
promulgate rules concerning the procedure in all courts. Secretary then approved the ASTOA. Risa Hontiveros
assailed the DOTC
Parenthetically, Administrative Order (A.O.) No. 18 Secretary’s approval on the ground that it could not
expressly recognizes an exception to the remedy of take the place of the presidential approval required
appeal to the Office of the President from the decisions of under P.D. 1113 and P.D. 1894 concerning the
executive departments and agencies. Under Section 1 franchise granted to PNCC. Is Risa Correct?
thereof, a decision or order issued by a department or
agency need not be appealed to the Office of the A: NO. The doctrine of qualified political agency declares
President when there is a special law that provides for a that, save in matters on which the Constitution or the
different mode of appeal. circumstances require the President to act personally,
executive and administrative functions are exercised
In this case, a special law, RA 7394, expressly provided through executive departments headed by cabinet
for immediate judicial relief from decisions of the DTI secretaries, whose acts are presumptively the acts of the
Secretary by filing a petition for certiorari with the President unless disapproved by the latter. There can be no
"proper court." Hence, private respondent should have question that the act of the secretary is the act of the
elevated the case directly to the CA through a petition for President, unless repudiated by the latter. In this case,
certiorari. (Moran v. Office of the President, G.R. No. approval of the ASTOA by the DOTC Secretary had the same
192957, Sept. 29, 2014) effect as approval by the President. The same would be true
--- even without the issuance of E.O. 497, in which the
President, on 24 January 2006, specifically delegated to the
NOTE: The President’s power over GOCCs comes from DOTC Secretary the authority to approve contracts entered
statute, not from the Constitution, hence, it may be taken into by the TRB. Risa’s reliance on P.D. 1113 and P.D. 1894 is
away by statute. misplaced. When we say that the approval by the DOTC
Secretary in this case was approval by the President, it was
The President has full control of all the members of his not in connection with the franchise of PNCC, as required
Cabinet. He may appoint them as he sees fit, shuffle them under P.D. 1113 and P.D. 1894. Rather, the approval was in
at pleasure, and replace them in his discretion without connection with the powers of the TRB to enter into
any legal inhibition whatever. However, such control is contracts on behalf of the government as provided under
exercisable by the President only over the acts of his Section 3(a) of P.D. 1112. (Hontiveros-Baraquel v. Toll
subordinates and not necessarily over the subordinate Regulatory Board, G.R. No. 181293, February 23, 2015)
himself. (Ang-Angco v. Castillo, G.R. No.L-17169, Nov. 30, ---
1963)
XPNs to the Alter Ego doctrine
DOCTRINE OF QUALIFIED POLITICAL AGENCY

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 EXECUTIVE DEPARTMENT

1. If the acts are disapproved or reprobated by the The power of a superior officer to ensure that the laws
President; are faithfully executed by subordinates.
2. If the President is required to act in person by law
or by the Constitution. The power of the President over LGUs is only of general
e.g. executive clemency supervision. Thus, he can only interfere in the affairs and
activities of a LGU if he finds that the latter acted
--- contrary to law.
Q; Atty. Alcantara questioned R.A. 9337 which
authorizes the President, upon recommendation of The President or any of his alter egos cannot interfere in
the Secretary of Finance, to raise the VAT rate to local affairs as long as the concerned LGU acts within the
12%. Atty. Alcantara argues that said law is parameters of the law and the Constitution. Any
unconstitutional since the law effectively nullified directive, therefore, by the President or any of his alter
the President’s power of control over the Secretary egos seeking to alter the wisdom of a law-conforming
of Finance by mandating the raising of the VAT rate judgment on local affairs of a LGU is a patent nullity,
upon the latter’s recommendation. Is Atty. Alcantara because it violates the principle of local autonomy, as well
correct? as the doctrine of separation of powers of the executive
and the legislative departments in governing municipal
A: NO. In making his recommendation to the President, corporations. (Dadole v. COA, G.R. No. 125350, Dec. 3,
the Secretary of Finance is not acting as the alter ego of the 2002)
President or even her subordinate. In such instance, he is not
subject to the power of control and direction of the Control vs. Supervision
President. He is acting as the agent of the legislative
department, to determine and declare the event upon which
its expressed will is to take effect. The Secretary of Finance BASIS CONTROL SUPERVISION
becomes the means or tool by which legislative policy is
determined and implemented, considering that he possesses The
all the facilities to gather data and information and has a supervisor
much broader perspective to properly evaluate them. Thus, or
being the agent of Congress and not of the President, the
An superintend
President cannot alter or modify or nullify, or set aside the
findings of the Secretary of Finance and to substitute the officer in ent merely
judgment of the former for that of the latter. (ABAKADA v. control sees to it
Exec. Sec., G.R. No. 168056, Sept. 1, 2005) Nature lays that the
--- down the rules are
rules in followed,
NOTE: As a rule, an aggrieved party need not appeal to the doing but he
the Office of the President the decision of a cabinet of an act. himself
secretary and may file a petition for certiorari directly
with the court assailing the act of the said secretary. His does not lay
acts are presumed to be of the President’s unless down such
disapproved or reprobated by him. (Manubay v. Garilao, rules.
G.R. No. 140717, April 16, 2009)
The
EXECUTIVE DEPARTMENTS AND OFFICES If the supervisor
rules are does not
Department Heads may exercise power of control in not have the
behalf of the President including the power to followed, discretion
reverse the judgment of an inferior officer. the to modify
officer in or replace
For instance, the Sec. of Justice may reverse the
control them. If the
judgment of a prosecutor and direct him to withdraw
information already filed. One, who disagrees, however, may, in rules are
may appeal to the Office of the President in order to
exhaust administrative remedies prior filing to the court. his not
As to discretio observed,
Also, the Executive Secretary when acting “by authority discret n, order he may
of the President” may reverse the decision of another ion of the act order the
department secretary. (Lacson-Magallanes v. Paño, G.R.
the undone work done
No. L-27811, Nov. 17, 1967)
officer or re- or re-done
LOCAL GOVERNMENT UNITS done by but only to
his conform to
Power of General Supervision subordin the
ate or he prescribed
may rules.
even (Drilon v.
decide to Lim, G.R. No.
do it 112497,
himself. Aug 4,
.
1994)

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 POLITICAL LAW

NOTE: The power of supervision does not include the not be tested.
power of control; but the power of control necessarily
includes the power of supervision.
54
MILITARY POWERS UNIVERSITY OF SANTO TOMAS
In re COMMANDER-IN-CHIEF POWERS 2017 GOLDEN NOTES
(1991, 1997, 2000, 2006, 2015 Bar)

Scope of the President’s Commander-in-Chief Powers

1. COMMAND OF THE ARMED FORCES – absolute authority

over the persons and actions of the members of the armed
forces. (Gudani v. Senga, G.R. No. 170165, Aug. 15, 2006)

NOTE: By making the President the Commander-

in-Chief of all the armed forces, the principle
announced in Sec. 3, Art. II is bolstered. Thus, the
Constitution lessens the danger of a military take-
over of the government in violation of its
republican nature.

The President as Commander-in-Chief can prevent

the Army General from appearing in a legislative
investigation and, if disobeyed, can subject him to
court martial. (Gudani v. Senga, G.R. No. 170165,
Aug. 15, 2006)

2. CALLING-OUT POWERS – Call the armed forces to

prevent or suppress lawless violence, invasion, or rebellion. The
only criterion for the exercise of this power is that whenever it
becomes necessary.

NOTE: The declaration of a state of emergency is

merely a description of a situation which
authorizes her to call out the Armed Forces to help
the police maintain law and order. It gives no new
power to her, nor to the police. Certainly, it does
not authorize warrantless arrests or control of
media. (David v. GMA, G.R. No. 171409, May 3, 2006)
(2015 Bar)

The Constitution does not require the President to

declare a state of rebellion to exercise her calling
out power. Sec. 18, Art. VII grants the President, as
Commander-in-Chief a “sequence” of “graduated
powers.” (Sanlakas v. Exec. Sec., G.R. No. 159085,
Feb. 3, 2004) (2015 Bar)

3. SUSPENSION of the privilege of the writ of habeas

corpus

NOTE: What is permitted to be suspended by the

President is not the writ itself but its privilege.

WRIT OF HABAES PRIVILEGE OF THE

CORPUS WRIT
an order from the court
that portion of
commanding a detaining
the writ
officer to inform the
court if he has the person requiring the
detaining officer
in custody, and what his
to show cause
basis is in detaining that why he should
person.
Requisites for the suspension of the privilege of the writ
of habeas corpus

1. There must be an invasion or rebellion; and

2. Public safety requires the suspension

NOTE: The invasion and rebellion must be actual and not

merely imminent.

Non-impairment of the right to bail

The right to bail shall not be impaired even when the

privilege of the writ of habeas corpus is suspended. (1987
Constitution, Art. III, Sec. 13)

Limitations on the suspension of the privilege of writ of

habeas corpus

1. Applies only to persons judicially charged for rebellion

or offenses inherent in or directly connected with invasion; and
2. Anyone arrested or detained during suspension must be
charged within 3 days. Otherwise, he should be released.

Role of the Supreme Court in reviewing the factual

bases of the promulgation of a suspension of the
privilege of the writ of habeas corpus

Although the Constitution reserves to the Supreme Court

the power to review the sufficiency of the factual basis of
the proclamation or suspension in a proper suit, it is implicit
that the Court must allow Congress to exercise its own
review powers, which is automatic rather than initiated.
Only when Congress defaults in its express duty to defend
the Constitution through such review should the Supreme
Court step in as its final rampart. The constitutional validity
of the President’s proclamation of martial law or suspension
of the writ of habeas corpus is first a political question in
the hands of Congress before it becomes a justiciable
one in the hands of the Court. (Fortun v. GMA, G.R. No.
190293, March 20, 2012)

3. He may proclaim MARTIAL LAW over the entire

Philippines or any part thereof.

Nature of martial law

Martial law is a joint power of the President and the

Congress. Thus: (60-48-24-jointly)
1. The President’s proclamation or suspension is temporary,
good for only 60 days;
2. He must, within 48 hours of the proclamation or
suspension, report his action in person or in writing to
Congress;
3. Both houses of Congress, if not in session must jointly
convene within 24 hours of the proclamation or suspension for
the purpose of reviewing its validity; and
4. The Congress, voting jointly, may revoke or affirm the
President’s proclamation or suspension, allow their limited
effectivity to lapse, or extend the same if Congress deems
warranted.
 EXECUTIVE DEPARTMENT

President Duterte declared a state of martial law and

It is evident that under the 1987 Constitution the suspended the privilege of the writ of habeas corpus
President and the Congress exercise the power in the whole of Mindanao, invoking as factual basis a
sequentially and jointly since, after the President has written report pointing out that for decades,
initiated the proclamation or the suspension, only the Mindanao has been plagued with rebellion and
Congress can maintain the same based on its own lawless violence which only escalated and worsened
evaluation of the situation on the ground, a power that with the passing of time and the strategic location of
the President does not have. (Fortun v. GMA, ibid.) Marawi City and its crucial role in Mindanao and the
Philippines as a whole. Is the factual basis for the
Guidelines in the declaration of martial law proclamation sufficient, and therefore
(IR-PS-60-48-jointly) constitutional?

1. There must be an Invasion or Rebellion, and A: YES. The President deduced from the facts available to
2. Public Safety requires the proclamation of martial him that there was an armed public uprising, the
law all over the Philippines or any part thereof. culpable purpose of which was to remove from the
3. Duration: Not more than 60 days following which allegiance to the Philippine Government a portion of its
it shall be automatically lifted unless extended by Congress. territory and to deprive the Chief Executive of any of his
4. Duty of the President to report to Congress: within powers and prerogative, leading the President to believe
48 hours personally or in writing. that there was probable cause that the crime of rebellion
5. Authority of Congress to affirm or revoke or allow was and is being committed and that public safety
the lapse or extend the effectivity of proclamation: by requires the imposition of martial law and suspension of
majority vote of all of its members voting jointly. the privilege of the writ of habeas corpus. Section 18,
Article VII of the Constitution itself sets the parameters
NOTE: Once revoked by Congress, the President cannot for determining the sufficiency of the factual basis for the
set aside the revocation. declaration of martial law and/or the suspension of the
privilege of the writ of habeas corpus, namely (1) actual
Limitations on the declaration of martial law invasion or rebellion, and (2) public safety requires the
exercise of such power. Without the concurrence of the
1. It does not suspend the operation of the two conditions, the President's declaration of martial law
Constitution; and/or suspension of the privilege of the writ of habeas
2. It does not supplant the functioning of the civil corpus must be struck down. A review of the aforesaid
courts or legislative assemblies; facts similarly leads the Court to conclude that the
3. It does not authorize conferment of jurisdiction President, in issuing Proclamation No. 216, had sufficient
over civilians where civil courts are able to function; factual bases tending to show that actual rebellion exists.
The President's conclusion, that there was an armed
NOTE: Civilians cannot be tried by military courts public uprising, the culpable purpose of which was the
if the civil courts are open and functioning. (Open removal from the allegiance of the Philippine
Court Doctrine). (Olaguer v. Military Commission Government a portion of its territory and the deprivation
No. 34, G.R. No. L-54558, May 22, 1987) of the President from performing his powers and
prerogatives, was reached after a tactical consideration
4. It does not automatically suspend the privilege of of the facts. In fine, the President satisfactorily
the writ of habeas corpus. (1987 Constitution, Art. VII, Sec. 18 discharged his burden of proof. After all, what the
(2)] President needs to satisfy is only the standard of
probable cause for a valid declaration of martial law and
NOTE: When martial law is declared, no new powers are suspension of the privilege of the writ of habeas corpus.
given to the President; no extension of arbitrary (Lagman v. Medialdea, G.R. No. 231658, 04 July 2017)
authority is recognized; no civil rights of individuals are ---
suspended. The relation of the citizens to their State is
unchanged. The Supreme Court cannot rule upon the Actual use of the Armed Forces NOT subject to
correctness of the President’s actions but only upon its judicial review
arbitrariness.
While the suspension of the privilege of the writ of
Ways to lift the proclamation of martial law habeas corpus and the proclamation of martial law is
subject to judicial review, the actual use by the President
1. Lifting by the President himself of the armed forces is not. Thus, troop deployments in
2. Revocation by Congress times of war are subject to the President’s judgment and
3. Nullification by the SC discretion. (IBP v. Zamora, G.R. No. 141284, Aug. 15,
4. By operation of law after 60 days 2000)

--- Calling out power does not need Congressional

Q: In light of recent attacks in Marawi City by the authority
Maute group and other terrorist organizations,
There is no need for congressional authority to exercise
the calling out power of the President since calling out of
the armed forces to prevent or suppress lawless violence
is a power that the Constitution directly vests in the

55 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 POLITICAL LAW

President. As in the case where the President did not NOTE: Because pardon is an act of grace, no legal power
proclaim a national emergency but only a state of can compel the President to give it. Congress has no
emergency in 3 places in Mindanao and she did not act authority to limit the effects of the President’s pardon, or
pursuant to any law enacted by Congress that authorized to exclude from its scope any class of offenders. Courts
her to exercise extraordinary powers. (Ampatuan v. Hon. may not inquire into the wisdom or reasonableness of
Puno, G.R. No. 190259, June 7, 2011) any pardon granted by the President.

--- Purpose of pardon

Q: May the President, in the exercise of peace
negotiations, agree to pursue reforms that would To relieve the harshness of the law or correcting
require new legislation and constitutional mistakes in the administration of justice. The power of
amendments, or should the reforms be restricted executive clemency is a non-delegable power and must
only to those solutions which the present laws allow? be exercised by the President personally.

A: If the President is to be expected to find means for NOTE: Clemency is not a function of the judiciary; it is an
bringing this conflict to an end and to achieve lasting executive function. The grant is discretionary, and may
peace in Mindanao, then he must be given the leeway to not be controlled by the legislature (Congress) as to limit
explore, in the course of peace negotiations, solutions the effects of the President’s pardon, or to exclude from
that may require changes to the Constitution for their its scope any class of offenders. Also, the Courts may not
implementation. So long as the President limits himself inquire into the wisdom or reasonableness of any pardon
to recommending these changes and submits to the granted by the President or have it reversed, save only
proper procedure for constitutional amendment and when it contravenes its limitations. It includes cases
revision, his mere recommendation need not be involving both criminal and administrative cases.
construed as unconstitutional act. Given the limited
nature of the President’s authority to propose Kinds of executive clemency (FPARC)
constitutional amendments, he cannot guarantee to any
third party that the required amendments will eventually 1. Pardons (conditional or plenary);
be put in place, nor even be submitted to a plebiscite. The 2. Reprieves;
most she could do is submit these proposals as 3. Commutations;
recommendations either to Congress or the people, in 4. Remission of Fines and Forfeitures; and
whom constituent powers are vested. (Province of North 5. Amnesty
Cotabato v. GRPs Peace panel on Ancestral Domain, G.R.
No. 183591, Oct. 14, 2008) NOTE:
---
Executive Clemency Requirement
Role of the Supreme Court in inquiring into the
factual bases of the President’s declaration of a state
of national emergency Pardons
Requires
While it is true that the Court may inquire into the
Reprieves
factual bases for the President’s exercise of the above
power, it would generally defer to her judgment on the convictio
matter. It is clearly to the President that the Constitution Commutations n by final
entrusts the determination of the need for calling out the judgmen
armed forces to prevent and suppress lawless violence. Remission of Fines
Unless it is shown that such determination was attended
t
by grave abuse of discretion, the Court will accord
respect to the President’s judgment. (Ampatuan v. Hon. and Forfeitures
Puno, G.R. No. 190259. June 7, 2011) Requires
concurre
PARDONING POWER
Amnesty
(1993, 1995, 1997, 1999, 2005, 2015)
nce of
Pardon Congress

An act of grace, which exempts individual on whom it is LIMITATIONS ON THE PRESIDENT’S PARDONING
bestowed from punishment, which the law inflicts for a POWER
crime he has committed. As a consequence, pardon (CAN-F, CANNOT-CLIEP) (2015 BAR)
granted after conviction frees the individual from all the
penalties and legal disabilities and restores him to all his 1. Can be granted only after convictions by Final
civil rights. But unless expressly grounded on the judgment
person’s innocence (which is rare), it cannot bring back XPN: AMNESTY
lost reputation for honesty, integrity and fair dealing. 2. Cannot be granted in cases of civil or legislative
(Monsanto v. Factoran, G.R. No. 78239, Feb. 9, 1989) Contempt.
3. Cannot absolve convict of civil Liability.
4. Cannot be granted in cases of Impeachment. (1987
Constitution, Art. VII, Sec. 19)
UNIVERSITY OF SANTO TOMAS 2017 5. Cannot be granted for violations of Election laws
GOLDEN NOTES without favorable recommendations of the
COMELEC.
 Ratio: The COMELEC is an independent
body.
6. Cannot restore Public offices forfeited.

56
 EXECUTIVE DEPARTMENT

NOTE: In this sense, an absolute pardon is similar

Kinds of pardon to commutation, which is also not subject to
acceptance by the offender.
As to presence of condition:
a. Absolute pardon– One extended without any Pardon does not ipso facto restore former office and
conditions; totally extinguishes criminal liability (See: RPC, his rights and privileges
Art. 89[4]).
b. Conditional pardon – One under which the convict Pardon does not ipso facto restore a convicted felon
is required to comply with certain requirements. neither to his former public office nor to his rights and
privileges, which were necessarily relinquished or
--- forfeited by reason of the conviction although such
Q: Mateo was convicted of Homicide but was later on pardon undoubtedly restores his eligibility to that office.
granted conditional pardon by the president. When (Monsanto v. Factoran, G.R. No. 78239, Feb. 9, 1989)
Mateo was filling up his personal data sheet for
employment in public office, he did not disclose the ---
existence of a prior criminal conviction for homicide. Q: Former President Estrada was convicted of the
Can Mateo be employed as a public employee? crime of plunder by the Sandiganbayan. He was
granted an executive clemency by Former President
A: NO. The pardon granted to Mateo is one of Macapagal-Arroyo. In 2013, he ran for the position of
Conditional Pardon, the pardon did not expressly remit the Mayor of Manila, and won the election.
accessory penalty of Homicide which is perpetual absolute
disqualification from holding public office or employment. Atty Risos-Vidal, and, former Mayor of Manila,
(Mateo v. Executive Secretary, G.R. No. 177875, Aug 8, 2016) Alfredo Lim question the eligibility of Estrada to hold
--- an elective post. They contend that the pardon
granted by Pres. Arroyo to the latter was a
As to effect: conditional pardon as it did not expressly provide
a. Plenary pardon– Extinguishes all the penalties for the remission of the penalty of perpetual absolute
imposed upon the offender, including accessory disabilities disqualification especially the restoration of the
b. Partial pardon– Does not extinguish all the right to vote and be voted for public office, as
penalties; partially extinguishes criminal liability. [See: RPC, required by Articles 36 and 41 of the Revised Penal
Art. 94(1)] Code.

NOTE: A judicial pronouncement that a convict who was They further contend that the third preambular
granted a pardon subject to the condition that he should clause in the pardon, which states that Estrada had
not again violate any penal law is not necessary before publicly committed to no longer seek any elective
he can be declared to have violated the condition of her position or office, disqualifies him from the post of
pardon. (Torres v. Gonzales, G.R. No. L-76872, July 23, Mayor. Is the contention of the petitioners tenable?
1987)
A: NO. Former President Estrada, who was convicted for
Effects of the grant of pardon the crime of plunder by the Sandiganbayan, was granted
an absolute pardon that fully restored all his civil and
The grant of pardon from the President: political rights, which naturally includes the right to seek
1. Frees the individual from all the penalties and legal public elective office. The wording of the pardon
disabilities imposed upon him by the sentence, and NOTE: extended to him is complete, unambiguous and
RPC, Article 36. Pardon; its effect: A pardon shall in no case unqualified. He is therefore eligible for the post of Mayor
exempt the culprit from the payment of the civil indemnity of Manila.
2. Restores to him all his civil and political rights. The pardoning power of the President cannot be
NOTE: RPC, Article 36. Pardon; its effect: A pardon shall not limited by legislative action. It is a presidential
work the restoration of the right to hold public office, or the prerogative, which may not be interfered with by
right of suffrage, unless such rights be expressly restored by Congress or the Court, except when it exceeds the limits
the terms of the pardon. provided by the Constitution. Articles 36 and 41 of the
RPC should thus be construed in a way that will give full
Options of the convict when granted pardon effect to the executive clemency instead of indulging
in an overly strict interpretation that may serve to
1. Conditional Pardon– The offender has the right to impair or diminish the import of the pardon which
reject it since he may feel that the condition imposed is more emanated from the Office of the President, and duly
onerous than the penalty sought to be remitted. signed by the Chief Executive herself.
2. Absolute Pardon– The pardonee has no option at
all and must accept it whether he likes it or not. The third preambular clause is not an integral part of the
decree of the pardon and therefore, does not by itself
operate to make the pardon conditional or to make its
effectivity contingent upon the fulfillment of the
commitment nor to limit the scope of the pardon.

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Thus, Atty. Risos-Vidal and former Manila Mayor Lim’s

contentions that the said pardon granted was a Merely prevents the collection of fines or the confiscation
conditional pardon as it did not expressly provide for the of forfeited property. It cannot have the effect of
remission of the penalty of perpetual absolute returning property which has been vested in third
disqualification especially the restoration of the right to parties or money already in the public treasury.
vote and be voted for public office, as required by the
RPC and that the third preambular clause in the pardon, NOTE: The power of the President to remit fines and
which states that Estrada had publicly committed to no forfeitures may not be limited by any act of Congress. But
longer seek any elective position or office, disqualifies a statute may validly authorize other officers, such as
him from the post of Mayor are untenable. (Risos-Vidal v. department heads or bureau chiefs, to remit
Estrada, G.R. No. 206666, Jan. 21, 2015) administrative fines and forfeitures.
---
Probation
FORMS OF EXECUTIVE CLEMENCY
A disposition under which a defendant after conviction
1. Reprieve and sentence is released subject to conditions imposed
2. Commutations by the court and to the supervision of a probation officer.
3. Remission of fines and forfeitures
4. Probation NOTE: It is not a right granted to a convicted offender; it
5. Parole is a special privilege granted by the State to a penitent
6. Amnesty qualified offender, who does not possess the
disqualifications under P.D. No. 968, as amended.
Likewise, the Probation Law is not a penal law for it to be
Reprieve liberally construed to favor the accused. (Maruhom v.
People, G.R. No. 206513, Oct. 20, 2015)
The postponement of sentence to a date certain, or stay
of execution. Probation vs. Pardon

NOTE: It may be ordered to enable the government to BASIS PROBATION PARDON

secure additional evidence to ascertain the guilt of the
convict or, in the case of the execution of the death
sentence upon a pregnant woman, to prevent the killing Nature
of her unborn child. Judicial in Executive
nature in nature
Commutation
May be Requires
The reduction or mitigation of the penalty, from death When
penalty to life imprisonment, remittances and fines. granted conviction
Commutation is a pardon in form but not in substance, applica
because it does not affect his guilt; it merely reduces the after actual by final
penalty for reasons of public interest rather than for the
ble
sole benefit of the offender.
service of judgment
NOTE: Commutation does not have to be in any sentence
particular form. Thus, the fact that a convict was released
after 6 years and placed under house arrest, which is not Parole
a penalty, already leads to the conclusion that the
penalty has been shortened. The suspension of the sentence of a convict granted by a
Parole Board after serving the minimum term of the
Judicial power to pass upon the validity of the indeterminate sentence penalty, without granting a
actions of the President in granting executive pardon, prescribing the terms upon which the sentence
clemency shall be suspended.

The SC is not deciding a political question in reviewing

the correctness of the action of the President in granting
executive clemency by commuting the penalty of
dismissal to a dismissed clerk of court. What it is
deciding is whether or not the President has the power
to commute the penalty of the said clerk of court. As
stated in Daza v. Singson (G.R. No. 87721-30, Dec. 21,
1989), it is within the scope of judicial power to pass
upon the validity of the actions of the other
departments of the Government.

Remission of fines and forfeitures

UNIVERSITY OF SANTO TOMAS 2017

GOLDEN NOTES
58
 EXECUTIVE DEPARTMENT

Parole vs. Pardon judicial notice proved

of
BASIS PAROLE PARDON
Looks Looks forward

backward and and relieves the

As to
Release of a Release of puts to pardonee of the
perspective
convict from convict from oblivion the consequence of
Effect
imprisonment conviction offense itself the offense
and is not a
restoration of May be granted Only granted
his liberty When before or after after conviction
granted conviction by final
In custody of Sentence is judgment
the law but no condoned,
longer under subject to Need not Must be
As to
confinement reinstatement in be accepted
acceptance
Nature case of violation accepted
of the condition
that may have NOTE: The right to the benefits of amnesty, once
been attached to established by the evidence presented either by the
the pardon complainant or prosecution, or by the defense, cannot
be waived, because it is of public interest that a person
who is regarded by the Amnesty Proclamation which has
Amnesty the force of a law, not only as innocent, for he stands in
the eyes of the law as if he had never committed any
The grant of general pardon to a class of political punishable offense. (Barrioquinto v. Fernandez, G.R. No.
offenders either after conviction or even before the L-1278, Jan. 21, 1949)
charges is filed. It is the form of executive clemency
which under the Constitution may be granted by the DIPLOMATIC POWERS
President only with the concurrence of the legislature. (1994, 1996, 2003, 2008, 2015)

Sources of the President’s diplomatic powers

Requisites of amnesty

1. Concurrence of a majority of all the members of 1. The Constitution

Congress (1987 Constitution, Art. VII, Sec. 19); and 2. The status of sovereignty and independence
2. A previous admission of guilt. (Vera v. People, G.R.
No. L-18184, Jan. 31, 1963) NOTE: By reason of the President's unique position as
Head of State, he is the logical choice as the nation's chief
Effects of the grant of amnesty architect of or spokesman in foreign relations. The
Senate, on the other hand, is granted the right to share in
The total extinguishment of the criminal liability and of the treaty-making power of the President by concurring
the penalty and all its effects. Amnesty reaches back to with him with the right to amend.
the past and erases whatever shade of guilt there was. In
Scope of the foreign relations powers of the
the eyes of the law, a person granted amnesty is
President (N-ARC-DP-Reco)
considered a new-born child.

Amnesty vs. Pardon 1. Negotiate treaties and other international

agreements. However, such treaty or international

BASIS AMNESTY PARDON agreement requires the concurrence of the Senate,

(Art. VII, Sec. 21) which may opt to do the following:
Nature of the Addressed to Addressed to a. Approve with 2/3 majority;
offense Political Ordinary b. Disapprove outright; or
offenses offenses c. Approve conditionally, with suggested
amendments which if re-negotiated and the
Granted to a Granted to Senate’s suggestions are incorporated, the
As to whom
class of individuals treaty will go into effect without need of further
granted
persons Senate approval.
Requires Does not
NOTE: Executive agreements, however, do not
As to concurrence of require
require legislative concurrence (Bayan Muna v.
concurrence majority of all concurrence of
Romulo, G.R. No. 159618, Feb. 1, 2011). (2015
of Congress members of Congress
Bar)
Congress
An executive agreement is a “treaty” within the
Public act Private act
Nature of
meaning of that word in international law and
which the which must be
the act
court may take pleaded and

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constitutes enforceable domestic law (Nicolas v. 6. Decide that a diplomatic officer who has become
Romulo, G.R. No. 175888, Feb. 11, 2009). Persona non grata be recalled.
7. Recognize governments and withdraw recognition.
Requisites of Executive Agreement (under
Vienna Convention): POWERS RELATIVE TO APPROPRIATION MEASURES

a) The agreement must be between states; 1. The President recommends the appropriation for the
b) It must be written; and operation of the Government as specified in the budget. [1987
c) It must be governed by international law Consitution, Art. VI, Sec. 25(1)]
(China National Machinery and Equipment Corporation v. 2. The President, may, by law, be authorized to augment
Sta. Maria, G.R. No. 185572, Feb. 7, 2012). any item in the general appropriations law for his respective office
from savings in other items of his respective appropriations. [1987
Role of the Senate Consitution, Art. VI, Sec. 25(5); Demetria v. Alba, G.R. No. 71977,
February 27, 1987 and Araullo v. Aquino III, G.R. No. 209287, July 1,
The role of the Senate, however, is limited only to 2014]
giving or withholding its consent, or concurrence, to 3. The President shall have the power to veto any
the ratification. It should be emphasized that under particular item or items in an appropriation, revenue, or tariff bill,
our Constitution, the power to ratify is vested in the but the veto shall not affect the item or items to which he does not
President, subject to the concurrence of the Senate. object. [1987 Consitution, Art. VI, Sec. 27(2)]
4. Power to execute or implement GAA through a
Hence, it is within the authority of the President to program of expenditures to be approved by the President. (TESDA
refuse to submit a treaty to the Senate or, having v. COA, G.R. No. 196418, Feb. 10, 2015)
secured its consent for its ratification, refuse to
ratify it. Although the refusal of a state to ratify a DELEGATED POWERS (Please see earlier discussion on
treaty which has been signed in its behalf is a Delegation of Powers under General Considerations)
serious step that should not be taken lightly, such
decision is within the competence of the President
alone. (Pimentel v. Exec. Sec., G.R. No. 158088, July 6,
VETO POWERS (Please see earlier discussion on
2005)
Presidential Veto and Congressional Override under the
Legislative Department)
2. Appoint ambassadors, other public ministers, and
consuls.
RESIDUAL POWER
3. Receive ambassadors and other public ministers
accredited to the Philippines.
The powers of the President cannot be said to be limited
4. Contract and guarantee foreign loans on behalf of
only to the specific power enumerated in the
RP. (1987 Constitution, Art. VII, Sec. 20) (1994, 1999
Constitution. Executive power is more than the sum of
Bar)
specific powers so enumerated. The framers did not
5. Deport aliens – intend that by enumerating the powers of the President
a. This power is vested in the President by virtue
of his office, subject only to restrictions as may be
provided by legislation as regards to the grounds for
he shall exercise those powers and no other. Whatever
deportation (Revised Administrative Code, Sec. 69).
power inherent in the government that is neither
b. In the absence of any legislative restriction to
legislative nor judicial has to be executive. These
authority, the President may still exercise this power.
unstated residual powers are implied from the grant of
c. The power to deport aliens is limited by the
executive power and which are necessary for the
requirements of due process, which entitles the alien to a
President to comply with his duties under the
full and fair hearing.
Constitution. (Marcos v. Manglapus, G.R. No. 88211, Oct.
NOTE: Summary deportation shall be observed 27, 1989)
in cases where the charge against the alien is
overstaying or expiration of his passport.
(Board of Commissioners v. Jong Keun Park, G.R. EXECUTIVE PRIVILEGE (Please see earlier discussion
No. 159835, Jan. 21, 2010) on Presidential Privilege under the Executive Department)
d. An alien has the right to apply for bail provided
certain standard for the grant is necessarily met
(Government of Hong Kong v. Olalia, G.R. No. 153675, EMERGENCY POWERS
April 19, 2007).
Congressional grant of emergency powers to the
NOTE: The adjudication of facts upon which the President (2010 Bar)
deportation is predicated devolved on the President
whose decision is final and executory (Tan Tong v. Under Art. VI, Sec. 23(2), Congress may grant the
Deportation Board, G.R. No. L-7680, April 30, 1955). President emergency powers subject to the following
conditions: (WaLiReN)

UNIVERSITY OF SANTO TOMAS 2017

GOLDEN NOTES 60
 JUDICIAL DEPARTMENT

1. There is a War or other national emergency; Appointments extended by an Acting President shall
2. The grant of emergency powers must be for a remain effective, unless revoked by the elected
Limited period; President, within 90 days from his assumption or
3. The grant of emergency powers is subject to such reassumption of office. (1987 Constitution, Art. VII, Sec.
Restrictions as Congress may prescribe; and 14)
4. The emergency powers must be exercised to carry
out a National policy declared by Congress. Rules to be applied if the vacancy occurs during the
incumbency of the President
Rationale: Problems in times of emergency must be
solved within the shortest possible time to prevent them CAUSE OF VACANCY CONSEQUENCE

from aggravating the difficulties of the nation.

In case of : (DPR2)
The Vice President shall
b. Death;
NOTE: Emergency powers are self-liquidating unless become the President to
c. Permanent Disability;
sooner withdrawn. They will automatically cease upon serve the unexpired term.
d. Removal from office; or
the end of the emergency that justified their delegation.
e. Resignation of the
President
Examples of other national emergencies:

a) Rebellion
b) Economic crisis
In case of : The Senate President, or
c) Pestilence or epidemic
a. Death; in case of his inability, the
d) Typhoon
b. Permanent Disability; Speaker of the HoR, shall
e) Flood
c. Removal from office; or act as President until the
f) Other similar catastrophe of nation-wide
d. Resignation of both the President or Vice President
proportions
President and the Vice- shall have ben elected and
(Cruz, Philippine Political Law, p. 163)
President qualified.

RULES ON SUCCESSION
Rules and procedure to be followed if a vacancy
occurs in the offices of the President and Vice-
Rules to be applied if there is vacancy before the
President (1987 Consitution, Art. VII, Sec. 10)
beginning of the term of the President (1987
Consitution, Art. VII, Sec 7)
1. At 10:00 A.M. of the third day after said vacancy

occurs – Congress shall convene in accordance with

CAUSE OF VACANCY CONSEQUENCE
its rules without need of call.
In case of death or 2. Within 7 days — Congress shall enact a law calling
permanent disability of The Vice-President elect for a special election to elect a President and a Vice
the President-elect. shall become President. President.

3. Said special election shall be held — Not earlier

In case of failure to elect The Vice-President shall than forty-five (45) days nor later than sixty (60)
the President (i.e. act as the President until the days from the time of such call.
Presidential elections President shall have been 4. The bill calling such special election — Shall be
have not been held or chosen and qualified. deemed certified under Sec. 26, par. 2, Art. VI of the
non-completion of the Constitution and shall become law upon its
canvass of the approval on third reading by Congress.
Presidential elections) 5. Appropriations for said special election — Shall be
charged against any current appropriations and
In case no President and The Senate President, or in
shall be exempt from the requirements of, Sec. 25,
Vice-President shall have case of his inability, the
par. 4, Art. VI of the Constitution.
been chosen and Speaker of the HoR shall
6. The convening of Congress and the special election
qualified, or where both act as President until a
— cannot be suspended or postponed
shall have died or President or a Vice-
7. No special election shall be called — If the vacancy
become permanently President shall have been
occurs within eighteen (18) months before the
disabled. chosen and qualified.
date of the next presidential elections.
Congress shall by law
provide for the manner in
which one who is to act as
President shall be selected
until a President or a Vice-
President shall have
qualified, in case of death,
permanent disability or
inability of the officials.

Limitation on the power of the Acting President

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62
Instances when there is presidential inability to UNIVERSITY OF SANTO TOMAS
discharge powers and duties of his office (1987 2017 GOLDEN NOTES
Consitution, Art. VII, Sec. 11)

INSTANCE CONSEQUENCE

When the President

transmits to the Senate The powers and duties
President and to the Speaker of his office shall be
of the HoR his written discharged by the Vice-
declaration that he is President as Acting
unable to discharge the President.
powers and duties of his
office.

When a majority of all the The Vice-President

members of the Cabinet shall immediately
transmit to the Senate assume the powers and
President and to the Speaker duties of the office as
of the HoR their written Acting President.
declaration that the
President is unable to
discharge the powers and
duties of his office .

NOTE: The President can reassume power and duties of

his office once he transmits to the Senate President and
to the Speaker of the HoR his written declaration that no
inability exists.

JUDICIAL DEPARTMENT

JUDICIAL POWER
(1992, 1994, 1995, 1996, 1997, 2000, 2004, 2006,
2012 Bar)

The duty of the courts of justice to settle actual

controversies involving rights, which are legally
demandable and enforceable and to determine whether
or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government. [1987
Constitution, Art. VIII, Sec. 1(2)]

Body vested with judicial power

It is vested in one Supreme Court and such lower

courts as may be established by law (1987 Consitution,
Art. VIII, Sec. 1).

Judicial inquiry

The power of the court to inquire into the exercise of

discretionary powers to determine whether or not there
has been a grave abuse of discretion amounting to lack
or excess of jurisdiction.
 ---
Q: Sec. 14, 2nd par. of the Ombudsman Act (R.A. 6770)
provides: “No court shall hear any appeal or application for
remedy against the decision or findings of the Ombudsman,
except the Supreme
Court, on pure question of law.” Decide on the
constitutionality of this provision.

A: Since the 2nd par. of Sec. 14,, R.A. 6770 limits the remedy
against “decision or findings” of the Ombudsman to a Rule 45
appeal and thus – similar to the 4th par. of Sec. 27, RA 6770 –
attempts to effectively increase the Supreme Court’s appellate
jurisdiction without its advice and concurrence, therefore, the
former provision is also unconstitutional and invalid. (Carpio-
Morales v. Court of Appeals, G.R. No. 217126-27, Nov. 10, 2015)
---

JUDICIAL REVIEW
(2015 Bar)

The power of the SC to determine the constitutionality of a

law, treaty, ordinance, presidential issuance, and other
governmental acts.

NOTE: When the judiciary mediates to allocate

constitutional boundaries, it does not assert any superiority
over other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures
and guarantees to them. This is in truth all that is involved
in what is termed as ‘judicial supremacy’, which properly
is the power of judicial review under the Constitution.
(Angara v. The Electoral Commission, G.R. No. L-45081, July
15, 1936)

Requisites of judicial review (APEN)

1. Actual case– An existing case or controversy which is

both ripe for resolution and susceptible of judicial
determination, and that which is not conjectural or anticipatory,
or that which seeks to resolve hypothetical or feigned
constitutional problems.

NOTE: But even with the presence of an actual case or

controversy, the Court may refuse judicial review
unless a party who possesses locus standi or the
standing to challenge it brings the constitutional
question or the assailed illegal movement or act before
it.

---
Q: Rolly petitions the SC to nullify House Bill No. 4738
which abolishes the Judicial Development Fund (JDF) and
replaces it with the Judiciary Support Fund (JSF). The funds
from JSF shall be remitted to the national treasury and
Congress shall determine how the funds will be used;
unlike the JDF, the spending of which is exclusively
determined by the SC. Rolly argues
 JUDICIAL DEPARTMENT

that House Bill No. 4738 infringes SC’s fiscal difficult constitutional
autonomy. Is the petition meritorious? questions."

A: NO. There is no actual case or controversy. Legal personality

The Court cannot speculate on the constitutionality
or unconstitutionality of a bill that Congress may or GR: If there is no actual or potential injury,
may not pass. It cannot rule on mere speculations or complainant has no legal personality to raise
issues that are not ripe for judicial determination. constitutional questions.
Filing of bills is within the legislative power of
Congress and is "not subject to judicial restraint" (In XPN: If the question is of transcendental
The Matter of Save the Supreme Court v. Abolition of importance.
JDF, UDK-15143, Jan. 21, 2015).
--- NOTE: Principle of Transcendental Importance is
determined by: (CDO)
2. Proper party– One who has sustained or is in
immediate danger of sustaining an injury as a 1. The Character of the funds or other assets involved
result of the act complained of. To have standing, in the case;
one must show that: 2. The presence of a clear case of Disregard of a
a. he has suffered some actual or threatened constitutional or statutory prohibition by the
injury as a result of the allegedly illegal public respondent agency or instrumentality of the
conduct of the government; government;
b. the injury is fairly traceable to the 3. The lack of any Other party with a more direct and
challenged action; and specific interest in raising the questions being
c. the injury is likely to be redressed by a raised. (Francisco, et al., v. House of Representatives,
favorable action. (Francisco, Jr. & Hizon v. ibid.)
Toll Regulatory Board, G.R. Nos. 166910,
Oct. 19, 2010) Rule on standing is a matter of procedure, hence, can
be relaxed
Locus Standi vs. Real party-in-interest
When the proceeding involves the assertion of a public
LOCUS STANDI REAL PARTY-IN- right, the mere fact that the petitioner is a citizen
INTEREST satisfies the requirement of personal interest. Thus, the
privatization of power plants in a manner that ensures
Character of the plaintiff the reliability and affordability of electricity in our
country is an issue of paramount public interest in which
the Court held that petitioner possesses the requisite
One who has The party who stands to be
legal standing to file the case. (Osmeña v. Power Sector
sustained or is in benefited or injured by the
Assets and Liabilities Management Corporation, G.R. No.
imminent danger of judgment in the suit, or the
212686, Sept. 28, 2015)
sustaining an injury as party entitled to the avails
a result of the act of the suit.
Locus Standi in Environmental Cases
complained of (direct
injury test) (Ex parte
In our jurisdiction, locus standi in environmental cases
Levitt, 302 U.S. 633,
has been given a more liberalized approach. Recently,
1937). the Court passed the landmark Rules of Procedure for
Environmental Cases, which allow for a “citizen suit,”
Legal nature
and permit any Filipino citizen, as steward of nature, to

file an action before our courts for violations of our

Has constitutional A concept of civil environmental laws. Thus, the need to give the Resident
underpinnings procedure Marine Mammals legal standing has been eliminated by
our Rules and it is worth noting here that the Stewards
As to the issue involved are joined as real parties in the Petition and not just in
representation of the named cetacean species. (Resident
 Marine Mammals v. Reyes, G.R. No. 180771, April 21, 2015)
Whether such parties Whether he is "the party
have "alleged such a who would be benefited or
The filing of a petition for the issuance of a writ of
personal stake in the injured by the judgment, or
kalikasan does not require that a petitioner be directly
outcome of the the 'party entitled to the
affected by an environmental disaster. The rule clearly
controversy as to avails of the suit”
allows juridical persons to file the petition on behalf of
assure that concrete (Francisco, et al., v. House of
persons whose constitutional right to a balanced and
adverseness which Representatives, G.R. No.
healthful ecology is violated, or threatened with
sharpens the 160261, Nov. 10, 2003).
violation. (West Tower v. First Philippine, G.R. No. 194239,
presentation of issues
June 16, 2015)
upon which the court
so largely depends for
illumination of

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3. Earliest opportunity– Constitutional question must be unconstitutional. (Sameer Overseas v. Cabiles, G.R. No.
raised at the earliest possible opportunity. 170139, Aug. 5, 2014)

GR: It must be raised in the pleadings. However, in a case where the law passed incorporates
the exact clause already declared as unconstitutional,
XPN: without any perceived substantial change in the
1. Criminal case – It may be brought at any stage of the circumstances, the Court ruled that there is a necessity to
proceedings according to the discretion of the judge (trial or decide the constitutional issue involved. (Sameer
appeal) because no one shall be brought within the terms of the Overseas v. Cabiles, ibid.)
law who are not clearly within them and the act shall not be
punished when the law does not clearly punish them. Thus, when a law or a provision of law is null because it
2. Civil case – It may be brought anytime if the is inconsistent with the Constitution, the nullity cannot
resolution of the constitutional issue is inevitable in resolving be cured by reincorporation or reenactment of the same
the main issue. or a similar law or provision. A law or provision of law
3. When the jurisdiction of the lower court is in that was already declared unconstitutional remains as
question except when there is estoppel. such unless circumstances have so changed as to warrant
a reverse conclusion. (Sameer Overseas v. Cabiles, ibid.)
NOTE: The earliest opportunity to raise a (2014 Bar)
constitutional issue is to raise it in the pleadings
before a competent court that can resolve the The constitutionality of an official act may be the subject
same, such that, if not raised in the pleadings, it of judicial review, provided the matter is not raised
cannot be considered in trial and, if not considered collaterally. (Laude v. Hon. Ginez, G.R. No. 217456, Nov.
in trial, it cannot be considered on appeal. 24, 2015)
The Ombudsman has no jurisdiction to entertain Requisites before a law can be declared partially
questions regarding constitutionality of laws. Thus, unconstitutional
when the issue of constitutionality of a law was
raised before the Court of Appeals, which is the 1. The legislature must be willing to retain valid portion
competent court, the constitutional question was (separability clause); and
raised at the earliest opportune time. (Estarija v. 2. The valid portion can stand independently as law.
Ranada, G.R. No. 159314, June 26, 2006)
Principle of Stare Decisis
4. Necessity of deciding constitutional questions – As long
as there are other bases which courts can use for decision, Deemed of imperative authority, controlling the
constitutionality of the law will not be touched, thus, courts decisions of like cases in the same court and in lower
should refrain from resolving any constitutional issue "unless courts within the same jurisdiction, unless and until the
the constitutional question is the lis mota of the case." decision in question is reversed or overruled by a court
of competent authority. (De Castro v. JBC, G.R. No.
Lis mota literally means "the cause of the suit or 191002, April 20, 2010)
action." Given the presumed validity of an
executive act, the petitioner who claims otherwise NOTE: The Court, as the highest court of the land, may be
has the burden of showing first that the case guided but is not controlled by precedent. Thus, the
cannot be resolved unless the constitutional Court, especially with a new membership, is not obliged
question he raised is determined by the Court. to follow blindly a particular decision that it determines,
(General v. Urro, G.R. No. 191560, March 29, 2011) after re-examination, to call for a rectification. (De Castro
v. JBC, ibid.)
Scope of Judicial Review
Functions of judicial review
The courts have the power to pass upon the validity and
the constitutionality of laws enacted by the legislature, 1. Checking – Invalidating a law or executive act that is
and other bodies of the government, under the doctrine found to be contrary to the Constitution.
of checks and balances. 2. Legitimizing – Upholding the validity of the law that
results from a mere dismissal of a case challenging the
The lower courts are likewise vested with the power of validity of the law.
judicial review, subject however to the appellate 3. Symbolic – To educate the bench and bar as to the
jurisdiction of the higher courts. controlling principles and concepts on matters of grave public
importance for the guidance of, and restraint upon the future.
Constitutional Challenges (Dumlao v. COMELEC, G.R. No. L-52245, Jan. 22, 1980)
When a law is passed, the court awaits an actual case Power of judicial review in impeachment proceedings
that clearly raises adversarial positions in their proper includes the power of review over justiciable issues in
context before considering a prayer to declare it as impeachment proceedings. (Francisco v. HoR, G.R. No.
160261, Nov. 10, 2003)

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 JUDICIAL DEPARTMENT

Judicial review of the SC on findings of facts of

administrative tribunals and trial courts Doctrine of Relative Constitutionality

GR: The SC will not disturb the findings of facts of Where the constitutionality of certain rules may depend
administrative tribunals and the trial courts. upon the times and get affected by the changing of the
seasons. A classification that might have been perfectly
XPN: The SC may review findings of facts of the lower all right at the time of its inception may be considered
courts under the following exceptions: (SM-GF-CBA- dubious at a later time.
TW-NE)
1. When the conclusion is a finding grounded entirely MOOT QUESTIONS
on Speculation, surmises and conjectures;
2. When the inference made is manifestly Mistaken, Questions on which a judgment cannot have any
absurd or impossible; practical legal effect or, in the nature of things, cannot be
3. Where there is a Grave abuse of discretion; enforced. (Baldo, Jr. v. COMELEC, G.R. No. 176135, June 16,
4. When the judgment is based on a misapprehension 2009)
of Facts;
5. When the findings of fact are Conflicting; Moot and academic
6. When the Court of Appeals, in making its findings,
went Beyond the issues of the case and the same is contrary It is moot and academic when it ceases to present a
to the Admissions of both appellant and appellee; justiciable controversy by virtue of supervening events
7. When the findings are contrary to those of the so that a declaration thereon would be of no practical use
Trial court; or value.
8. When the findings of fact are Without citation of
specific evidence on which the conclusions are based; Court actions over moot and academic cases
9. When the facts set forth in the petition as well as in
the petitioner’s main and reply briefs are Not disputed by GR: The courts should decline jurisdiction over such
the respondents; and cases or dismiss it on ground of mootness.
10. When the findings of fact of the Court of Appeals
are premised on the supposed absence of Evidence and XPNs: (GPFR)
contradicted by the evidence on record. (David v. Misamis 1. There is a Grave violation of the Constitution.
Occidental II, G.R. No. 194785, 11 July 2012) 2. There is an exceptional character of the situation
and the Paramount public interest is involved.
OPERATIVE FACT DOCTRINE 3. When the constitutional issue raised requires
(2010 Bar) Formulation of controlling principles to guide the bench,
the bar, and the public.
Under this doctrine, the law is recognized as 4. The case is capable of Repetition yet evading
unconstitutional but the effects of the unconstitutional review. (David v. Macapagal-Arroyo, G.R. No. 171396, May
law, prior to its declaration of nullity, may be left 3, 2006; Republic v. Principalia Management, G.R. No.
undisturbed as a matter of equity and fair play. It is a 198426, Sept. 2, 2015)
rule of equity (League of Cities v. COMELEC, G.R. No.
176951, Nov. 18, 2008). NOTE: Judicial power presupposes actual controversies,
the very antithesis of mootness. In the absence of actual
In another case, the Court held that to return the justiciable controversies or disputes, the Court generally
amounts received to the respective taxing authorities opts to refrain from deciding moot issues. Where there is
would certainly impose a heavy, and possibly crippling, no more live subject of controversy, the Court ceases to
financial burden upon them who merely, and have a reason to render any ruling or make any
presumably in good faith, complied with the legislative pronouncement. (Suplico v. NEDA, G.R. No. 178830, July
fiat subject of this case; hence the doctrine of operative 14, 2008)
fact shall be applied. (Film Development Council v. Colon
Heritage Realty, G.R. No. 203754, June 16, 2015) POLITICAL QUESTIONS

NOTE: The invocation of this doctrine is an admission Those questions which, under the Constitution, are to be
that the law is unconstitutional. decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been
Applicability on executive acts delegated to the legislative or executive branch of the
government. (Tañada v. Cuenco, G.R. No. L-10520, Feb. 28,
The Operative Fact Doctrine also applies to executive 1957)
acts subsequently declared as invalid. A decision made
by the president or the administrative agencies has to be Political Question Doctrine
complied with because it has the force and effect of law.
(Hacienda Luisita v. Presidential Agrarian Reform Council, The doctrine that the power of judicial review cannot be
G.R. No. 171101, Nov. 22, 2011) exercised when the issue is a political question. It
constitutes another limitation on such power of the
judiciary.

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66
Justiciable questions vs. Political questions UNIVERSITY OF SANTO TOMAS
2017 GOLDEN NOTES

BASIS JUSTICIABLE POLITICAL

QUESTIONS QUESTIONS
Imply a given Questions which
right legally involve the policy or
demandable and the wisdom of the law
enforceable, an or act, or the morality
act or omission or efficacy of the
violative of such same. Generally it
right, and a cannot be inquired by
remedy granted the courts. Further,
and sanctioned these are questions
by law for said which under the
breach of right. Constitution:
Definition a. Are decided by the

people in their
sovereign
capacity; and
b. Where full
discretionary
authority has been
delegated by the
Constitution
either to the
executive or
legislative
department.

Effect of the expanded definition of judicial power on

the political question doctrine (1995, 1997, 2004
Bar)

The 1987 Constitution expands the concept of judicial

review. Under the expanded definition, the Court cannot
agree that the issue involved is a political question
beyond the jurisdiction of the court to review. When the
grant of power is qualified, conditional or subject to
limitations, the issue of whether the prescribed
qualifications or conditions have been met or the
limitations respected is justiciable—the problem being
one of legality or validity, not its wisdom. Moreover, the
jurisdiction to delimit constitutional boundaries has
been given to the SC. When political questions are
involved, the Constitution limits the delimitation as to
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of the official whose action is being questioned.

SAFEGUARDS OF JUDICIAL INDEPENDENCE

Constitutional safeguards that guarantee the

independence of the judiciary

1. The SC is a constitutional body and may not be abolished

by law.
2. Members are only removable by impeachment. (1987
Constitution, Art. XI, Sec. 2)
3. The SC may not be deprived of its minimum and appellate
jurisdiction (1987 Constitution, Art VIII, Sec. 2); appellate
jurisdiction may not be increased without its advice or
concurrence. (1987 Constitution, Art. VI, Sec. 30)
NOTE: The Congress shall have the power to
define, prescribe, and apportion the jurisdiction of
 the various courts (all courts below the SC) but may not
deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5 (express powers of the SC)
hereof. (1987 Constitution, Art. VII, Sec. 2)
4. The SC has administrative supervision over all inferior
courts and personnel. (1987 Constitution, Art. VIII, Sec. 6)
5. The SC has exclusive power to discipline judges/justices of
inferior courts. (1987 Constitution, Art. VIII, Sec. 11)
6. The members of the judiciary enjoy security of tenure.
[1987 Constitution, Art. VIII, Sec. 2 (2)]
7. The members of the judiciary may not be designated to any
agency performing quasi-judicial or administrative functions.
(1987 Constitution, Art. VIII, Sec 12)
8. The salaries of judges may not be reduced; the judiciary
enjoys fiscal autonomy. (1987 Constitution, Art. VIII, Sec. 3)
9. The SC alone may initiate the promulgation of the Rules of
Court. [1987 Constitution, Art. VIII, Sec. 5
(5)]
10. The SC alone may order temporary detail of judges. [1987
Constitution, Art. VIII, Sec. 5 (3)]
11. The SC can appoint all officials and employees of the
Judiciary. (1987 Constitution, Art. VIII, Sec. 5
(6)]

Constitutional guarantee of fiscal autonomy (1999, 2000

Bar)

In Bengzon v. Drilon (G.R. No. 103524, April 15, 1992), the SC

explained that fiscal autonomy contemplates a guarantee of
full flexibility to allocate and utilize resources with the
wisdom and dispatch that the needs require.

It recognizes the power and authority to deny, assess and

collect fees, fix rates of compensation not exceeding the
highest rates authorized by law for compensation and pay
plans of the government and allocate and disburse such sums
as may be provided by law or prescribed by it in the course of
the discharge of its functions.

Judicial Privilege (Deliberative Process Privilege or DPP)

The privilege against disclosure of information or

communications that formed the process of judicial decisions.

This applies to confidential matters, which refer to

information not yet publicized by the Court like (1) raffle of
cases, (2) actions taken in each case in the Court’s agenda,
and (3) deliberations of the Members in court sessions on
case matters pending before it.

This privilege, however, is not exclusive to the Judiciary and it

extends to the other branches of government due to our
adherence to the principle of separation of powers (In Re:
Production of Court Records and Documents and the
Attendance of Court Officials and Employees as Witnesses
under the Subpoenas of Feb. 10, 2012 and the
 JUDICIAL DEPARTMENT

Various Letters of Impeachment Prosecution Panel dated favor of its constitutionality; invalidity being a measure
Jan. 19 and 25, 2012, Feb. 14, 2012). of last resort. (Estrada v. Sandiganbayan, G.R. No. 148560,
Nov. 19, 2001)
Purpose of Judicial Privilege
APPOINTMENTS TO THE JUDICIARY
To prevent the ‘chilling’ of deliberative communications.
It insulates the Judiciary from an improper intrusion into Judicial appointment (2000 Bar)
the functions of the judicial branch and shields judges,
justices, and court officials and employees from public The members of the judiciary are appointed by the
scrutiny or the pressure of public opinion that would President of the Philippines from among a list of at least
impair their ability to render impartial decisions. (Ibid.) three nominees prepared by the Judicial and Bar Council
(JBC) for every vacancy.
Requisites for a document to be protected by DPP
NOTE: The appointment shall need no confirmation from
It must be shown that the document is both:
the Commission on Appointments. (1987 Constitution,
1. Predecisional – If they were made in the attempt to Art. VIII, Sec. 9)
reach a final decision; and
2. Deliberative – If it reflects the give-and-take of the Rules on vacancies in the SC
consultative process such as the disclosure of the
information would discourage open discussion within the 1. Vacancies in the SC should be filled within 90 days
agency. from the occurrence of the vacancy.
2. Vacancies in lower courts should be filled within
Court records which are predecisional and deliberative 90 days from submission to the President of the JBC list.
in nature are thus protected and cannot be the subject of 3. The filling of the vacancy in the Supreme Court
subpoena if judicial privilege is to be preserved. (Ibid.) within the 90-day period is an exception to the
prohibition on midnight appointments of the president.
NOTE: In a case where the House Impeachment Panel, This means that even if the period falls on the period
through letters, asked for the examination of records and where the president is prohibited from making
the issuance of certified true copies of the rollos and the appointments (midnight appointments); the president is
Agenda and Minutes of Deliberations of specific SC- allowed to make appointments to fill vacancies in the
decided cases and at the same time, requested for the Supreme Court. (De Castro v. JBC, G.R. No. 191002, April
attendance of court officials including judges, justices, 20, 2010)
and employees as witnesses under subpoenas, it was
held that Members of the Court may not be compelled to Composition of the JBC (C2RISP2) (1999 Bar)
testify in the impeachment proceedings against the Chief
Justice or other Members of the Court about information 1. Chief Justice, as ex-officio chairman
acquired in the performance of their official adjudicatory 2. Secretary of Justice, as an ex-officio member
functions and duties; otherwise, their disclosure of 3. Representative of Congress, as an ex-officio member
confidential matters learned in their official capacity 4. Representative of the Integrated Bar
violates judicial privilege as it pertains to the exercise of 5. A Professor of law
the constitutional mandate of adjudication. (Ibid.) 6. A Retired member of the SC
7. Private sector representative
XPN: If the intent only is for them to identify or certify
the genuineness of documents within their control that NOTE: JBC does not fall within the scope of a tribunal,
are not confidential and privileged, their presence in the board, or officer exercising judicial or quasi-judicial
Impeachment Court may be permitted. functions. However, since the formulation of guidelines
and criteria is necessary and incidental to the exercise of
Waiver of privilege the JBC’s constitutional mandate, a determination must
be made on whether the JBC has acted with grave abuse
This privilege, incidentally, belongs to the Judiciary and of discretion amounting to lack or excess of jurisdiction
is for the SC (as the representative and entity speaking in issuing and enforcing the said policy. (Villanueva v.
for the Judiciary), and not for the individual justice, JBC, G.R. No. 211833, April 7, 2015)
judge, or court official or employees to waive. Thus,
every proposed waiver must be referred to the SC for its Staggered Terms of members of the JBC
consideration and approval.
A. Regular Members
JUDICIAL RESTRAINT 1. Chief Justice – 4 years
2. Secretary of Justice – 4 years
Principle of Judicial Restraint 3. Representative of Congress – 4 years

Theory of judicial interpretation that encourages judges B. Other Members

to limit the exercise of their own power. 4. Representative of the Integrated Bar – 4 years
5. A professor of law – 3 years
In terms of legislative acts, it means that every
intendment of the law must be adjudged by the courts in

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6. A retired member of the SC – 2 years 1. Natural born citizen of the Philippines;

7. Private sector representative – 1 year. [1987 2. At least 40 years of age; and
Constitution, Art. VIII, Sec. 8(2)] 3. A judge of a lower court or engaged in the practice of
law in the Philippines for 15 years or more. [1987
Rationale: continuity and preservation of the Constitution, Art. VIII, Sec. 7(1)]
institutional memory
General qualifications for appointments to LOWER
Representative of Congress in the JBC COLLEGIATE courts

Only one. The word “Congress” used in Sec. 8(1), Art. 1. Natural born citizen of the Philippines; and
VIII is used in its generic sense. Only a singular 2. Member of the Philippine Bar.
representative may be allowed to sit in the JBC from
either the Senate or HoR. The seven-member General qualifications for appointments to LOWER
composition of the JBC serves a practical purpose, that is, courts
to provide a solution should there be a stalemate in
voting. 1. Citizen of the Philippines; and
2. Member of the Philippine Bar.
It is evident that the definition of “Congress” as a
bicameral body refers to its primary function in NOTE: For both lower collegiate courts and lower courts,
government – to legislate. In the passage of laws, the Congress may prescribe other qualifications. [1987
Constitution is explicit in the distinction of the role of Constitution, Art. VIII, Sec. 7 (1) and (2)]
each house in the process. The same holds true in
Congress’ non-legislative powers. An inter-play between ---
the two houses is necessary in the realization of these Q: By virtue of Republic Act No. 10660, two new
powers causing a vivid dichotomy that the Court cannot divisions of the Sandiganbayan were created with three
simply discount. This, however, cannot be said in the members each, and there were six simultaneous
case of JBC representation because no liaison between vacancies for Associate Justice of said collegiate court.
the two houses exists in the workings of the JBC. Hence, The JBC then submitted six separate shortlists for the
the term “Congress” must be taken to mean the entire vacancies for the 16th to the 21st Sandiganbayan
legislative department. The Constitution mandates that Associate Justices. Petitioners assert that President
the JBC be composed of seven (7) members only. (Chavez Aquino's power to appoint is limited to each shortlist
v. JBC, G.R. No. 202242, July 17, 2012) submitted by the JBC, President Aquino should have
appointed the 16th Sandiganbayan Associate Justice
Functions of the JBC (2000 Bar) from the nominees in the shortlist for the 16th
Sandiganbayan Associate Justice, the 17th
The principal function of the JBC is to recommend Sandiganbayan Associate Justice from the nominees in
appointees to the judiciary. It may, however, exercise the shortlist for the 17th Sandiganbayan Associate
such functions as the SC may assign to it. (1987 Justice, and so on and so forth. By totally overlooking the
Constitution, Art. VIII, Sec. 8) nominees for the 16th Sandiganbayan Associate Justice
and appointing respondents Musngi and Econg, who
NOTE: The duty of the JBC to submit a list of nominees were both nominees for the 21st Sandiganbayan
before the start of the President’s mandatory 90-day Associate Justice, as the 16th and 18th Sandiganbayan
period to appoint is ministerial, but its selection of the Associate Justices, respectively, President Aquino
candidates whose names will be in the list to be violated the Art. VIII, Sect. 9 of the 1987 Constitution,
submitted to the President lies within the discretion of which requires the President to appoint from a list of at
the JBC. (De Castro v. JBC, G.R. No. 191002, March 17, least three nominees submitted by the JBC for every
2010) vacancy. Are the petitioners correct?

Tenure of the members of the SC and judges (1993, A:. NO. Nomination by the JBC shall be a qualification for
1996, 2000 Bar) appointment to the Judiciary, but this only means that the
President cannot appoint an individual who is not
Members of the SC and judges of lower courts can hold nominated by the JBC. It should be stressed that the power
office during good behavior until: to recommend of the JBC cannot be used to restrict or limit
1. The age of 70 years old; or the President's power to appoint as the latter's prerogative
2. They become incapacitated to discharge their duties. to choose someone whom he/she considers worth
appointing to the vacancy in the Judiciary is still paramount.
General qualification for appointments to the As long as in the end, the President appoints someone
judiciary nominated by the JBC, the appointment is valid. This does
not violate Article VIII, Section 9 of the 1987 Constitution. To
Of proven competence, integrity, probity and meet the minimum requirement under said constitutional
independence. [1987 Constitution, Art. VIII, Sec. 7(3)] provision of three nominees per vacancy, there should at
least be 18 nominees from the JBC for the six vacancies for
Qualifications for appointments to the SC

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 JUDICIAL DEPARTMENT

Sandiganbayan Associate Justice; but the minimum conspicuous to JBC members. (Jardeleza V.
requirement was even exceeded herein because the JBC Sereno, et al., G.R. No. 213181, 19 August 2014)
submitted for the President's consideration a total of 37 ---
qualified nominees. (Aguinaldo v. Aquino, G.R. No.
224302, November 29, 2016) SUPREME COURT
---
--- Composition of the SC
Q: Upon the retirement of Associate Justice Roberto
Abad, the Judicial and Bar Council (JBC) announced the A. Chief Justice
opening for application or recommendation for the B. 14 Associate Justices
position. Francis H. Jardeleza (Jardeleza) was nominated
for the said position and upon acceptance of the Divisions of the SC
nomination, he was included in the names of candidates.
However, Chief Justice Sereno invoked Sect. 2, Rule 10 of It may sit en banc or in its discretion, in divisions of
JBC-009 against him, and thereafter, the JBC released the three, five, or seven Members [1987 Constitution, Art.
short list of four nominees, which did not include VIII, Sec. 4(1)]
Jardeleza. Jardeleza resorted to judicial intervention,
alleging the illegality of his exclusion from the short list EN BANC DECISIONS
due to the deprivation of his constitutional right to due
process. Cases that should be heard by the SC en banc (TRuP-
a. Is the right to due process available in DE-PreJ) (1996, 1999 Bar)
JBC proceedings?
b. Was Jardeleza denied his right to due 1. All cases involving the constitutionality of a Treaty,
process? international or executive agreement, or law;
2. All cases which under the Rules of Court may be
A: required to be heard en banc;
a. YES. An applicant’s access to the rights afforded 3. All cases involving the constitutionality,
under the due process clause is not discretionary on the part application or operation of Presidential decrees,
of the JBC. While the facets of criminal and administrative proclamations, orders, instructions, ordinances, and
due process are not strictly applicable to JBC proceedings, other regulations;
their peculiarity is insufficient to justify the conclusion that 4. Cases heard by a Division when the required
due process is not demandable. The fact that a proceeding is majority in the division is not obtained;
sui generis and is impressed with discretion does not 5. Cases where the SC modifies or reverses a doctrine
automatically denigrate an applicant’s entitlement to due or principle of law Previously laid either en banc or in
process. Notwithstanding being “a class of its own,” the right division;
to be heard and to explain one’s self is availing. The Court 6. Administrative cases involving the discipline or
subscribed to the view that in cases where an objection to an dismissal of Judges of lower courts;
applicant’s qualifications is raised, the observance of due 7. Election contests for president or vice-president.
process neither negates nor renders illusory the fulfillment
of the duty of JBC to recommend. This holding is not an NOTE: Other cases or matters may be heard in division,
encroachment on its discretion in the nomination process. and decided or resolved with the concurrence of a
Actually, its adherence to the precepts of due process majority of the members who actually took part in the
supports and enriches the exercise of its discretion. deliberations on the issues and voted thereon, but in no
case without the concurrence of at least three such
b. YES. Even as Jardeleza was verbally informed of members.
the invocation of Section 2, Rule 10 of JBC-009 against him
and was later asked to explain himself during the meeting, No law shall be passed increasing the appellate
these circumstances still cannot expunge an immense jurisdiction of the SC as provided in the Constitution
perplexity that lingers in the mind of the Court. What is to without its advice and concurrence. (1987 Constitution,
become of the procedure laid down in JBC-010 if the same Art. VI, Sec. 30)
would be treated with indifference and disregard? To repeat,
as its wording provides, any complaint or opposition against Appellate jurisdiction of the SC (1994, 1995, 1996,
a candidate may be filed with the Secretary within ten (10) 2000, 2004, 2006 Bar)
days from the publication of the notice and a list of
candidates. Surely, this notice is all the more The Supreme Court has the power to review, revise,
reverse, or affirm on appeal or certiorari, as the law or
the Rules of Court may provide, final judgments and
orders of lower courts in:

1. All cases in which the constitutionality or validity

of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.

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2. All cases involving the legality of any tax, impost, a fair and impartial trial. (Navaja v. de Castro, G.R. No.
assessment, or toll, or any penalty imposed in relation 182926, June 22, 2015)
thereto.
3. All cases in which the jurisdiction of any lower The authority vested in the Congress and Supreme
court is in issue. Court is separate and distinct
4. All criminal cases in which the penalty imposed is
reclusion perpetua or higher.
5. All cases in which only an error or question of law CONGRESS SUPREME COURT
is involved. [1987 Constitution, Art VIII, Sec. 5(2)]
Authority to define, Power to promulgate
PROCEDURAL RULE-MAKING POWER prescribe, and apportion rules of pleading,
the jurisdiction of the practice, and procedure
Scope of the rule-making power of the SC (1991, various courts (1987 [1987 Constitution, Art.
2000, 2008, 2009, 2013, 2014, 2015 Bar) Constitution, Art. VIII, Sec. 2) VIII, Sec. 5(5)]

1. The protection and enforcement of constitutional Authority to create

rights statutory courts (1987
2. Pleadings, practice and procedure in all courts Constitution, Art. VIII, Sec. 1)
3. Admission to the practice of law
4. The Integrated Bar
NOTE: Albeit operatively interrelated, these powers are
5. Legal assistance to the underprivileged
institutionally separate and distinct, each to be
preserved under its own sphere of authority.
Limitations on its rule making power
When Congress creates a court and delimits its
1. It should provide a simplified and inexpensive
jurisdiction, it is the Court which fixes the procedure
procedure for the speedy disposition of cases.
through the rules it promulgates.
2. It should be uniform for all courts of the same
grade.
It was held that the 1 st par. of Sec. 14, RA 6770 is not a
3. It should not diminish, increase, or modify
jurisdiction-vesting provision because it does not define,
substantive rights.
prescribe, and apportion the subject matter jurisdiction
of courts to act on certiorari cases, instead, Congress
Requirements for the decisions of the SC
interfered with a provisional remedy created by this
Court under its duly promulgated rules of procedure,
1. The conclusions of the Supreme Court in any case which utility is both integral and inherent to every
submitted to it for decision en banc or in division shall be court’s exercise of judicial power. Without the Court’s
reached in consultation before the case is assigned to a consent to the proscription, as may be manifested by an
Member for the writing of the opinion of the Court. adoption of the same as part of the rules of procedure
2. A certification to this effect signed by the Chief through an administrative circular issued therefor, there
Justice shall be issued. thus, stands to be a violation of the separation of powers
3. A copy thereof shall be attached to the record of principle. (Carpio-Morales v. CA, G.R. No. 217126-27, Nov.
the case and served upon the parties. 10, 2015)
4. Any Member who took no part, or dissented, or
abstained from a decision or resolution, must state the
SC as the Presidential Electoral Tribunal (PET)
reason therefor (1987 Constitution, Art. VIII, Sec. 13)
The Supreme Court, sitting en banc, shall be the sole
NOTE: No decision shall be rendered by any court
judge of all contests relating to the election, returns, and
without expressing therein clearly and distinctly the
qualifications of the President or Vice-President, and may
facts and the law on which it is based (1987 Constitution,
promulgate its rules for the purpose. (1987 Constitution,
Art. VIII, Sec. 13).
Art. VII, Sec. 4, par. 7) (1999, 2012 Bar)
When change of venue is permitted The PET is an institution independent, but not separate,
from the judicial department, i.e., the SC. The SC’s method
Where there are serious and weighty reasons present, of deciding presidential and vice-presidential election
which would prevent the court of original jurisdiction contests, through the PET, is derivative of the exercise of
from conducting a fair and impartial trial, the Court has the prerogative conferred by the constitution.
been mandated by Sec. 5(4), Art. VIII to order a change of (Macalintal v. PET, G.R. No. 191618, Nov. 23, 2010)
venue so as to prevent a miscarriage of justice.
In this case, that fact that the respondent filed several
ADMINISTRATIVE SUPERVISION OVER LOWER
criminal cases for falsification in different jurisdictions,
COURTS
which unduly forced Navaja to spend scarce resources to
(1996, 1999, 2000, 2005, 2008 Bar)
defend herself cannot be considered as compelling
reason which would prevent the MCTC from conducting

UNIVERSITY OF SANTO TOMAS 2017

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 CONSTITUTIONAL COMMISSIONS

SC’s disciplinary power over judges of lower court 1. Cases involving the constitutionality or validity
of any treaty, international or executive
1. Only the SC en banc has jurisdiction to discipline or agreement, law, presidential decree,
dismiss judges of lower courts. proclamation, order, instruction, ordinance, or
2. Disciplinary action/dismissal – Majority vote of the regulation
SC Justices who took part in the deliberations and 2. Cases involving the legality of any tax, impost,
voted therein. (1987 Constitution, Art. VIII, Sec. 11) assessment, or toll, or any penalty imposed in
relation thereto
NOTE: The Constitution provides that the SC is given 3. Cases in which the jurisdiction of any lower
exclusive administrative supervision over all courts and court is in issue
judicial personnel. 4. Criminal cases where the penalty imposed is
reclusion perpetual or higher
Administrative cases, which the SC may hear en banc, 5. Cases where only a question of law is involved
under Bar Matter No. 209, include: [1987 Constitution, Art. VIII, Sec. 5(2)]
1. Administrative judges;
2. Disbarment of lawyers;
3. Suspension of more than 1 year; or
4. Fine exceeding Php 10,000. (People v. Gacott, G.R. CONSTITUTIONAL COMMISSIONS
No. 116049, July 13, 1995)

NOTE: Administrative jurisdiction over a court employee

Constitutional Commissions
belongs to the SC, regardless of whether the offense was
committed before or after employment in the Judiciary.
1. Civil Service Commission (CSC)
Thus, CSC does not have jurisdiction over an employee of
2. Commission on Elections (COMELEC)
the judiciary for acts committed while said employee
3. Commission on Audit (CoA)
was still in the executive branch. (Ampong v. CSC, G.R. No.
167916, August 26, 2008)
NOTE: The CSC, COMELEC, and COA are equally pre-
eminent in their respective spheres. Neither one may
Disciplinary power over Clerks of Court of Shari’a
claim dominance over the others. In case of conflicting
Circuit Courts as Circuit Registrars
rulings, it is the judiciary, which interprets the meaning
of the law and ascertains which view shall prevail. (CSC v.
The Clerk of Court of the Shari'a Circuit Court enjoys the
Pobre, G.R. No. 160508, Sept. 15, 2004)
privilege of wearing two hats: first, as Clerk of Court of
the Shari'a Circuit Court, and second, as Circuit Registrar
Purpose
within his territorial jurisdiction.
The creation of the Constitutional Commissions is
This Court does not have jurisdiction to impose the
established in the Constitution because of the
proper disciplinary action against civil registrars. Thus,
extraordinary importance of their functions and the need
although he is a member of the Judiciary as Clerk of
to insulate them from the undesired political
Court of the Shari'a Circuit Court, a review of the subject
interference or pressure. Their independence cannot be
complaint reveals that the petitioner seeks to hold the
assured if they were to be created merely by statute.
respondent liable as Circuit Registrar.
CONSTITUTIONAL SAFEGUARDS TO ENSURE
Test: Nature of the offense and not the personality of the
INDEPENDENCE OF COMMISSIONS
offender. What is controlling is not the designation of the
offense but the actual facts recited in the complaint.
Guarantees of independence provided for by the
(Mamiscal v. Clerk of Court, A.M. No. SCC-13-18-J, July 1,
Constitution to the 3 Commissions
2015)
1. They are constitutionally-created; may not be
ORIGINAL AND APPELLATE JURISDICTION
abolished by statute of its judicial functions. (1987
Constitution, Art. IX-A, Sec. 1)
Original Jurisdiction
2. Each is conferred certain powers and functions
1. Cases affecting ambassadors, other public
which cannot be reduced by statute. (1987
ministers and consuls
Constitution, Art. IX-B, C and D)
2. Petition for certiorari
3. Each is expressly described as independent. (1987
3. Petition for prohibition
Constitution, Art. IX-A, Sec. 1)
4. Petition for mandamus
4. Chairmen and members are given fairly long terms
5. Petition for quo warranto
of office for 7 years. [1987 Constitution, Art. IX-B, C
6. Petition for habeas corpus
and D, Sec. 1(2)]
[1987 Constitution, Art. VIII, Sec. 5(1)]
5. Chairmen and members cannot be removed except
by impeachment. (1987 Constitution, Art. XI, Sec. 2)
Appellate Jurisdiction
6. Chairmen and members may not be reappointed or
SC may review, revise, reverse, modify, or affirm final
appointed in an acting capacity [1987 Constitution,
judgments and orders of lower courts in:
Art. IX-B, C and D, Sec. 1(2)]

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7. Salaries of chairmen and members are relatively high and 1. Each Commission shall decide matter or cases by a
may not be decreased during continuance in office. (1987 majority vote of all the members within 60 days from
Constitution, Art. IX-A, Sec. 3; Art. XVIII, Sec. 17) submission.
8. Commissions enjoy fiscal autonomy. (1987 Constitution, a. COMELEC may sit en banc or in 2 divisions.
Art. IX-A, Sec. 5) b. Election cases, including pre-proclamation
9. Each commission may promulgate its own procedural controversies are decided in division, with motions for
rules. (1987 Constitution, Art. IX-A, Sec. 7) reconsideration filed with the COMELEC en banc.
10. Chairmen and members are subject to certain c. The SC has held that a majority decision decided
disqualifications and inhibitions calculated to strengthen their by a division of the COMELEC is a valid decision.
integrity. (1987 Constitution, Art. IX-A, Sec. 2) 2. As collegial bodies, each Commission must act as one,
11. Commissions may appoint their own officials and and no one member can decide a case for the entire
employees in accordance with Civil Service Law. (1987 commission.
Constitution, Art. IX-A, Sec. 4)
CIVIL SERVICE COMMISSION
NOTE: The Supreme Court held that the “no report, no (See discussion under Law on Public Officers)
release” policy may not be validly enforced against
offices vested with fiscal autonomy, without violating COMMISSION ON ELECTIONS
Art. IX -A, Sec. 5. The automatic release of approved
annual appropriations to a Constitutional Commission Composition of the COMELEC
vested with fiscal autonomy should thus be construed to
mean that no condition to fund releases may be imposed. A. Chairman
(CSC v. DBM, G.R. No. 158791, July 22, 2005) B. 6 Commissioners

Salary The Chairman and the Commissioners shall be appointed

by the President with the consent of the Commission on
Salaries may be increased by a statute but may not be Appointments for a term of seven years without
reappointment.
decreased during incumbent’s term of office.
NOTE: Appointment to any vacancy shall be only for the
NOTE: The decrease is prohibited to prevent the unexpired term of the predecessor. In no case shall any
legislature from exerting pressure upon the Member be appointed or designated in a temporary or
Commissions by “operating on their necessities”. Salaries acting capacity (1987 Constitution, Art. IX-C, Sec. 1[2]).
may be increased, as a realistic recognition of the need (1997, 2005 Bar)
that may arise to adjust the compensation to any
increase in the cost of living. Qualifications

Requisites for the effective operation of the 1. Natural-born citizen;

rotational scheme of terms of constitutional bodies 2. At least 35 years old at the time of appointment;
3. College degree holder; and
1. The original members of the Commission shall begin their 4. Not a candidate in any election immediately preceding
terms on a common date; the appointment.
2. Any vacancy occurring before the expiration of the term
shall be filled only for the balance of such term. (Republic v. NOTE: Majority of the members, including the Chairman,
Imperial, G.R. No. L-8684, March 31, 1995) shall be members of the Philippine Bar who have been
engaged in the practice of law for at least ten years [1987
NOTE: The members of the Constitutional Constitution, Art. IX-C, Sec 1(1)]
Commissions have staggered terms:
Constitutional powers and functions of the COMELEC
a) To minimize the opportunity of the President to (1991, 1996, 2001 Bar)
appoint during his own term more than one member or group
of members in the Constitutional Commissions; and 1. Enforce and administer all laws and regulations relative
b) To ensure continuity of the body and its policies. to the conduct of an election, plebiscite, initiative,
referendum, and recall.
POWERS AND FUNCTIONS OF EACH COMMISSION 2. Exercise:
a. Exclusive original jurisdiction over all contests
Decision-making process in these Commissions relating to the election, returns and qualifications of all
elective:
i. Regional
ii. Provincial
iii. City officials
b. Exclusive appellate jurisdiction over all contests
involving:
UNIVERSITY OF SANTO TOMAS
2017 GOLDEN NOTES
 CONSTITUTIONAL COMMISSIONS

i. Elective municipal officials decided by trial Remedy of a dissatisfied party in election cases
courts of general jurisdiction. decided by the COMELEC in division
ii. Elective barangay officials decided by
courts of limited jurisdiction. The dissatisfied party may file a motion for
c. Contempt powers reconsideration before the COMELEC en banc. If the en
i. COMELEC can exercise this power only in banc’s decision is still not favorable, the same, in
relation to its adjudicatory or quasi-judicial functions. It accordance with Sec. 7, Art. IX-A, “may be brought to the
cannot exercise this in connection with its purely executive SC on certiorari within 30 days from receipt of copy
or ministerial functions. thereof.” (Reyes v. RTC of Oriental Mindoro, G.R. No.
ii. If it is a pre-proclamation controversy, the 108886, May 5, 1995)
COMELEC exercises quasi-judicial/ administrative powers.
iii. Its jurisdiction over contests (after NOTE: The fact that decisions, final orders or rulings of
proclamation), is in exercise of its judicial functions. the COMELEC in contests involving elective municipal
NOTE: The COMELEC may issue writs of and barangay offices are final, executory and not
certiorari, prohibition, and mandamus in appealable, (1987 Constitution, Art. IX-C, Sec. 2[2]) does
exercise of its appellate functions. not preclude recourse to the SC by way of a special civil
3. Decide, except those involving the right to vote, all action of certiorari. (Galido v. COMELEC, G.R. No. 95346,
questions affecting elections, including determination of the January 18, 1991)
number and location of polling places, appointment of
election officials and inspectors, and registration of voters. COMELEC can exercise its power of contempt in
NOTE: Questions involving the right to vote fall connection with its functions as the National Board
within the jurisdiction of ordinary courts. of Canvassers during the elections
4. Deputize, with the concurrence of the President, law
enforcement agencies and instrumentalities of the The effectiveness of the quasi-judicial power vested by
government, including the AFP, for the exclusive purpose of law on a government institution hinges on its authority
ensuring free, orderly, honest, peaceful and credible to compel attendance of the parties and/or their
elections. witnesses at the hearings or proceedings. In the same
5. Registration of political parties, organizations, or vein, to withhold from the COMELEC the power to punish
coalitions and accreditation of citizens’ arms of the individuals who refuse to appear during a fact-finding
COMELEC. investigation, despite a previous notice and order to
6. File, upon a verified complaint, or on its own attend would render nugatory the COMELEC’s
initiative, petitions in court for inclusion or exclusion of investigative power, which is an essential incident to its
voters; investigate and, where appropriate, prosecute cases constitutional mandate to secure the conduct of honest
of violations of election laws, including acts or omissions and credible elections. (Bedol v. COMELEC, G.R. No.
constituting election frauds, offenses and malpractices. 179830, Dec. 3, 2009)

NOTE: The grant of exclusive power to investigate COMMISSION ON AUDIT

and prosecute cases of election offenses to the
COMELEC was not by virtue of the Constitution but Composition of the COA
by the OEC which was eventually amended by Sec.
43 of RA 9369. Thus, the DOJ now conducts A. Chairman
preliminary investigation of election offenses B. 2 Commissioners
concurrently with the COMELEC and no longer as
mere deputies. (Jose Miguel T. Arroyo v. DOJ, et al., The Chairman and the Commissioners shall be appointed
G.R. No. 199082, Sept. 18, 2012) by the President with the consent of the Commission on
7. Recommend to the Congress effective measures to Appointments for a term of seven years without
minimize election spending, including limitation of places reappointment.
where propaganda materials shall be posted, and to prevent
and penalize all forms of election frauds, offenses, NOTE: Appointment to any vacancy shall be only for the
malpractices, and nuisance candidacies. unexpired term of the predecessor. In no case shall any
8. Recommend to the President the removal of any Member be appointed or designated in a temporary or
officer or employee it has deputized, or the imposition of any acting capacity [1987 Constitution, Art. IX-D, Sec. 1(2)]
other disciplinary action, for violation or disregard of, or
disobedience to its directive, order, or decision. Qualifications
9. Submit to the President and the Congress a
comprehensive report on the conduct of each election, 1. Natural-born citizen;
plebiscite, initiative, referendum, or recall. 2. At least 35 years old at the time of appointment;
3. Certified Public Accountant with not less than ten
years of auditing experience, or member of the
Philippine Bar who has been engaged in the practice of
law; and
4. Not a candidate in any election immediately
preceding the appointment.

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Election cases should be heard and decided by a division.

NOTE: At no time shall all Members of the Commission If a division dismisses a case for failure of counsel to
belong to the same profession [1987 Constitution, Art. IX- appear, the MR may be heard by the division.
D, Sec 1(1)]
NOTE: According to Balajonda v. COMELEC (G.R. No.
Powers and duties of COA 166032, Feb. 28, 2005), the COMELEC can order
immediate execution of its own judgments.
1. Examine, audit and settle all accounts pertaining to
revenue and receipts of, and expenditures or uses of Cases that fall under the jurisdiction of COMELEC EN
funds and property owned or held in trust or pertaining BANC
to government.
2. Keep general accounts of government and Motion for Reconsideration of decisions may be decided
preserve vouchers and supporting papers. by COMELEC en banc. It may also directly assume
3. Authority to define the scope of its audit and jurisdiction over a petition to correct manifest errors in
examination, establish techniques and methods required the tallying of results by Board of Canvassers.
therefore.
4. Promulgate accounting and auditing rules and NOTE: Any decision, order or ruling of the COMELEC in
regulations, including those for prevention and the exercise of its quasi-judicial functions may be
disallowance (1987 Constitution, Art. IX-D, Sec. 2) brought to the SC on certiorari under Rules 64 and 65 of
the Revised Rules of Court within 30 days from receipt of
PROHIBITED OFFICES & INTERESTS a copy thereof.

No member of a Constitutional Commission shall, during These decisions or rulings refer to the decision or final
his tenure: order of the COMELEC en banc and not of any division
1. Hold any other office or employment thereof.
2. Engage in the practice of any profession
3. Engage in the active management and control of Acts that fall under the COMELEC’s power to
any business which in any way may be affected by the supervise or regulate
function of his office
4. Be financially interested, directly or indirectly, in 1. The enjoyment or utilization of all franchises or
any contract with, or in any franchise or privilege permits for the operation of transportation and other public
granted by the Government, any of its subdivisions, utilities, media of communication or information.
agencies or instrumentalities, including GOCCs or their 2. Grants, special privileges or concessions granted by
subsidiaries (1998, 2015 Bar) the government or any subdivision, agency or instrumentality
thereof, including any GOCC or its subsidiary. (1987
Purpose Constitution, Art. IX-C, Sec. 4)

1. To compel the chairmen and members of the Instances when COMELEC can exercise its
Constitutional Commissions to devote their full attention constitutional powers and functions
to the discharge of their duties; and
2. To remove from them any temptation to take 1. During election period – 90 days before the day of the
advantage of their official positions for selfish purposes. election and 30 days thereafter. In special cases, COMELEC can
fix a period.
2. Applies not only to elections but also to plebiscites and
JURISDICTION OF EACH CONSTITUTIONAL referenda.
COMMISSION
Jurisdiction of the COMELEC before the proclamation
vs. its jurisdiction after proclamation
CIVIL SERVICE COMMISSION
OVER PRE- OVER CONTESTS
Scope of the Civil Service (1999, 2003 Bar) PROCLAMATION (AFTER
CONTROVERSY PROCLAMATION)
The civil service embraces all branches, subdivisions, Due process implications
instrumentalities, and agencies of the Government,
including government-owned or controlled corporations COMELEC’s jurisdiction is
with original charters [1987 Constitution, Art. IX-B, Sec. administrative or quasi-
2(1)] judicial and is governed by
COMELEC’s jurisdiction is
the less stringent
requirements of judicial and is governed
COMMISSION ON ELECTION
by the requirements of
administrative due process
judicial process.
Cases that fall under the jurisdiction of COMELEC by (although the SC has
DIVISION insisted that questions on
“qualifications” should be
decided only after a full-

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 BILL OF RIGHTS – FUNDAMENTAL POWERS OF THE STATE

blown hearing). the Supreme Court on certiorari under Rule 65.

Only when COA acts without or in excess of
NOTE: Hence, even in the case of regional or provincial jurisdiction, or with grave abuse of discretion
or city offices, it does make a difference whether the amounting to lack or excess of jurisdiction, may the
COMELEC will treat it as a pre-proclamation controversy SC entertain a petition for certiorari under Rule 65.
or as a contest. 2. CSC: In the case of decisions of the CSC,
Administrative Circular 1-95538 which took effect on
COMMISSION ON AUDIT June 1, 1995, provides that final resolutions of the CSC
shall be appealable by certiorari to the CA within 15 days
The COA cannot be divested of its power to examine from receipt of a copy thereof. From the decision of the
and audit government agencies. CA, the party adversely affected thereby shall file a
petition for review on certiorari under Rule 45 of the
No law shall be passed exempting any entity of the Rules of Court.
Government or its subsidiary in any guise whatsoever, or 3. COMELEC: Only decisions of COMELEC en banc
any investment of public funds, from the jurisdiction of may be brought to the Court by certiorari since Art. IX-C
the Commission on Audit. provides that motions for reconsideration of decisions
shall be decided by the Commission en banc. (Reyes v.
The mere fact that private auditors may audit Mindoro, G.R. No. 108886, May 5, 1995)
government agencies does not divest the COA of its
power to examine and audit the same government Procedural requisite before certiorari to the
agencies. (Development Bank of the Philippines v. COA, Supreme Court may be availed of
G.R. No. 88435, Jan.16, 2002)
Sec. 1 of Rule 65 provides that certiorari may be resorted
Audit jurisdiction of the COA on privatized, formerly to when there is no other plain or speedy and adequate
government-owned banks remedy. But reconsideration is a speedy and adequate
remedy. Hence, a case may be brought to the Supreme
Since the PNB is no longer owned by the Government, Court only after reconsideration.
the COA no longer has jurisdiction to audit it as an
institution. Under Sec. 2(2), Art. IX-D of the Constitution, Rule on appeals
it is a GOCC and their subsidiaries which are subject to
audit by the COA. However, in accordance with Sec. 2(1), 1. Decisions, orders or rulings of the COMELEC/COA
Art. IX-D, the COA can audit the PNB with respect to its may be brought on certiorari to the SC under Rule 65.
accounts because the Government still has equity in it. 2. Decisions, orders or rulings of the CSC should be
(Philippine Airlines v. COA, G.R. No. 91890, June 9, 1995) appealed to the CA under Rule 43.

Extent of COA’s audit jurisdiction over Manila

Economic and Cultural Office (MECO) RENDERED IN THE EXERCISE OF ADMINISTRATIVE
FUNCTION
The MECO is not a GOCC or government instrumentality.
It is a sui generis private entity especially entrusted by Power of the CSC to hear and decide administrative
the government with the facilitation of unofficial cases
relations with the people in Taiwan without jeopardizing
the country’s faithful commitment to the One China Under the Administrative Code of 1987, the CSC has the
policy of the PROC. However, despite its non- power to hear and decide administrative cases instituted
governmental character, the MECO handles government before it directly or on appeal, including contested
funds in the form of the "verification fees" it collects on appointments.
behalf of the DOLE and the "consular fees" it collects
under Section 2(6) of EO No. 15, s. 2001. Hence, under Body which has the jurisdiction on personnel
existing laws, the accounts of the MECO pertaining to its actions, covered by the civil service
collection of such "verification fees" and "consular fees"
should be audited by the COA. (Funa v. MECO and COA, CSC. It is the intent of the Civil Service Law, in requiring
G.R. No. 193462, February 4, 2014) the establishment of a grievance procedure, that
decisions of lower officials (in cases involving personnel
actions) be appealed to the agency head, then to the CSC.
REVIEW OF FINAL ORDERS, RESOLUTIONS & The RTC does not have jurisdiction over personnel
DECISIONS actions. (Olanda v. Bugayong, G.R. No. 140917, Oct. 10,
2003)

RENDERED IN THE EXERCISE OF QUASIJUDICIAL Certiorari jurisdiction of the SC over these

FUNCTION Commissions

SC’s jurisdiction over decisions of the Commissions Proceedings are limited to issues involving grave abuse
of discretion resulting in lack or excess of jurisdiction
1. COA: Judgments or final orders of the Commission
on Audit may be brought by an aggrieved party to
UNIVERSITY OF SANTO TOMAS
75
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 POLITICAL LAW

and do not ordinarily empower the Court to review the

factual findings of the Commissions. (Aratuc v. COMELEC, BILL OF RIGHTS
G.R. No. L-49705-09, Feb. 8, 1979)

FUNDAMENTAL POWERS OF THE STATE (PET)

1. Police Power
2. Power of Eminent Domain
3. Power of Taxation

Similarities among the fundamental powers of the

State

1. They are inherent in the State and may be

exercised by it without need of express constitutional grant.
2. They are not only necessary but also indispensable.
The State cannot continue or be effective unless it is able to
exercise them.
3. They are methods by which the State interferes
with private rights.
4. They all presuppose an equivalent compensation
for the private rights interfered with.
5. They are exercised primarily by the legislature.

Common limitations on these powers

1. May not be exercised arbitrarily to the prejudice of

the Bill of Rights
2. Subject at all times to the limitations and
requirements of the Constitution and may in proper cases be
annulled by the courts, i.e. when there is grave abuse of discretion.

Police Power vs. Taxation vs. Eminent Domain

BASIS POLICE TAXATI EMINENT

POWER ON DOMAIN
Extent of Regulates Affects only property
power liberty and rights
property
Power Exercised only by the Maybe
exercised government exercised by
by whom private
entities
Nature of Property is Property is wholesome
the noxious or
property intended for a
taken noxious
purpose
Purpose Property taken Property is taken for
as to is destroyed public use
property
taken
Compensa Intangible
tion altruistic Protectio Fair market
feeling that one n and value of the
has contributed public property
to the public improve expropriate
good/general ments d
welfare
UNIVERSITY OF SANTO TOMAS 2017
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 BILL OF RIGHTS – FUNDAMENTAL POWERS OF THE STATE

Exercise of the fundamental powers of the state 1. Public health

2. Public morals
GR: The inherent powers are to be exercised by the 3. Public safety
legislature 4. Public welfare

XPN: These powers may be delegated to: (PALQ) Requisites for a valid exercise of police power
a. President
b. Administrative Agencies 1. Lawful subject – The interests of the public
c. Local Government Units generally, as distinguished from those of a particular
d. Quasi-Public Corporation (private corporations class, require the exercise of the police power
which perform a public function or render public service. e.g. 2. Lawful means – The means employed are
Meralco). reasonably necessary for the accomplishment of the
purpose and not unduly oppressive upon individuals.
NOTE: ONLY Eminent Domain may be delegated to (NTC v. Philippine Veterans Bank, 192 SCRA 257)
quasi-public corporations
---
Local government units do not have inherent powers Q: Hotel and motel operators in Manila sought to
declare Ordinance 4670 as unconstitutional for
They are mere creatures of Congress. Whatever powers being unreasonable, thus violative of the due process
they have are implied from their delegated powers. clause. The Ordinance requires the clients of hotels,
Police Power and Eminent Domain may be delegated to motels and lodging house to fill out a prescribed
LGU and the delegation may be found in their respective form in a lobby, open to public view and in the
charter. (Batangas CATV, Inc. vs. CA, G.R. No. 138810, Sept. presence of the owner, manager or duly authorized
29, 2004) representative of such hotel, motel or lodging house.
The same law provides that the premises and
NOTE: With respect to Taxation, it is the Constitution facilities of such hotels, motels and lodging houses
itself which delegated this power to LGUs. The delegation would be open for inspection either by the City
is found in Sec. 5, Art. 10. Mayor, or the Chief of Police, or their duly authorized
representatives. It increased their annual license
General Welfare Clause fees as well. Is the ordinance constitutional?

The delegation of the Police Power to the LGU. (Sec. 16, A: YES. The mantle of protection associated with the due
RA 7160 or the Local Government Code of 1991) process guaranty does not cover the hotel and motel
operators. This particular manifestation of a police
POLICE POWER power measure being specifically aimed to safeguard
(1990, 1992, 2001, 2004, 2007, 2009, 2010 Bar) public morals is immune from such imputation of nullity
resting purely on conjecture and unsupported by
Police power is the power of the state to promote public anything of substance. To hold otherwise would be to
welfare by restraining and regulating the use of liberty unduly restrict and narrow the scope of police power
and property. It is the most pervasive, the least limitable, which has been properly characterized as the most
and the most demanding of the three fundamental essential, insistent and the least limitable of powers,
powers of the State. The justification is found in the Latin extending as it does "to all the great public needs." There
maxims salus populi est suprema lex (the welfare of the is no question that the challenged ordinance was
people is the supreme law) and sic utere tuo ut alienum precisely enacted to minimize certain practices hurtful to
non laedas (so use your property as not to injure the public morals. The challenged ordinance then proposes
property of others). As an inherent attribute of to check the clandestine harboring of transients and
sovereignty which virtually extends to all public needs, guests of these establishments by requiring these
police power grants a wide panoply of instruments transients and guests to fill up a registration form,
through which the State, as parens patriae, gives effect to prepared for the purpose, in a lobby open to public view
a host of its regulatory powers. We have held that the at all times, and by introducing several other amendatory
power to “regulate” means the power to protect, foster, provisions calculated to shatter the privacy that
promote, preserve, and control, with due regard for the characterizes the registration of transients and guests.
interests, first and foremost, of the public, then of the Moreover, the increase in the licensed fees was intended
utility of its patrons. (Gerochi v. Department of Energy, G. to discourage "establishments of the kind from operating
R. 159796, July 17, 2007) for purpose other than legal" and at the same time, to
increase "the income of the city government." (Ermita-
Police power rests upon public necessity and upon the Malate Hotel v. City Mayor of Manila, G.R. No. L-24693,
right of the State and of the public to self-protection. For July 31, 1967)
this reason, its scope expands and contracts with the ---
changing needs (Churchill v. Rafferty, 32 Phil. 580, 602- ---
603, 1915). Q: Are the rates to be charged by utilities like
MERALCO subject to State regulation?
Generally, police power extends to all the great public
needs. Its particular aspects, however, are the following:

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A: YES. The regulation of rates to be charged by public utilities

is founded upon the police powers of the State and statutes Conditions for the exercise of the Power of Eminent
prescribing rules for the control and regulation of public Domain (TUCO)
utilities are a valid exercise thereof. When private property is
used for a public purpose and is affected with public interest, it 1. Taking of private property
ceases to be juris privati only and becomes subject to regulation. 2. For public Use
The regulation is to promote the common good. As long as use 3. Just Compensation
of the property is continued, the same is subject to public 4. Observance of due process
regulation. (Republic v. Manila Electric Company, G.R. No.
141314, Nov. 15, 2002) NOTE: There must be a valid offer to buy the
--- property and refusal of said offer.

NOTE: Mall owners and operators cannot be validly Power of expropriation as exercised by Congress vs.
compelled to provide free parking to their customers Power of expropriation as exercised by delegates
because requiring them to provide free parking space to
their customers is beyond the scope of police powers. It Power of Power of
unreasonably restricts the right to use property for expropriation as expropriation as
business purposes and amounts to confiscation of
property. (OSG v. Ayala Land, Inc., 600 SCRA 617) (2014 exercised by exercised by
Bar)
Congress delegates
Requisites for the valid exercise of police power by
the delegate The power is It can only be broad
pervasive and all- as the enabling law
1. Express grant by law
encompassing and the conferring
2. Must not be contrary to law
3. GR: Within territorial limits of LGUs authorities want it to
It can reach every be.
XPN: When exercised to protect water supply. form of property
(Wilson v. City of Mountain Lake Terraces, 417 P.2d which may be
632, 1966) needed by the State
for public use. In
The courts cannot interfere with the exercise of
Scope
police power
fact, it can reach
If the legislature decides to act, the choice of measures or even private
remedies lies within its exclusive discretion, as long as property already
the requisites for a valid exercise of police power have dedicated to public
been complied with. use, or even
property already
devoted to religious
--- worship (Barlin v.
Q: Can MMDA exercise police power? Ramirez, 7 Phil. 41).

A: NO. The MMDA cannot exercise police powers since its Political question Judicial question
powers are limited to the formulation, coordination, regulation, (The courts can
implementation, preparation, management, monitoring, setting
determine whether
of policies, installing a system, and administration. Nothing in
RA No. 7924 granted the MMDA police power, let alone Question
legislative power (MMDA v. Trackworks, G.R. No. 179554, Dec. there is genuine
16, 2009). of
--- necessity for its
necessity
EMINENT DOMAIN exercise, as well as
the value of the
Power of eminent domain (1990, 1993, 1996, 1998, property).
2000, 2001, 2003, 2004, 2008 Bar)

The power of the nation or the sovereign state to take, or

Requisites for a valid taking
to authorize the taking of private property for public use
without the owner’s consent, conditioned upon payment
of just compensation. (Brgy. Sindalan, San Fernando, 1. The expropriator must enter a private property
Pampanga v. CA, G.R. No. 150640, March 22, 2007) 2. Entry must be for more than a momentary period
3. Entry must be under warrant or color of legal
authority
4. Property must be devoted to public use or
UNIVERSITY OF SANTO TOMAS otherwise informally appropriated or injuriously affected
2017 GOLDEN NOTES 5. Utilization of property must be in such a way as to
oust the owner and deprive him of beneficial enjoyment of the
property. (Republic v. De Castellvi, G.R. No. L-20620, Aug. 15,
1974)

Nature of property taken

 BILL OF RIGHTS – FUNDAMENTAL POWERS OF THE STATE

may be actual,
GR: All private property capable of ownership, including moral, nominal,
services, can be taken. temperate,
liquidated, or
XPN: exemplary;
a. Money
b. Choses in action - personal right not reduced in (Republic v. Mupas, G.R. No. 181892, Sept. 8, 2015)
possession but recoverable by a suit at law such as
right to receive, demand or recover debt, demand or Requisites before an LGU can exercise Eminent
damages on a cause of action ex contractu or for a Domain
tort or omission of duty
1. An ordinance is enacted by the local legislative
NOTE: A chose in action is a property right in council authorizing the local chief executive, in
something intangible, or which is not in one’s behalf of the LGU, to exercise the power of eminent
possession but enforceable through legal or court domain or pursue expropriation proceedings over a
action. Ex. cash, a right of action in tort or breach of particular private property.
contract, an entitlement to cash refund, checks, 2. The power of eminent domain is exercised for
money, salaries, insurance claims. public use, purpose or welfare, or for the benefit of
the poor and the landless.
Eminent Domain vs. Destruction from necessity 3. There is payment of just compensation.
4. A valid and definite offer has been previously made
BASIS EMINENT DESTRUCTION to the owner of the property sought to be
DOMAIN FROM NECESSITY expropriated, but said offer was not accepted.
(Municipality of Paranaque v. V.M. Realty Corp., 292

Only authorized May be validly SCRA 678, July 20, 1998)

Who can
public entities or undertaken by
exercise
public officials private individuals EXPANSIVE CONCEPT OF “PUBLIC USE”

Expansive concept of “Public Use”

Public right Right of self-
defense, self-
preservation, Public use does not necessarily mean “use by the public
Kind of right
whether applied to at large.” Whatever may be beneficially employed for the
persons or to general welfare satisfies the requirement. Moreover, that
property only few people benefit from the expropriation does not
diminish its public-use character because the notion of
Conversion of No need for public use now includes the broader notion of indirect
property taken for conversion; no just public benefit or advantage. (Manosca v. CA, G.R. 166440,
Jan. 29, 1996)
Requirement public use; compensation but
payment of just payment in the
Concept of Vicarious Benefit
compensation form of damages
when applicable
Abandons the traditional concept (number of actual
Beneficiary State/public Private beneficiaries determines public purpose). Public use
now includes the broader notion of indirect public
advantage, i.e. conversion of a slum area into a model
housing community, urban land reform and housing.
Eminent Domain vs. Action for Damages
There is a vicarious advantage to the society. (Filstream

International Incorporated v. CA, 284 SCRA 716, Jan. 23,

BASIS EMINENT DOMAIN ACTION FOR
1998)
DAMAGES
 Source arises from the State’s based on tort
---
exercise of its power to and emanates
Q: The Republic, through the Office of the Solicitor-
expropriate private from the
General, instituted a complaint for expropriation of a
property for public use. transgression of
piece of land in Taguig, alleging that the National
The Constitution a right
Historical Institute declared said land as a national
mandates that the
historical landmark, because it was the site of the
property owner shall
birth of Felix Manalo, the founder of Iglesia ni Cristo.
only receive just
The Republic filed an action to expropriate the land.
compensation which, of
Petitioners argued that the expropriation was not for
course, should be based
a public purpose. Is this correct?
on preponderance of
evidence
A: YES. Public use should not be restricted to the
Purpose for public interest to vindicate a
traditional uses. It has been held that places invested
legal wrong
with unusual historical interest is a public use for which
through
the power of eminent domain may be authorized. The
damages, which

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purpose in setting up the marker is essentially to If the remainder is as a result of the expropriation placed
recognize the distinctive contribution of the late Felix in a better location, such as fronting a street where it
Manalo to the culture of the Philippines, rather than to used to be an interior lot, the owner will enjoy
commemorate his founding and leadership of the Iglesia consequential benefits which should be deducted from
ni Cristo. The practical reality that greater benefit may be the consequential damages. (Cruz, Constitutional Law,
derived by members of the Iglesia ni Cristo than by most 2007 ed., p. 79)
others could well be true but such a peculiar advantage
still remains to be merely incidental and secondary in NOTE: If the consequential benefits exceed the
nature. Indeed, that only a few would actually benefit consequential damages, these items should be
from the expropriation of property does not necessarily disregarded altogether as the basic value of the property
diminish the essence and character of public use. should be paid in every case. (Rule 67, Section 6, Rules of
(Manosca v. CA, supra.) Court)
---
Form of payment
JUST COMPENSATION
GR: Compensation has to be paid in money.
It is the full and fair equivalent of the property taken
from the private owner (owner’s loss) by the XPN: In cases involving CARP, compensation may be in
expropriator. It is usually the fair market value (FMV) of bonds or stocks, for it has been held as a non-traditional
the property and must include consequential damages exercise of the power of eminent domain. It is not an
(damages to the other interest of the owner attributed to ordinary expropriation where only a specific property of
the expropriation) minus consequential benefits relatively limited area is sought to be taken by the State
(increase in the value of other interests attributed to new from its owner for a specific and perhaps local purpose.
use of the former property). It is rather a revolutionary kind of expropriation.
(Association of Small Landowners in the Philippines, Inc. v.
NOTE: To be just, the compensation must be paid on Secretary of Agrarian Reform, G.R. No. 78742, 14 July
time. (2009 Bar) 1989)

Fair Market Value NOTE: The owner is entitled to the payment of interest
from the time of taking until just compensation is
The price that may be agreed upon by parties who are actually paid to him. Taxes paid by him from the time of
willing but are not compelled to enter into a contract of the taking until the transfer of title (which can only be
sale. (City of Manila v. Estrada, G.R. No. 7749, Sept. 9, done after actual payment of just compensation), during
1913) which he did not enjoy any beneficial use of the property,
are reimbursable by the expropriator.
Formula for Just Compensation
An interest of 12% per annum on the just compensation
Just Compensation = actual/basic value of the due the landowner should be used in computing interest
property (LBP v. Wycoco G.R. No. 140160, January 13, 2004).
+ consequential damages
- consequential benefits Pursuant to Bangko Sentral ng Pilipinas Circular No.
(which should not exceed the 799, series of 2013, from July 1, 2013 onwards and until
consequential damages) full payment, an interest rate of 6% per annum should
be used in computing the just compensation. (Land
Period to determine just compensation Bank of the Philippines v. Hababag, G.R. No. 172352,
September 16, 2015)
GR: Reckoning point is determined at the date of the
filing of the complaint for eminent domain. NOTE: The right to recover just compensation is
enshrined in no less than our Bill of Rights, which states
XPN: Where the filing of the complaint occurs after the in clear and categorical language that private property
actual taking of the property and the owner would be shall not be taken for public use without just
given undue incremental advantages arising from the use compensation. This constitutional mandate cannot be
to which the government devotes the property defeated by statutory prescription. (NPC v. Sps.
expropriated, just compensation is determined as of the Bernardo, G. R. No. 189127, April 25, 2012) (2014 Bar)
date of the taking. (NPC v. CA, G.R. No. 113194, March 11,
1996) DETERMINATION

Consequential Damages Role of the Judiciary

Consist of injuries directly caused on the residue of the While the Land Bank of the Philippines is charged with
private property taken by reason of expropriation. (Cruz the initial responsibility of determining the value of
and Cruz, Constitutional Law, 2015 Ed.) lands placed under the land reform and, accordingly, the
just compensation therefor, its valuation is considered
Consequential Benefits only as an initial determination and, thus, not conclusive.
Verily, it is well-settled that it is the RTC, sitting as a

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 BILL OF RIGHTS – FUNDAMENTAL POWERS OF THE STATE

Special Agrarian Court, which should make the final the said expropriation (expansion of the airport)
determination of just compensation in the exercise of its was never actually initiated, realized, or
judicial function. (Land Bank v. Lajom, G.R. No. 184982, implemented.
Aug. 20, 2014)
Thus, the landowners initiated a complaint for the
The value of the property must be determined either at recovery of possession and reconveyance of
the time of taking or filing of the complaint, whichever ownership of the lands based on the compromised
comes first. (EPZA v. Dulay, G.R. No. 59603, April 29, 1987) agreement they entered into with the ATO. On the
other hand, the Government anchor their claim to
In cases where a property is not wholly expropriated, the the controverted property on the supposition that
consequential damages of the remaining property shall the decision in the pertinent expropriation
be added in the fair market value, minus the proceedings did not provide for the condition that
consequential benefits, but in no case will the should the intended use of the land for the expansion
consequential benefits exceed the consequential of the Lahug Airport be aborted or abandoned, the
damages. (Sec. 6, Rule 67, Rules of Court) property would revert to respondents, being its
former owners. Do the former owners have the right
EFFECT OF DELAY to redeem the property?

GR: Non-payment by the government does not entitle A: YES. It is well settled that the taking of private
private owners to recover possession of the property property by the Government’s power of eminent domain
because expropriation is an in rem proceeding, not an is subject to two mandatory requirements: (1) that it is
ordinary sale, but only entitle them to demand payment for a particular public purpose; and (2) that just
of the fair market value of the property. compensation be paid to the property owner. These
requirements partake of the nature of implied conditions
XPNs: that should be complied with to enable the condemnor to
1. When there is deliberate refusal to pay just keep the property expropriated.
compensation
2. Government’s failure to pay compensation within 5 More particularly, with respect to the element of public
years from the finality of the judgment in the use, the expropriator should commit to use the property
expropriation proceedings. This is in connection pursuant to the purpose stated in the petition for
with the principle that the government cannot keep expropriation filed, failing which, it should file another
the property and dishonor the judgment (Republic v. petition for the new purpose. If not, it is then incumbent
Lim, G.R. No. 161656, June 29, 2005). upon the expropriator to return the said property to its
private owner, if the latter desires to reacquire the

ABANDONMENT OF INTENDED USE AND RIGHT OF same. Otherwise, the judgment of expropriation suffers
REPURCHASE an intrinsic flaw, as it would lack one indispensable

element for the proper exercise of the power of eminent

--- domain, namely, the particular public purpose for which
Q: Several parcels of lands located in Lahug, Cebu the property will be devoted. Accordingly, the private
City were the subject of expropriation proceedings property owner would be denied due process of law, and
filed by the Government for the expansion and the judgment would violate the property owner’s right to
improvement of the Lahug Airport. The RTC justice, fairness, and equity. (MIAA and Air
rendered judgment in favor of the Government and Transportation Office v. Lozada, G.R. No. 176625, Feb. 25,
ordered the latter to pay the landowners the fair 2010)
market value of the land. The landowners received ---
the payment.
NOTE: To continue with the expropriation proceedings
The other dissatisfied landowners despite the definite cessation of the public purpose of the
appealed. Pending appeal, the Air Transportation project would result in the rendition of an invalid
Office (ATO), proposed a compromise settlement judgment in favor of the expropriator due to the absence
whereby the owners of the lots affected by the of the essential element of public use. (Republic v. Heirs
expropriation proceedings would either not appeal of Borbon, G.R. No. 165354, Jan. 12, 2015)
or withdraw their respective appeals in
consideration of a commitment that the MISCELLANEOUS APPLICATION
expropriated lots would be resold at the price they
were expropriated in the event that the ATO would
abandon the Lahug Airport, pursuant to an
established policy involving similar cases. Because of
this promise, the landowners did not pursue their
appeal. Thereafter, the lot was transferred and
registered in the name of the Government. The
projected improvement and expansion plan of the
old Lahug Airport, however, was not pursued. From
the date of the institution of the expropriation
proceedings up to the present, the public purpose of

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--- property without just property because radio

Q: The Philippine Press Institute, Inc. ("PPI") assails compensation networks do not own the
the validity of Resolution No. 2772 issued by Comelec airwaves
wherein the latter shall procure free print space in at
least one newspaper of general circulation, any
Print media incurred Broadcast media does not
magazine or periodical in every province or city for use
as "Comelec Space" from March 6, 1995 in the case of expenses for the use of incur expenses for using
candidates. Is the resolution valid? papers the airwaves

A: NO. The taking of private property for public use is Print media is limited in Broadcast media is very
authorized by the Constitution, but not without payment of scope pervasive
just compensation (Article III, Section 9). And apparently
the necessity of paying compensation for "Comelec space" is
precisely what is sought to be avoided by the Commission.
There is nothing at all to prevent newspaper and magazine ---
publishers from voluntarily giving free print space to Q: An ordinance of Quezon City requires memorial park
Comelec for the purposes contemplated in Resolution No. operators to set aside at least 6% of their cemetery for charity
2772. Section 2 of Resolution No. 2772 does not, however, burial of deceased persons who are paupers and residents of
provide a constitutional basis for compelling publishers, Quezon City. The same ordinance also imposes fine or
against their will to provide free print space for Comelec imprisonment and revocation of permit to operate in case of
purposes. Section 2 does not constitute a valid exercise of violation. Is this a valid exercise of police power?
the power of eminent domain. (Philippine Press Institute v.
COMELEC, G.R. No. 119694, May 22, 1995) A: No. It constituted taking of property without just
--- compensation. The power to regulate does not include the power to
--- prohibit. The power to regulate does not include the power to
Q: Sec. 92 of the Omnibus Election Code provides that confiscate. The ordinance in question not only confiscates but also
the Comelec shall procure radio and television time to prohibits the operation of a memorial park cemetery, because
be known as “Comelec Time” which shall be allocated under Sec. 13 of said ordinance, 'Violation of the provision thereof
equally and impartially among the candidates within is punishable with a fine and/or imprisonment and that upon
the area of coverage of all radio and television stations. conviction thereof the permit to operate and maintain a private
Thus, the franchise of all radio broadcasting and cemetery shall be revoked or cancelled’. The confiscatory clause
television stations are hereby amended so as to provide and the penal provision in effect deter one from operating a
radio or television time, free of charge, during the memorial park cemetery. Moreover, instead of building or
period of the campaign. Is Sec. 92 of BP 881 valid? maintaining a public cemetery for this purpose, the city passes the
burden to private cemeteries. (City Government of Quezon City v.
Ericta, G.R. No. L-34915, June 24, 1983)
A: YES. All broadcasting, whether by radio or by
television stations, is licensed by the government. Airwave ---
frequencies have to be allocated as there are more ---
individuals who want to broadcast than there are Q: NPC negotiated with Maria for an easement of right
frequencies to assign. A franchise is thus a privilege subject, of way over her property. NPC contends that they shall only
among other things, to amendment by Congress in pay easement fee, not just compensation. Is a right of way
accordance with the constitutional provision that “any such easement subject to expropriation?
franchise or right granted shall be subject to amendment,
alteration or repeal by the Congress when the common A: YES. There can be expropriation in the right of way
good so requires. easement. Expropriation is not limited to the acquisition of real
Radio and television broadcasting companies, which are property with a corresponding transfer of title or possession – the
given franchises, do not own the airwaves and right of way easement resulting in a restriction of limitation on
frequencies through which they transmit broadcast property right over the land traversed by transmission lines also
signals and images. They are merely given the temporary falls within the ambit of the term expropriation (NPC v. Maria
privilege of using them. Since a franchise is a mere Mendoza San Pedro, G.R. No. 170945 Sept. 26, 2006).
privilege, the exercise of the privilege may reasonably be ---
burdened with the performance by the grantee of some ---
form of public service. (Telecommunications and Q: Causby sued the United States for trespassing on his
Broadcast Attorneys of the Philippines v. COMELEC, G.R. land, complaining specifically about how low-flying military
No. 132922, April 21, 1998) planes caused his chickens to jump up against the side of the
--- chicken house and the walls and burst themselves open and
die. Are they entitled to compensation by reason of taking
clause?
PPI vs. COMELEC and TELEBAP vs. COMELEC

PPI vs. COMELEC TELEBAP vs. COMELEC

Invalid; there is taking of There is no taking of public

82

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GOLDEN NOTES
 BILL OF RIGHTS – PRIVATE ACTS AND THE BILL OF RIGHTS

A: YES. There is taking by reason of the frequency and 3. For what public purpose
altitude of the flights. Flights of aircraft over private land 4. Amount or rate of the tax
which are so low and frequent as to be a direct and
immediate interference with the enjoyment and use of General Limitations on the power of taxation
the land are as much an appropriation of the use of the
land as a more conventional entry upon it. If the flights A. Inherent limitations
over Causby's property rendered it uninhabitable, there 1. Public purpose
would be a taking compensable under the Fifth 2. Non-delegability of power
Amendment. It is the owner's loss, not the taker's gain, 3. Territoriality or situs of taxation
which is the measure of the value of the property taken. 4. Exemption of government from taxation
Moreover, Causby could not use his land for any purpose. 5. International comity
(US v. Causby, 328 U.S. 256, 1946)
--- B. Constitutional limitations
1. Due process of law (Art. III, Sec.1)
TAXATION 2. Equal protection clause (Art. III, Sec.1)
3. Uniformity, equitability and progressive system
Taxes are: of taxation (Art. VI, Sec 28)
4. Non-impairment of contracts (Art. III, Sec. 10)
1. Enforced proportional contributions from 5. Non-imprisonment for non-payment of poll tax
persons and property (Art. III, Sec. 20)
2. Levied by the State by virtue of its sovereignty 6. Revenue and tariff bills must originate in the
House of Representatives (Art IV, Sec. 24)
7. Non-infringement of religious freedom (Art. III,
3. For the support of the government Sec.4)
4. For public needs 8. Delegation of legislative authority to the
President to fix tariff rates, import and export
Taxation quotas, tonnage and wharfage dues

9. Tax exemption of properties actually, directly

Process by which the government, through its legislative and exclusively used for religious, charitable
branch, imposes and collects revenues to defray the and educational purposes (NIRC, Sec 30)
necessary expenses of the government, and to be able to 10. Majority vote of all the members of Congress
carry out, in particular, any and all projects that are required in case of legislative grant of tax
supposed to be for the common good. Simply put, exemptions
taxation is the method by which these contributions are 11. Non-impairment of SC’s jurisdiction in tax cases
exacted. 12. Tax exemption of revenues and assets of,
including grants, endowments, donations or
The power to tax includes the power to destroy only if it contributions to educational institutions. (Sec.
is used as a valid implement of the police power in 28 [3], Art. VI of the 1987 Constitution)
discouraging and in effect, ultimately prohibiting certain
things or enterprises inimical to public welfare. But Notice and hearing in the enactment of tax laws
where the power to tax is used solely for the purpose of
raising revenues, the modern view is that it cannot be From the procedural viewpoint, due process does not
allowed to confiscate or destroy. If this is sought to be require previous notice and hearing before a law
done, the tax may be successfully attacked as an prescribing fixed or specific taxes on certain articles may
inordinate and unconstitutional exercise of the be enacted. But where the tax to be collected is to be
discretion that is usually vested exclusively in the based on the value of taxable property, the taxpayer is
legislature in ascertaining the amount of tax. (See: Roxas entitled to be notified of the assessment proceedings and
v. CTA, L-25043, April 26, 1968) to be heard therein on the correct valuation to be given
the property.
NOTE: Payment of taxes is an obligation based on law,
and not on contract. It is a duty imposed upon the Uniformity in taxation
individual by the mere fact of his membership in the
body politic and his enjoyment of the benefits available Refers to geographical uniformity, meaning it operates
from such membership. Except only in the case of poll with the same force and effect in every place where the
(community) taxes, non-payment of a tax may be the subject of it is found.
subject of criminal prosecution and punishment. The
accused cannot invoke the prohibition against Progressive system of taxation
imprisonment for debt, as taxes are not considered
debts. Means that the tax rate increases as the tax base
Scope of legislative discretion I the exercise of increases.
taxation Double taxation

1. Whether to tax in the first place It means taxing the same property twice when it should
2. Whom or what to tax be taxed only once; that is, “taxing the same person twice

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 POLITICAL LAW

by the same jurisdiction for the same thing.” It is 2017 GOLDEN NOTES
obnoxious when the taxpayer is taxed twice, when it
should be but once. Otherwise described as “direct
duplicate taxation,” the two taxes must be imposed on
the same subject matter, for the same purpose, by the
same taxing authority, within the same jurisdiction,
during the same taxing period; and the taxes must be of
the same kind or character (City of Manila v. Coca-Cola
Bottlers Philippines, G.R. No. 181845, Aug. 4, 2009).

Two Tax Laws or Ordinances constitute Double

Taxation when they tax: (PAPSJK)

1. for the same Purpose;

2. by the same taxing Authority;
3. for the same taxing Periods;
4. on the same Subject matter;
5. within the same taxing Jurisdiction; and
6. of the same Kind or character. (Swedish Match
Philippines v. Treasurer of the City of Manila, G.R. No. 181277,
July 3, 2013)

NOTE: There is no provision in the Constitution

specifically prohibiting double taxation, however, where
there is direct duplicate taxation, there may be violation
of the constitutional precepts of equal protection and
uniformity in taxation.

Tax exemptions may either be

1. Constitutional; or
2. Statutory

Revocability of tax exemptions

1. Exemption is granted gratuitously – revocable

2. Exemption is granted for valuable consideration (non-
impairment of contracts) – irrevocable

Construction of tax laws

In case of doubt, tax statutes are to be construed strictly

against the Government and liberally in favor of the
taxpayer, for taxes, being burdens, are not to be
presumed beyond what the applicable statute expressly
and clearly declares (CIR v. La Tondena, Inc. and CTA, 5
SCRA 665)

Construction of laws granting tax exemptions

It must be strictly construed against the taxpayer,

because the law frowns on exemption from taxation;
hence, an exempting provision should be construed
strictissimi juris. (Acting Commissioner of Customs v.
Manila Electric Company, G.R. No. L-23623, June 30, 1977)

Tax vs. License fee

TAX LICENSE FEE

Levied in exercise of Imposed in the exercise of the
the taxing power police power of the state
The purpose of the License fees are imposed for
tax is to generate regulatory purposes which
revenues means that it must only be of

UNIVERSITY OF SANTO TOMAS

 sufficient amount to include
expenses in issuing a license;
cost of necessary inspection or
police surveillance, etc.
Its primary purpose Regulation is the primary
is to generate purpose. The fact that
revenue, and incidental revenue is also
regulation is merely obtained does not make the
incidental imposition a tax

NOTE: Ordinarily, license fees are in the nature of the

exercise of police power because they are in the form of
regulation by the State and considered as a manner of
paying off administration costs. However, if the license fee is
higher than the cost of regulating, then it becomes a form of
taxation. (Ermita-Malate Hotel v. City Mayor of Manila, G.R.
No. L-24693, Oct. 23, 1967)

---
Q: Can taxes be subject to off-setting or compensation?

A: NO. Taxes cannot be subject to compensation for the simple

reason that the government and the taxpayer are not creditors
and debtors of each other. There is a material distinction
between a tax and debt. Debts are due to the Government in its
corporate capacity, while taxes are due to the Government in its
sovereign capacity. It must be noted that a distinguishing
feature of tax is that it is compulsory rather than a matter of
bargain. Hence, a tax does not depend upon the consent of the
taxpayer. (Philex Mining Corp. v. CIR, 294 SCRA 687, Aug. 28,
1998)
---

PRIVATE ACTS AND THE BILL OF RIGHTS

Bill of Rights

Set of prescriptions setting forth the fundamental civil and

political rights of the individual, and imposing limitations on
the powers of government as a means of securing the
enjoyment of those rights.

The Bill of Rights guarantee governs the relationship

between the individual and the State. Its concern is not the
relation between private individuals. What it does is to
declare some forbidden zones in the private sphere
inaccessible to any power holder. (People v. Marti, G.R. No.
81561, Jan. 18, 1991)

Bill of Rights cannot be invoked against private individuals.

In the absence of governmental interference, the liberties
guaranteed by the Constitution cannot be invoked. Put
differently, the Bill of Rights is not meant to be invoked
against acts of private individuals. (Yrasegui v. PAL, G.R. No.
168081, Oct. 17, 2008)

NOTE: However, where the husband invoked his right to

privacy of communication and correspondence against a
private individual, his wife, who had forcibly taken from his
cabinet documents and private correspondence, and
presented as evidence against him, the Supreme Court
 BILL OF RIGHTS – DUE PROCESS

held these papers are inadmissible in evidence, 4. Judgment to be rendered after lawful hearing,
upholding the husband’s right to privacy. (Zulueta v. CA, clearly explained as to the factual and legal bases.
(Art. VII, Sec. 14, 1987 Constitution)
G.R. No. 107383, Feb. 20 1996)
Requisites of due process in administrative

proceedings
DUE PROCESS (See discussion under Administrative Law, Administratice
Due Process)

Due process clause (1992, 1999, 2007, 2009 Bar) Administrative vs. Judicial due process

No person shall be deprived of life, liberty, or property BASIS ADMINISTRATIVE JUDICIAL

without due process of law, nor shall any person be Opportunity to A day in court
Essence
denied the equal protection of the laws. (1987 explain one’s side
Constitution, Art. III, Sec. 1) Usually through Submission of
seeking a pleadings and
Due process means: reconsideration of oral arguments
Means the ruling or the
1. There shall be a law prescribed in harmony action taken, or
with the general powers of the legislature; appeal to a superior
2. It shall be reasonable in its operation; authority
3. It shall be enforced according to the regular Required when the Both are
methods of procedure prescribed; and administrative body essential:
4. It shall be applicable alike to all citizens of the is exercising quasi- 1. Notice
State or to all of a class. (People v. Cayat, G.R. No. Notice and judicial function 2. Hearing
L-45987, May 5, 1939) Hearing (PhilCom-Sat v.
Alcuaz, G.R. No.
Kinds of due process
84818, Dec. 18,
1989).
1. Procedural Due Process
NOTE: See further discussion of Administrative Due
2. Substantive Due Process
Process under Administrative Law

RELATIVITY OF DUE PROCESS Due Process in academic and disciplinary

proceedings
Arises when the definition of due process has been left to
the best judgment of our judiciary considering the Parties are bound by the rules governing academic
peculiarity and the circumstances of each case. In a litany requirements and standards of behavior prescribed by
of cases that have been decided in this jurisdiction, the the educational institutions. Resort to courts is available
common requirement to be able to conform to due to parties. (Vivares and Suzara v. St. Theresa’s College,
process is fair play, respect for justice and respect for the G.R. No. 202666, Sept. 29, 2014)
better rights of others. In accordance with the standards
of due process, any court at any particular time, will be Requisites of student discipline proceedings
well guided, instead of being merely confined strictly to a
precise definition which may or may not apply in every Student discipline proceedings may be summary and
case. cross-examination is not an essential part thereof.
However, to be valid, the following requirements must
Due process in judicial proceedings
be met:
1. Written notification sent to the student/s
Whether in civil or criminal judicial proceedings, due informing the nature and cause of any
process requires that there be: accusation against him/her;
2. Opportunity to answer the charges, with the
1. An impartial and disinterested court clothed by law assistance of a counsel, if so desired;
with authority to hear and determine the matter 3. Presentation of one’s evidence and examination
before it. of adverse evidence;
 4. Evidence must be duly considered by the
NOTE: The test of impartiality is whether the investigating committee or official designated
judge’s intervention tends to prevent the proper by the school authorities to hear and decide the
presentation of the case or the ascertainment of the case. (Guzman v. NU, G.R. No. L-68288, July 11,
truth. 1986)
5. The penalty imposed must be proportionate to
2. Jurisdiction lawfully acquired over the defendant or the offense.
the property which is the subject matter of the
proceeding Due process in deportation proceedings
3. Notice and opportunity to be heard be given to the
defendant

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 POLITICAL LAW

Although a deportation proceeding does not partake of ---

the nature of a criminal action, however, considering that Q: Ordinance 6537 of the City of Manila makes it
it is a harsh and extraordinary administrative proceeding unlawful for non- Filipino citizens to be employed or to
affecting the freedom and liberty of a person, the be engaged in any kind of trade, business or occupation
constitutional right of such person to due process should within the City of Manila, without securing an
not be denied. Thus, the provisions of the Rules of Court employment permit from the Mayor of Manila. Is the
of the Philippines particularly on criminal procedure are ordinance unconstitutional?
applicable to deportation proceedings. (Lao Gi v. CA, GR.
No. 81789, Dec. 29, 1989) A: YES. The ordinance is unconstitutional. While it is true
that the Philippines as a State is not obliged to admit aliens
--- within its territory, once an alien is admitted, he cannot be
Q: Scheer, a German, was granted permanent resident deprived of life without due process of law. This guarantee
status in the country. In a letter, Vice Consul Hippelein includes the means of livelihood. The ordinance amounts to
informed the Philippine Ambassador to Germany that the a denial of the basic right of the people of the Philippines to
respondent had police records and financial liabilities in engage in the means of livelihood. (Mayor Villegas v. Hiu
Germany. The Board of Commissioners (BOC) thereafter Ching Tsai Pao Hao, G.R. No. L-29646, Nov. 10, 1978)
issued a Summary Deportation Order. It relied on the ---
correspondence from the German Vice Consul on its
speculation that it was unlikely that the German Embassy
will issue a new passport to the respondent; on the warrant PROCEDURAL AND SUBSTANTIVE DUE PROCESS
of arrest issued by the District Court of Germany against
the respondent for insurance fraud; and on the alleged
illegal activities of the respondent in Palawan. The BOC Procedural vs. Substantive due process
concluded that the respondent was not only an
undocumented but an undesirable alien as well. Is the
Summary Deportation Order is valid?

A: NO. Section 37(c) of Commonwealth Act No. 613, as

amended, provides that no alien shall be deported without
being informed of the specific grounds for deportation or
without being given a hearing under rules of procedure to be
prescribed by the Commissioner of Immigration. Under
paragraphs 4 and 5 of Office Memorandum Order No. 34, an
alien cannot be deported unless he is given a chance to be heard
in a full deportation hearing, with the right to adduce evidence
in his behalf. The respondent was not afforded any hearing at
all. The BOC simply concluded that the respondent committed
insurance fraud and illegal activities in Palawan without any
evidence. The respondent was not afforded a chance to refute
the charges. He cannot, thus, be arrested and deported without
due process of law as required by the Bill of Rights of the
Constitution. (Domingo v. Scheer, G.R. No. 154745, January 29,
2004)
---

Instances when hearings are not necessary

1. When administrative agencies are exercising their

quasi-legislative functions
2. Abatement of nuisance per se
3. Granting by courts of provisional remedies
4. Cases of preventive suspension
5. Removal of temporary employees in the government
service
6. Issuance of warrants of distraint and/or levy by the
BIR Commissioner
7. Cancellation of the passport of a person charged with
a crime
8. Suspension of a bank’s operations by the
Monetary Board upon a prima facie finding of
liquidity problems in such bank

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES

SUBSTANTIVE PROCEDURAL
DUE PROCESS DUE PROCESS
 This serves as a Serves as a
restriction on the restriction on
government’s law actions of judicial
Purpose
and rule-making and quasi-judicial
powers. agencies of the
government.
1. The interests of 1. Impartial court
the public in or tribunal
general, as clothed with
distinguished judicial power
from those of a to hear and
particular class, determine the
require the matters before
intervention of it.
the state.

2. The means 2. Jurisdiction

employed are properly
reasonably acquired over
necessary for the the person of
Requisites
accomplishment the defendant
of the purpose and over
and not unduly property which
oppressive upon is the subject
individuals. matter of the
proceeding.
3. Opportunity to
be heard.
4. Judgment
rendered upon
lawful hearing
and based on
evidence
adduced.
 BILL OF RIGHTS – DUE PROCESS

SUBSTANTIVE DUE PROCESS (see Extradition section under PIL for discussion)

Substantive due process ---

Q: A complaint was filed against respondent Camille
It requires the intrinsic validity of the law in interfering Gonzales, then Chief Librarian, Catalog Division, of
with the rights of the person to his life, liberty, or the National Library for dishonesty, grave
property. If a law is invoked to take away one’s life, misconduct and conduct prejudicial to the best
liberty or property, the more specific concern of interest of the service. The DECS investigating
substantive due process is not to find out whether said committee was created to inquire into the charges
law is being enforced in accordance with procedural against Gonzales. Is she entitled to be informed of the
formalities but whether the said law is a proper exercise findings and recommendations of the investigating
of legislative power. committee?

--- A: NO. It must be stressed that the disputed investigation

Q: The City of Manila enacted Ordinance 7783, which report is an internal communication between the DECS
prohibited the establishment or operation of business Secretary and the Investigation Committee, and it is not
“providing certain forms of amusement, entertainment, generally intended for the perusal of respondent or any
services and facilities where women are used as tools in other person for that matter, except the DECS Secretary.
entertainment and which tend to disturb the She is entitled only to the administrative decision based
community, among the inhabitants and adversely affect on substantial evidence made of record, and a reasonable
the social and moral welfare of community”. Owners and opportunity to meet the charges and the evidence
operators concerned were given three months to wind presented against her during the hearings of the
up their operations or to transfer to any place outside investigation committee. (Pefianco v. Moral, GR. No.
the Ermita-Malate area, or convert said business to 132248, Jan. 19, 2000)
other kinds of business which are allowed. Does the ---
ordinance violate the due process clause? ---
Q: Cadet 1CL Cudia was a member of Siklab Diwa
A: YES. These lawful establishments may only be Class of 2014 of the PMA. Prof. Berong issued a
regulated. They cannot be prohibited from carrying on their Delinquency Report (DR) against Cadet 1CL Cudia
business. This is a sweeping exercise of police power, which because he was late for two minutes in his class.
amounts to interference into personal and private rights Cudia reasoned out that: “I came directly from
which the court will not countenance. There is a clear OR432 Class. We were dismissed a bit late by our
invasion of personal or property rights, personal in the case instructor Sir.”
of those individuals desiring of owning, operating and
patronizing those motels and property in terms of The Company Tactical Officer (CTO) of Cadet 1CL
investments made and the salaries to be paid to those who Cudia penalized him with demerits. Cudia addressed
are employed therein. If the City of Manila desired to put an his Request for Reconsideration to his Senior
end to prostitution, fornication, and other social ills, it can Tactical Officer (STO), but the STO sustained the
instead impose reasonable regulations such as daily penalty. The CTO reported him to the PMA Honors
inspections of the establishments for any violation of the Committee (HC) for violation of the Honor Code.
conditions of their licenses or permits, it may exercise its
authority to suspend or revoke their licenses for these
violations; and it may even impose increased license fees When the members of the HC casted their votes
(City of Manila v. Laguio, Jr. GR. No. 118127, April 12, 2005). through secret balloting, the result was 8-1 in favor
of a guilty verdict. After further deliberation, the
---
Presiding Officer announced the 9-0 guilty verdict.
Cudia contested the dismissal as being violative of
PROCEDURAL DUE PROCESS
his right to due process.
Procedural due process
Was the dismissal of Cudia a denial of his right to due
Relates to the mode of procedure which government process?
agencies must follow in the enforcement and application
of laws. A: NO. Due process in disciplinary cases involving
students does not entail proceedings and hearings
The fundamental elements of procedural due similar to those prescribed for actions and proceedings
process in courts of justice; that the proceedings may be
summary; that cross-examination is not an essential part
1. Notice (to be meaningful, must be as to time of the investigation or hearing; and that the required
and place) proof in a student disciplinary action, which is an
2. Opportunity to be heard administrative case, is neither proof beyond reasonable
3. Court/tribunal must have jurisdiction doubt nor preponderance of evidence but only
substantial evidence or “such relevant evidence as a
Due process in extradition proceedings reasonable mind might accept as adequate to support a
conclusion.”

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What is crucial is that official action must meet minimum 2017 GOLDEN NOTES
standards of fairness to the individual, which generally
encompass the right of adequate notice and a meaningful
opportunity to be heard.

It is not required that procedural due process be

afforded at every stage of developing disciplinary action.
What is required is that an adequate hearing be held
before the final act of dismissal. (Cudia v. Superintendent
of the PMA, G.R. No. 211362, Feb. 24, 2015)
---

CONSTITUTIONAL AND STATUTORY DUE PROCESS

Constitutional due process vs. Statutory due process

CONSTITUTIONAL DUE STATUTORY DUE

PROCESS PROCESS
Protects the individual While found in the Labor
from the government and Code and Implementing
assures him of his rights Rules, it protects
in criminal, civil or employees from being
administrative unjustly terminated
proceedings without just cause after
notice and hearing.
(Agabon v. NLRC, G.R. No.
158693, Nov. 17, 2004)

NOTE: The Bill of rights is not meant to be invoked

against acts of private individuals like employers. Private
actions, no matter how egregious, cannot violate
constitutional due process.

Effect when due process is not observed

The cardinal precept is that where there is a violation of

basic constitutional rights, courts are ousted from their
jurisdiction. The violation of a party's right to due
process raises a serious jurisdictional issue which cannot
be glossed over or disregarded at will. Where the denial
of the fundamental right to due process is apparent, a
decision rendered in disregard of that right is void for
lack of jurisdiction. This rule is equally true in quasi-
judicial and administrative proceedings, for the
constitutional guarantee that no man shall be deprived of
life, liberty, or property without due process is
unqualified by the type of proceedings (whether judicial
or administrative) where he stands to lose the same.
(Garcia v. Molina and Velasco, G.R. Nos. 157383 and
174137, August 10, 2010)

Effect of Waiver/Estoppel

Due process is satisfied when the parties are afforded a

fair and reasonable opportunity to explain their
respective sides of the controversy. Thus, when the party
seeking due process was in fact given several
opportunities to be heard and air his side, but it is by his
own fault or choice he squanders these chances, then his
cry for due process must fail.

HIERARCHY OF RIGHTS

There is a hierarchy of constitutional rights. While the

UNIVERSITY OF SANTO TOMAS

Bill of Rights also protects property rights, the primacy of
human rights over property rights is recognized. Property
and property rights can be lost thru prescription; but
human rights are imprescriptible. In the hierarchy of civil
liberties, the rights of free expression and of assembly
occupy a preferred position as they are essential to the
preservation and vitality of our civil and political
institutions. (Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc., G.R. No. L-
31195, June 5, 1973) (2012 Bar)

The right to property may be subject to a greater degree of

regulation but when this right is joined by a "liberty"
interest, the burden of justification on the part of the
Government must be exceptionally convincing and
irrefutable (Adiong v. COMELEC, G.R. No. 103956, March 31,
1992).

The freedom of expression is a "preferred" right and,

therefore, stands on a higher level than substantive
economic or other liberties. The primacy, the high estate
accorded freedom of expression is a fundamental postulate
of our constitutional system. (Gonzales v. COMELEC, G.R. No.
L-27833, April 18, 1969)

The constitutional right to the free exercise of one's religion

has primacy and preference over union security measures
which are merely contractual. (Victoriano v. Elizalde Rope
Workers’ Union, G.R. No. L-25246, Sept. 12, 1974)

JUDICIAL STANDARDS OF REVIEW

1. Deferential review – Laws are upheld if they rationally

further a legitimate governmental interest, without courts
seriously inquiring into the substantiality of such interest and
examining the alternative means by which the objectives could
be achieved
2. Intermediate review – The substantiality of the
governmental interest is seriously looked into and the
availability of less restrictive alternatives is considered.
3. Strict scrutiny – The focus is on the presence of compelling,
rather than substantial governmental interest and on the
absence of less restrictive means for achieving that interest.
(Separate opinion of Justice Mendoza in Estrada v.
Sandiganbayan, G.R. No. 148965, Feb. 26, 2002)

NOTE: Given the fact that not all rights and freedoms or
liberties under the Bill of Rights and other values of society
are of similar weight and importance, governmental
regulations that affect them would have to be evaluated
based on different yardsticks, or standards of review.

VOID-FOR-VAGUENESS DOCTRINE
(2010, 2014 Bar)

A law is vague when it lacks comprehensive standards that

men of common intelligence must necessarily guess at its
common meaning and differ as to its application. In
 BILL OF RIGHTS – EQUAL PROTECTION OF THE LAWS

such instance, the statute is repugnant to the clause cannot sanction. Such discriminating
Constitution because: differentiation clearly reverberates to label the
1. It violates due process for failure to accord commission as a vehicle for vindictiveness and selective
persons, especially the parties targeted by it, fair notice of retribution (Biraogo v. Philippine Truth Commission of
what conduct to avoid 2010, G.R. No. 192935, Dec. 7, 2010).
2. It leaves law enforcers an unbridled discretion ---
in carrying out its provisions. (People v. de la Piedra, G.R. No. ---
128777, Jan. 24, 2001) Q: Are aliens entitled to the protection of equal
protection clause?
The "void-for-vagueness" doctrine does not apply as
against legislations that are merely couched in imprecise A: GR: It applies to all persons, both citizens and aliens.
language but which specify a standard though defectively The Constitution places the civil rights of aliens on equal
phrased; or to those that are apparently ambiguous yet footing with those of the citizens.
fairly applicable to certain types of activities. The first
may be "saved" by proper construction, while no XPN: Statutes may validly limit exclusively to citizens the
challenge may be mounted as against the second enjoyment of rights or privileges connected with public
whenever directed against such activities. domain, the public works, or the natural resources of the
State.
The Supreme Court held that the doctrine can only be ---
invoked against that species of legislation that is utterly
vague on its face, i.e., that which cannot be clarified NOTE: The rights and interests of the State in these
either by a saving clause or by construction. (Estrada v. things are not simply political but also proprietary in
Sandiganbayan, G.R. No. 148560, Nov. 19, 2001) nature and so citizens may lawfully be given preference
over aliens in their use or enjoyment.
The test in determining whether a criminal statute is
void for uncertainty is whether the language conveys a Rationale for allowing, in exceptional cases, valid
sufficiently definite warning as to the proscribed conduct classification based on citizenship
when measured by common understanding and practice.
It must be stressed, however, that the "vagueness Aliens do not naturally possess the sympathetic
doctrine merely requires a reasonable degree of consideration and regard for customers with whom they
certainty for the statute to be upheld - not absolute come in daily contact, nor the patriotic desire to help
precision or mathematical exactitude (Ibid.). bolster the nation’s economy, except in so far as it
enhances their profit, nor the loyalty and allegiance
NOTE: The void-for-vagueness doctrine cannot be used which the national owes to the land. These limitations on
to impugn the validity of a criminal statute using “facial the qualifications of aliens have been shown on many
challenge” but it may be used to invalidate a criminal occasions and instances, especially in times of crisis and
statute “as applied” to a particular defendant. emergency. (Ichong v. Hernandez, G.R. No. L-7995, May
31, 1957)

REQUISITES FOR VALID CLASSIFICATION

EQUAL PROTECTION OF THE LAWS
The classification must (S-G-Ex-A)

CONCEPT 1. Rest on substantial distinctions

2. Be germane to the purpose of the law
All persons or things similarly situated should be treated 3. Not be limited to existing conditions only;
alike, both as to rights conferred and responsibilities 4. Apply equally to all members of the same class.
imposed. It guarantees equality, not identity of rights. It (People v. Cayat, GR. No. L-45987, May 5, 1939)
does not forbid discrimination as to persons and things
that are different. What it forbids are distinctions based Basis for classification
on impermissible criteria unrelated to a proper
legislative purpose, or class or discriminatory legislation, 1. Age
which discriminates against some and favors others 2. Gender
when both are similarly situated. 3. Religion
4. Economic Class
--- 5. Ethnicity
Q: EO 1 was issued by President Aquino to 6. Race
investigate reported cases of graft and corruption of the 7. Sexual Orientation
Arroyo administration. Is such action valid? 8. Residence
9. Disability
A: NO. It must be borne in mind that the Arroyo 10. Date of filing/ Effectivity of the law
administration is but just a member of a class, that is, a class
of past administrations. It is not a class of its own. Not to ---
include past administrations similarly situated constitutes Q: Rosalie Garcia filed a case against her husband,
arbitrariness which the equal protection Jesus Garcia, for violation of RA 9262. The RTC then

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89
FACULTY OF CIVIL LAW
 POLITICAL LAW

issued a Temporary Protection Order. Jesus argues be considered as conscientious objectors. Is this
that RA 9262 violates the guarantee of equal provision unconstitutional?
protection because the remedies against personal
violence that it provides may be invoked only by the A: YES. This is discriminatory and violative of the equal
wives or women partners but not by the husbands or protection clause. The conscientious objection clause should
male partners even if the latter could possibly be be equally protective of the religious belief of public health
victims of violence by their women partners. Does officers. There is no perceptible distinction why they should
RA 9262 (VAWC) violate the equal the protection not be considered exempt from the mandates of the law. The
clause of the Constitution? protection accorded to other conscientious objectors should
equally apply to all medical practitioners without distinction
A: NO. RA 9262 rests on substantial distinction. There is an whether they belong to the public or private sector. After all,
unequal power relationship between women and men and the the freedom to believe is intrinsic in every individual and the
fact that women are more likely than men to be victims of protective robe that guarantees its free exercise is not taken
violence and the widespread gender bias and prejudice against off even if one acquires employment in the government.
women all make for real differences justifying the classification (Imbong v. Ochoa G.R. No. 204819 April 8, 2014)
under the law. The classification is germane to the purpose of ---
the law. The distinction between men and women is germane to ---
the purpose of RA 9262, which is to address violence committed Q: The New Central Bank Act created two categories of
against women and children. As spelled out in its Declaration of employees: (1) Bangko Sentral ng Pilipinas officers who
Policy, the State recognizes the need to protect the family and are exempt from the Salary Standardization Law (SSL)
its members particularly women and children, from violence and (2) rank-and-file employees with salary grade 19
and threats to their personal safety and security. Moreover, the and below who are not exempt from the SSL. Subsequent
application of RA 9262 is not limited to the existing conditions to the enactment of the Act, the charters of the Land
when it was promulgated, but to future conditions as well, for Bank of the Philippines and all other Government
as long as the safety and security of women and their children Financial Institutions (GFIs) were amended exempting
are threatened by violence and abuse. Furthermore, RA 9262 all their personnel, including the rank-and-file
applies equally to all women and children who suffer violence employees, from the coverage of the SSL. BSP Employees
and abuse. Association filed a petition to prohibit the BSP from
implementing the provision of the Act for they were
There is likewise no merit to the contention that R.A. illegally discriminated against when they were placed
9262 singles out the husband or father as the culprit. As within the coverage of the SSL. Was there a violation of
defined above, VAWC may likewise be committed the equal protection clause of the Constitution?
"against a woman with whom the person has or had a
sexual or dating relationship." Clearly, the use of the A: YES. In the field of equal protection, the guarantee that
gender-neutral word "person" who has or had a sexual “no person shall be denied the equal protection of the laws”
or dating relationship with the woman encompasses includes the prohibition against enacting laws that allow
even lesbian relationships. Moreover, while the law invidious discrimination, directly or indirectly. If a law has
provides that the offender be related or connected to the the effect of denying the equal protection of the law, or
victim by marriage, former marriage, or a sexual or permits such denial, it is unconstitutional. It is against this
dating relationship, it does not preclude the application standard that the disparate treatment of the BSP rank-and-
of the principle of conspiracy under the Revised Penal file from the other Government Financial Institutions (GFI)
Code. (Garcia v. Drilon G.R. No. 179267 June 25, 2013) cannot stand judicial scrutiny. For, as regards the exemption
--- from the coverage of the SSL, there exists no substantial
distinction so as to differentiate the BSP rank-and-file from
NOTE: In his separate concurring opinion, Justice Abad the other rank-and-file of other GFIs. The challenged
said that 9262 is discriminatory but it does not deny provision of the New Central Bank Act was facially neutral
equal protection because of the concept of expanded insofar as it did not differentiate between the rank-and-file
equal protection clause enshrined by Sec. 1 Art. XIII and employees of the BSP and the rank-and-file employees of
Sec 14 Art II of the Constitution and because of this, the other GFIs, and yet its effects, when taken in light of the
equal protection clause can be interpreted not only as a exemption of the latter employees from the SSL, were
guarantee of formal equality (if it passes the discriminatory. (Central Bank Employees Association, Inc., v.
“reasonableness test”) but also of substantive equality. Bangko Sentral ng Pilipinas, G.R. No. 148208, Dec. 15, 2004)
The expanded equal protection clause should be ---
understood as meant to “reduce social, economic, and ---
political inequalities, and remove cultural inequities by Q: The Quezon City government passed an ordinance
equitably diffusing wealth and political power for the imposing garbage collection fees. The fee imposed for a
common good.” condominium unit occupant is higher than that of a
residential lot owner. Does this violate the equal
--- protection clause?
Q: Sec. 5.23 of the Reproductive Health Law-IRR provides
that skilled health professional such as provincial, city or
municipal health officers, chiefs of hospital, head nurses,
supervising midwives cannot

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 BILL OF RIGHTS – SEARCHES AND SEIZURES

demonstrates otherwise. (Central Bank

A: YES. For the purpose of garbage collection, there is, in Employees Association Inc. v. BSP, GR. No.
fact, no substantial distinction between an occupant of a 148208. December 15, 2004)
lot, on one hand, and an occupant of a unit in a
condominium, socialized housing project or apartment, Rational Basis Test vs. Strict Scrutiny
on the other hand. Most likely, garbage output produced
by these types of occupants is uniform and does not vary RATIONAL BASIS TEST STRICT SCRUTINY
to a large degree; thus, a similar schedule of fee is both Applies to legislative Applies to legislative
just and equitable. The rates being charged by the classifications in general, classifications affecting
ordinance are unjust and inequitable: a resident of a 200 such as those pertaining to fundamental rights or
sq. m. unit in a condominium or socialized housing economic or social suspect classes.
project has to pay twice the amount than a resident of a legislation, which do not
lot similar in size; unlike unit occupants, all occupants of affect fundamental rights
a lot with an area of 200 sq. m. and less have to pay a of suspect classes; or is not
fixed rate of Php100.00; and the same amount of garbage based on gender or
fee is imposed regardless of whether the resident is from illegitimacy

a condominium or from a socialized housing project. Legislative purpose must Legislative purpose must
(Ferrer v. Bautista, G.R. No. 210551, June 30, 2015) be legitimate be compelling

--- Classification must be Classification must be

rationally related to the necessary and narrowly
NOTE: The legislature may not validly classify the legislative purpose tailored to achieve the
citizens of the State on the basis of their origin, race, or legislative purpose

parentage. But the difference in status between citizens (Central Bank Employees Association Inc. v. BSP, GR. No.
and aliens constitutes a basis for reasonable 148208, Dec. 15, 2004).
classification in the exercise of police power. (Demore v.
Kim, 538 U.S. 510, 2003) 3. Intermediate Scrutiny Test – It requires that the
classification (means) must serve an important
STANDARDS OF JUDICIAL REVIEW
governmental objective (ends) and is substantially
related to the achievement of such objective. A
Tests in determining compliance with the equal
classification based on sex is the best-established
protection clause
(2015 Bar) example of an intermediate level of review
(Concurring Opinion of Justice Leonardo-De Castro in
1. Rational Basis Test – The traditional test, which Garcia v. Drilon, G.R. No. 179267, June 25, 2013).
requires "only that government must not impose
differences in treatment except upon some

reasonable differentiation fairly related to the object

of regulation." Simply put, it merely demands that SEARCHES AND SEIZURES
the classification in the statute reasonably relates to

the legislative purpose. (Concurring Opinion of

Justice Leonardo-De Castro in Garcia v. Drilon, G.R.

CONCEPT
No. 179267, June 25, 2013)
Right against unreasonable searches and seizures
2. Strict Scrutiny Test – Refers to the standard for (1990, 1991, 1992, 1993, 2000, 2001, 2002, 2005,
determining the quality and the amount of 2008 Bar)
governmental interest brought to justify the
regulation of fundamental freedoms. Strict scrutiny Right of the people to be secure in their persons, houses,
is used today to test the validity of laws dealing with papers, and effects against unreasonable searches and
the regulation of speech, gender, or race as well as seizures of whatever nature and for any purpose shall be
other fundamental rights as expansion from its inviolable, and no search warrant or warrant of arrest
earlier applications to equal protection.n (White shall issue except upon probable cause to be determined
Light Corporation v. City of Manila, G.R. No. 122846, personally by the judge after examination under oath or
Jan. 20, 2009)
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be
It is applied when the challenged statute either:
searched and persons or things to be seized. (1987
a. Classifies on the basis of an inherently suspect Constitution, Art. 3, Sec. 2)
characteristic;
b. Infringes fundamental constitutional rights; Essence of privacy
that all legal restrictions which curtail the civil
rights of a single racial group are immediately The right to be left alone. In context, the right to privacy
suspect. That is not to say that all such means the right to be free from unwarranted
restrictions are unconstitutional. It is to say exploitation of one’s person or from intrusion into ones’
that courts must subject them to the most rigid private activities in such a way as to cause humiliation to
scrutiny. The presumption of constitutionality a person’s ordinary sensibilities.
is reversed; that is, such legislation is assumed
to be unconstitutional until the government

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Search warrant vs. Warrant of arrest UNIVERSITY OF SANTO TOMAS
2017 GOLDEN NOTES

BASIS SEARCH WARRANT OF

WARRANT ARREST
The judge must It is not
personally necessary that
examine in the the judge should
form of personally
searching examine the
questions and complainant and
answers, in his witnesses; the
As to authority, writing and judge would
which examines under oath, the simply personally
complainant and review the initial
the witnesses he determination of
may produce on the prosecutor to
facts personally see if it is
known to them. supported by
substantial
evidence.
The He merely
determination determines the
of probable probability, not
cause depends the certainty of
to a large extent guilt of the
upon the finding accused and, in
or opinion of the so doing, he need
Basis of
judge who not conduct a
determination
conducted the new hearing.
required
examination of
the applicant
and the
witnesses.

WARRANT REQUIREMENT

Requisites of a valid search warrant and warrant of

arrest

1. It must be issued upon determination of probable cause;

2. The probable cause must be determined by the judge
himself and not by the applicant or any other person;
3. In the determination of probable cause, the judge must
examine, under oath or affirmation, the complainant and such
witnesses as the latter may produce; and
4. The warrant issued must particularly describe the place to
be searched and persons and things to be seized. (HPS Software
and Communication Corporation and Yap v. PLDT, G.R. Nos.
170217 and 170694, December 10, 2012)

NOTE: General warrant is not allowed. It must be issued

pursuant to a specific offense. (Stonehill v. Diokno, L-
19550, June 19, 1967)

General warrants

Warrants of broad and general characterization or

sweeping descriptions which will authorize police
officers to undertake a fishing expedition to seize and
confiscate any and all kinds of evidence or articles relating to
an offense.

Purpose of particularity of description in search

warrants

1. Readily identify the properties to be seized and thus prevent

the peace officers from seizing the wrong items
2. Leave peace officers with no discretion regarding the
articles to be seized and thus prevent unreasonable searches and
seizures. (Bache and Co. v. Ruiz, 37 SCRA 823)

Particularity of description for a search warrant is

complied with when:

1. The description therein is as specific as the circumstances

will ordinarily allow; or
2. The description expresses a conclusion of fact, not of law, by
which the warrant officer may be guided in making the search
and seizure; or
3. The things described are limited to those which bear direct
relation to the offense for which the warrant is being issued

NOTE: If the articles desired to be seized have any direct

relation to an offense committed, the applicant must
necessarily have some evidence other than those articles to
prove said offense. The articles subject of search and seizure
should come in handy merely to strengthen such evidence.

Properties subject to seizure

1. Property subject of the offense

2. Stolen or embezzled property and other proceeds or
fruits of the offense
3. Property used or intended to be used as means for the
commission of an offense

NOTE: Seized items in violation of Art. 201 of the RPC, such

as immoral doctrines, obscene publications and indecent
shows, can be destroyed even if the accused was acquitted.
P.D. No. 969 (An Act amending Art. 201) mandates the
forfeiture and destruction of pornographic materials involved
in the violation of Article 201 of the Revised Penal Code, even
if the accused was acquitted. (Nogales v. People, G.R. No.
191080, Nov. 21, 2011)

Court with the primary jurisdiction in issuing search

warrants

The RTC where the criminal case is pending or if no

information has yet been filed, in RTC in the area/s
contemplated. An RTC not having territorial jurisdiction over
the place to be searched, however, may issue a search
warrant where the filing of such is necessitated and justified
by compelling considerations of urgency, subject, time, and
place.

Nature of search warrant proceedings

Neither a criminal action nor a commencement of a

prosecution. It is solely for the possession of personal
 BILL OF RIGHTS – SEARCHES AND SEIZURES

property. (United Laboratories, Inc. v. Isip, G.R. No. offense must have personal knowledge of that fact. The
163858, June 28, 2005) offense must also be committed in his presence or within
his view.” In Burgos, the authorities obtained information
Probable cause that the accused had forcibly recruited one Cesar
Masamlok as member of the New People’s Army,
Probable cause, as a condition for the issuance of a threatening the latter with a firearm. Upon finding the
search warrant, is such reasons supported by facts and accused, the arresting team searched his house and
circumstances as will warrant a cautious man to believe discovered a gun as well as purportedly subversive
that his action and the means taken in prosecuting it are documents. (People v. Tudtud, G.R. No. 144037, Sept. 26,
legally just and proper. It requires facts and 2003)
circumstances that would lead a reasonably prudent man
to believe that an offense has been committed and that Searching questions
the objects sought in connection with that offense are in
the place to be searched. (HPS Software and Examination by the investigating judge of the
Communications Corp. and Yap v. PLDT, G.R. Nos. 170217 complainant and the latter’s witnesses in writing and
and 170694, Dec. 10, 2012) under oath or affirmation, to determine whether there is
a reasonable ground to believe that an offense has been
Such facts and circumstances antecedent to the issuance committed and whether the accused is probably guilty
of a warrant that in themselves are sufficient to induce a thereof so that a warrant of arrest may be issued and he
cautious man to rely on them and act in pursuance may be held liable for trial.
thereof.
A police officer cannot amplify or modify what has
The evidence necessary to establish probable cause is been set out in the warrant
based only on the likelihood, or probability, of guilt.
Such a change is proscribed by the Constitution which
(Estrada v. Office of the Ombudsman, et al., G.R. Nos. requires a search warrant to particularly describe the
212140–41, January 21, 2015, cited in ABS-CBN place to be searched; otherwise it would open the door
Corporation v. Gozon, G.R. No. 195956, March 11, 2015) to abuse of the search process, and grant to officers
executing the search that discretion which the
Personal knowledge Constitution has precisely removed from them.

1. The person to be arrested must execute an overt act The particularization of the description of the place to be
indicating that he had just committed, is actually committing, searched may properly be done only by the Judge, and
or is attempting to commit a crime; and only in the warrant itself; it cannot be left to the
2. Such overt act is done in the presence or within the discretion of the police officers conducting the search.
view of the arresting officer.
It is neither fair nor licit to allow police officers to search
NOTE: Initial hearsay information or tips from a place different from that stated in the warrant on the
confidential informants could very well serve as basis for claim that the place actually searched – although not that
the issuance of a search warrant, if followed up specified in the warrant – is exactly what they had in
personally by the recipient and validated. Looking at the view when they applied for the warrant and had
records, it is clear that Padilla and his companions were demarcated in their supporting evidence. What is
able to personally verify the tip of their informant…. The material in determining the validity of a search is the
evidence on record clearly shows that the applicant and place stated in the warrant itself, not what applicants had
witnesses were able to verify the information obtained in their thoughts, or had represented in the proofs they
from their confidential source. The evidence likewise submitted to the court issuing the warrant. (People v. CA,
shows that there was probable cause for the issuance of 291 SCRA 400, June 26, 1998)
a search warrant. Thus, the requirement of personal
knowledge of the applicant and witnesses was clearly ---
satisfied in this case. (Microsoft Corporation v. Samir Q: Nenita and Julienne were graduating high school
Farajallah, G.R. No. 205800, Sept. 10, 2014) students at St. Theresa’s College (STC), Cebu City.
While changing into their swimsuits for a beach
Mere “reliable information” will not satisfy the party they were about to attend, Julia and Julienne,
“personal knowledge” requirement along with several others, took digital pictures of
themselves clad only in their undergarments. These
The long-standing rule in this jurisdiction, applied with a pictures were then uploaded by Angela on her
great degree of consistency, is that “reliable information” Facebook profile.
alone is not sufficient to justify a warrantless arrest
under Section 5 (a), Rule 113. The rule requires, in Back at the school, Escudero, a computer teacher at
addition, that the accused perform some overt act that STC’s high school department, learned from her
would indicate that he “has committed, is actually students that some seniors at STC posted pictures
committing, or is attempting to commit an offense.” online, depicting themselves from the waist up,
dressed only in brassieres. Escudero reported the
In the leading case of People v. Burgos, this Court held
matter and, through one of her student’s Facebook
that “the officer arresting a person who has just
page, showed the photos to Tigol, STC’s Discipline-in-
committed, is committing, or is about to commit an

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Charge, for appropriate action. Were unlawful means Plain View Doctrine (2012 Bar)
used by STC in gathering information about the
photo? Under the plain view doctrine, objects falling in the
"plain view" of an officer, who has a right to be in the
A: NO. Even assuming that the photos in issue are visible only position to have that view, are subject to seizure and may
to the sanctioned students’ Facebook friends, respondent STC be presented as evidence. It applies when the following
can hardly be taken to task for the perceived privacy invasion requisites concur:
since it was the minors’ (J-I-A)
Facebook friends who showed the pictures to Tigol. 1. The law enforcement officer in search of the evidence
Respondents were mere recipients of what were posted. has a prior justification for an intrusion or is in a position
They did not resort to any unlawful means of gathering from which he can view a particular area;
the information as it was voluntarily given to them by 2. The discovery of the evidence in plain view is
persons who had legitimate access to the said posts. inadvertent; and
Clearly, the fault, if any, lies with the friends of the 3. It is immediately apparent to the officer that the item
minors. Curiously enough, however, neither the minors he observes may be evidence of a crime, contraband, or
nor their parents imputed any violation of privacy otherwise subject to seizure.
against the students who showed the images to
Escudero. (Vivares v. St. Theresa’s College, G.R. No. The law enforcement officer must lawfully make an
202666, Sept. 29, 2014) initial intrusion or properly be in a position from which
--- he can particularly view the area. In the course of such
lawful intrusion, he came inadvertently across a piece of
WARRANTLESS SEARCHES evidence incriminating the accused. The object must be
open to eye and hand, and its discovery inadvertent.
Instances of a valid warrantless search (2000, 2009, (Fajardo v. People, G.R. No. 190889)
2015 Bar)
NOTE: Plain view Doctrine cannot be applied where
1. Visual search is made of moving vehicles at checkpoints there was no evidence in plain view of law enforcers
2. Search is an incident to a valid arrest serving the search warrant. (United Laboratories, Inc. v.
Isip, G.R. No. 163858, June 28, 2005)
NOTE: An officer making an arrest may take from
the person: ---
a. Any money or property found upon his person which Q: Jun, a drug pusher was entrapped in a buy bust
was used in the commission of the offense operation. He led the police officers to the house of
b. Was the fruit thereof Gaddao, his supposed associate and her house was
c. Which might furnish the prisoner with the means of searched. A cardboard box with bricks of marijuana
committing violence or escaping inside was found in her residence. However,
d. Which might be used as evidence in the trial of the Gaddao’s warrantless arrest was declared illegal by
case the court. It follows that the search of her person and
home and the subsequent seizure of the marked bills
3. Search of passengers made in airports and marijuana cannot be deemed legal as an incident
4. When things seized are within plain view of a searching to her arrest. Was the marijuana in the cardboard
party (Plain View Doctrine) box in plain view during the search, making the
5. Stop and frisk (precedes an arrest) warrantless seizure valid and acceptable in
6. When there is a valid express waiver made voluntarily and evidence?
intelligently
A: NO. The law enforcement officer must lawfully make an
initial intrusion or properly be in a position from which he
NOTE: Consent to a search is not to be lightly
can particularly view the area. In the course of such lawful
inferred, but shown by clear and convincing
intrusion, he came inadvertently across a piece of evidence
evidence. Consent must also be voluntary in order to
incriminating the accused. The object must be open to eye
validate an otherwise illegal search; that is, the
and hand and its discovery inadvertent.
consent must be unequivocal, specific, intelligently
given, and uncontaminated by any duress or It is clear that an object is in plain view if the object itself
coercion. (Caballes v CA, 373 SCRA 221 [2002]) is plainly exposed to sight. The difficulty arises when the
(2015 Bar) object is inside a closed container. Where the object
seized was inside a closed package, the object itself is not
In this case, petitioner was merely "ordered" to take in plain view and therefore cannot be seized without a
out the contents of his pocket. (Alcaraz v. People, warrant. However, if the package proclaims its contents,
G.R. No. 199042, Nov. 17, 2014) whether by its distinctive configuration, its transparency,
or if its contents are obvious to an observer, then the
7. Customs search contents are in plain view and may be seized. (People v.
8. Exigent and emergency circumstances (People v. De Gracia, Doria, G.R. No. 125299, Jan. 22, 1999)
233 SCRA 716) ---

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 BILL OF RIGHTS – SEARCHES AND SEIZURES

Stop-and-frisk search (2009, 2012 Bar) tested for intoxication. What the policemen claimed was
that it took the three (3) of them to subdue the fifty-five
Limited protective search of outer clothing for weapons. year old petitioner. Both actions were done in excess of
Probable cause is not required but a genuine reason their authority granted under RA 4136. (Sydeco v. People,
must exist in light of a police officer’s experience and G.R. No. 202692, Nov. 12, 2014)
surrounding conditions to warrant the belief that the
person detained has weapons concealed. (Malacat v. CA, ---
G.R. No. 123595, Dec. 12, 1997) Q: Jamie was a lady frisker whose duty is to frisk
departing passengers, employees, and crew and
Checkpoints check for weapons, bombs, prohibited drugs,
contraband goods, and explosives. When she frisked
Searches conducted in checkpoints are lawful, provided Rozanne, a boarding passenger, she felt something
the checkpoint complies with the following requisites: hard on Rozanne’s abdominal area which was later
1. The establishment of checkpoint must be found to be 3 packs of shabu. Can Rozanne Dela Cruz
pronounced; invoke a violation of the search and seizure clause?
2. It must be stationary, not roaming; and
3. The search must be limited to visual search and A: NO. Persons may lose the protection of the search and
must not be an intrusive search. seizure clause by exposure of their persons or property
to the public in a manner reflecting a lack of subjective
NOTE: Not all searches and seizures are prohibited. expectation of privacy, which expectation society is
Between the inherent right of the State to protect its prepared to recognize as reasonable. Such recognition is
existence and promote public welfare and an individual’s implicit in airport security procedures. With increased
right against warrantless search which is however concern over airplane hijacking and terrorism has come
reasonably conducted, the former should prevail. increased security at the nation’s airport (People v. Leila
Johnson, G.R. No.138881, Dec. 18, 2000).
A checkpoint is akin to a stop-and-frisk situation whose ---
object is either to determine the identity of suspicious ---
individuals or to maintain the status quo momentarily while Q: Civil Service Commission (CSC) Chairperson
the police officers seek to obtain more information. Karina Constantino-David received an anonymous
(Valmonte v. De Villa, GR.83988, Sept. 29, 1989) letter alleging that the chief of CSC’s Legal Division,
Ricky Pollo, is acting as a lawyer of an accused
Motorists and their vehicles passing though government employee who has a pending case in the
checkpoints may also be stopped and extensively CSC. Consequently, a team with IT background was
searched formed to back up all the files in the computers
found in the Legal Division. Pollo was not present
While, as a rule, motorists and their vehicles passing during the backing-up and was only informed
though checkpoints may only be subjected to a routine through text message. It was then found that most of
inspection, vehicles may be stopped and extensively the files sourced from the computer used by Pollo
searched when there is probable cause which justifies a were pleadings and letters connected with pending
reasonable belief among those at the checkpoints that cases in CSC and other tribunals. He was found guilty
either the motorist is a law offender or the contents of of dishonesty, grave misconduct and conduct
the vehicle are or have been instruments of some prejudicial to the best interest of the service and
offense. (People v. Vinecario, G.R. No. 141137, Jan. 20, violation of RA 6713 and penalized him with
2004) dismissal. Were the searching and copying of Pollo’s
computer files a violation of the right against
Checkpoint rules under LTO Code (RA 4136) unreasonable searches and seizures?

There is, to stress, nothing in RA 4136 that authorized A: NO. First, Pollo failed to prove that he had an actual
the checkpoint-manning policemen to order petitioner (subjective) expectation of privacy either in his office or
and his companions to get out of the vehicle for a vehicle government-issued computer which contained his
and body search. And it bears to emphasize that there personal files. The CSC had implemented a policy that
was no reasonable suspicion of the occurrence of a crime put its employees on notice that they have no
that would allow what jurisprudence refers to as a "stop expectation of privacy in anything they create, store,
and frisk" action. As SPO4 Bodino no less testified, the send or receive on the office computers, and that the CSC
only reason why they asked petitioner to get out of the may monitor the use of the computer resources using
vehicle was not because he has committed a crime, but both automated and human means. This implies that on-
because of their intention to invite him to Station 9 so he the-spot inspections may be done to ensure that the
could rest before he resumes driving. But instead of a computer resources were used only for such legitimate
tactful invitation, the apprehending officers, in an act business purposes. Second, the search of petitioner’s
indicative of overstepping of their duties, dragged the computer files was conducted in connection with
petitioner out of the vehicle and, in the process of investigation of work-related misconduct prompted by
subduing him, pointed a gun and punched him on the an anonymous letter- complaint addressed to
face. None of the police officers, to note, categorically Chairperson David regarding anomalies in the CSC-ROIV
denied the petitioner’s allegation about being physically where the head of the Mamamayan Muna Hindi Mamaya
hurt before being brought to the Ospital ng Maynila to be Na division is supposedly “lawyering” for individuals

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with pending cases in the CSC. A search by a government warrantless search and seizure of the firearm and
employer of an employee’s office is justified at inception ammunition justified as an incident to a lawful
when there are reasonable grounds for suspecting that it arrest?
will turn up evidence that the employee is guilty of work-
related misconduct. (Pollo v. David G.R. No. 181881 Oct. A: NO. The scope of the warrantless search is not without
18, 2011) limitations. A valid arrest allows the seizure of evidence or
--- dangerous weapons either on the person of the one arrested
--- or within the area of his immediate control. The purpose of
Q: Luz was flagged down by PO3 Alteza for driving a the exception is to protect the arresting officer from being
motorcycle without a helmet. Alteza invited Luz to their harmed by the person arrested, who might be armed with a
sub-station and while issuing a citation ticket for violation concealed weapon, and to prevent the latter from destroying
of municipal ordinance, Alteza was alerted by the latter’s evidence within reach. In this case, search was made in the
uneasy movement and asked him to put out the contents of locked cabinet which cannot be said to have been within
the pocket of his jacket. It was revealed that Luz was in Valeroso's immediate control. Thus, the search exceeded the
possession of prohibited drugs. Can the roadside bounds of what may be considered as an incident to a lawful
questioning of a motorist detained pursuant to a routine arrest (Valeroso v. CA, G.R. No. 164815, Sept. 3, 2009).
traffic stop be considered a formal arrest? ---
---
A: NO. The time he was waiting for Alteza to write his citation Q: A buy-bust operation was conducted in Jogie’s store.
ticket may be characterized as waiting time. Luz could not be Police Officer CA Mindaro posed as a buyer and bought
said to have been under arrest. There was no intention on the marijuana from Jogie. After the exchange of marked
part of Alteza to arrest him, deprive him of his liberty, or take money and marijuana, Mindaro arrested Jogie without a
him into custody. In fact, Alteza himself testified that it was only warrant. The other police officer searched the store and
for the sake of convenience that they were waiting at the sub- seized a plastic container containing six marijuana
station. (Luz v. People of the Philippines, G.R. No. 197788, 29 stocks. Thereafter, Jogie was charged with selling
February 2012) marijuana. Is the warrantless seizure of marijuana
--- legal?
---
Q: A search was conducted on Mar. 3, 1986 during which, A: YES. The search being an incident to a lawful arrest, it
the Philippines has no Constitution. The Constabulary needed no warrant for its validity. The accused having been
raiding team searched the house of Elizabeth Dimaano by caught in flagrante delicto, the arresting officers were duty
virtue of a search warrant and thereafter seized some bound to apprehend her immediately. The warrantless
items not included in the warrant. Dimaano questioned the search and seizure, as an incident to a lawful arrest, may
search for being violative of the Constitution. Can she extend to include the premises under the immediate control
invoke her right against unreasonable searches and of the accused. The accused may not successfully invoke the
seizures during the interregnum? right against a warrantless search, even as regards the
plastic container with dried marijuana leaves found on the
A: YES. The Bill of Rights under the 1973 Constitution was not table in her store. (People v. Salazar, G.R. No. 98060, Jan. 27,
operative during the interregnum. Be that as it may, under Art. 1997)
17(1) of the International Covenant on Civil and Political Rights, ---
the revolutionary government had the duty to insure that no
one shall be subjected to arbitrary or unlawful interference Sec. 19 of the Cybercrime Law is unconstitutional
with his privacy, family, home or correspondence. Art. 17 (2)
provides that no one shall be arbitrarily deprived of his Sec. 19 empowers the Department of Justice to restrict or
property. Although the signatories to the Declaration did not block access to computer data when a computer data is
intend it as a legally binding document, being only a declaration, prima facie found to be in violation of the provisions of
the Court has interpreted the Declaration as part of the the Cybercrime Law. The Department of Justice order
generally accepted principles of international law and binding cannot be a substitute for judicial search warrant. The
on the state. The revolutionary government did not repudiate Government, in effect, seizes and places the computer
the Covenant or the Declaration during the interregnum. It was data under its control and disposition without a warrant.
also obligated under international law to observe the rights of Not only does Sec. 19 preclude any judicial intervention,
individuals under the Declaration. (Republic v. Sandiganbayan but it also disregards jurisprudential guidelines
G.R. No. 104768, July 21, 2003) established to determine the validity of restrictions on
--- speech for the content of the computer data can also
--- constitute speech. Sec. 19 merely requires that the data
Q: While sleeping in his room, Rex was arrested by virtue to be blocked be found prima facie in violation of any
of a warrant of arrest and he was dragged out of the room. provision of the cybercrime law. It does not take into
Thereafter, some police officers ransacked the locked consideration any of the three tests: the dangerous
cabinet inside the room where they found a firearm and
ammunition. Are the tendency doctrine, the balancing of interest test and the
clear and present danger rule. Therefore, Sec. 19 is
unconstitutional. (Disini v. Secretary of Justice G.R. No.
UNIVERSITY OF SANTO TOMAS 203335 Feb. 11, 2014)
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 BILL OF RIGHTS – SEARCHES AND SEIZURES

--- committed, is actually committing, or is

Q: Sgt. Victorino Noceja and Sgt. Alex de Castro, while attempting to commit a crime; AND
on a routine patrol in Pagsanjan, Laguna, spotted a b. Such overt act is done in the Presence of
passenger jeep unusually covered with "kakawati" or within the View of the person making the arrest.
leaves. Suspecting that the jeep was loaded with c. Person making the arrest must be
smuggled goods, the two police officers flagged down personally Aware of the commission of the crime.
the vehicle driven by Rudy. The police officers then
checked the cargo and they discovered bundles of 3.08 2. Hot Pursuit – When an offense has in fact just been
mm aluminum/galvanized conductor wires exclusively committed and the arresting officer has probable cause
owned by National Power Corporation (NPC). Police to believe, based on personal knowledge of the facts and
officers took Rudy into custody and seized the conductor circumstances indicating, that the person to be arrested
wires. Was Rudy’s right against unreasonable searches has committed it [Rule 113, Sec. 5(b), Rules of Court].
and seizures violated when the police officers searched 3. Escaped Prisoner or Detainee – When the person to
his vehicle and seized the wires found therein without a be arrested is a prisoner who has escaped from a penal
search warrant? establishment or place where he is serving final
judgment or temporarily confined while his case is
A: YES. When a vehicle is stopped and subjected to an pending, or has escaped while being transferred from
extensive search, such a warrantless search would be one confinement to another [Rule 113, Sec. 5(c), Rules of
constitutionally permissible only if the officers conducting Court].
the search have reasonable or probable cause to believe, 4. Waiver – When the right is waived by the person
before the search, that either the motorist is a law-offender arrested, provided he knew of such right and knowingly
or they will find the instrumentality or evidence pertaining decided not to invoke it.
to a crime in the vehicle to be searched. However, the fact
that the vehicle looked suspicious simply because it is not NOTE: The waiver is limited to invalid arrest and
common for such to be covered with kakawati leaves does does not extend to illegal search.
not constitute "probable cause" as would justify the conduct
of a search without a warrant. Furthermore, the police 5. Continuing offenses – A peace officer can validly
authorities did not claim to have received any confidential conduct a warrantless arrest in crimes of rebellion,
report or tipped information that Rudy was carrying stolen subversion, conspiracy or proposal to commit such
cable wires in his vehicle which could otherwise have crimes, and crimes or offenses committed in furtherance
sustained their suspicion. It cannot likewise be said that the thereof, or in connection therewith constitute direct
cable wires found in Rudy's vehicle were in plain view, assaults against the State, which are in the nature of
making its warrantless seizure valid. The cable wires were continuing crimes. Since rebellion is a continuing offense,
not exposed to sight because they were placed in sacks and a rebel may be arrested at any time, with or without a
covered with leaves. The articles were neither transparent warrant, as he is deemed to be in the act of committing
nor immediately apparent to the police authorities. (Caballes the offense at any time of the day or night (Umil v.
v. CA, G. R. No. 136292, Jan. 15, 2002) Ramos, 187 SCRA 311).
--- 6. Arrest after escape or rescue – If a person lawfully
arrested escapes or is rescued, any person may
Waiver of Unlawful Arrests and Illegal Searches immediately pursue or retake him without a warrant at
any time and in any place within the Philippines (Rule
A waiver of an illegal arrest, however, is not a waiver of 113, Sec. 13, Rules of Court).
an illegal search. Records have established that both the 7. Arrest of accused out on bail – For the purpose of
arrest and the search were made without a warrant. surrendering the accused, the bondsman may arrest him
While the accused has already waived his right to contest or, upon, written authority endorsed on a certified copy of
the legality of his arrest, he is not deemed to have equally the undertaking, cause him to be arrested by a police
waived his right to contest the legality of the search. officer or any other person of suitable age and discretion
(Alcaraz v. People, G.R. No. 199042, Nov. 17, 2014) (Rule 114, Sec. 23, first par.; J. Herrera, Jr., Criminal
Procedure Syllabus).
WARRANTLESS ARRESTS 8. Arrest of accused out on bail – An accused released
on bail may be re-arrested without the necessity of a
Instances of a valid warrantless arrest warrant, if he attempts to depart from the Philippines
without permission of the court where the case is pending
1. In flagrante delicto – The person to be arrested has (Rule 114, Sec. 23, second par.; J. Herrera, Jr., Criminal
either committed, is actually committing, or is about to Procedure Syllabus).
commit an offense in the presence of the person making the
arrest [Rule 113, Sec. 5(a), Rules of Court]. NOTE: An application for or admission to bail shall not
bar the accused from challenging the validity of his arrest
Requisites: (O-P/V-A) or the legality of the warrant issued therefore, or from
a. Person to be arrested must commit an assailing the regularity or questioning the absence of a
Overt act indicating that he has just preliminary investigation of the charge against him,

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provided that he raises them before entering his plea. bag of marijuana. When confronted, Jack admitted
(Sec. Rule 114, Sec. 26 Rules of Court) that he bought the same from Edwin. Thus, Edwin
was convicted for violating Dangerous Drugs Act.
Arrest with warrant vs. Warrantless arrest as to the Was the warrantless arrest lawful? Was the evidence
element of time resulting from such arrest admissible?

A: YES. When a police officer sees the offense, although at a

Arrest with Warrant Warrantless Arrest distance, or hears the disturbances created thereby, and
proceeds at once to the scene thereof, he may effect an arrest
without a warrant. There is nothing unlawful about the
There is an appreciable There must be a large arrest considering its compliance with the requirements of a
lapse of time between the measure of immediacy warrantless arrest. Ergo, the fruits obtained from such
arrest and the commission between the time the lawful arrest are admissible in evidence. (People v. Sucro,
G.R. No. 93239, March 18, 1991)
of the crime. offense is committed and
---
the time of the arrest. ---
Q: At about 7:00 a.m. of April 3, 2003 Gibo Cayetano,
together with Juan Villar and Bong Escudero, started
--- drinking liquor and smoking marijuana in the house of
Q: SPO2 Luigi Morales and PO2 Yael Padilla received Gibo. They started talking about their intention to kill
information that Neil Banzon was about to deliver drugs at Simeon Marcos. The three carried out their plan at about
the Thunder Bird Resort in Angeles City. When Neil Banzon 2:00 p.m. of the same day by mauling Simeon. At about
arrived at the resort, he was carrying a sealed Zest-O juice 4:00 p.m. of the same day, Patrolman Jaime Santos
box. The police men hurriedly accosted him and introduced received a report about a mauling incident. Right away,
themselves as police officers. When SPO2 Morales peeked Patrolman Santos proceeded to Paseo de Blas where the
into the contents of the Zest-O box, he saw that it contained a mauling incident took place. Patrolman Santos frisked
crystalline substance. He instantly confiscated the said box. Gibo and found a coin purse in his pocket which
Neil was then found guilty of illegal possession of shabu. Was contained dried leaves wrapped in cigarette foil. The
the search lawful? dried leaves were found to be marijuana. He was held
guilty for violating the Dangerous Drugs Act. Was the
A: NO. Neither the in flagrante delicto nor the stop and frisk search lawful?
principle is applicable to justify the warrantless arrest and
consequent search and seizure made by the police operatives on A: YES. The search conducted on Gibo's person was lawful
accused-appellant. In in flagrante delicto arrests, the accused is because it was made as an incident to a valid arrest. This is
apprehended at the very moment he is committing or attempting in accordance with Sec. 12, Rule 126 of the Revised Rules of
to commit or has just committed an offense in the presence of the Court which provides: "Sec. 12. Search incident to lawful
arresting officer. Emphasis should be laid on the fact that the law arrest. — A person lawfully arrested may be searched for
requires that the search be incidental to a lawful arrest. dangerous weapons or anything which may be used as proof
Therefore, it is beyond cavil that a lawful arrest must precede the of the commission of an offense, without a search warrant."
search of a person and his belongings. Accordingly, for this The frisk and search of appellant's person upon his arrest
exception to apply two elements must concur: (1) the person to was a permissible precautionary measure of arresting
be arrested must execute an overt act indicating that he has just officers to protect themselves, for the person who is about to
committed, is actually committing, or is attempting to commit a be arrested may be armed and might attack them unless he
crime; and (2) such overt act is done in the presence or within is first disarmed. (People v. Gerente, G.R. No. 95847-48, March
the view of the arresting officer. Neil did not act in a suspicious 10, 1993)
manner. For all intents and purposes, there was no overt ---
manifestation that he has just committed, is actually committing,
or is attempting to commit a crime. (People v. Sy Chua, G.R. Nos. ADMINISTRATIVE ARREST
136066-67. Feb. 4, 2003)
There is an administrative arrest when there is an arrest
--- as an incident to a deportation proceedings.
---
Q: Pat. Ben Reyes was instructed by P/Lt. Vic Laurel to The following aliens shall be arrested upon the warrant
monitor the activities of Edwin Alcaraz because of of the Commissioner of Immigration or of any other
information that the latter was selling marijuana. officer designated by him for the purpose and deported
Pat. Reyes positioned himself under a house which upon the warrant of the Commissioner of Immigration
was adjacent to a chapel. Thereafter, Pat. Reyes saw after a determination by the Board of Commissioners of
Edwin enter the chapel, taking something from the the existence of the ground for deportation as charges
compartment of a cart found inside the chapel which against the alien:
turned out later to be marijuana, and then return to
the street where he handed the same to Jack Acebes. 1. Any alien who enters the Philippines after the
Police officers then pursued Jack. Upon seeing the effective date of this Act by means of false and
police, he threw something to the ground which
turned out to be a tea

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 BILL OF RIGHTS – SEARCHES AND SEIZURES

misleading statements or without inspection violating the provisions of Commonwealth Act

and admission by the immigration authorities No. 653 (Philippine Alien Registration Act of
at a designated port of entry or at any place 1941)[now Alien Registration Act of 1950,
other than at a designated port of entry; [As Republic Act No. 562, as amended] or who, at
amended by Republic Act No. 503, Sec. 13] any time after entry, shall have been convicted
2. Any alien who enters the Philippines after the more than once of violating the provisions of
effective date of CA 613 (Philippine Immigration Act of 1940), the same Act; [Added pursuant to Republic Act
who was not lawfully admissible at the time of entry; No. 503, Sec. 13]
3. Any alien who, after the effective date of this 11. Any alien who engages in profiteering,
Act, is convicted in the Philippines and sentenced for a term hoarding, or black-marketing, independent of any
of one year or more for a crime involving moral turpitude criminal action which may be brought against him;
committed within five years after his entry to the [Added pursuant to Republic Act No. 503, Sec. 13]
Philippines, or who, at any time after such entry, is so 12. Any alien who is convicted of any offense
convicted and sentenced more than once; penalized under Commonwealth Act No. 473 (Revised
4. Any alien who is convicted and sentenced for a Naturalization Laws of the Philippines) or any law
violation of the law governing prohibited drugs; [As relating to acquisition of Philippine citizenship; [Added
amended by Republic Act No. 503, Sec. 13] pursuant to Republic Act No. 503, Sec. 13]
13. Any alien who defrauds his creditor by
5. Any alien who practices prostitution or is an absconding or alienating properties to prevent them
inmate of a house of prostitution or is connected with the from being attached or executed [Added pursuant to
management of a house of prostitution, or is a procurer; Republic Act No. 503, Sec. 13] (Philippine Immigration Act
6. Any alien who becomes a public charge within of 1940).
five years after entry from causes not affirmatively shown to
have arisen subsequent to entry; Power of the Commissioner of Immigration
7. Any alien who remains in the Philippines in
The Commissioner of Immigration is also given, by
violation of any limitation or condition under which he was
admitted as a non-immigrant; legislative delegation, the power to issue warrants of
arrests.
8. Any alien who believes in, advises, advocates or
teaches the overthrow by force and violence of the NOTE: Sec. 2, Art. III of the Constitution does not require
Government of the Philippines, or of constituted law and judicial intervention in the execution of a final order of
authority or who disbelieves in or is opposed to organized deportation issued in accordance with law. The
government, or who advises, advocates or teaches the constitutional limitation contemplates an order of arrest
assault or assassination of public officials because of their in the exercise of judicial power as a step preliminary or
office, or who advises, advocates, or teaches the unlawful
incidental to prosecution or proceedings for a given
destruction of property, or who is a member of or affiliated
offense or administrative action, not as a measure
with any organization entertaining, advocating or teaching
indispensable to carry out a valid decision by a
such doctrines, or who in any manner whatsoever lends
competent official, such as a legal order of deportation,
assistance, financial or otherwise, to the dissemination of
issued by the Commissioner of Immigration, in
such doctrines;
pursuance of a valid legislation. (Morano v. Vivo, G.R. No.
9. Any alien who commits any of the acts L-22196, June 30, 1967)
described in Sec. 45 of CA 613, independent of criminal
action which may be brought against him: Provided, that in DRUG, ALCOHOL, AND BLOOD TESTS
the case of alien who, for any reason, is convicted and
sentenced to suffer both imprisonment and deportation, said
---
alien shall first serve the entire period of his imprisonment
Q: Congress enacted the Comprehensive Dangerous
before he is actually deported: Provided, however, that the
Drugs Act of 2002 requiring the mandatory drug
imprisonment may be waived by the Commissioner of
testing of candidates for public office, students of
Immigration with the consent of the Department Head, and
secondary and tertiary schools, officers and
upon payment by the alien concerned of such amount as the
employees of public and private offices, and persons
Commissioner may fix and approved by the Department
charged before the prosecutor’s office with certain
Head; [Paragraph added pursuant to Republic Act No. 144,
offenses. Social Justice Society questions this
Sec. 3]
provision for being unconstitutional for it constitutes
10. Any alien who, at any time within five years undue delegation of legislative power when it give
after entry, shall have been convicted of unbridled discretion to schools and employers to
determine the manner of drug testing as well as it
can be used to harass a student or an employee
deemed undesirable. Is the provision
unconstitutional?

A: NO. A law requiring mandatory drug testing for

students of secondary and tertiary schools is not

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unconstitutional. It is within the prerogative of being hauled before the prosecutor’s office and
educational institutions to require, as a condition for peaceably submitting themselves to drug testing, if that
admission, compliance with reasonable school rules and be the case, do not necessarily consent to the procedure,
regulations and policies. To be sure, the right to enroll is let alone waive their right to privacy. To impose
not absolute; it is subject to fair, reasonable, and mandatory drug testing on the accused is a blatant
equitable requirements. In sum: attempt to harness a medical test as a tool for criminal
prosecution, contrary to the stated objectives of R.A.
1. Schools and their administrators stand in loco parentis with 9165. Drug testing in this case would violate a person’s
respect to their students; right to privacy guaranteed under Sec. 2, Art. III of the
2. Minor students have contextually fewer rights than an adult, Constitution. Worse still, the accused persons are
and are subject to the custody and supervision of their parents, veritably forced to incriminate themselves. (SJS v. DDB,
guardians, and schools; G.R. No. 157870, Nov. 3, 2008)
3. Schools acting in loco parentis, have a duty to safeguard the ---
health and well-being of their students and may adopt such
measures as may reasonably be necessary to discharge such NOTE: New statutory rules on the chain of custody of
duty; and dangerous drugs under R.A. No. 10640, July 15, 2014:
4. Schools have the right to impose conditions on applicants “That noncompliance of these requirements (chain of
for admission that are fair, just and non-discriminatory. (SJS v. custody) under justifiable grounds, as long as the
DDB, G.R. No. 157870, Nov. 3, 2008) integrity and the evidentiary value of the seized items
are properly preserved by the apprehending
A law requiring mandatory drug testing for officers and officer/team, shall not render void and invalid such
employees of public and private offices is not seizures and custody over said items.”
unconstitutional. As the warrantless clause of Sec. 2, Art.
III of the Constitution is couched and as has been held,
“reasonableness” is the touchstone of the validity of a RIGHT TO PRIVACY IN COMMUNICATION AND
government search or intrusion. And whether a search at CORRESPONDENCE
issue hews to the reasonableness standard is judged by
the balancing of the government-mandated intrusion on
the individual’s privacy interest against the promotion of PRIVATE AND PUBLIC COMMUNICATIONS
some compelling state interest. In the criminal context,
reasonableness requires showing probable cause to be GR: Right to privacy of communication and
personally determined by a judge. Given that the drug- correspondence is inviolable. (Sec. 3, Art. III, 1987
testing policy for employees—and students for that Philippine Constitution)
matter—under RA 9165 is in the nature of XPNs:
administrative search needing what was referred to in 1. By lawful order of the court;
Veronia case as “swift and informal procedures,” the 2. Public safety or public order as prescribed by law
probable cause standard is not required or even
practicable. (SJS v. DDB and PDEA, G.R. No. 157870, Nov. NOTE: Any evidence in violation of this right or the right
3, 2008) against unreasonable searches and seizures shall be
--- inadmissible for any purpose in any proceedings.
---
Q: R.A. 9165 requires mandatory drug testing for persons INTRUSION, WHEN ALLOWED
charged before the prosecutor’s office with criminal
offenses punishable with 6 years and 1 day imprisonment. The right to privacy is not absolute
Petitioner SJS questions the constitutionality of the law on
the ground that it violates the rights to privacy and against The right of privacy or "the right to be let alone," like the
self-incrimination of an accused. Decide. right of free expression, is not an absolute right. A limited
intrusion into a person's privacy has long been regarded
A: Such provision of R.A. 9165 is unconstitutional. The Court as permissible where that person is a public figure and
finds the situation entirely different in the case of persons the information sought to be elicited from him or to be
charged before the public prosecutor’s office with criminal published about him constitute of a public character.
offenses punishable with imprisonment. The operative concepts Succinctly put, the right of privacy cannot be invoked to
in the mandatory drug testing are “randomness” and resist publication and dissemination of matters of public
“suspicionless”. In the case of persons charged with a crime interest. The interest sought to be protected by the right
before the prosecutor’s office, a mandatory drug testing can of privacy is the right to be free
never be random or suspicionless. The ideas of randomness and from unwarranted publicity, from the wrongful
being suspicionless are antithetical to their being made publicizing of the private affairs and activities of an
defendants in a criminal complaint. They are not randomly individual which are outside the realm of legitimate
picked; neither are they beyond suspicion. When persons public concern. (Ayer Productions Pty. Ltd. v. Capulong,
suspected of committing a crime are charged, they are singled G.R. No. 82380, April 29, 1988)
out and are impleaded against their will. The persons thus
charged, by the bare fact of A regulation mandating the opening of mail or
correspondence of detainees is not violative of the
constitutional right to privacy
UNIVERSITY OF SANTO TOMAS
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 BILL OF RIGHTS – SEARCHES AND SEIZURES

There is no longer a distinction between an inmate and a Before one can have an expectation of privacy in his or
detainee with regard to the reasonable expectation of her OSN activity, it is first necessary that said user, in this
privacy inside his cell. The curtailment of certain rights is case the children of petitioners, manifest the intention to
necessary to accommodate institutional needs and keep certain posts private, through the employment of
objectives of prison facilities, primarily internal security. measures to prevent access thereto or to limit its
As long as the letters are not confidential communication visibility. And this intention can materialize in
between the detainee and his lawyer the detention cyberspace through the utilization of the OSN’s privacy
officials may read them. But if the letters are marked tools. In other words, utilization of these privacy tools is
confidential communication between detainee and the the manifestation, in cyber world, of the user’s
lawyer, the officer must not read them but only inspect invocation of his or her right to informational privacy.
them in the presence of detainees. A law is not needed
before an executive officer may intrude into the rights of Therefore, a Facebook user who opts to make use of a
privacy of a detainee or a prisoner. By the very fact of privacy tool to grant or deny access to his or her post or
their detention, they have diminished expectations of profile detail should not be denied the informational
privacy rights. (Alejano v. Cabuay, G.R. No. 160792, Aug. privacy right which necessarily accompanies said choice.
25, 2005) Otherwise, using these privacy tools would be a feckless
exercise, such that if, for instance, a user uploads a photo
A government employee charged with a crime in or any personal information to his or her Facebook page
connection with his office does not have a reasonable and sets its privacy level at “Only Me” or a custom list so
expectation of privacy in his office and computer that only the user or a chosen few can view it, said photo
files would still be deemed public by the courts as if the user
never chose to limit the photo’s visibility and
The Supreme Court cited the US case of O’Connor v. accessibility. Such position, if adopted, will not only strip
Ortega, which ruled that government agencies, in their these privacy tools of their function but it would also
capacity as employers, rather than law enforcers, could disregard the very intention of the user to keep said
validly conduct search and seizure in the governmental photo or information within the confines of his or her
workplace without meeting the “probable cause” or private space. (Vivares v. St. Theresa’s College, G.R. No.
warrant requirement for search and seizure. Moreover, 202666, Sept. 29, 2014)
he failed to prove that he had an actual (subjective)
expectation of privacy either in his office or government- Reasonable expectation of privacy test
issued computer which contained his personal files.
(Pollo v. David G.R. No. 181881 Oct. 18, 2011) This test determines whether a person has a reasonable
expectation of privacy and whether the expectation has
The Cybercrime Law does not regard as crime been violated.
private communications of sexual character between
consenting adults In Ople v. Torres, we enunciated that “the reasonableness
of a person’s expectation of privacy depends on a two-
The deliberations of the Bicameral Committee of part test:
Congress on Sec.4(c)(i) of the law show a lack of intent to 1. Whether, by his conduct, the individual has
penalize a private showing between and among two exhibited an expectation of privacy; and
private persons although that may be a form of obscenity 2. This expectation is one that society recognizes as
to some. The understanding of those who drew up the reasonable.”
cybercrime law is that the element of “engaging in a Customs, community norms, and practices may,
business” is necessary to constitute the crime of illegal therefore, limit or extend an individual’s “reasonable
cybersex. The Act actually seeks to punish cyber expectation of privacy.” Hence, the reasonableness of a
prostitution, white slave trade, and pornography for person’s expectation of privacy must be determined on a
favor and consideration. This includes interactive case-to-case basis since it depends on the factual
prostitution and pornography, e.g., by webcam. (Disini v. circumstances surrounding the case (Ople v. Torres, G.R.
Secretary of Justice G.R. No. 203335 Feb. 11, 2014) No. 127685, July 23, 1998).

Right of privacy in social media ---

Q: Sps. Hing were owner of a parcel of land and Aldo
To address concerns about privacy, but without Inc. constructed an auto-repair shop building on the
defeating its purpose, Facebook was armed with adjacent lot. Aldo filed a case for injunction and
different privacy tools designed to regulate the damages claiming that the Sps. Hing were
accessibility of a user’s profile as well as information constructing a fence without valid permit and that
uploaded by the user. It is through the availability of said the construction would destroy their building. The
privacy tools that many OSN (Online Social Network) case was dismissed for failure of Aldo to substantiate
users are said to have a subjective expectation that only its allegations. Aldo Inc. then installed two cameras
those to whom they grant access to their profile will view on their building facing the property of the Sps. Hing.
the information they post or upload thereto. The spouses contend that the installation of the
cameras was an invasion of their privacy. Is there a
This, however, does not mean that any Facebook user limitation on the installation of surveillance
automatically has a protected expectation of privacy in cameras?
all of his or her Facebook activities.

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prohibited under the law. (Gaanan v. IAC, G.R. No.L-69809

A: YES. In this day and age, video surveillance cameras are Oct. 16, 1986)
installed practically everywhere for the protection and safety of
everyone. The installation of these cameras, however, should not NOTE: Anti-Wiretapping Act only protects letters,
cover places where there is reasonable expectation of privacy, messages, telephone calls, telegrams and the like.
unless the consent of the individual, whose right to privacy
would be affected, was obtained. Nor should these cameras be ---
used to pry into the privacy of another’s residence or business Q: Ester S. Garcia, in a confrontation with Socorro
office as it would be no different from eavesdropping, which is a Ramirez, allegedly vexed, insulted, and humiliated
crime under Republic Act No. 4200 or the Anti-Wiretapping Law. Ramirez in a "hostile and furious mood" and in a
(Sps. Hing v. Choachuy, G.R. No. 179736, June 26, 2013) manner offensive to Ramirez’s dignity and personality.
--- Ramirez then filed a civil case for damages against
Garcia. In support of her claim, Ramirez produced a
Prohibited Acts under the Anti-Wire Tapping Law verbatim transcript of the event. The transcript on
(RA 4200) (2009 Bar) which the civil case was based was culled from a tape
recording of the confrontation.
1. To tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such As a result of Ramirez’s recording of the event,
communication or spoken word by using a device commonly Garcia filed a criminal case for violation of RA 4200,
known as a dictaphone or dictagraph or detectaphone or walkie- alleging that the act of secretly taping the
talkie or tape recorder, or however otherwise described by any confrontation was illegal. Ramirez contends that the
person, not being authorized by all the parties to any private facts charged do not constitute an offense. Was there
communication or spoken word a violation of RA 4200?
2. To knowingly possess any tape record, wire record, disc
record, or any other such record, or copies thereof, of any
A: YES. The unambiguity of the express words of the
communication or spoken word secured either before or after
provision, taken together with the above-quoted
the effective date of this Act in the manner prohibited by this
law; or deliberations from the Congressional Record, therefore
plainly supports the view held by the respondent court that
3. To replay the same for any other person or persons; or
the provision seeks to penalize even those privy to the
4. To communicate the contents thereof, either verbally or in
private communications. Where the law makes no
writing, or
distinctions, one does not distinguish.
5. To furnish transcriptions thereof, whether complete or
partial, to any other person.
The nature of the conversations is immaterial to a
NOTE: The law does not distinguish between a party to violation of the statute. The substance of the same need
the private communication or a third person. Hence, not be specifically alleged in the information. The mere
both a party and a third person could be held liable allegation that an individual made a secret recording of a
under R.A. 4200 if they commit any of the prohibited acts private communication by means of a tape recorder
under R.A. 4200. (Ramirez v. CA, G.R. No. 93833 Sept. 28, would suffice to constitute an offense under Section 1 of
1995) R.A. 4200. As the Solicitor General pointed out in his
COMMENT before the respondent court: "Nowhere (in
Under Sec. 3 of RA 4200, a peace officer, who is the said law) is it required that before one can be
authorized by a written order of the Court, may execute regarded as a violator, the nature of the conversation, as
any of the acts declared to be unlawful in Sec. 1 and Sec. well as its communication to a third person should be
2 of the said law in cases involving the crimes of: professed."
1. Treason
2. Espionage The phrase "private communication" in Section 1 of R.A.
3. Provoking war and disloyalty in case of war 4200 is broad enough to include verbal or non-verbal,
4. Piracy and mutiny in the high seas written or expressive communications of "meanings or
5. Rebellion (conspiracy and proposal and inciting to thoughts" which are likely to include the emotionally-
commit included) charged exchange between petitioner and private
6. Sedition (conspiracy, inciting included) respondent, in the privacy of the latter's office. (Ramirez
7. Kidnapping v. CA, G.R. No. 93833 Sept. 28, 1995)
8. Violations of CA 616 (punishing espionage and other ---
offenses against national security) ---
Q: DOJ Secretary Raul Gonzales warned that reporters
The use of telephone extension is not a violation of RA who had copies of the compact disc (CD) and those
4200 (Anti-WireTapping Law). The use of a telephone broadcasting or publishing its contents could be held
extension to overhear a private conversation is neither liable under the Anti-Wiretapping Act. Secretary
among those devices, nor considered as a similar device, Gonzales also ordered the NBI to go after media
organizations “found to have caused the spread, the
playing and the printing of the contents of a tape” of an
alleged wiretapped conversation involving the
UNIVERSITY OF SANTO TOMAS
President about fixing votes in 2004 national elections.
2017 GOLDEN NOTES Can the DOJ Secretary use the
 BILL OF RIGHTS – FREEDOM OF EXPRESSION

Anti-Wiretapping act as a regulatory measure to 3. A general prayer for other reliefs that are just and
prohibit the media from publishing the contents of equitable under the circumstances is also allowed.
the CD?
When Writ of Habeas Data is not applicable
A: NO. The Court ruled that not every violation of a law
will justify straitjacketing the exercise of freedom of speech A writ of habeas data may not be issued to protect purely
and of the press. There are laws of great significance but property and commercial concerns nor when the
their violation, by itself and without more, cannot support grounds invoked in support of the petitions therefore are
suppression of free speech and free press. In fine, violation vague or doubtful.
of law is just a factor, a vital one to be sure, which should be
weighed in adjusting whether to restrain freedom of speech NOTE: It bears reiteration that like the writ of amparo,
and of the press. The totality of the injurious effects of the habeas data was conceived as a response, given the lack
violation to private and public interest must be calibrated in of effective and available remedies, to address the
light of the preferred status accorded by the Constitution extraordinary rise in the number of killings and enforced
and by related international covenants protecting freedom disappearances. Its intent is to address violations of or
of speech and of the press. By all means, violations of law threats to the rights to life, liberty or security as a
should be vigorously prosecuted by the State for they breed remedy independently from those provided under
their own evil consequence. But to repeat, the need to prevailing rules. (Manila Electric Company v. Lim, GR. No.
prevent their violation cannot per se trump the exercise of 184769, Oct. 5, 2010)
free speech and free press, a preferred right whose breach
can lead to greater evils. (Chavez v. Gonzales, G.R. No. 168338, Who May File a petition for the writ of habeas data
Feb. 15, 2008)
--- Any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or
Letters of a husband’s paramour kept inside the omission of a public official or employee, or of a private
husband’s drawer, presented by the wife in the individual or entity engaged in the gathering, collecting
proceeding for legal separation, is not admissible in or storing of data or information regarding the person,
evidence family, home and correspondence of the aggrieved party
(Sec. 1, The Rule on the Writ of Habeas Data, A. M. No. 08-
The reason is that marriage does not divest one of 1-16-SC, Jan. 22, 2008).
his/her right to privacy of communication (Zulueta v. CA,
G.R. No. 107383, Feb. 20, 1996). However, in cases of extralegal killings and enforced
disappearances, the petition may be filed by:
Exclusionary rule a. Any member of the immediate family of the
aggrieved party, namely: the spouse, children and
Any evidence obtained in violation of the Constitution parents; or
shall be inadmissible for any purpose in any proceeding. b. Any ascendant, descendant or collateral relative of
However, in the absence of governmental interference, the aggrieved party within the fourth civil degree of
the protection against unreasonable search and seizure consanguinity or affinity, in default of those mentioned in
cannot be extended to acts committed by private the preceding paragraph (Sec. 2, The Rule on the Writ of
individuals. (People v. Marti, G.R. No. 78109. Jan. 18, Habeas Data, A. M. No. 08-1-16-SC, Jan. 22, 2008).
1991)
Right to Informational Privacy
WRIT OF HABEAS DATA
It is usually defined as the right of individuals to control
Writ of habeas data information about themselves.

A remedy available to any person whose right to privacy With the availability of numerous avenues for
in life, liberty or security is violated or threatened by an information gathering and data sharing nowadays, not to
unlawful act or omission of a public official or employee, mention each system’s inherent vulnerability to attacks
or of a private individual or entity engaged in the and intrusions, there is more reason that every
gathering, collecting or storing of data or information individual’s right to control said flow of information
regarding the person, family, home and correspondence should be protected and that each individual should have
of the aggrieved party. (Sec. 1, The Rule on the Writ of at least a reasonable expectation of privacy in
Habeas Data, A. M. No. 08-1-16-SC, Jan. 22, 2008) cyberspace. Several commentators regarding privacy and
social networking sites, however, all agree that given the
Reliefs available in the petition for issuance of writ of millions of online social network users, “in this Social
habeas data Networking environment, privacy is no longer grounded
in reasonable expectations, but rather in some
1. Updating, rectification, suppression or destruction theoretical protocol better known as wishful thinking.”
of the database or information or files kept by the
respondent; It is due to this notion that the Court saw the pressing
2. In case of threats of the unlawful act, the relief may need to provide for judicial remedies that would allow a
include a prayer for an order enjoining the act complained summary hearing of the unlawful use of data or
of.
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FACULTY OF CIVIL LAW
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information and to remedy possible violations of the 3. Right of assembly and to petition the government
right to privacy. The South African High Court, in its for redress of grievances
Decision in the landmark case, H v. W, recognized that 4. Right to form associations or societies not contrary
“the law has to take into account the changing realities to law
not only technologically but also socially or else it will 5. Freedom of religion
lose credibility in the eyes of the people. It is imperative 6. Right to access to information on matters of public
that the courts respond appropriately to changing times, concern.
acting cautiously and with wisdom.” Consistent with this,
the Court, by developing what may be viewed as the Protected speech includes every form of expression,
Philippine model of the writ of habeas data, in effect, whether oral, written, tape or disc recorded. It includes
recognized that, generally speaking, having an motion pictures as well as what is known as symbolic
expectation of informational privacy is not necessarily speech such as the wearing of an armband as a symbol of
incompatible with engaging in cyberspace activities, protest. Peaceful picketing has also been included within
including those that occur in OSNs. (Vivares v. St. the meaning of speech.
Theresa’s College, G.R. No. 202666, Sept. 29, 2014)
Speech is not limited to vocal communication. Conduct is
The writ of habeas data is not confined only to treated as a form of speech sometimes referred to as
extralegal killings and enforced disappearances ‘symbolic speech such that when speech and nonspeech
elements are combined in the same course of conduct,
Habeas data, to stress, was designed “to safeguard
individual freedom from abuse in the information age.” the ‘communicative element’ of the conduct may be
As such, it is erroneous to limit its applicability to ‘sufficient to bring into play the right to freedom of
extralegal killings and enforced disappearances only. expression the form of expression is just as important as
the information conveyed that it forms part of the
The writ of habeas data, however, can be availed of as an expression. (Diocese of Bacolod v. Commission on
independent remedy to enforce one’s right to privacy, Elections, G. R. No. 205728, January 21, 2015)
more specifically the right to informational privacy. The
remedies against the violation of such right can include
the updating, rectification, suppression or destruction of
Limitations on freedom of expression (2014 Bar)
the database or information or files in possession or in
control of respondents (Ibid.).
It should be exercised within the bounds of laws enacted
for the promotion of social interests and the protection
of other equally important individual rights such as:
FREEDOM OF EXPRESSION
1. Laws against obscenity, libel and slander (contrary to
public policy)
(1992, 1998, 2002, 2003, 2007, 2008, 2009 Bar) 2. Right to privacy of an individual
3. Right of state/government to be protected from
seditious attacks
CONCEPT AND SCOPE 4. Legislative immunities
5. Fraudulent matters
6. Advocacy of imminent lawless conducts
No law shall be passed abridging the freedom of speech, 7. Fighting words
of expression, or of the press, or of the right of the people 8. Guarantee implies only the right to reach a willing
peaceably to assemble and petition the government for audience but not the right to compel others to listen, see or read
redress of grievances. (Sec. 4, Art. III, 1987 Philippine
Constitution)
Unprotected Speech/Expression vs. Protected
Speech/Expression
Rationale

People are kept from any undue interference from the

government in their thoughts and words. It flows from UNPROTECTED SPEECH PROTECTED SPEECH
the philosophy that the authorities do not necessarily
know what is best for the people. General guidelines; All those excluded from
unprotected expression
Bases for Protection
Obscenity; and may include:
1. Promotion of truth
Incitement inimical to
2. Enhance principles of democracy
3. Expression of self-fulfillment of citizens national security;
Utterances critical of
Scope of protected freedom of expression under the False or misleading public conduct;
Constitution advertisement;
Ordinary commercial
1. Freedom of speech
2. Freedom of the press Libelous speech; speech;

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Hate speech; Satirical speech/comedy but regulation promoting political equality

prevails over speech. This view allows the
Contumacious speech government leeway to redistribute or equalize
‘speaking power,’ such as protecting, even
implicitly subsidizing, unpopular or dissenting
Four aspects of freedom of speech and press voices often systematically subdued within
society’s ideological ladder. This view
1. Freedom from censorship or prior restraint – see acknowledges that there are dominant political
discussion on prior restraint. actors who, through authority, power, resources,
2. Freedom from subsequent punishment to publication identity, or status, have capabilities that may
– see discussion on subsequent punishment. drown out the messages of others. This is
3. Freedom of access to information regarding matters of especially true in a developing or emerging
public interest – Official papers, reports and documents, unless economy that is part of the majoritarian world
held confidential and secret by competent authority in the like ours.
public interest, are public records. As such, they are open and
subject to regulation, to the scrutiny of the inquiring reporter 2. Contrary approach – considerations of equality of
or editor. Information obtained confidentially may be printed opportunity or equality in the ability of citizens as
without specification of the source; and that source is closed speakers should not have a bearing in free speech
to official inquiry, unless the revelation is deemed by the doctrine. Under this view, “members of the public are
courts, or by a House or committee of the Congress, to be vital trusted to make their own individual evaluations of
to the security of the State. speech, and government is forbidden to intervene for
4. Freedom of circulation – Refers to the unhampered paternalistic or redistributive reasons . . . [thus,] ideas
distribution of newspapers and other media among customers are best left to a freely competitive ideological market.”
and among the general public. It may be interfered with in This is consistent with the libertarian suspicion
several ways. The most important of these is censorship. Other on the use of viewpoint as well as content to
ways include requiring a permit or license for the distribution evaluate the constitutional validity or invalidity of
of media and penalizing dissemination of copies made without speech.” (Ibid.).
it, and requiring the payment of a fee or tax, imposed either on
the publisher or on the distributor, with the intent to limit or Political Speech
restrict circulation. These modes of interfering with the
freedom to circulate have been constantly stricken down as Political speech is one of the most important expressions
unreasonable limitations on press freedom. (Chavez v. protected by the Fundamental Law. “x x x and have to be
Gonzales G.R. No. 168338, Feb. 15, 2008) (2014 protected at all costs for the sake of democracy." (GMA
Bar) Network v. COMELEC, G.R. No. 205357, Sept. 2, 2014).
Political speech is motivated by the desire to be heard
NOTE: There need not be total suppression; even and understood, to move people to action. It is concerned
restriction of circulation constitutes censorship. with the sovereign right to change the contours of power
whether through the election of representatives in a
Free Speech Theories republican government or the revision of the basic text
of the Constitution. We evaluate restrictions on freedom
1. Deliberative democracy – includes the right of the of expression from their effects. We protect both speech
people to participate in public affairs, including the right to and medium because the quality of this freedom in
criticize government actions. practice will define the quality of deliberation in our
2. Market place of ideas – free speech should be democratic society. (Diocese of Bacolod v. COMELEC, G. R.
No. 205728, January 21, 2015)
encouraged
3. Self-expression – free speech enhances human
dignity and is a means of assuring individual self-fulfillment ---
4. Marker for group identity Q: Social Weather Station (SWS) questions COMELEC
5. Protection for individuals and minorities against Resolution 9674 requiring them to disclose the
majoritarian abuses names of commissioners and/or payors of election
6. Safety valve – nonviolent manifestations of surveys on the ground that it is a curtailment of free
7. dissent reduce the likelihood of violence (Diocese of speech. Decide.
Bacolod v. COMELEC, G. R. No. 205728, Jan. 21, 2015, cited in
Cruz and Cruz, Constitutional Law, 2015 Ed., p. 474). A: SWS is wrong. The names of those who commission or
pay for election surveys, including subscribers of survey
Paradigms of Free Speech firms, must be disclosed pursuant to Section 5.2(a) of the
Fair Election Act. This requirement is a valid regulation
1. Equality-based approach – politically disadvantaged in the exercise of police power and effects the
speech prevails over regulation constitutional policy of guaranteeing equal access to
opportunities for public service. Section 5.2(a)’s
requirement of disclosing subscribers neither curtails
petitioners’ free speech rights nor violates the
constitutional proscription against the impairment of
contracts. Concededly, what are involved here are not

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election propaganda per se. Election surveys, on their

face, do not state or allude to preferred candidates. When A: YES. The assailed rule on “aggregate-based” airtime limits
published, however, the tendency to shape voter is unreasonable and arbitrary as it unduly restricts and
preferences comes into play. In this respect, published constrains the ability of candidates and political parties to
election surveys partake of the nature of election reach out and communicate with the people. Here, the
propaganda. It is then declarative speech in the context adverted reason for imposing the “aggregate-based” airtime
of an electoral campaign properly subject to regulation. limits – leveling the playing field – does not constitute a
Hence, Section 5.2 of the Fair Election Act’s regulation of compelling state interest which would justify such a
published surveys. substantial restriction on the freedom of candidates and
political parties to communicate their ideas, philosophies,
It is settled that constitutionally declared principles are a platforms and programs of government. And, this is specially
compelling state interest. Here, we have established that so in the absence of a clear-cut basis for the imposition of
the regulation of election surveys effects the such a prohibitive measure. In this particular instance, what
constitutional policy, articulated in Article II, Section 26, the COMELEC has done is analogous to letting a bird fly after
and reiterated and affirmed in Article IX-C, Section 4 and one has clipped its wings.
Article XIII, Section 26 of the 1987 Constitution, of
guaranteeing equal access to opportunities for public It is also particularly unreasonable and whimsical to
service. adopt the aggregate-based time limits on broadcast time
when we consider that the Philippines is not only
While it does regulate expression (i.e., petitioners’ composed of so many islands. There are also a lot of
publication of election surveys), it does not go so far as to languages and dialects spoken among the citizens across
suppress desired expression. There is neither the country. Accordingly, for a national candidate to
prohibition nor censorship specifically aimed at election really reach out to as many of the electorates as possible,
surveys. The freedom to publish election surveys then it might also be necessary that he conveys his
remains. All Resolution No. 9674 does is articulate a message through his advertisements in languages and
regulation as regards the manner of publication, that is, dialects that the people may more readily understand
that the disclosure of those who commissioned and/or and relate to. To add all of these airtimes in different
paid for, including those subscribed to, published dialects would greatly hamper the ability of such
election surveys must be made. (Social Weather Station candidate to express himself – a form of suppression of
v. COMELEC, G.R. No. 208062, April 7, 2015) his political speech.
---
COMELEC itself states that “[t]elevision is arguably the
Captive-Audience Doctrine most cost-effective medium of dissemination. Even a
slight increase in television exposure can significantly
When a listener cannot, as a practical matter, escape boost a candidate's popularity, name recall and
from intrusive speech, the speech can be restricted. It electability.” If that be so, then drastically curtailing the
recognizes that a listener has a right not to be exposed to ability of a candidate to effectively reach out to the
an unwanted message in circumstances in which the electorate would unjustifiably curtail his freedom to
communication cannot be avoided. A regulation based on speak as a means of connecting with the people.
the captive-audience doctrine is in the guise of
censorship, which undertakes selectively to shield the Finally on this matter, it is pertinent to quote what
public from some kinds of speech on the ground that Justice Black wrote in his concurring opinion in the
they are more offensive than others. Such selective landmark Pentagon Papers case: “In the First
restrictions have been upheld only when the speaker Amendment, the Founding Fathers gave the free press
intrudes on the privacy of the home or the degree of the protection it must have to fulfill its essential role in
captivity makes it either impossible or impractical for our democracy. The press was to serve the governed, not
the unwilling viewer or auditor to avoid exposure. Thus, the governors. The Government's power to censor the
a government regulation based on the captive-audience press was abolished so that the press would remain
doctrine may not be justified if the supposed “captive forever free to censure the Government. The press was
audience” may avoid exposure to the otherwise intrusive protected so that it could bare the secrets of government
speech. (1-United Transport Koalisyon v. COMELEC, G.R. and inform the people. Only a free and unrestrained
No. 206020, April 14, 2015) press can effectively expose deception in government.”
(GMA Network v. COMELEC, G.R. No. 205357, Sept. 2,
--- 2014)
Q: COMELEC Resolution No. 9615 deviated from the ---
previous COMELEC resolutions relative to the airtime ---
limitations on political advertisements. It computes the Q: Members of the faculty of the University of the
airtime on an aggregate basis involving all the media of Philippines College of Law published a statement on the
broadcast communications compared to the past where it allegations of plagiarism and misrepresentation relative
was done on a per station basis. The result of which is the to a certain Court’s decision. Essentially, the faculty calls
reduction of the allowable minutes within which candidates for the resignation of Justice Mario Pascual in the face of
and political parties would be able to campaign through the allegations of plagiarism in his work. Does this act of the
air. Did COMELEC commit grave abuse of discretion in faculty members squarely fall under the freedom of
issuing said resolution? speech and expression?

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 BILL OF RIGHTS – FREEDOM OF EXPRESSION

3. The security of community life may be protected

A: NO. The publication of a statement by the faculty of against incitements to acts of violence and the
the University of the Philippines College regarding the overthrow by force of orderly government.
allegations of plagiarism and misrepresentation in the
Supreme Court was totally unnecessary, uncalled for and Provisions of the Revised Penal Code on Libel and
a rash act of misplaced vigilance. While most agree that the provision of the Cyber Crime Law on cyber libel
the right to criticize the judiciary is critical to are constitutional
maintaining a free and democratic society, there is also a
general consensus that healthy criticism only goes so Libel is not a constitutionally protected speech and that
far. Many types of criticism leveled at the judiciary cross the government has an obligation to protect private
the line to become harmful and irresponsible individuals from defamation. Indeed, cyber libel is
attacks. These potentially devastating attacks and unjust actually not a new crime since Art. 353, in relation to Art.
criticism can threaten the independence of the judiciary. 355 of the penal code, already punishes it. In effect, Sec.
(Re: Letter of the UP Law Faculty entitled “Restoring Integrity: 4(c)(4) merely affirms that online defamation
A Statement by the Faculty of the University of the Philippines constitutes “similar means” for committing libel.
College of Law on the Allegations of Plagiarism and Furthermore, the United Nations Human Rights
Misrepresentation in the Supreme Court.”, A.M. No. 10-10-4-SC, Committee did not actually enjoin the Philippines to
Oct. 19, 2010) decriminalize libel. It simply suggested that defamation
--- laws be crafted with care to ensure that they do not stifle
freedom of expression. Free speech is not absolute. It is
PRIOR RESTRAINT (CENSORSHIP) subject to certain restrictions, as may be necessary and
(2014 Bar) as may be provided by law. (Disini v. Secretary of Justice
G.R. No. 203335 Feb. 11, 2014)
Refers to the official government restrictions on the
press or other forms of expression in advance of actual NOTE: In her dissenting and concurring opinion, Chief
publication or dissemination (Bernas, The 1987 Justice Maria Lourdes Sereno posits that the ponencia
Philippine Constitution A Comprehensive Reviewer, 2006). correctly holds that libel is not a constitutionally
protected conduct. It is also correct in holding that,
NOTE: Freedom from prior restraint is largely freedom generally, penal statutes cannot be invalidated on the
from government censorship of publications, whatever ground that they produce a “chilling effect,” since by
the form of censorship, and regardless of whether it is their very nature, they are intended to have an in
wielded by the executive, legislative or judicial branch of terrorem effect (benign chilling effect) to prevent a
the government. Thus, it precludes governmental acts repetition of the offense and to deter criminality. The
that required approval of a proposal to publish; licensing “chilling effect” is therefore equated with and justified by
or permits as prerequisites to publication including the the intended in terrorem effect of penal provisions.
payment of license taxes for the privilege to publish; and
even injunctions against publication. Even the closure of Thus, when Congress enacts a penal law affecting free
the business and printing offices of certain newspapers, speech and accordingly imposes a penalty that is so
resulting in the discontinuation of their printing and discouraging that it effectively creates an “invidious
publication, are deemed as previous restraint or chilling effect”, thus impeding the exercise of speech and
censorship. Any law or official that requires some form expression altogether, then there is a ground to
of permission to be had before publication can be made, invalidate the law. In this instance, it will be seen that the
commits an infringement of the constitutional right, and penalty provided has gone beyond the in terrorem effect
remedy can be had at the courts. (Chavez v. Gonzales, G.R. needed to deter crimes and has thus reached the point of
No. 168338, Feb. 15, 2008) encroachment upon a preferred constitutional right.

Exceptions to the prohibition of prior restraint Two kinds of chilling effect

1. Pornography BENIGN CHILLING INVIDIOUS CHILLING

2. False or Misleading Advertisement EFFECT EFFECT
3. Advocacy of Imminent Lawless Actions
4. Danger to National Security. (Soriano v. Laguardia, May be caused by penal May be caused by penal
G.R. No. 165636, April 29, 2009) statutes which are laws affecting free speech
intended to have an in and accordingly imposes a
Near v. Minnesota, 283 US 697 (1931) adds the following
terrorem effect to prevent penalty that is so
to the enumeration:
a repetition of the offense discouraging thus
1. When a nation is at war, many things that might be
said in time of peace are such a hindrance to its and to deter criminality. impeding the exercise of
The chilling effect is speech and expression
 effort that their utterance will not be endured so
long as men fight and that no court could regard equated with and justified altogether.
them as protected by any constitutional right. by the intended in
2. The primary requirements of decency may be terrorem effect of penal
enforced against obscene publications.
provisions.

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2. Obscenity – In Pita v. Court of Appeals, the Supreme

Court declared that the determination of what is obscene is a
judicial function. (Pita v. CA, G.R. No. 80806, Oct. 5, 1989)
3. Criticism of Official Conduct – In New York Times v.
Sullivan, 376 US 254 (1964), the constitutional guarantee
requires a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to
his official conduct unless he proves that the statement was
Permissible Not Permissible made with actual malice.
4. Rights of students to free speech in school premises not
absolute – The school cannot suspend or expel a student
--- solely on the basis of the articles he has written except when
Q: Nestor posted on Facebook that Juan Dela Cruz, a married such article materially disrupts class work or involves
person, has an illicit affair with Maria. substantial disorder or invasion of rights of others. (Miriam
Dexter liked this post and commented: “Yes! This is College Foundation v. CA, GR 127930, Dec. 15, 2000)
true! What an immoral thing to do?!” This post was
likewise liked by 23 people. Juan Dela Cruz filed a Doctrine of Fair Comment
case for online libel against Nestor, Dexter and 23
other people who liked the post using as his basis GR: Every discreditable public imputation is false
Sec. 5 of the Cybercrime law which penalizes any because every man is presumed innocent, thus, every
person who willfully abets or aids in the commission false imputation is deemed malicious, hence, actionable.
of any of the offenses enumerated in the said law. Is
this provision of the law constitutional? XPN: When the discreditable imputation is directed
against a public person in his public capacity, such is not
A: NO. Section 5 with respect to Section 4(c)(4) is necessarily actionable.
unconstitutional. Its vagueness raises apprehension on the part of
internet users because of its obvious chilling effect on the freedom NOTE: For it to be actionable, it must be shown that
of expression, especially since the crime of aiding or abetting either there is a false allegation of fact or comment based
ensnares all the actors in the cyberspace front in a fuzzy way. on a false supposition.
What is more, as the petitioners point out, formal crimes such as
libel are not punishable unless consummated. In the absence of XPN to the XPN: If the comment is an expression of
legislation tracing the interaction of netizens and their level of opinion, based on established facts; it is immaterial
responsibility such as in other countries, Section 5, in relation to whether the opinion happens to be mistaken, as
Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited long as it might reasonably be inferred from facts.
Commercial Communications, and Section 4(c)(2) on Child (Borjal v. CA, G.R. No. 126466, Jan. 14, 1999)
Pornography, cannot stand scrutiny (Ibid.).
--- Freedom of the Press

FREEDOM FROM SUBSEQUENT PUNISHMENT The guaranty of freedom to speak is useless without the
ability to communicate and disseminate what is said. And
A limitation on the power of the State from imposing a where there is a need to reach a large audience, the need
punishment after publication or dissemination. Without to access the means and media for such dissemination
this assurance, the individual would hesitate to speak for becomes critical. This is where the press and broadcast
fear that he might be held to account for his speech, or media come along.
that he might be provoking the vengeance of the officials
he may have criticized. (Nachura, Outline Reviewer in In the ultimate analysis, when the press is silenced, or
Political Law, p. 152) otherwise muffled in its undertaking of acting as a
sounding board, the people ultimately would be the
This second basic prohibition of the free speech and victims. (GMA Network v. COMELEC, G.R. No. 205357,
press clause prohibits systems of subsequent Sept. 2, 2014)
punishment which have the effect of unduly curtailing
expression. ---
Q: A national daily newspaper carried an exclusive
NOTE: Freedom from subsequent punishment is not report stating that Senator Ryan Christopher received a
absolute; it may be properly regulated in the interest of house and lot located at YY Street, Makati, in
the public. The State may validly impose penal and/or consideration for his vote to cut cigarette taxes by 50%.
administrative sanctions such as in the following: The Senator sued the newspaper, its reporter, editor
1. Libel – A public and malicious imputation of a crime, vice or and publisher for libel, claiming the report was
defect, real or imaginary or any act omission, status tending to completely false and malicious. According to the
cause dishonor, discredit or contempt of a natural or judicial Senator, there is no YY Street in Makati, and the tax cut
person, or blacken the memory of one who is dead. (Art 353, was only 20%. He claimed one million pesos in damages.
Revised Penal Code) The defendants denied "actual malice,"

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2017 GOLDEN NOTES
 BILL OF RIGHTS – FREEDOM OF EXPRESSION

claiming privileged communication and absolute

freedom of the press to report on public officials and CONTENT-BASED &
matters of public concern. If there was any error, the CONTENT-NEUTRAL REGULATION
newspaper said it would publish the correction
promptly. Are the defendants liable for damages?
CONTENT-NEUTRAL CONTENT-BASED
A: NO. Since Senator Ryan Christopher is a public person
and the questioned imputation is directed against him in his REGULATION RESTRAINT
public capacity, in this case actual malice means the Merely concerned with The restriction is based on
statement was made with knowledge that it was false or the incidents of the the subject matter of the
with reckless disregard of whether it was false or not. Since speech, or one that utterance or speech. The
there is no proof that the report was published with merely controls the time, cast of the restriction
knowledge that it is false or with reckless disregard of
place or manner, and determines the test by
whether it was false or not, the defendants are not liable for
damages. (Borjal v. CA, G.R. No. 126466, Jan. 14, 1999) under well-defined which the challenged act is
--- standards. assailed with.

The Borjal doctrine is not applicable in a case where

the allegations against a public official were false and No presumption of There is presumption of
no effort was exerted to verify the information unconstitutionality unconstitutionality
before publishing his articles
NOTE: The burden of proof
Borjal may have expanded the protection of qualified to overcome the
privileged communication beyond the instances given in presumption of
Art. 354 of the RPC, but this expansion does not cover unconstitutionality is with
such a case. The expansion speaks of "fair commentaries the government.
on matters of public interest." While Borjal places fair
commentaries within the scope of qualified privileged Test to be used: Test to be used: Clear and
communication, the mere fact that the subject of the Intermediate Approach Present Danger
article is a public figure or a matter of public interest
does not automatically exclude the author from liability. TESTS
His articles cannot even be considered as qualified
privileged communication under the second paragraph Intermediate Approach Test
of Art. 354 of the RPC, which exempts from the
presumption of malice a fair and true report. Good faith Used when the speech restraints take the form of a
is lacking. (Tulfo v. People, G.R. No. 161032, Sept. 16, content-neutral regulation, only a substantial
2008) governmental interest is required for its validity.
Because regulations of this type are not designed to
suppress any particular message, they are not subject to
--- the strictest form of judicial scrutiny but an intermediate
Q: Erika Ong penned several articles in Malaya approach—somewhere between the mere rationality
newspaper regarding alleged bribery incidents in the that is required of any other law and the compelling
Supreme Court and characterizing the justices as interest standard applied to content-based restrictions.
“thieves” and “a basket of rotten apples”. The Court The test is called intermediate because the Court will not
En Banc required Erika to explain why no sanction merely rubberstamp the validity of a law but also require
should be imposed on her for indirect contempt of that the restrictions be narrowly-tailored to promote an
court. Did the order of the Court violate freedom of important or significant governmental interest that is
the press? unrelated to the suppression of expression. (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008)
A: NO. While freedom of speech, of expression and of the
press are at the core of civil liberties and have to be NOTE: A law is narrowly-tailored if it is for the
protected at all costs for the sake of democracy, these advancement of state’s interest, if it does not restrict a
freedoms are not absolute. For, if left unbridled, they have significant amount of speech that does not implicate the
the tendency to be abused and can translate to licenses, government interest and if it is the least restrictive
which could lead to disorder and anarchy. Erika crossed the alternative available to serve such interest. (Eugene
line, as hers are baseless scurrilous attacks which Volokh, Freedom of Speech, Permissible Tailoring and
demonstrate nothing but an abuse of press freedom. They Transcending Strict Scrutiny, 144 U. Pennsylvania L. Rev.
leave no redeeming value in furtherance of freedom of the 2417, 1997)
press. They do nothing but damage the integrity of the High
Court, undermine the faith and confidence of the people in Clear and Present Danger Test (2014 Bar)
the judiciary, and threaten the doctrine of judicial
independence. (In Re: Allegations Contained in the Columns The government must also show the type of harm the
of Mr. Amado P. Macasaet, A.M. No. 07-09-13-SC, Aug. 8, 2008) speech sought to be restrained would bring about—
--- especially the gravity and the imminence of the
threatened harm – otherwise the prior restraint will be
invalid. Prior restraint on speech based on its content
cannot be justified by hypothetical fears, “but only by
showing a substantive and imminent evil that has taken
the life of a reality already on ground.” As formulated,
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“the question in every case is whether the words used FACIAL CHALLENGES AND OVERBREADTH DOCTRINE
are used in such circumstances and are of such a nature
as to create a clear and present danger that they will Facial Challenge (2015 Bar)
bring about the substantive evils that Congress has a
right to prevent. It is a question of proximity and degree.” A challenge to a statute in court, in which the plaintiff
The regulation which restricts the speech content must alleges that the legislation is always, and under all
also serve an important or substantial government circumstances, unconstitutional, and therefore void.
interest, which is unrelated to the suppression of free
expression. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, NOTE: Facial challenge to a statute is allowed only when
2008) it operates in the area of freedom of expression.
Invalidation of the statute on its face, rather than as
APPLICATIONS applied, is permitted in the interest of preventing a
chilling effect on freedom of expression. (Separate
Q: The NTC issued a warning that that the continuous opinion of Justice Mendoza in Cruz v. Secretary of
airing or broadcast by radio and television stations Environment and Natural Resources, GR. 135385, Dec. 6,
of the alleged wiretapped conversation involving the 2000)
President allegedly fixing votes in the 2004 national
elections is a continuing violation of the Anti- Facial Challenge vs. “As-applied” Challenge
Wiretapping Law and shall be just cause for the
suspension, revocation and/or cancellation of the FACIAL CHALLENGE “AS-APPLIED”
licenses or authorizations issued to the said CHALLENGE
companies. Were the rights to freedom of expression
and of the press, and the right of the people to
An examination of Considers only extant facts
information on matters of public concern violated by
such warning of the NTC? the entire law, pinpointing affecting real litigants
its flaws and defects, not
A: YES. Said rights were violated applying the clear and only on the basis of its
present danger test. The challenged acts need to be actual operation to the
subjected to the clear and present danger rule, as they
are content-based restrictions. The acts of NTC and the parties, but also on the
DOJ Sec. focused solely on but one object—a specific assumption or prediction
content— fixed as these were on the alleged taped that its very existence may
conversations between the President and a COMELEC cause others not before
official. Undoubtedly these did not merely provide the court to refrain from
regulations as to the time, place or manner of the
constitutionally protected
dissemination of speech or expression.
speech or activities.
A governmental action that restricts freedom of speech
or of the press based on content is given the strictest (Southern Hemisphere Engagement Network, Inc. v. Anti-
scrutiny, with the government having the burden of Terrorism Council, G.R. No. 178552, Oct. 5, 2010).
overcoming the presumed unconstitutionality by the
clear and present danger rule. It appears that the great ---
evil which government wants to prevent is the airing of a Q: Is facial challenge to a penal statute allowed?
tape recording in alleged violation of the anti-
wiretapping law. A: NO. Facial challenges are not allowed in penal
statutes. Criminal statutes have general in terrorem effect
The evidence falls short of satisfying the clear and resulting from their very existence, and, if facial
present danger test. Firstly, the various statements of the challenge is allowed for this reason alone, the State may
Press Secretary obfuscate the identity of the voices in the well be prevented from enacting laws against socially
tape recording. Secondly, the integrity of the taped harmful conduct. In the area of criminal law, the law
conversation is also suspect. The Press Secretary showed cannot take chances as in the area of free speech. (KMU v.
to the public two versions, one supposed to be a Ermita, G.R. No. 17855, Oct. 5, 2010)
“complete” version and the other, an “altered” version. ---
Thirdly, the evidence on the who’s and the how’s of the
wiretapping act is ambivalent, especially considering the NOTE: A litigant cannot thus successfully mount a facial
tapes’ different versions. The identity of the wire- challenge against a criminal statute on either vagueness
tappers, the manner of its commission and other related or overbreadth grounds.
and relevant proofs are some of the invisibles of this
case. Fourthly, given all these unsettled facets of the tape, The rule established in our jurisdiction is, only statutes
it is even arguable whether its airing would violate the on free speech, religious freedom, and other fundamental
Anti-Wiretapping Law. There is no showing that the rights may be facially challenged. (Southern Hemisphere
feared violation of the anti-wiretapping law clearly Engagement Network, Inc. v. Anti-Terrorism Council, G.R.
endangers the national security of the State (Ibid.). No. 178552, Oct. 5, 2010)

Overbreadth Doctrine (2010, 2014 Bar)

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Permits a party to challenge the validity of a statute even apprehended, be it far or remote, thus government
though as applied to him it is not unconstitutional but it restriction would then be allowed. It is not
might be if applied to others not before the Court whose necessary though that evil is actually created for
activities are constitutionally protected (Separate mere tendency towards the evil is enough.
opinion of Justice Mendoza in Cruz v. Secretary of
Environment and Natural Resources, GR. 135385, Dec. 6, Emphasis: Nature of the circumstances under which
2000). It is a type of facial challenge that prohibits the the speech is uttered, though the speech per se may
government from achieving its purpose by means that not be dangerous.
“sweep unnecessarily broadly, reaching constitutionally
protected as well as unprotected activity. 3. Grave-but-Improbable Danger test

NOTE: The application of the overbreadth doctrine is Question: Whether the gravity of the evil, discounted
limited to a facial kind of challenge. by its improbability, justifies such an invasion of
free speech as is necessary to avoid the danger.
The most distinctive feature of the overbreadth (Dennis v. US, 341 US 494, 1951)
technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a 4. Balancing of interest test
particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant Question: Which of the two conflicting interests (not
prevails, the courts carve away the unconstitutional involving national security crimes) demands the
aspects of the law by invalidating its improper greater protection under the particular
applications on a case to case basis. Moreover, circumstances presented:
challengers to a law are not permitted to raise the rights a. When particular conduct is regulated in the
of the third parties and can only assert their own interest of public order
interests. In overbreadth analysis, those rules give way; b. And the regulation results in an indirect,
challenges are permitted to raise the rights of third conditional and partial abridgement of speech. (Gonzales
parties; and the court invalidates the entire statute “on v. COMELEC, G.R. No. L-27833, Apr. 18, 1969)
its face”, not merely “as applied for” so that the
overbroad law becomes unenforceable until a properly 5. O’Brien test
authorized court construes it more narrowly. The factor
that motivates court to depart from the normal Question: in situations when “speech” and “non-
adjudicatory rules is the concern with the “chilling”, speech” elements are combined in the same course
deterrent effect of the overbroad statute on third parties of conduct, whether there is a sufficiently important
not courageous enough to bring suit.The Court assumes governmental interest that warrants regulating the
that an overbroad law’s “very existence may cause others non-speech element, incidentally limiting the
not before the court to refrain from constitutionally “speech” element.
protected speech or expression.” An overbreadth ruling
is designed to remove that deterrent effect on the speech
NOTE: A government regulation is valid if:
of those third parties. (Southern Hemisphere Engagement
a. It is within the constitutional power of the
Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552,
government;
Oct. 5, 2010).]
b. In furtherance of an important or substantial
governmental interest;
TESTS c. Governmental interest is unrelated to the
suppression of free expression; and
Tests for valid governmental interference to freedom d. The incidental restriction on the freedom is
of expression essential to the furtherance of that interest. (US v.
O’Brien, 391 US 367, 1968; SWS v.
1. Clear and Present Danger test COMELEC, G.R. 147571, May 5, 2001)

Question: Whether the words are used in such 6. Direct Incitement test
circumstances and are of such a nature as to create a
clear and present danger that they will bring about Question: What words did a person utter and what
the substantive evils that Congress has a right to is the likely result of such utterance?
prevent. It is a question of proximity and degree.
(Schenck v. US, 249 US 47, 1919) Emphasis: The very words uttered, and their ability
to directly incite or produce imminent lawless
Emphasis: The danger created must not only be clear action.
and present but also traceable to the ideas
expressed. (Gonzales v. COMELEC, G.R. No. L-27833, NOTE: It criticizes the clear and present danger test
April 18, 1969) for being too dependent on the specific
circumstances of each case.
2. Dangerous Tendency test
7. Roth Test on Obscenity
Question: Whether the speech restrained has a
rational tendency to create the danger
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Question: Whether to the average person, applying cases, subject to specific guidelines set forth in said
contemporary community standards, the dominant Resolution. Accused Andal Ampatuan, Jr. filed a
theme of the material taken as a whole appeals to Motion for Reconsideration alleging that the
prurient interest. (Gonzales v. Kalaw-Katigbak, G.R. Resolution “deprives him of his rights to due process,
No. L-69500 July 22, 1985) equal protection, presumption of innocence, and to
be shielded from degrading psychological
8. Miller Test on Indecent Speech punishment.” Ampatuan contends that the Court
should accord more vigilance because the immense
publicity and adverse public opinion which live
Question: Whether the work depicts or describes, in
media coverage can produce would affect everyone,
a patently offensive way, sexual conduct specifically
including the judge, witnesses, and the families of all
defined by the applicable state law; and the work,
concerned parties. The OSG, however, contends that
taken as whole, lacks serious literary, artistic,
the coverage by live media neither constitutes a
political, or scientific value. (Soriano v. Laguardia,
barbarous act nor inflicts upon the accused inhuman
G.R. No. 164785, March 15, 2010)
physical harm or torture that is shocking to the
conscience and is freedom of the press. Should live
STATE REGULATION OF DIFFERENT broadcast of the trial be disallowed?
TYPES OF MASS MEDIA
A: NO. The Court is now disallowing live media broadcast
Live Media Coverage of Court Proceedings of the trial of “Maguindanao massacre” cases but is still
allowing the filming of the proceedings for (1) the real-time
The propriety of granting or denying permission to the transmission to specified viewing areas, and (2)
media to broadcast, record, or photograph court documentation.
proceedings involves weighing the constitutional
guarantees of freedom of the press, the right of the public While the Court recognizes the freedom of press and the
to information and the right to public trial, on the one right to public information, the constitutional rights of
hand, and on the other hand, the due process rights of the accused provide more than ample justification to
the defendant and the inherent and constitutional power take a second look at the view that a camera that
of the courts to control their proceedings in order to broadcasts the proceedings live on television has no
permit the fair and impartial administration of justice. place in a criminal trial because of its prejudicial effects
Collaterally, it also raises issues in the nature of media, on the rights of accused individuals. As we have
particularly television and its role in society, and of the previously held, the live coverage of judicial proceedings
impact of new technologies on law. involve an inherent denial of due process. In this case
that has achieved notoriety and sensational status, a
Considering the prejudice it poses to the defendant's greater degree of care is required to safeguard the
right to due process as well as to the fair and orderly constitutional rights of the accused. To be in the best
administration of justice and considering further that the position to weigh the conflicting testimonies of the
freedom of the press and the right of the people to witnesses, the judge must not be affected by any outside
information may be served and satisfied by less force or influence. Like any human being, however, a
distracting, degrading and prejudicial means, live radio judge is not immune from the pervasive effects of media.
and television coverage of court proceedings shall not be
allowed. Video footages of court hearings for news
In a constitutional sense, public trial is not synonymous
purposes shall be restricted and limited to shots of the
with publicized trial. The right to a public trial belongs to
courtroom, the judicial officers, the parties and their
the accused. The requirement of a public trial is satisfied
counsel taken prior to the commencement of official
by the opportunity of the public and press to attend the
proceedings. No video shots or photographs shall be
trial and to report what they have observed. The
permitted during the trial proper.
accused’s right to a public trial should not be confused
with the freedom of the press and the public’s right to
An accused has a right to a public trial but it is a right know as a justification for allowing the live broadcast of
that belongs to him, more than anyone else, where his the trial. (Notice of Resolution, In Re: Petition for Radio
life or liberty can be held critically in balance. A public and TV Coverage of cases against Zaldy Ampatuan, A.M.
trial aims to ensure that he is fairly dealt with and would No. 10-11-5-SC, Oct. 23, 2012)
not be unjustly condemned and that his rights are not ---
compromised in secret conclaves of long ago. A public
---
trial is not synonymous with publicized trial; it only
Q: Can an offensive and obscene language uttered in a
implies that the court doors must be open to those who
prime-time television broadcast which was easily
wish to come, sit in the available seats, conduct
accessible to the children be reasonably curtailed and
themselves with proper decorum and observe the trial
validly restrained?
process. (Secretary of Justice v. Estrada, A.M. No. 01-4-03-
SC, Sept. 13, 2001)
A: YES. In Soriano v. MTRCB, G.R. No. 165636, Apr. 29, 2009,
the Court, applying the balancing of interest doctrine, ruled
--- that the government’s interest to protect and promote the
Q: In 2011, the Supreme Court promulgated a Resolution interests and welfare of the children adequately buttresses
partially granting pro hac vice the request for live broadcast the reasonable curtailment and valid restraint on
by television and radio of the trial court proceedings of the petitioner’s prayer to continue as
“Maguindanao massacre”

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 BILL OF RIGHTS – FREEDOM OF ASSEMBLY AND PETITON

program host of Ang Dating Daan during the suspension not impose unreasonable requirements for
period. Soriano’s offensive and obscene language uttered advertising and promotion while RIRR imposes an
on prime-time television broadcast, without doubt, was absolute ban on such activities for breastmilk
easily accessible to the children. His statements could substitutes intended for infants from 0-24 months
have exposed children to a language that is unacceptable old or beyond, and forbids the use of health and
in everyday use. As such, the welfare of children and the nutritional claims. Were the labeling requirements
State’s mandate to protect and care for them, as parens and advertising regulations under the RIRR valid?
patriae, constitute a substantial and compelling
government interest in regulating Soriano’s utterances in
TV broadcast. A: YES. Sec. 13 on “total effect” and Sec. 26 of Rule VII of
--- the RIRR contain some labeling requirements, specifically:
a) that there be a statement that there is no substitute to
NOTE: In his dissenting opinion, Justice Carpio cited breastmilk; and b) that there be a statement that powdered
Action for Children's Television v. FCC which establishes infant formula may contain pathogenic microorganisms and
the safe harbor period to be from 10:00 in the evening to must be prepared and used appropriately. Sec. 16 of the
6:00 in the morning, when the number of children in the RIRR prohibits all health and nutrition claims for products
audience is at a minimum. In effect, between the hours of within the scope of the Milk Code, such as claims of
10:00 p.m. and 6:00 a.m., the broadcasting of material increased emotional and intellectual abilities of the infant
considered indecent is permitted. Between the hours of and young child. These provisions of the Milk Code
6:00 a.m. and 10:00 p.m., the broadcast of any indecent expressly forbid information that would imply or create a
material may be sanctioned. belief that there is any milk product equivalent to
breastmilk or which is humanized or maternalized, as such
information would be inconsistent with the superiority of
COMMERCIAL SPEECH breastfeeding. Thus, the RIRR is a reasonable means of
(2012 Bar) enforcing the Milk Code and deterring circumvention of the
protection and promotion of breastfeeding as embodied in
Commercial speech is a separate category of speech the Milk Code. (Pharmaceutical and Health Care Association
which is not accorded the same level of protection as that of the Philippines v. Duque, G.R. No. 173034, Oct. 9, 2007)
given to other constitutionally guaranteed forms of ---
expression but is nonetheless entitled to protection. The
State cannot rob him of this right without violating the PRIVATE VS. GOVERNMENT SPEECH
constitutionally guaranteed freedom of expression.
Unsolicited advertisements are legitimate forms of
expression. (Disini v. Secretary of Justice, G.R. No. 203335, GOVERNMENT SPEECH PRIVATE SPEECH
Feb. 18, 2014)
The government may The right of a person to
Communication which “no more than proposes a advance its own speech freely speak one’s mind is
commercial transaction”. Advertisements of goods or of without requiring a highly valued freedom in
services is an example of this. viewpoint neutrality when a republican and
the government itself is the democratic society
To enjoy protection, commercial speech: speaker (doctrine was (Ashcroft v. Free Speech
1. Must not be false or misleading. (Friedman v. Rogers,
implied in Wooley v. Coalition, 535 U.S. 234
440 US 1, 1979)
2. Should not propose an illegal transaction. Maynard in 1971). (2002)).
(Pittsburgh Press Co. v Human Relations Commissions, 413 US
376, 1973)
HECKLER’S VETO
NOTE: However, even truthful and lawful commercial
(2014 Bar)
speech maybe regulated if:
1. government has a substantial interest to protect;
Occurs when an acting party's right to freedom of speech
2. the regulation directly advances that interest; and
is curtailed or restricted by the government in order to
3. it is not more than extensive than is necessary to
prevent a reacting party's behavior. The term Heckler’s
protect that interest. (Central Hudson Gas & Electric Corp v.
Veto was coined by University of Chicago professor of
Public Service Commission of NY, 447 US 557 (1980))
law Harry Kalven.
---
The “heckler's veto” involves situations in which the
Q: EO 51 (Milk Code) was issued by President Chris
government attempts to ban protected speech because it
Bautista on October 28, 1986 by virtue of the legislative
might provoke a violent response. In such situations, “the
powers granted to the President under the Freedom
mere possibility of a violent reaction to protected speech
Constitution. On May 15, 2006, the DOH issued Revised
is simply not a constitutional basis on which to restrict
Implementing Rules and Regulations (RIRR) which was
the right to speak.” (Roe v. Crawford, 514 F.3d 789 (2008),
to take effect on July 7, 2006. The Association of
Jan. 22, 2008)
Healthcare Workers claimed that the Milk Code only
regulates and does
It may be in the guise of a permit requirement in the
holding of rallies, parades, or demonstrations
conditioned on the payment of a fee computed on the

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basis of the cost needed to keep order in view of the

expected opposition by persons holding contrary views. NOTE: The ruling in Evangelista v. Earnshaw (G.R. No.
(Gorospe, 2006, citing Forsyth County v. Nationalist 36453, Sept. 28, 1932) has not yet been abrogated where
Movement, 315 U.S. 568, 1942) the Mayor revoked permits he already granted because
the group, the Communist Party of the Philippines, was
found by the fiscal to be an illegal association. When the
FREEDOM OF ASSEMBLY AND PETITION intention and effect of the act is seditious, the
constitutional guaranties of freedom of speech and press
and of assembly and petition must yield to punitive
Right of the people to assemble and petition the measures designed to maintain the prestige of
government for redress of grievances constituted authority, the supremacy of the Constitution
and the laws, and the existence of the State.
The right to assembly is not subject to prior restraint. It
may not be conditioned upon the prior issuance of a B.P. 880’s “No permit, No Rally” policy is
permit or authorization from government authorities. constitutional
The right, however, must be exercised in such a way as
will not prejudice the public welfare. BP 880 is constitutional. It does not curtail or unduly
restrict the freedom. It merely regulates the use of public
Permit system places as to the time, place and manner of assemblies.
Far from being insidious, “maximum tolerance” is for the
Before one can use a public place, one must first obtain benefit of the rallyists, not the government. The
prior permit from the proper authorities. Such is valid if: delegation to the mayors of the power to issue rally
1. It is concerned only with the time, place, and manner of “permits” is valid because it is subject to the
assembly; and constitutionally sound “clear and present danger”
2. It does not vest on the licensing authority unfettered standard. (Bayan Karapatan v. Ermita, G.R. No. 169838,
discretion in choosing the groups which could use the public April 25, 2006)
place and discriminate others.
The policy of Calibrated Preemptive Response (CPR)
NOTE: Permits are not required for designated freedom is void on its face
parks.
The Calibrated Preemptive Response Policy is the
Rules on assembly in public places responsible and judicious use of means allowed by
existing laws and ordinances to protect public interest
1. The applicant should inform the licensing authority of the and public order. In view of the maximum tolerance
date, the public place where and the time when the assembly will policy mandated by BP Blg. 880, CPR serves no valid
take place. purpose if it means the same thing as maximum
2. The application should be filed ahead of time to enable the tolerance, and is illegal if it means something else.
public official concerned to apprise whether there are valid Accordingly, what is to be followed is and should be that
objections to the grant of the permit or to its grant, but in mandated by law itself, namely, maximum tolerance,
another public place. The grant or refusal should be based on the which specifically means “the highest degree of restraint
application of the Clear and Present Danger Test. that the military, police and other peace keeping
3. If the public authority is of the view that there is an authorities shall observe during a public assembly or in
imminent and grave danger of a substantive evil, the applicants dispersal of the same (Bayan Karapatan v. Ermita, ibid.).
must be heard on the matter.
4. The decision of the public authority, whether favorable or The outright modification of a permit to rally
adverse, must be transmitted to the applicants at the earliest without informing the applicants is invalid
opportunity so that they may, if they so desire, have recourse to
the proper judicial authority. (Reyes v. Bagatsing, G.R. No. L- In modifying the permit outright, Mayor Soriano gravely
65366, Nov. 9, 1983) abused his discretion when he did not immediately
inform the IBP who should have been heard first on the
Assembly in private properties matter of perceived imminent and grave danger of a
substantive evil that may warrant the changing of the
Only the consent of the owner of the property or person venue. Mayor Soriano failed to indicate how he had
entitled to possession thereof is required. arrived at modifying the terms of the permit against the
standard of clear and present danger which is an
Tests applicable to the exercise of the right to indispensable condition to such modification. (IBP v.
assembly Atienza GR No. 175241 Feb. 24, 2010)

1. Purpose Test – Looks into the purpose of the ---

assembly regardless of its backers. (De Jonge v. Q: Employees of the Davao City Water District (DCWD)
Oregon, 299 US 353, 365, 1937) sported t-shirts with inscriptions "CNA Incentive Ihatag
2. Auspices Test – Looks into Na, Dir. Braganza Pahawa Na!" at the beginning of the
the
backers/supporters. Fun Run during the DCWD’s anniversary celebration.
These employees have likewise been staging pickets in
front of the DCWD

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2017 GOLDEN NOTES
 BILL OF RIGHTS – FREEDOM OF RELIGION

Office during their lunch breaks to air their Purpose of the non-establishment clause
grievances about the non-payment of their Collective
Negotiation Agreement (CNA) incentives and their 1. Protects voluntarism
opposition to DCWD's privatization. Consequently, 2. Insulation of political process from interfaith
their General Manager sent them a Memo requiring dissension
them to explain the reasons for the attire they wore
during the anniversary celebration/fun run. The NOTE: Voluntarism, as a social value, means that the
employees countered that the inscriptions were but growth of a religious sect as a social force must come
manifestations of their constitutional rights of free from the voluntary support of its members because of
speech and freedom of expression. Are the the belief that both spiritual and secular society will
employees’ contention correct? benefit if religions are allowed to compete on their own
intrinsic merit without benefit of official patronage. Such
A: YES. It is clear that the collective activity of joining the voluntarism cannot be achieved unless the political
fun run in t-shirts with inscriptions on CNA incentives was process is insulated from religion and unless religion is
not to effect work stoppage or disrupt the service. As insulated from politics. Non establishment assures such
pointed out by the respondents, they followed the advice of insulation and thereby prevents interfaith dissention.
GM Gamboa “to be there” at the fun run. Respondents joined, (Bernas, S.J., 2011).
and did not disrupt the fun run. They were in sports attire
that they were allowed, nay required, to wear. Else, Constitutionally created exceptions to the non-
government employees would be deprived of their establishment clause
constitutional right to freedom of expression. This, then,
being the fact, we have to rule against the findings of both 1. Art. 6, Sec.29 (prohibition on appropriation of
the CSC and Court of Appeals that the wearing of t-shirts public money or property for the use, benefit or support
with grievance inscriptions constitutes as a violation of of any religion)
Reasonable Office Rules and Regulations. (Davao City Water 2. Art. 6, Sec. 28 (3) (exemption from taxation of
District v. Aranjuez, G.R. No. 194192, June 16, 2015) properties actually, directly and exclusively used for
--- religious purposes
3. Art. 14, Sect. 3 (3) (optional religious instruction
in public elementary and high schools)
FREEDOM OF RELIGION

NOTE: Religious instruction in public schools:

Religion a. At the option of parents/guardians expressed
in writing;
A profession of faith to an active power that binds and b. Within the regular class hours by instructors
elevates man to his creator. (Aglipay v. Ruiz, GR. No. L- designated or approved by religious authorities of the
45459, Mar. 13, 1937) religion to which the children belong;
c. Without additional costs to the government
Guarantees contained in Sec. 5 Art. III of the 1987
Constitution (1996, 1997, 1998, 2003, 2009, 2012 4. Art. 14, Sec. 4 (2) (citizenship requirement of
Bar) ownership of educational institutions, except those
established by religious groups and mission boards)
1. Non-establishment clause; 5. Art. 6, Sec. 29 (2) (appropriation allowed where
2. Free exercise clause. ecclesiastic is employed in armed forces, in a penal
institution, or in a government-owned orphanage or
NON-ESTABLISHMENT CLAUSE leprosarium)

Art. III, Sec. 5 “No law shall be made respecting an Exceptions to the non-establishment clause as held
establishment of religion, or prohibiting the free exercise by jurisprudence
thereof.”
1. Government sponsorship of town fiestas, some
NOTE: The non- establishment clause means that the purely religious traditions have now been considered as
state should adopt a “position of neutrality” when it having acquired secular character (Garces v. Estenzo, G.R.
comes to religious matters (Political Law Reviewer, No. L-53487, May 25, 1981); and
Suarez, p. 252 citing CJ Fernando, 2011). The non- 2. Postage stamps depicting Philippines as the venue
establishment clause bars the State from establishing, of a significant religious event – benefit to the religious
through laws and rules, moral standards according to a sect involved was merely incidental as the promotion of
specific religion. Prohibitions against immorality should Philippines as a tourist destination was the primary
be based on a purpose that is independent of religious objective. (Aglipay v. Ruiz, G.R. No. L-45459 March 13,
beliefs. When it forms part of our laws, rules, and 1937)
policies, morality must be secular. Laws and rules of
conduct must be based on a secular purpose. (Perfecto v. ACTS PERMITTED AND
Judge Esidera, A.M. No. RTJ-15-2417, July 22, 2015) NOT PERMITTED BY THE CLAUSE

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cannot prove what he believes. (Iglesia ni Cristo v.

The non-establishment clause states that the State CA, G.R. No. 119673 July 26, 1996)
cannot:
2. Right to act on one’s belief, which is subject to
1. Set up a church regulation.
2. Pass laws which aid one or all religions or prefer one
over another Where the individual externalizes his beliefs in acts or
3. Influence a person to go to or stay away from church omissions that affect the public, his freedom to do so
against his will becomes subject to the authority of the State. As great
4. Force him to profess a belief or disbelief in any religion as this liberty may be, religious freedom, like all the
other rights guaranteed in the Constitution, can be
Constitutional provisions which express the non- enjoyed only with a proper regard for the rights of
establishment clause others.

1. Art. VI, Sec. 29 No public money/property given to The inherent police power can be exercised to
religious sect or minister/religious personnel (except for those prevent religious practices inimical to society. And
assigned to army, penal institution, government orphanage and this is true even if such practices are pursued out of
leprosarium) sincere religious conviction and not merely for the
2. Art. II, Sec. 6 Separation of church and state is inviolable purpose of evading the reasonable requirements or
3. Art. IX(C), Sec. 2 (5) No religious sects can be registered prohibitions of the law.
as political parties
The constitutional provision on religious freedom
TEST terminated disabilities, it did not create new
privileges. It gave religious liberty, not civil
Lemon test immunity. Its essence is freedom from conformity to
religious dogma, not freedom from conformity to law
A test to determine whether an act of the government because of religious dogma.
violates the non-establishment clause.
Accordingly, while one has lull freedom to believe in
To pass the Lemon test, a government act or policy must: Satan, he may not offer the object of his piety a
1. Have a secular purpose; human sacrifice, as this would be murder. Those
2. Not promote or favor any set of religious beliefs or who literally interpret the Biblical command to "go
religion generally; and forth and multiply" are nevertheless not allowed to
3. Not get the government too closely involved contract plural marriages in violation of the laws
(“entangled”) with religion. (Lemon v. against bigamy. A person cannot refuse to pay taxes
Kurtzman, 403 U.S. 602, June 28, 1971) on the ground that it would be against his religious
tenets to recognize any authority except that of God
FREE EXERCISE CLAUSE alone. An atheist cannot express in his disbelief in
act of derision that wound the feelings of the
Aspects of freedom and enjoyment of religious faithful. The police power can validly asserted
profession and worship against the Indian practice of the suttee, born of
deep religious conviction, that calls on the widow to
immolate herself at the funeral pile of her husband
1. Right to believe, which is absolute; and
(Ibid.).
The individual is free to believe (or disbelieve) as he
pleases concerning the hereafter. He may indulge ---
his own theories about life and death; worship any Q: The petitioners Diocese of Bacolod et al. posted 2
god he chooses, or none at all; embrace or reject any tarpaulins within a private compound housing the San
religion; acknowledge the divinity of God or of any Sebastian Cathedral of Bacolod. One tarp contained the
being that appeals to his reverence; recognize or message “Ibasura RH Law” while the other tarp
deny the immortality of his soul -- in fact, cherish contained the words “Team Buhay” and “Team Patay”,
any religious conviction as he and he alone sees fit. classifying the electoral candidates according to their
vote on the adoption of the RH Law. The COMELEC
issued an order and letter ordering the immediate
However absurd his beliefs may be to others, even if
removal of the tarpaulin, otherwise it will be
they be hostile and heretical to the majority, he has
constrained to file an election offense against the
full freedom to believe as he pleases. He may not be
petitioners. Petitioners contend that the order to
required to prove his beliefs. He may not be
remove the tarps constitutes an infringement on
punished for his inability to do so. Religion, after all,
freedom of speech and violates the separation of church
is a matter of faith. "Men may believe what they
and state.
cannot prove." Everyone has a right to his beliefs
and he may not be called to account because he a. Did the order violate the separation of church
and state?
b. Did the order violate petitioner’s rights to
freedom of expression?
UNIVERSITY OF SANTO TOMAS
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 BILL OF RIGHTS – FREEDOM OF RELIGION

A: Benevolent neutrality is an approach that looks further

a. NO. The tarpaulin and its message are not religious than the secular purposes of government action and
speech. Art. III, Sec. 5 of the Constitution has two aspects: examines the effect of these actions on religious exercise.
first, the non-establishment clause; second, the free Benevolent neutrality recognizes the religious nature of
exercise and enjoyment of religious profession and the Filipino people and the elevating influence of religion
worship. The second aspect is the issue in this case. in society; at the same time, it acknowledges that
Clearly, not all acts done by those who are priests, government must pursue its secular goals. In pursuing
bishops, ustadz, imams, or any other religious make such these goals, however, government might adopt laws or
act immune from any secular regulation. The religious actions of general applicability which inadvertently
also have a secular existence. They exist within a society burden religious exercise. Benevolent neutrality gives
that is regulated by law. room for accommodation of these religious exercises as
required by the Free Exercise Clause. It allows these
breaches in the wall of separation to uphold religious
The Bishop of Bacolod caused the posting of the
liberty, which after all is the integral purpose of the
tarpaulin. But not all acts of a bishop amounts to
religion clauses. (Estrada v. Escritor, A.M. No. P-02-1651,
religious expression. This notwithstanding petitioners’
Aug. 4, 2003)
claim that "the views and position of the petitioners, the
Bishop and the Diocese of Bacolod, on the RH Bill is
CLEAR AND PRESENT DANGER TEST
inextricably connected to its Catholic dogma, faith, and
moral teachings”. The tarpaulin, on its face, "does not
convey any religious doctrine of the Catholic church." The question in every case is whether the words used
That the position of the Catholic church appears to are used in such circumstances and are of such a nature
coincide with the message of the tarpaulin regarding the as to create a clear and present danger that they will
RH Law does not, by itself, bring the expression within bring about the substantive evils that Congress has a
the ambit of religious speech. On the contrary, the right to prevent. (Schenck v. United States, 249 U.S. 47,
tarpaulin clearly refers to candidates classified under 1919)
"Team Patay" and "Team Buhay" according to their
respective votes on the RH Law. NOTE: The test can be applied with regard to the
Freedom of Religion when what is involved is religious
speech as this is often used in cases of freedom of
b. YES. The COMELEC is incorrect in assuming that the
expression.
tarps are election propaganda. While the tarpaulin may

influence the success or failure of the named candidates

COMPELLING STATE INTEREST TEST
and political parties, this does not necessarily mean it is
(2013 Bar)
election propaganda. The tarpaulin was not paid for or
posted "in return for consideration" by any candidate,
Used to determine if the interests of the State are
political party, or party-list group.
compelling enough to justify infringement of religious
freedom. It involves a three-step process:
COMELEC had no legal basis to regulate expressions 1. Has the statute or government action created a
made by private citizens. COMELEC cites the burden on the free exercise of religion? – Courts often
Constitution, laws, and jurisprudence to support their look into the sincerity of the religious belief, but
position that they had the power to regulate the without inquiring into the truth of the belief since
tarpaulin. However, all of these provisions pertain to the free exercise clause prohibits inquiring about its
candidates and political parties. Petitioners are not truth.
candidates. Neither do they belong to any political party. 2. Is there a sufficiently compelling state interest to
COMELEC does not have the authority to regulate the justify this infringement of religious liberty? – In this
enjoyment of the preferred right to freedom of step, the government has to establish that its
expression exercised by a non-candidate in this case. purposes are legitimate for the State and that they
are compelling.
Every citizen’s expression with political consequences 3. Has the State in achieving its legitimate purposes
enjoys a high degree of protection. We have also ruled used the least intrusive means possible so that the
that the preferred freedom of expression calls all the free exercise is not infringed any more than necessary
more for the utmost respect when what may be curtailed to achieve the legitimate goal of the State? – The
is the dissemination of information to make more analysis requires the State to show that the means
meaningful the equally vital right of suffrage. Speech in which it is achieving its legitimate State objective
with political consequences is at the core of the freedom is the least intrusive means, or it has chosen a way
of expression and must be protected by this court to achieve its legitimate State end that imposes as
(Diocese of Bacolod v. COMELEC, G.R. No. 205728, Jan. 21, little as possible intrusion on religious beliefs.
2015).
--- NOTE: The Compelling State Interest test is used in cases
involving purely conduct based on religious belief.

TESTS

Benevolent Neutrality Approach

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gays, bisexuals, or transgendered individuals

CONSCIENTIOUS OBJECTOR TEST (LGBTs). Ang Ladlad applied for registration with the
COMELEC to participate in the party-list elections.
Conscientious objector The COMELEC dismissed the petition on moral
grounds, stating that definition of sexual orientation
An "individual who has claimed the right to refuse to of the LGBT sector makes it crystal clear that
perform military service on the grounds of freedom of petitioner tolerates immorality which offends
thought, conscience, and/or religion. (International religious beliefs based on the Bible and the Koran.
Covenant on Civil and Political Rights, Art. 18) Ang Ladlad argued that the denial of registration,
insofar as it justified the exclusion by using religious
Requisites for one to be considered a conscientious dogma, violated the constitutional guarantees
objector against the establishment of religion. Is this
argument correct?
1. The person is opposed to war in any form
2. He must show that this opposition is based upon A: YES. It was grave violation of the non-establishment
religious training and belief clause for the COMELEC to utilize the Bible and the Koran to
3. And he must show that this objection is sincere. (Clay justify the exclusion of Ang Ladlad. Our
v. United States, 403 U.S.698 (1971) Constitution provides in Art. III, Sec. 5 that “no law shall
be made respecting an establishment of religion, or
--- prohibiting the free exercise thereof.” At bottom, what
Q: Angel, a court interpreter, is living with a man not her our non-establishment clause calls for is government
husband. Ben filed an administrative case against Angel as neutrality in religious matters. Clearly, governmental
he believes that she is committing an immoral act that reliance on religious justification is inconsistent with this
tarnishes the image of the court, thus she should not be policy of neutrality. (Ang Ladlad v. COMELEC, G.R. No.
allowed to remain employed therein as it might appear that 190582, Apr. 8, 2010)
the court condones her act. Angel admitted that she has ---
been living with a man without the benefit of marriage for
twenty years and that they have a son. But as a member of NOTE: When the law speaks of immoral or, necessarily,
the religious sect known as the Jehovah’s Witnesses, the disgraceful conduct, it pertains to public and secular
Watch Tower and Bible Tract Society, their conjugal morality; it refers to those conducts which are
arrangement is in conformity with their religious beliefs. In proscribed because they are detrimental to conditions
fact, after ten years of living together, she executed on July upon which depend the existence and progress of human
28, 1991 a society. (Leus v. St. Scholastica’s College Westgrove, G.R.
“Declaration of Pledging Faithfulness. Should Angel’s No. 187226, January 28, 2015)
right to religious freedom carve out an exception
from the prevailing jurisprudence on illicit relations
The government must act for secular purposes and in
for which government employees are held
ways that have primarily secular effects. That is, the
administratively liable?
government proscribes this conduct because it is
"detrimental (or dangerous) to those conditions upon
A: YES. Angel’s conjugal arrangement cannot be penalized as
which depend the existence and progress of human
she has made out a case for exemption from the law based on her
society" and not because the conduct is proscribed by the
fundamental right to freedom of religion. The Court recognizes
beliefs of one religion or the other. (Estrada v. Escritor,
that the State’s interests must be upheld in order that freedom –
A.M. No. P-02-1651, June 22, 2006.)
including religious freedom – may be enjoyed. In the area of
religious exercise as a preferred freedom, however, man stands
accountable to an authority higher than the State, and so the ---
State interest sought to be upheld must be so compelling that its Q: The petitioners, led by Mylene, members of the
violation will erode the very fabric of the State that will also Philippine Independent Church, clamored for the
protect the freedom. In the absence of showing that such State transfer of Fr. B to another parish but Bishop Kevin
interest exists, man must be allowed to subscribe to the Infinite. denied their request. The problem was compounded
Furthermore, our Constitution adheres to the Benevolent when Bishop Kevin told Mylene not to push through
Neutrality approach that gives room for accommodation of with his plan to organize an open mass to be celebrated
religious exercises as required by the Free Exercise by Fr. Garry during the town fiesta of Socorro. Bishop
Clause. The benevolent neutrality doctrine allows Kevin failed to stop Mylene from proceeding with her
accommodation of morality based on religion, provided plan. Mylene and her sympathizers proceeded with their
it does not offend compelling state interests. (Estrada v. plan. Subsequently, Bishop Kevin declared petitioners
Escritor, A.M. No. P-02-1651, June 22, 2006) expelled/excommunicated from the Philippine
--- Independent Church. Petitioners filed a complaint for
--- damages with preliminary Injunction against Bishop
Q: Ang Ladlad is an organization composed of men and Kevin. Is it within the jurisdiction of the courts to hear
women who identify themselves as lesbians, the case involving the expulsion/excommunication of
members of a religious institution?

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 BILL OF RIGHTS – LIBERTY OF ABODE AND FREEDOM OF MOVEMENT

A: NO. The church and the state are separate and distinct
from each other. Said matter involving the LIBERTY OF ABODE AND FREEDOM OF MOVEMENT
expulsion/excommunication of members of the Philippine
Independent Church should be left to the discretion of the
officials of said religious institution in line with the doctrine Rights guaranteed under Sec. 6 of the Bill of Rights
that the court should not interfere on doctrinal and (1991, 1996, 1998, 2012 Bar)
disciplinary differences. (Dominador Taruc v. Bishop Dela
Cruz, GR. No. 044801, Mar. 10, 2005) 1. Freedom to choose and change one’s place of
--- abode; and
--- 2. Freedom to travel within the country and
Q: Shery, Julia, Paula, Joanne, Lisette and Angela outside.
were minor school children and member of the sect,
Jehovah’s Witnesses. They were expelled from their Liberty of abode
classes by various public school authorities for
refusing to salute the flag, sing the national anthem Right of a person to have his home or to maintain or
and recite the “Panatang Makabayan” required by change his home, dwelling, residence or habitation in
RA 1265. According to them, the basic assumption in whatever place he has chosen, within the limits
their universal refusal to salute the flags of the prescribed by law.
countries in which they are found is that such a
salute constitutes an act of religious devotion LIMITATIONS
forbidden by God's law and that their freedom of
religion is grossly violated. On the other hand, the The liberty of abode may be impaired only:
public authorities claimed that the freedom of a. Upon lawful order of the court and;
religious belief guaranteed by the Constitution does b. Within the limits prescribed by law.
not mean exception from non-discriminatory laws
like the saluting of flag and the singing of the Examples:
national anthem. To allow otherwise would 1. Persons in the danger zone areas (e.g. Mt. Pinatubo,
disrupt school discipline and demoralize the Taal Volcano) may be relocated to safer areas and
teachings of civic consciousness and duties of evacuation centers in case of danger and emergency to
citizenship. Is the expulsion justified? save lives and property.
2. Insane persons who roam around in Roxas
A: NO. Religious freedom is a fundamental right of Boulevard may be committed by the government to the
highest priority. The two- fold aspect of right to religious National Mental Hospital for appropriate treatment and
worship is: 1.) Freedom to believe which is an absolute act medical attention.
within the realm of thought. 2.) Freedom to act on one’s
belief regulated and translated to external acts. The only NOTE: Under Sec. 6, Art. III of the Constitution, a lawful
limitation to religious freedom is the existence of grave and order of the court is required before the liberty of abode
present danger to public safety, morals, health and interests and of changing the same can be impaired.
where State has right to prevent. The expulsion of the
petitioners from the school is not justified. RIGHT TO TRAVEL
In the case at bar, the students expelled are only standing Right of a person to go where he pleases without
quietly during ceremonies. By observing the ceremonies interference from anyone.
quietly, it doesn’t present any danger so evil and
imminent to justify their expulsion. The expulsion of the The limitations on the right to travel
students by reason of their religious beliefs is also a
violation of a citizen’s right to free education. The non-
a. Interest of national security;
observance of the flag ceremony does not totally
b. Public safety;
constitute ignorance of patriotism and civic
c. Public health.
consciousness. Love for country and admiration for
national heroes, civic consciousness and form of
NOTE: With respect to the right to travel, it is settled that
government are part of the school curricula. Therefore,
only a court may issue a hold departure order against an
expulsion due to religious beliefs is unjustified.
individual addressed to the Bureau of Immigration and
(Ebralinag v. Division Superintedent of Cebu, G.R.No.
Deportation. However, administrative authorities, such
as passport-officers, may likewise curtail such right in
95770, March 1, 1993) the interest of national security, public safety, or public
--- health, as may be provided by law.

DPWH may validly ban certain vehicles on

expressways in consideration of constitutional
provisions of right to travel

The right to travel does not mean the right to choose any
vehicle in traversing a toll way. The right to travel refers
to the right to move from one place to another. Travelers

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can traverse the toll way any time they choose using 1. Against the accused, irrespective of nationality, in
private or public four-wheeled vehicles. Petitioners are criminal cases pending trial before the RTCs or before courts
not denied the right to move from Point A to Point B below the RTCs.
along the toll way. Anyone are free to access the toll way, 2. Against the respondent, irrespective of nationality,
much as the rest of the public can. The mode by which in criminal cases pending preliminary investigation, petition
one wishes to travel pertains to the manner of using the for review, or motion for reconsideration before the DOJ or
toll way, a subject that can be validly limited by any of its provincial or city prosecution offices.
regulation. (Mirasol v. DPWH, G.R. No. 158793, June 8,
2006) The Secretary of Justice may likewise issue a WLO
against any person, either on his own, or upon the
--- request of any government agency, including
Q: PASEI is engaged in the recruitment of Filipino workers, commissions, task forces or similar entities created by
male and female, for overseas employment. It challenged the Office of the President, pursuant to the "Anti-
the validity of Department Order 1 of the Department of Trafficking in Persons Act of 2003" (R.A. No. 9208)
Labor and Employment (DOLE) because it suspends the and/or in connection with any investigation being
deployment of female domestic and household workers in conducted by it, or in the interest of national security,
Iraq, Jordan and Qatar due to growing incidence of physical public safety or public health. (Sec. 2, DOJ Circ. 41, s.2010)
and personal abuses to female overseas workers. PASEI
contends that it impairs the constitutional right to travel. Is NOTE: A WLO is good for 60 days (Sec. 4, DOJ Circ. 41,
the contention correct? and s.2010).

A: NO. The deployment ban does not impair the right to travel. The Watch List Order may be lifted or cancelled
The right to travel is subject, among other things, to the under any of the following grounds:
requirements of "public safety," "as may be provided by law."
Department Order No. 1 is a valid implementation of the Labor 1. When the validity period of the WLO has already
Code, in particular, its basic policy to "afford protection to labor," expired;
pursuant to the Department of Labor's rule-making authority 2. When the accused subject of the WLO has been
vested in it by the Labor Code. The petitioner assumes that it is allowed by the court to leave the country during the
unreasonable simply because of its impact on the right to travel, pendency of the case, or has been acquitted of the charge;
but as we have stated, the right itself is not absolute. The 3. When the preliminary investigation is terminated,
disputed Order is a valid qualification thereto. (Philippine or when the petition for review, or motion for
Association of Service Exporters, Inc. v. Drilon, G.R. No. 81958, June reconsideration has been denied and/or dismissed.
30, 1988)
--- Hold Departure Order (HDO)

A member of the military cannot travel freely to An order issued to prevent an individual from travelling.
other places apart from his command post It may be issued by the Secretary of Justice motu proprio
or upon request, under any of the following
Mobility of travel is another necessary restriction on circumstances:
members of the military. A soldier cannot leave his/her
post without the consent of the commanding officer. The 1. Against the accused, irrespective of nationality, in
reasons are self-evident. The commanding officer has to criminal cases falling within the jurisdiction of courts below
be aware at all times of the location of the troops under the Regional Trial Courts (RTCs):
command, so as to be able to appropriately respond to
any exigencies. For the same reason, commanding i. If the case against the accused is pending trial, the
officers have to be able to restrict the movement or application under oath of an interested party must be
travel of their soldiers, if in their judgment, their supported by (a) a certified true copy of the complaint or
presence at place of call of duty is necessary. At times, information; and (b) a Certification from the Clerk of Court
this may lead to unsentimental, painful consequences, concerned that criminal case is still pending.
such as a soldier being denied permission to witness the
birth of his first-born, or to attend the funeral of a parent. ii. If the accused has jumped bail or has become a
Yet again, military life calls for considerable personal fugitive from justice, the application under oath of an
sacrifices during the period of conscription, wherein the interested party must be supported by (a) a certified true
higher duty is not to self but to country. (Gudani v. Senga, copy of the complaint or information; (b) a certified true
G.R. No. 170165, Aug. 15, 2006) copy of the warrant/order of arrest; and (c) a Certification
from the Clerk of Court concerned that the warrant/order of
WATCH-LIST AND HOLD DEPARTURE ORDERS arrest was returned unserved by the peace officer to whom
the same was delivered for service.
Watch-list order (WLO)

Order issued to prevent an individual from travelling. It

may be issued by the Secretary of Justice motu proprio or
upon request, under any of the following circumstances:

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 BILL OF RIGHTS – RIGHT TO INFORMATION ON MATTERS OF PUBLIC CONCERN

2. Against the alien whose presence is required either considered as a generally accepted principle of
as a defendant, respondent, or witness in a civil or labor case International law, and under the Constitution, is part of
pending litigation, or any case before a quasi-judicial or an the law of the land. However, it is distinct and separate
administrative agency of the government. from the right to travel and enjoys a different protection
under the Int’l Covenant of Civil and Political Rights.
The application under oath of an interested party (Marcos v. Manglapus, G.R. No. 88211, Sept. 15, 1989 &
must be supported by Oct. 27, 1989)
a) a certified true copy of the subpoena or
summons issued against the alien; and
b) a certified true copy complaint in civil, labor RIGHT TO INFORMATION ON MATTERS OF PUBLIC
or administrative case where the presence of the alien is CONCERN
required.”

The Secretary may likewise issue an HDO against any Rationale

person, either on his own, or upon the request by the
Head of a Department of the Government, the head or a The purpose is to promote transparency in policy-
constitutional body or commission, the Chief Justice of making and in the operations of the government, as well
the Supreme Court for the Judiciary, the Senate President as provide the people sufficient information to exercise
or the House Speaker for the Legislature, when the effectively other constitutional rights. Armed with the
adverse party is the Government or any of its agencies or right information, citizens can participate in public
instrumentalities, or in the interest of national security, discussions leading to the formulation of government
public safety or public health.” (Sec. 1, DOJ Circ. 41, policies and their effective implementation. An informed
s.2010) citizenry is essential to the existence and proper
functioning of any democracy. (IDEALs v. PSALM, G.R. No.
NOTE: A HDO is valid for 5 years from issuance. 192088, Oct. 9, 2012)

The Hold Departure Order can be lifted or cancelled Three categories of information :
as follows:
1. official records;
1. When the validity period of the HDO has 2. documents and papers pertaining to official
already expired; acts, transactions and decisions; and
2. When the accused subject of the HDO has been 3. government research data used in formulating
allowed to leave the country during the pendency of the policies. (Section 7, Article 3, 1987 Constitution).
case, or has been acquitted of the charge, or the case in
which the warrant/order of arrest was issued has been
dismissed or the warrant/order of arrest has been recalled; NOTE: The right only affords access to records,
3. When the civil or labor case or case before an documents and papers, which means the opportunity to
administrative agency of the government wherein the inspect and copy them at his expense. The exercise is
presence of the alien subject of the HDO/WLO has been also subject to reasonable regulations to protect the
dismissed by the court or by appropriate government integrity of public records and to minimize disruption of
agency, or the alien has been discharged as a witness government operations.
therein, or the alien has been allowed to leave the country.
Electoral Debates
Note: A watch-list order doesn’t totally bar a person
from travelling. A person listed in the WLO must obtain a Q: The online news agency Rappler, Inc. sued
clearance to be able to travel. In contrast, a hold- COMELEC Chair Bautista for breach of contract
departure order totally prevents a person from traveling. (MOA) in disallowing the former to stream online the
coverage of the 2016 presidential and vice-
RETURN TO ONE’S COUNTRY presidential debates. Does Rappler, Inc. have a cause
of action against Chair Bautista?
Q: Ferdinand Marcos, in his deathbed, has signified
his desire to return to the Philippines to die. But A: YES. Aside from the fact that Chair Bautista clearly
President Corazon Aquino barred the return of Marcos breached an express stipulation of the MOA allowing
and his family. The Marcoses invoke their right to Rappler, Inc. to stream online the coverage of the
return. Is the right to return a constitutionally protected debates, the presidential and vice-presidential debates
right? are held primarily for the benefit of the electorate to
assist the electorate in making informed choices on
A: NO. The right to return to one’s country is not among election day. Through the conduct of the national debates
the rights specifically guaranteed in the Bill of Rights, which among presidential and vice-presidential candidates, the
treats only of the liberty of abode and the right to travel. electorate will have the "opportunity to be informed of
Nevertheless, the right to return may be the candidates' qualifications and track record, platforms
and programs, and their answers to significant issues of
national concern." The political nature of the national
debates and the public's interest in the wide availability
of the information for the voters'

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education certainly justify allowing the debates to be recommendations submitted for the President’s
shown or streamed in other websites for wider consideration be well-thought out and well-deliberated.
dissemination. (Rappler, Inc. v. Bautista, G.R. No. 222702, A President and those who assist him must be free to
April 5, 2016) explore alternatives in the process of shaping policies
and making decisions and to do so in a way many would
LIMITATIONS be unwilling to express except privately. Without doubt,
therefore, ensuring and promoting the free exchange of
GR: The access must be for a lawful purpose and is ideas among the members of CTRM tasked to give tariff
subject to reasonable conditions by the custodian of the recommendations to the President were truly
records. imperative. (Sereno v. Committee on Tariff and Related
Matters of the NEDA, G.R. No. 175210, Feb. 1, 2016)
XPNs: ---
The right does not extend to the following:
1. Information affecting national security, military and PUBLICATION OF LAWS AND REGULATIONS
diplomatic secrets. It also includes inter-
government exchanges prior to consultation of Rationale for Publication of Laws
treaties and executive agreement as may reasonably
protect the national interest (2009 Bar) There is a need for publication of laws to reinforce the
2. Matters relating to investigation, apprehension, and right to information. In Tañada v. Tuvera, the Court said
detention of criminals which the court may not inquire into prior that Laws must come out in the open in the clear light of
to arrest, prosecution and detention the sun instead of skulking in the shadows with their
3. Trade and industrial secrets and other banking transactions dark, deep secrets. Mysterious pronouncements and
as protected by the Intellectual Property Code and the Secrecy of rumored rules cannot be recognized as binding unless
Bank Deposits Act their existence and contents are confirmed by a valid
4. Other confidential information falling under the scope of the publication intended to make full disclosure and give
Ethical Safety Act concerning classified information. (Chavez v. proper notice to the people.
PCGG, G.R. No. 130716, Dec. 9, 1998)
Publication of regulations
---
Q: Wilfredo, filed in his capacity as a citizen and as a Publication is necessary to apprise the public of the
stakeholder in the industry involved in importing contents of penal regulations and make the said penalties
petrochemicals, filed a mandamus petition to compel the binding on the persons affected thereby. (Pesigan v.
Committee on Tariff and Related Matters (CTRM) to provide Angeles G.R. No. L-6427, April 30, 1984)
him a copy of the minutes of its May 23, 2005 meeting; as
well as to provide copies of all official records, documents, ACCESS TO COURT RECORDS
papers and government research data used as basis for the
issuance of Executive Order No. 486 which lifted the Q: During the pendency of the intestate proceedings,
suspension of the tariff reduction schedule on O’jay, a creditor of the deceased, filed a motion with a
petrochemicals. Wilfredo based his action on the prayer that an order be issued requiring the Branch
constitutional right to information on matters of public Clerk of Court to furnish him with copies of all
concern and the State’s policy of full public disclosure. Will
processes and orders and to require the
the petition prosper? administrator to serve him copies of all pleadings in
the proceedings. The judge denied the motion
A: NO. The constitutional guarantee to information does not because the law does not give a blanket authority to
open every door to any and all information, but is rather any person to have access to official records and
confined to matters of public concern. It is subject to such documents and papers pertaining to official acts. The
limitations as may be provided by law. The judge said that his interest is more of personal than
State’s policy of full public disclosure is restricted to of public concern. Is the judge correct?
transactions involving public interest, and is tempered
by reasonable conditions prescribed by law. Two A: NO. The right to information on matters of public
requisites must concur before the right to information concern is a constitutional right. However, such is not
may be compelled by writ of mandamus. Firstly, the absolute. Under the Constitution, access is subject to
information sought must be in relation to matters of limitations as may be provided by law. Therefore, a law may
public concern or public interest. And, secondly, it must exempt certain types of information from public scrutiny
not be exempt by law from the operation of the such as national security. The privilege against disclosure is
constitutional guarantee. In this case, the information recognized with respect to state secrets bearing on the
sought by Wilfredo are classified as a closed-door military, diplomatic and similar matters. Since intestate
Cabinet meeting by virtue of the CTRM’s composition proceedings do not contain any military or diplomatic
and the nature of its mandate dealing with matters of secrets which will be disclosed by its production, it is an
foreign affairs, trade and policy-making. It is always error on the part of the judge to deny
necessary, given the highly important and complex O’jay’s motion. (Hidalgo v. Reyes, AM No. RTJ-05-1910,
powers to fix tariff rates vested in the President, that the Apr. 15, 2005)

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 BILL OF RIGHTS – RIGHT OF ASSOCIATION

inspect and copy them. The exercise of the right is also

subject to reasonable regulations to protect the integrity
RIGHT TO INFORMATION RELATIVE TO: of the public records and to minimize disruption to
government operations.

GOVERNMENT CONTRACT NEGOTIATIONS The constitutional right to information includes official

information on on-going negotiations before a final
--- contract. The right to information, however, does not
Q: The Public Estates Authority, a government extend to matters recognized as privileged information
agency tasked to reclaim, develop and sell reclaimed under the separation of powers. The right does not also
lands, entered into a Joint Venture Agreement with apply to information on military and diplomatic secrets,
AMARI to develop the Freedom Islands in the reclaimed information affecting national security, and information
Paranaque-Cavite area. The Senate conducted an on investigations of crimes by law enforcement agencies
investigation which found that the reclaimed lands PEA before the prosecution of the accused, which courts have
seeks to transfer under the JVA are lands of public long recognized as confidential. The right may also be
domain and that the JVA itself is illegal. Frank Chavez subject to other limitations that Congress may impose by
contends that the government stands to lose billions of law. (Chavez v. PEA, G.R. No. 133250, July 9, 2002)
pesos in the sale by PEA of the reclaimed lands to ---
AMARI. He prays that PEA must publicly disclose the ---
terms of any renegotiation of the JVA, invoking the right Q: PSALM commenced the privatization of Angat
of the people to information on matters of public Hydro-Electric Power Plant. Korea Water Resources
concern. PEA asserts that in cases of on-going Corporation won in the public bidding. IDEALS then
negotiations, the right to information is limited to requested for detailed information regarding the
“definite propositions of the government.” PEA winning bidder, such as company profile, contact
maintains that the right does not include access to person or responsible officer, office address and
“intra-agency/inter-agency communications during the Philippine registration but PSALM refused to give
stage when common assertions are still in the such information. May IDEALS compel PSALM to
exploratory age. Is PEA correct? furnish them those pieces of information invoking
their right to information?
A: NO. Information on on-going evaluation or review of
bids or proposals being undertaken by the bidding or review A: YES. The Court distinguished the duty to disclose
committee is not immediately accessible under the right to information from the duty to permit access to information
information. While the evaluation or review is still on-going, on matters of public concern under Sec. 7, Art. III of the
there are no "official acts, transactions, or decisions" on the Constitution. Unlike the disclosure of information which
bids or proposals. However, once the committee makes its is mandatory under the Constitution, the other aspect of
official recommendation, there arises a "definite proposition" the people’s right to know requires a demand or request
on the part of the government. From this moment, the for one to gain access to documents and paper of the
public's right to information attaches, and any citizen can particular agency. Moreover, the duty to disclose covers
access all the non-proprietary information leading to such only transactions involving public interest, while the
definite proposition. duty to allow access has a broader scope of information
which embraces not only transactions involving public
The commissioners of the 1986 Constitutional interest, but any matter contained in official
Commission understood that the right to information communications and public documents of the
"contemplates inclusion of negotiations leading to the government agency. Such relief must be granted to the
consummation of the transaction." Certainly, a party requesting access to official records, documents
consummated contract is not a requirement for the and papers relating to official acts, transactions, and
exercise of the right to information. Otherwise, the decisions that are relevant to a government contract.
people can never exercise the right if no contract is (IDEALs v. PSALM, G.R. No. 192088, Oct. 9, 2012)
consummated, and if one is consummated, it may be too ---
late for the public to expose its defects. ---
Q: The National Housing Authority entered into a
The right covers three categories of information which Joint Venture Agreement with R-II B Inc., to develop a
are "matters of public concern," namely: (1) official housing facility in the Smokey Mountain dumpsite
records; (2) documents and papers pertaining to official and reclamation area. Frank Chavez filed a case
acts, transactions and decisions; and (3) government before the Supreme Court contending that the
research data used in formulating policies. The parties must be compelled to disclose all information
information that petitioner may access on the related to the project. Is NHA compelled to disclose
renegotiation of the JVA includes evaluation reports, such information?
recommendations, legal and expert opinions, minutes of
meetings, terms of reference and other documents A: Art. II compels the State and its agencies to disclose all
attached to such reports or minutes, all relating to the of its transaction involving public interest. Thus, the
JVA. However, the right only affords access to records, government agencies, without need of demand from
documents and papers, which means the opportunity to anyone, must bring into public view all the steps and
negotiations leading to the consummation of the
transaction and the contents of the perfected contract.

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The right to information, however, is not absolute and is the Congress and administrative agencies which dictate
still subject to certain limitations such as privileged the terms and conditions of their employment. The same
communication. is fixed by law and circulars and thus not subject to any
collective bargaining agreement.
It is unfortunate, however, that after almost twenty (20)
years from birth of the 1987 Constitution, there is still no Pursuant to Sec. 4, Rule III of the Rules and Regulations
enabling law that provides the mechanics for the to Govern the Exercise of the Right of Government
compulsory duty of government agencies to disclose Employees to Self-Organization, the terms and
information on government transactions. Hopefully, the conditions of employment in the Government, including
desired enabling law will finally see the light of day if and any of its instrumentalities, political subdivision and
when Congress decides to approve the proposed government owned and controlled corporations with
"Freedom of Access to Information Act." original charters, are governed by law and employees
In the meantime, it would suffice that government therein shall not strike for the purpose of securing
agencies post on their bulletin boards the documents changes thereof (SSS Employees Association v. CA, GR.
incorporating the information on the steps and No. 85279, July 28, 1989). The only available remedy for
negotiations that produced the agreements and the them is to lobby for better terms of employment with
agreements themselves, and if finances permit, to upload Congress. The right to unionize is an economic and labor
said information on their respective websites for easy right while the right to association in general is a civil-
access by interested parties. Without any law or political right.
regulation governing the right to disclose information,
the NHA or any of the respondents cannot be faulted if The right to self-organization is not limited to unionism.
they were not able to disclose information relative to the Workers may also form or join an association for mutual
Smokey Mountain Development to the public in general. aid and protection and for other legitimate purposes.
(Chavez v. National Housing Authority, G.R. No. 164527, (Samahan ng Manggagawa sa Hanjin Shipyard v. Bureau
Aug. 15, 2007) of Labor Relations, G.R. No. 211145, Oct. 14, 2015)
---
---
DIPLOMATIC NEGOTIATIONS Q: Atty. Marcial refuses to pay his member dues to the
Integrated Bar of the Philippines (IBP). IBP
Q: Petitioners request that they be given a copy of the full recommended his removal from the Roll of Attorneys.
text of the JPEPA as well as the offers and negotiations He now argues that his automatic membership in the
between the Philippines and Japan. Can these documents be IBP and mandatory payment of its dues violate his right
disclosed as matters of public concern? NOT to associate. Is his contention correct?

A: It depends. There is a distinction between the text of the A: NO. To compel a lawyer to be a member of the Integrated
treaty and the offers and negotiations. They may compel the Bar is not violative of his constitutional freedom to associate.
government to disclose the text of the treaty but not the offers Integration does not make a lawyer a member of any group
between RP and Japan, because these are negotiations of of which he is not already a member. He became a member
executive departments. Diplomatic Communication negotiation of the Bar when he passed the Bar examinations. All that
is privileged information. (Akbayan v. Aquino, G.R. No. 170516, integration actually does is to provide an official national
July 16, 2008) organization for the well-defined but unorganized and
incohesive group of which every lawyer is a ready a member.

Bar integration does not compel the lawyer to associate

RIGHT OF ASSOCIATION with anyone. He is free to attend or not attend the
meetings of his Integrated Bar Chapter or vote or refuse
to vote in its elections as he chooses. The only
Freedom of association (2000 Bar) compulsion to which he is subjected is the payment of
annual dues. The Supreme Court, in order to further the
The right to form associations shall not be impaired State's legitimate interest in elevating the quality of
without due process of law. It is therefore an aspect of professional legal services, may require that the cost of
the general right of liberty. More specifically, it is an improving the profession in this fashion be shared by the
aspect of freedom of contract; and in so far as subjects and beneficiaries of the regulatory program —
associations may have for their object the advancement the lawyers.
of beliefs and ideas, freedom of association is an aspect
of freedom of expression and of belief. Assuming that the questioned provision does in a sense
compel a lawyer to be a member of the Integrated Bar,
NOTE: Freedom of association includes the freedom not such compulsion is justified as an exercise of the police
to associate, or, if one is already a member, to disaffiliate power of the State. (In the Matter of the IBP Membership
from the association. Dues Delinquency of Atty. Marcial A. Edilion, A.M. No.
1928, Aug. 3, 1978)
The right to strike is not included in the right to form ---
unions or freedom of assembly by government
employees. Their employment is governed by law. It is

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 BILL OF RIGHTS – EMNINENT DOMAIN, CONTRACT CLAUSE, LEGAL ASSISTANCE AND FREE ACCESS TO COURTS, RIGHT OF SUSPECTS

GR: Valid contracts should be respected by the

legislature and not tampered with by subsequent laws
EMINENT DOMAIN that will change the intention of the parties or modify
their rights and obligations.
(Please refer to the earlier discussion on Eminent Domain
under Fundamental Powers of the State- p.85) NOTE: The will of the parties to a contract must prevail.
A later law which enlarges, abridges, or in any manner
changes the intent of the parties to the contract
CONTRACT CLAUSE necessarily impairs the contract itself and cannot be
given retroactive effect without violating the
constitutional prohibition against impairment of
CONTEMPORARY APPLICATION OF THE contracts. (Sangalang v. IAC, G.R. No. 71169, Dec. 22,
CONTRACT CLAUSE 1988)

Impairment of contracts XPN: Enactment of laws pursuant to the exercise of

police power because public welfare prevails over
Any statute which introduces a change into the express private rights. It is deemed embedded in every contract a
reservation of the State’s exercise of police power,
terms of the contract, or its legal construction, or its
eminent domain and taxation, so long as it deals with a
validity, or its discharge, or the remedy for its
matter affecting the public welfare. (PNB v. Remigio, G.R.
enforcement, impairs the contract.
No 78508, Mar. 21, 1994)
The law impairs the obligation of contracts if:
---
1. It changes the terms and conditions of a legal Q: While still being a GOCC, PAL entered into a
contract either as to the time or mode of performance Commercial Agreement and Joint Services
2. It imposes new conditions or dispenses with those Agreement with Kuwait Airways in 1981 establishing
expressed if it authorizes for its satisfaction something a joint commercial arrangement whereby PAL and
different from that provided in its terms Kuwait Airways were to jointly operate the Manila-
Kuwait (and vice versa) route, utilizing the planes
NOTE: Mere technical change which does not change the and services of Kuwait Airways. In that Agreement,
substance of the contract, and which still leaves an PAL may collect royalties from Kuwait Airways.
efficacious remedy for enforcement does NOT impair the Subsequently, the government lost control over PAL
obligation of contracts. A valid exercise of police power is and became a private corporation. After 14 years,
superior to obligation of contracts. delegations from the Philippine government and
Kuwait government met. The talks culminated in a
Applicability of the provision Confidential Memorandum of Understanding (CMU).
The CMU terminates the agreement concerning the
This constitutional provision is applicable only if the royalties effective April 12, 1995. However, PAL
obligation of contract is impaired by legislative act insists that the agreement could only be effectively
(statute, ordinance, etc.). The act need not be by a terminated on 31 October 1995, or the last day of the
legislative office; but it should be legislative in nature. then current traffic period and therefore the
Furthermore, the impairment must be substantial. provisions of the agreement shall continue to be
(Philippine Rural Electric Cooperatives Assoc. v. DILG enforced until such date. Can the execution of the
Secretary, G.R. 143076, June 10, 2003) CMU between Kuwait and Philippine Governments
automatically terminate the Commercial Agreement?
Inapplicability of the provision

1. Franchises, privileges, licenses, etc. A: NO. An act of the Phil. Gov’t negating the commercial
agreement between the two airlines would infringe the
NOTE: These are subject to amendment, alteration vested rights of a private individual. Since PAL was
or repeal by Congress when the common good so already under private ownership at the time the CMU
requires. was entered into, the Court cannot presume that any and
all commitments made by the Phil. Gov’t are unilaterally
2. There is neither public interest involved nor a law binding on the carrier even if this comes at the expense
that supports the claim. of diplomatic embarrassment. Even granting that the
police power of the State may be exercised to impair the
NOTE: It can only be invoked if it is against the vested rights of privately-owned airlines, the deprivation
government or when the government intervenes in of property still requires due process of law. (Kuwait
contract between the parties. (Pacific Wide Realty and Airline Corporation v. PAL, G.R. No. 156087, May 8, 2009)
Development Corp. v Puerto Azul Land, Inc., G.R. No. ---
180893, Nov. 25, 2009)

Mutuality of contracts LEGAL ASSISTANCE AND FREE ACCESS TO COURTS

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Basis Even on the assumption that petitioner owns property,

he may still be an indigent considering his sworn
Free access to courts and quasi-judicial bodies and statement that he had no income. Under the standard set
adequate legal assistance shall not be denied to any forth in Acar v. Rosal as well as the recent legislations
person by reason of poverty (Sec. 11, Art. 3, 1987 heretofore adverted to, it is the income of a litigant that
Constitution). (1991, 2002 Bar) is the determinative factor. For, really, property may
have no income. It may even be a financial burden.
Right to free access to courts (Enaje v. Ramos, G.R. No. L-22109, January 30, 1970)
---
This right is the basis for Sec. 17, Rule 5 of the New Rules
of Court allowing litigation in forma pauperis. Those
protected include low paid employees, domestic servants
and laborers. (Cabangis v. Almeda Lopez, G.R. No. 47685, RIGHTS OF SUSPECTS
Sept. 20, 1940)

--- Miranda rights (1990, 1991, 1993, 1994, 2000, 2001,

Q: The Municipal Trial Court denied Dexter’s petition to 2005, 2009, 2012 Bar)
litigate in forma pauperis on the ground that Dexter has
regular employment and sources of income thus cannot be These are the rights to which a person under custodial
classified as poor or pauper. investigation is entitled. These rights are:
Is the court’s order justified? 1. Right to remain silent (2013 Bar)
2. Right to competent and independent counsel,
A: NO. They need not be persons so poor that they must be preferably of his own choice
supported at public expense. It suffices that the plaintiff is 3. Right to be reminded that if he cannot afford the
indigent. And the difference between paupers and indigent services of counsel, he would be provided with one
persons is that the latter are persons who have no property or 4. Right to be informed of his rights
sources of income sufficient for their support aside from their 5. Right against torture, force, violence, threat,
own labor though self-supporting when able to work and in intimidation or any other means which vitiate the free will
employment. (Acar v. Rosal, G.R. No. L-21707, March 18, 1967) 6. Right against secret detention places, solitary,
--- incommunicado, or similar forms of detention
--- 7. Right to have confessions or admissions obtained
Q: The Good Shepherd Foundation, Inc. seeks to be in violation of these rights considered inadmissible in
exempted from paying legal fees for its indigent and evidence. (Miranda v Arizona, 384 U.S. 436, 1966) (2013
underprivileged clients couching their claim on the free Bar)
access clause embodied in Sec. 11, Art. III of the
Constitution. Is the contention tenable? NOTE: Even if the person consents to answer questions
without the assistance of counsel, the moment he asks
A: NO. The Court cannot grant exemption of payment of legal for a lawyer at any point in the investigation, the
fees to foundations/institutions working for indigent and interrogation must cease until an attorney is present.
underprivileged people. According to Sec.
19, Rule 141, Rules of Court, only a natural party litigant The “Miranda Rights” are available to avoid involuntary
may be regarded as an indigent litigant that can be extrajudicial confession.
exempted from payment of legal fees. Exemption cannot
be extended to the foundations even if they are working The purpose of providing counsel to a person under
for the indigent and underprivileged people. (Re: Query custodial investigation is to curb the police-state practice
of Mr. Roger C. Prioreschi Re exemption from legal and of extracting a confession that leads appellant to make
filing fees of the Good Shepherd Foundation, Inc., A. M. No. self-incriminating statements. (People v. Rapeza, G.R.
09-6-9-SC, Aug. 19, 2009) 169431, April 3, 2007)
---
--- AVAILABILITY
Q: A pauper is known to have several parcels of land but that
for several years prior to the filing of the complaint in the 1. During custodial investigation; or
inferior court said parcels of land had been divided and 2. As soon as the investigation ceases to be a general
partitioned amongst his children who had since been in inquiry unto an unsolved crime and direction is aimed upon
possession thereof and paying the taxes thereon. Is he a particular suspect, as when the suspect who has been
considered indigent? May he apply for free legal assistance? taken into police custody and to whom the police would then
direct interrogatory questions which tend to elicit
A. Yes. Republic Act 6034 (An Act Providing incriminating statements. (2014 Bar)
Transportation and Other Allowances for Indigent
Litigants), has defined the term "indigent" to refer to a NOTE: Sec. 2 of R.A. 7438 (An Act Defining Certain Rights
person "who has no visible means of income or whose of Person Arrested, Detained or Under Custodial
income is insufficient for the subsistence of his family." Investigation and the Duties of the Arresting, Detaining

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2017 GOLDEN NOTES
 BILL OF RIGHTS – RIGHTS OF THE ACCUSED

and Investigating Officers) provides that custodial 1. Right to remain silent

investigation shall include the practice of issuing an 2. Right to counsel
invitation to a person who is under investigation in
connection with an offense he is suspected to have NOTE: However, the right of the accused to be informed
committed of these rights is not subject to waiver; and

Rights during custodial investigation apply only against Requisites for valid waiver
testimonial compulsion and not when the body of the
accused is proposed to be examined (e.g. urine sample; 1. Made voluntarily, knowingly and intelligently
photographs; measurements; garments; shoes) which is 2. In writing
a purely mechanical act. 3. With the presence of counsel. (People v. Galit,
GR. No. L-51770, Mar. 20, 1985)
In the case of Galman v. Pamaran, G.R. Nos. 71208-09,
Aug. 30, 1985, it was held that the constitutional Admissibility as evidence of confessions given to
safeguard is applied notwithstanding that the person is news reporters and/or media and videotaped
not yet arrested or under detention at the time. confessions
However, Fr. Bernas has qualified this statement by
saying that jurisprudence under the 1987 Constitution Confessions given in response to a question by news
has consistently held, following the stricter view, that the reporters, not policemen, are admissible. Where the
rights begin to be available only when the person is suspect gave spontaneous answers to a televised
already in custody (People v. Ting Lan Uy, G.R. No. interview by several press reporters, his answers are
157399, Nov. 17, 2005). deemed to be voluntary and are admissible.

Furthermore, in the case of People v. Reyes, G.R. No. Videotaped confessions are admissible, where it is
178300, Mar. 17, 2009, the court held that: “The mantle of shown that the accused unburdened his guilt willingly,
protection afforded by the above-quoted provision openly and publicly in the presence of the newsmen.
covers the period from the time a person is taken into Such confessions do not form part of confessions in
custody for the investigation of his possible participation custodial investigations as it was not given to policemen
in the commission of a crime from the time he was but to media in attempt to solicit sympathy and
singled out as a suspect in the commission of the offense forgiveness from the public.
although not yet in custody.
However, due to inherent danger of these videotaped
Infraction of the rights of an accused during custodial confessions, they must be accepted with extreme
investigation or the so-called Miranda Rights render caution. They should be presumed involuntary, as there
inadmissible only the extrajudicial confession or may be connivance between the police and media men
admission made during such investigation. "The (People v. Endino, G.R. No. 133026, Feb. 20, 2001).
admissibility of other evidence, provided they are
relevant to the issue and is not otherwise excluded by NOTE: What the Constitution bars is the compulsory
law or rules, is not affected even if obtained or taken in disclosure of the incriminating facts or confessions. The
the course of custodial investigation." (Ho Wai Pang v. rights under Sec. 12 are guarantees to preclude the
People, G.R. No. 176229, Oct. 19, 2011) slightest use of coercion by the State, and not to prevent
the suspect from freely and voluntarily telling the truth.
Unavailability of Miranda Rights (People v. Andan, G.R. No. 116437, Mar. 3, 1997)

1. During a police line-up, unless admissions or Fruit of the poisonous tree doctrine
confessions are being elicited from the suspect
(Gamboa v. Cruz, G.R. No. L-56291, June 27, Once the primary source (the tree) is shown to have
1988). been unlawfully obtained, any secondary or derivative
2. During administrative investigations evidence (the fruit) derived from it is also inadmissible.
(Sebastian, Jr. v Garchitorena, G.R. No 114028).
3. Confessions made by an accused at the time he NOTE: The rule is based on the principle that evidence
voluntarily surrendered to the police or outside illegally obtained by the State should not be used to gain
the context of a formal investigation; (People v other evidence, because the originally illegally obtained
Baloloy, G.R. No 140740, April 12, 2002) and evidence taints all evidence subsequently obtained.
4. Statements made to a private person (People v
Tawat, G.R. No 62871, May 25, 1985). ---
5. Forensic investigation is not tantamount to Q: Ian Loy is in police custody. Bothered and
custodial investigation, therefore Miranda remorseful, he spontaneously admitted guilt and
rights is not applicable. (People v. Tranca, 235 that he is the one who killed Dr. Neil. Is his
SCRA 455, 1994) confession admissible?

WAIVER

Rights that may be waived

127 UNIVERSITY OF SANTO TOMAS

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A: YES. Ian Loy’s statement is a spontaneous statement.

It was not elicited through questioning by the RIGHTS OF THE ACCUSED
authorities. (People v. Cabiles, G.R. No. 112035, Jan. 16,
1998)
--- 1. Due process
--- 2. Be presumed innocent
Q: Mayor Pineda arrived and proceeded to the 3. Be heard by himself and counsel
investigation room. Upon seeing the mayor, appellant Flores 4. Be informed of the nature and cause of the accusation
approached him and whispered a request to talk privately. against him
The mayor led appellant to the office of the Chief of Police 5. A speedy, impartial and public trial
and there, Flores broke down and said "Mayor, patawarin 6. Meet the witnesses face to face
mo ako! I will tell you the truth. I am the one who killed 7. Have compulsory process to secure the attendance of
Villaroman." The mayor opened the door of the room to let witnesses and production of evidence on his behalf
the public and media representatives witness the 8. Against double jeopardy
confession. The mayor first asked for a lawyer to assist 9. Bail
appellant but since no lawyer was available she ordered the
proceedings photographed and videotaped. In the presence CRIMINAL DUE PROCESS
of the mayor, the police, representatives of the media and
appellant's own wife and son, appellant confessed his guilt. Requisites of criminal due process (NO-CPJ)
His confession was captured on videotape and covered by
the media nationwide. Did such uncounseled confession 1. Accused is heard by a Court of competent
violate the suspect’s constitutional rights? jurisdiction
2. Accused is proceeded against under the orderly
Processes of law
A: NO. A confession given to the mayor may be admitted in 3. Accused is given Notice and Opportunity to be
evidence if such confession by the suspect was given to the heard
mayor as a confidant and not as a law enforcement officer. In 4. Judgment must be rendered after lawful hearing
such a case, the uncounseled confession did not violate the
suspect’s constitutional rights. What the constitution bars is the NOTE: This is also applicable not only to criminal cases,
compulsory disclosure of incriminating facts or confessions. The but also to civil cases. Administrative cases follow
rights under Sec. 12 are guarantees to preclude the slightest use different requisites.
of coercion by the State and not to prevent the suspect from
freely and voluntarily telling the truth. (People v. Andan, G.R. No. The right to appeal is neither a natural right nor part of
116437, March 3, 1997) due process. It is a mere statutory right, but once given,
--- denial constitutes violation of due process.
---
Q: Accused Antonio Lauga was charged and convicted of the RIGHT TO BAIL
crime of rape of his thirteen-year old daughter, (1991, 1992, 1993, 1994, 1999, 2001, 2004, 2005,
AAA. During the proceedings, Juan Paulo Nepomuceno, a 2006, 2008, 2009 Bar)
bantaybayan in the barangay, testified that the accused
confessed that he had in fact raped AAA. The trial court Bail
found him guilty of the crime of rape. Lauga contends that
the extrajudicial confession he made to Nepomuceno is The security given for the release of a person in custody
inadmissible in evidence as it was made without assistance of law, furnished by him or a bondsman, conditioned
of counsel. Is his contention tenable? upon his appearance before any court as required. (Sec.
1, Rule 114, Rules of Court)
A: YES. A barangay bantaybayan is considered a public officer
and any extrajudicial confession made to him without the Rationale behind the right to bail
assistance of counsel is inadmissible in evidence as provided for
under Sec. 12, Art. III of the Constitution. (People v. Lauga, GR. Bail is not granted to prevent the accused from
No. 186228, March 15, 2010) committing additional crimes. The purpose of bail is to
--- guarantee the appearance of the accused at the trial, or
whenever so required by the trial court. The amount of
bail should be high enough to assure the presence of the
accused when so required, but it should be no higher
than is reasonably calculated to fulfill this purpose. Thus,
bail acts as a reconciling mechanism to accommodate
both the accused’s interest in his provisional liberty
before or during the trial, and the society’s interest in
assuring the accused’s presence at trial. (Enrile v.
Sandiganbayan, G.R. No. 213847, Aug. 18, 2015)

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NOTE: For purposes of admission to bail, the community; and (2) that there exist special,
determination of whether or not evidence of guilt is humanitarian and compelling circumstances. (Enrile v.
strong in criminal cases involving capital offenses, or Sandiganbayan, ibid.)
offenses punishable with reclusion perpetua or life ---
imprisonment lies within the discretion of the trial court.
But, as the Court has held in Concerned Citizens v. Elma, Constitutional provisions connected to right to bail
“such discretion may be exercised only after the hearing
called to ascertain the degree of guilt of the accused for a. The suspension of the privilege of the writ of habeas
the purpose of whether or not he should be granted corpus does not impair the right to bail.
provisional liberty.” It is axiomatic, therefore, that bail b. Excessive bail is not required.
cannot be allowed when its grant is a matter of
discretion on the part of the trial court unless there has Instances when bail is a matter of right or of
been a hearing with notice to the Prosecution. The discretion
hearing, which may be either summary or otherwise, in
the discretion of the court, should primarily determine 1. Bail as a matter of right
whether or not the evidence of guilt against the accused a. Before or after conviction by the metropolitan
is strong. (Enrile v. Sandiganbayan, ibid.) and municipal trial courts, and
b. Before conviction by the RTC of an offense not
Application for bail in relation to challenging the punishable by death, reclusion perpetua or life
arrest imprisonment. (Sec. 4, Rule 114)
c. Before final conviction by all children in conflict
The application or admission of the accused to bail shall with the law for an offense not punishable by reclusion
not bar him from challenging both the validity of his perpetua or life imprisonment.
arrest or the legality of the warrant issued therefore,
provided that he raises them before he enters his plea. It 2. Bail as a matter of discretion
shall not likewise bar the accused from assailing the a. Upon conviction by the RTC of an offense not
regularity or questioning the absence of a preliminary punishable by death, reclusion perpetua or life
investigation of the charge against him provided the imprisonment
same is raised before he enters his plea. (Rule 114, Sec. b. Regardless of the stage of the criminal
26, Rules of Court) prosecution, a person charged with a capital offense, or
an offense punishable by reclusion perpetua or life
The following are entitled to bail: imprisonment, when evidence of guilt is not strong; and
c. A child in conflict with the law charged with an
1. Persons charged with offenses punishable by offense punishable by death, reclusion perpetua or life
death, reclusion perpetua or life imprisonment, when imprisonment when evidence of guilt is strong. (Sec. 28,
evidence of guilt is not strong A.M. No. 02-1-18-SC)
2. Persons convicted by the trial court pending
their appeal NOTE: The prosecution cannot adduce evidence for the
3. Persons who are members of the AFP facing a denial of bail where it is a matter of right. However
court martial where the grant of bail is discretionary, the prosecution
may show proof to deny the bail.
---
Q: Sen. Enrile, who was indicted for plunder in Grounds for denial of bail
connection with the Pork Barrel Scam, applied for bail
arguing among others that he is not a flight risk, and If the penalty imposed by the trial court is imprisonment
that his age and physical condition must be seriously exceeding six (6) years, the accused shall be denied bail,
considered. May he post bail? or his bail shall be cancelled upon a showing by the
prosecution, with notice to the accused, of the following
A: YES. Enrile’s poor health justifies his admission to or other similar circumstances:
bail. The Court is guided by the earlier mentioned principal a. That he is a recidivist, quasi-recidivist, or
purpose of bail, which is to guarantee the appearance of the habitual delinquent, or has committed the crime
accused at the trial, or whenever so required by the court. aggravated by the circumstance of reiteration;
The Court is further mindful of the b. That he has previously escaped from legal
Philippines’ responsibility in the international confinement, evaded sentence, or violated the conditions
community arising from the national commitment under of his bail without valid justification;
the Universal Declaration of Human Rights to make c. That he committed the offense while under
available to every person under detention such remedies probation, parole, or conditional pardon;
which safeguard their fundamental right to liberty. These d. That the circumstances of his case indicate the
remedies include the right to be admitted to bail. This probability of flight if released on bail; or
national commitment to uphold the fundamental human e. That there is undue risk that he may commit
rights as well as value the worth and dignity of every another crime during the pendency of the appeal.
person has authorized the grant of bail not only to those
charged in criminal proceedings but also to extraditees
upon a clear and convincing showing: (1) that the
detainee will not be a flight risk or a danger to the

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The appellate court may, motu proprio or on motion of factors. (Cortes v. Judge Catral, A.M. No. RTJ-97-1387,
any party, review the resolution of the RTC after notice Sept. 10, 1997)
to the adverse party in either case. (Sec. 5, Rule 114, Rules
of Court) Reason why capital offenses when evidence of guilt is
strong are not bailable
NOTE: The right to bail is available from the very
moment of arrest (which may be before or after the filing Due to the gravity of the offenses committed, the
of formal charges in court) up to the time of conviction confinement of a person accused of said offenses insures
by final judgment (which means after appeal). No charge his attendance in the court proceedings than if he is
need be filed formally before one can file for bail, so long given provisional liberty on account of a bail posted by
as one is under arrest. (Heras Teehankee v. Rovira, G.R. him.
No. L-101, Dec. 20 1945)
Factors to be considered in setting the amount of bail
Scenarios where the penalty of the person applying
for bail is imprisonment exceeding six years 1. Financial ability of the accused to give bail
2. Nature and circumstances of offense
1. Absence of the circumstances enumerated in 3 rd par., sec. 5 of 3. Penalty for offense charged
Rule 114. In this scenario, bail is a matter of discretion. This 4. Character and reputation of accused
means that, if none of the circumstances mentioned in the third 5. Age and health of accused
paragraph of Sec. 5, Rule 114 is present, the appellate court has 6. Weight of evidence against the accused
the discretion to grant or deny bail. An application for bail 7. Probability of the accused appearing in trial
pending appeal may be denied even if the bail-negating 8. Forfeiture of other bonds
circumstances in the third paragraph are absent. 9. Fact that accused was a fugitive from justice when
arrested
NOTE: The discretionary nature of the grant of bail 10. Pendency of cases in which the accused is under
pending appeal does not mean that bail should bond. (A.M. No. 12-11-2-SC, March 18, 2014)
automatically be granted absent any of the
circumstances mentioned in the third paragraph of ---
Sec. 5, Rule 114 of the Rules of Court. (Jose Antonio Q: Manolet was arrested for child abuse. She filed a
Leviste v. CA, G.R.No. 189122, March 17, 2010) petition for application of bail. The court granted her
application with a condition that the approval of the bail
2. Existence of at least one of the said circumstances. The bonds shall be made only after her arraignment.
appellate court exercises a more stringent discretion, that is, to Is the court’s order valid?
carefully ascertain whether any of the enumerated
circumstances in fact exists. If it so determines, it has no other A: NO. The grant of bail should not be conditioned upon
option except to deny or revoke bail pending appeal. (Ibid.) prior arraignment of the accused. In cases where bail is
authorized, bail should be granted before arraignment,
In bail application, if the prosecutor interposes no otherwise the accused will be precluded from filing a motion
objection to the accused charged with capital offense, to quash which is to be done before arraignment. If the
the judge may not grant the application without information is quashed and the case is dismissed, there
court hearing would be no need for the arraignment of the accused. To
condition the grant of bail on his arraignment would be to
Judges are required to conduct hearings if the accused is place him in a position where he has to choose between (1)
being charged with a capital offense. Absence of filing a motion to quash and thus delay his release until his
objection from the prosecution is never a basis for the motion can be resolved because prior to its resolution, he
grant of bail in such cases, for the judge has no right to cannot be arraigned, and (2) foregoing the filing of a motion
presume that the prosecutor knows what he is doing on to quash so that he can be arraigned at once and thereafter
account of familiarity with the case. (Joselito v. Narciso v. be released on bail.
Flor Marle Sta. Romana-Cruz, G.R. No. 134504, March 17, These scenarios undermine the accused’s constitutional
2000) right not to be put on trial except upon valid complaint or
information sufficient to charge him with a crime and his
NOTE: A hearing on the motion for bail must be right to bail. (Lavides v. CA, G.R. No. 129670, Feb. 1, 2000)
conducted by the judge to determine whether or not the ---
evidence of guilt is strong. (Baylon v. Judge Sison, A.M. No.
92-7-360-0, Apr. 6, 1995) NOTE: It should not be taken to mean that the hearing on
a petition for bail should at all times precede
Whether bail is a matter of right or of discretion, arraignment, because the rule is that a person deprived of
reasonable notice of hearing is required to be given the his liberty by virtue of his arrest or voluntary surrender
prosecutor, or at least he must be asked for his may apply for bail as soon as he is deprived of his liberty,
recommendation, because in fixing the amount of bail, even before a complaint or information is filed against
the judge is required to take into account a number of him. ( Serapio v. Sandiganbayan, G.R. No. 148468, Jan. 28,
2003)

PRESUMPTION OF INNOCENCE
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 BILL OF RIGHTS – RIGHTS OF THE ACCUSED

husband's siblings. The Court finds such reason

Basis for her choice to flee acceptable. She did not
hide from the law but from those who would
In all criminal prosecutions, the accused shall be possibly do her harm. (People v. Samson, G.R.
presumed innocent until the contrary is proved. (Sec. No. 214883, Sept. 2, 2015)
14(2), Art 3, 1987 Constitution)
Equipoise rule
Every circumstance favoring the innocence of the
accused must be taken into account. The proof against When the evidence of both sides is equally balanced, the
him must survive the test of reason; the strongest constitutional presumption of innocence should tilt the
suspicion must not be permitted to sway judgment. scales in favor of the accused (Corpuz v. People, G.R. No.
(People v. Austria, G.R. No. 55109, Apr. 8, 1991) 74259, Feb. 14, 1991).

It can be invoked only by an individual accused of a RIGHT TO BE HEARD

criminal offense; a corporate entity has no personality to
invoke the same. Basis

The criminal accusation against a person must be Among the fundamental rights of the accused is the right
substantiated by proof beyond reasonable doubt. The to be heard by himself and counsel. Verily, this right is
Court should steadfastly safeguard his right to be even guaranteed by the Constitution itself. This right has
presumed innocent. Although his innocence could be been recognized and established in order to make sure
doubted, for his reputation in his community might not that justice is done to the accused. The rights of an
be lily-white or lustrous, he should not fear a conviction accused during trial are given paramount importance in
for any crime, least of all one as grave as drug pushing, our laws and rules on criminal procedure. (Moslares v.
unless the evidence against him was clear, competent Third division, CA, G.R. No. 129744, June 26, 1998)
and beyond reasonable doubt. Otherwise, the
presumption of innocence in his favor would be ---
rendered empty. (People v. Andaya, G.R. No. 183700, Oct. Q: In a murder case, Christian was convicted in the
13, 2014) trial court but was not given the right to testify and
to present additional evidence on his behalf. Is the
Rules regarding presumption of innocence conviction correct?

1. The prosecution has the burden to prove the A: NO. An accused has the constitutional right “to be
guilt of the accused beyond reasonable doubt. (People v. heard by himself and counsel” and the right “to testify as
Colcol., Jr., 219 SCRA 107, February 19, 1993) a witness in his own behalf “. The denial of such rights is
2. The prosecution must rely on the strength of its a denial of due process. The constitutional right of the
evidence and not in the weakness of the defense. (People v. accused to be heard in his defense is inviolate. “No court
Solis, 182 SCRA 182, February 14, 1990) of justice under our system of government has the power
3. Conviction of an accused must be based on the to deprive him of that right.”(People v. Lumague, G.R. No.
strength of the prosecution evidence and not on the L-53586)
weakness or absence of evidence of the defense. (People v. ---
Mirondo, G.R. No. 210841, Oct. 14, 2015)
4. The prosecution bears the burden to overcome ASSISTANCE OF COUNSEL
such presumption. If the prosecution fails to discharge this
burden, the accused deserves a judgment of acquittal. Right to assistance of counsel
(Delariva v. People, G.R. No. 212940, Sept. 16, 2015)
5. Generally, flight, in the absence of a credible The right of a person under investigation is to have a
explanation, would be a circumstance from which an “competent and independent counsel preferably of his
inference of guilt might be established, for a truly innocent own choice”. The purpose is to preclude the slightest
person would normally grasp the first available opportunity coercion as would lead the accused to admit something
to defend himself and assert his innocence. It has been held, else. (People v. Evanoria, 209 SCRA 577, June 8, 1992)
however, that non-flight may not be construed as an
indication of innocence either. There is no law or dictum The accused must be amply accorded legal assistance
holding that staying put is proof of innocence, for the Court extended by a counsel who commits himself to the cause
is not blind to the cunning ways of a wolf which, after a kill, of the defense and acts accordingly; an efficient and truly
may feign innocence and choose not to flee. In Cristina's decisive legal assistance, and not simply a perfunctory
case, she explained that she took flight for fear of her safety representation. (People v. Bermas, G.R. No. 120420, Apr.
because of possible retaliation from her 21, 1999)

NOTE: While investigations conducted by an

administrative body may at times be akin to a criminal
proceeding, the fact remains that, under existing laws, a
party in an administrative inquiry may or may not be
assisted by counsel, irrespective of the nature of the
charges and of petitioner’s capacity to represent herself,

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and no duty rests on such body to furnish the person the trial cannot be waived, because “even the most
being investigated with counsel. The right to counsel is intelligent or educated man may have no skill in the
not always imperative in administrative investigations science of law, particularly in the rules of procedure, and
because such inquiries are conducted merely to without counsel, he may be convicted not because he is
determine whether there are facts that merit the guilty but because he does not know how to establish his
imposition of disciplinary measures against erring public innocence.”
officers and employees, with the purpose of maintaining
the dignity of government service. (Carbonel v. CSC, G.R. ---
No. 187689, Sept. 7, 2010) Q: Mao was criminally charged in court. He hired Justin
as counsel who handles high-profile clients. Due to his
NOTE: Assistance of counsel is not mandatory in a police many clients, Justin cannot attend the hearing of the
line-up. (1993, 1997, 2012 Bar) case of Mao. He requested many times to have the
hearings postponed. The case dragged on slowly. Judge
The right to counsel commences from the moment the Oliver Punay, in his desire to finish the case as early as
investigating officer starts to ask questions to illicit practicable under the continuous trial system,
information or confession or admission. (Gamboa v. appointed a counsel de officio and withdrew the counsel
Judge Cruz, GR. No. L-56291, June 27, 1988) de parte. Is the action of the judge valid?

A PAO lawyer can be considered an independent A: YES. The appointment of counsel de officio under such
counsel within the contemplation of Sec 12, Art III, circumstances is not proscribed under the Constitution. The
1987 Constitution preferential discretion is not absolute as would enable an
accused to choose a particular counsel to the exclusion of
A PAO lawyer can be considered an independent counsel others equally capable. The choice of counsel by the accused
within the contemplation of the Constitution considering in a criminal prosecution is not a plenary one. If the counsel
that he is not a special counsel, public or private deliberately makes himself scarce the court is not precluded
prosecutor, counsel of the police, or a municipal attorney from appointing a counsel de officio whom it considers
whose interest is admittedly adverse of the accused- competent and independent to enable the trial to proceed
appellant. Thus, the assistance of a PAO lawyer satisfies until the counsel of choice enters his appearance. Otherwise
the constitutional requirement of a competent and the pace of criminal prosecution will entirely be dictated by
independent counsel for the accused. (People v. Bacor, the accused to the detriment of the eventual resolution of
GR. No. 122895, April 30, 1999) the case. (People v. Larranaga, G.R. No. 138874-75, Feb. 3,
2004)
--- ---
Q: Several individuals were tried and convicted of Piracy in
Philippine Waters as defined in PD 532. However, it was RIGHT TO BE INFORMED OF THE NATURE AND
discovered that the lawyer, Ms. Cantos, who represented CAUSE OF ACCUSATION
them was not a member of the bar although evidence shows
that she was knowledgeable in the rules of legal procedure. Purpose
The accused now allege that their conviction should be set
aside since they were deprived of due process. Are they 1. To furnish the accused with such a description of the
correct? charge against him as will enable him to make his defense
2. To avail himself of his conviction or acquittal for
A: NO. Sec. 1 of Rule 115 of the Revised Rules of Criminal protection against further prosecution for the same cause
Procedure states that "upon motion, the accused may be allowed 3. To inform the court of the facts alleged so that it may
to defend himself in person when it sufficiently appears to the decide whether they are sufficient in law to support a
court that he can properly protect his rights without the conviction, if one should be had. (US v. Karelsen G.R. No.
assistance of counsel." By analogy, but without prejudice to the 1376, Jan. 21, 1904)
sanctions imposed by law for the illegal practice of law, it is
amply shown that the rights of accused were sufficiently and
properly protected by the appearance of Ms. Cantos. An
examination of the record will show that she knew the technical
rules of procedure. Hence, there was a valid waiver of the right
to sufficient representation during the trial, considering that it
was unequivocally, knowingly, and intelligently made and with
the full assistance of a bona fide lawyer, Atty. Dani Lacap.
Accordingly, denial of due process cannot be successfully
invoked where a valid waiver of rights has been made. (People v.
Tulin, G.R. 111709, Aug. 30, 2001)
---

NOTE: In Flores v. Ruiz, G.R. No. L-35707, May 31, 1979,

the Supreme Court held that the right to counsel during

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 BILL OF RIGHTS – RIGHTS OF THE ACCUSED

Requisites for properly informing the accused of the RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL
nature and cause of accusation
Right to speedy trial (2000, 2001 Bar)
1. Information must state the name of the accused
2. Designation given to the offense by statute The term “speedy” means free from vexatious, capricious
3. Statement of the acts or omission so and oppressive delays.
complained of as constituting the offense
4. Name of the offended party In determining whether the accused's right to speedy
5. Approximate time and date of commission of trial was violated, the delay should be considered in view
the offense of the entirety of the proceedings. The factors to balance
6. Place where offense was committed are the following:
7. Every element of the offense must be alleged in (a) duration of the delay;
the complaint or information (b) reason therefor;
(c) assertion of the right or failure to assert it; and
NOTE: The purpose of an Information is to afford an (d) prejudice caused by such delay.
accused his right to be informed of the nature and cause Mere mathematical reckoning of the time involved would
of the accusation against him. It is in pursuit of this not suffice as the realities of everyday life must be
purpose that the Rules of Court require that the regarded in judicial proceedings. (Saldariega v.
Information allege the ultimate facts constituting the Panganiban, G.R. Nos. 211933 & 211960, April 15, 2015)
elements of the crime charged. Details that do not go into
the core of the crime need not be included in the NOTE: The denial of the right to speedy trial is a ground
Information, but may be presented during trial. The rule for acquittal.
that evidence must be presented to establish the
existence of the elements of a crime to the point of moral The right to speedy trial [Sec. 14 (2)] particularly refers
certainty is only for purposes of conviction. It finds no to criminal prosecutions which are at the trial stage,
application in the determination of whether or not an while the right to speedy disposition of cases (Sec. 16)
Information is sufficient to warrant the trial of an applies to all cases before judicial, quasi-judicial or
accused (People v. Sandiganbayan, G.R. No. 160619, Sept. administrative bodies.
9, 2015)
Right to impartial trial
It is not necessary for the information to allege the date
and time of the commission of the crime with exactitude Impartial trial means that the accused is entitled to cold
unless such date and time are essential ingredients of the neutrality of an impartial judge, one who is free from
offenses charged. (People v. Nuyok, G.R. No. 195424, June interest or bias.
15, 2015)
Speedy Disposition of Cases
Determination of the real nature of the crime
The right to speedy disposition of cases is different from
Description, not designation of the offense, is controlling. the right to speedy trial to the extent that the former
The real nature of the crime charged is determined from applies to all cases, whether judicial, quasi-judicial, or
the recital of facts in the information. It is neither administrative cases (Art. III, Sec. 16, 1987 Constitution);
determined based on the caption or preamble thereof whereas, the latter applies to criminal cases only. [Art.
nor from the specification of the provision of the law III, Sec. 14 (2), 1987 Constitution]
allegedly violated.
Violation
NOTE: The accused cannot be convicted thereof if the
information fails to allege the material elements of the The right to a speedy disposition of a case, like the right
offense even if the prosecution is able to present to a speedy trial, is deemed violated only when the
evidence during the trial with respect to such elements. proceedings are attended by vexatious, capricious, and
oppressive delays; or when unjustified postponements of
The right to be informed of the nature and cause of the trial are asked for and secured; or even without
accusation cannot be waived. However, the defense may cause or justifiable motive, a long period of time is
waive the right to enter a plea and let the court enter a allowed to elapse without the party having his case tried
plea of “not guilty”. (Roquero v. Chancellor of UP-Manila, G.R. No. 181851,
March 9, 2010).
Variance doctrine
Right to public trial
In spite of the difference between the crime that was
charged and that which was eventually proved, the GR:
accused may still be convicted of whatever offense that 1. Trial must be public in order to prevent possible
was proved even if not specifically set out in the abuses which may be committed against the accused.
information provided it is necessarily included in the 2. The attendance at the trial is open to all, irrespective of
crime charged. (Teves v. Sandiganbayan, G.R. No. 154182, their relationship to the accused.
Dec. 17, 2004)

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XPN: If the evidence to be adduced is “offensive to Ad Testificandum vs. Duces Tecum

decency or public morals,” the public may be excluded.

NOTE: Under Sec. 21, Rule 119 of the Rules of Criminal AD TESTIFICANDUM DUCES TECUM
Procedure it is provided that the judge may motu proprio
A process directed to a person The person is also
exclude the public from the court room when the
evidence to be adduced is offensive to decency and requiring him to attend and to required to bring
public morals. testify at the hearing or trial of an with him any books,
action, or at any investigation documents, or other
In a constitutional sense, public trial is not synonymous conducted by competent things under his
with publicized trial. The right to a public trial belongs to authority, or for the taking of his control.
the accused. The requirement of a public trial is satisfied
deposition.
by the opportunity of the members of the public and the
press to attend the trial and to report what they have
NOTE: The subpoena duces tecum shall contain a
observed. The accused’s right to a public trial should not
reasonable description of the books, documents or things
be confused with the freedom of the press and the
demanded which must appear to the court as prima facie
public’s right to know as a justification for allowing the
relevant.
live broadcast of the trial. The tendency of a high profile
case like the subject case to generate undue publicity
with its concomitant undesirable effects weighs heavily Requirements for the exercise of the right to secure
against broadcasting the trial. Moreover, the fact that the attendance of witness
accused has legal remedies after the fact is of no
moment, since the damage has been done and may be 1. The witness is really material
irreparable. It must be pointed out that the fundamental 2. The attendance of the witness was previously obtained
right to due process of the accused cannot be afforded 3. The witness will be available at the time desired
after the fact but must be protected at the first instance. 4. No similar evidence could be obtained
(In Re: Petition for Radio and Television Coverage of the
Multiple Murder Cases against Maguindanao Governor NOTE: Right to cross-examine is demandable only
Zaldy Ampatuan, A.M. No. 10-11-5-SC, Oct. 23, 2012) during trials. Thus, it cannot be availed of during
preliminary investigations.
RIGHT OF CONFRONTATION
Principal exceptions to the right of confrontation
Purpose
1. of dying declarations and all exceptions to the
1. To afford the accused an opportunity to test the hearsay rule
testimony of a witness by cross-examination; 2. Trial in absentia under Sec.14 (2) of Art. III of the
2. To allow the judge to observe the deportment Constitution
of the witness. 3. With respect to child testimony

If the failure of the accused to cross-examine a witness is TRIAL IN ABSENTIA

due to his own fault or was not due to the fault of the
prosecution, the testimony of the witness should not be Trials in absentia allows the accused to be absent at the
excluded.
trial. (Lavides v. CA, G.R. No. 129670, Feb. 1, 2000)
The affidavits of witnesses who are not presented during
trial are inadmissible for being hearsay. The accused is Elements of trials in absentia
denied the opportunity to cross-examine the witnesses.
1. Accused has been validly arraigned
NOTE: Depositions are admissible under circumstances 2. Accused has been duly notified of the dates of
provided by the Rules of Court. hearing
3. Failure to appear is unjustifiable
RIGHT TO COMPULSORY PROCESS TO SECURE
ATTENDANCE OF WITNESS AND PRODUCTION OF The presence of the accused is mandatory in the
EVIDENCE following instances

Means available to the parties to compel the 1. During arraignment and plea
attendance of witnesses and the production of 2. During trial, for identification, unless the accused
documents and things needed in the prosecution or has already stipulated on his identity during the pre-trial and that he
defense of a case is the one who will be identified by the witnesses as the accused in
the criminal case
1. Subpoena ad testificandum and subpoena duces 3. During promulgation of sentence, unless for a light
tecum offense (Ibid.).
2. Depositions and other modes of discovery
3. Perpetuation of testimonies

UNIVERSITY OF SANTO TOMAS 2017

GOLDEN NOTES 134
BILL OF RIGHTS – WRITS OF HABEAS CORPUS, AMPARO, HABEAS DATA, AND KALIKASAN

If the detainee’s incarceration is by virtue of a judicial

NOTE: While the accused is entitled to be present during order in relation to criminal cases subsequently filed
promulgation of judgment, the absence of his counsel against them, the remedy of habeas corpus no longer lies.
during such promulgation does not affect its validity. (Ilagan v. Enrile, G.R. No. 70748, Oct. 21, 1985)

Promulgation of judgment in absentia is valid Requisites for the suspension of the privilege of the
provided the following are present writ of habeas corpus

1. Judgment be recorded in the criminal docket 1. There must be an actual invasion or rebellion;
2. Copy be served upon accused or counsel and
2. Public safety requires the suspension
NOTE: Recording the decision in the criminal docket of
the court satisfies the requirement of notifying the The writ applies only to persons judicially charged for
accused of the decision wherever he may be. (Estrada v. rebellion or offenses inherent in or directly connected
People, G.R. No. 162371, Aug. 25, 2005) with invasion and anyone arrested or detained during
suspension must be charged within 3 days. Otherwise, he
should be released.
WRIT OF HABEAS CORPUS

WRIT OF AMPARO, HABEAS DATA

The writ of habeas corpus is a writ directed to the person AND KALIKASAN
detaining another, commanding him to produce the body
of the detainee at a designated time and place, and to
show the cause of his detention. WRIT OF AMPARO
(1991, 2013 Bar)
Called the “great writ of liberty”, the writ of habeas
corpus “was devised and exists as a speedy and effectual A remedy available to any person who’s right to life,
remedy to relieve persons from unlawful restraint, and liberty, and security has been violated or is threatened
as the best and only sufficient defense of personal with violation by an unlawful act or omission of a public
freedom.” The remedy of habeas corpus is extraordinary official or employee, or of a private individual or entity.
and summary in nature, consistent with the law’s The writ covers extralegal killings and enforced
“zealous regard for personal liberty.” (In the Matter of the disappearances or threats thereof. (Sec.1, Rule on Writ of
Petition for Habeas Corpus of Datukan Malang Salibo, G.R. Amparo)
No. 197597, April 8, 2015)
Applicability
Privilege of the Writ of Habeas Corpus
Writ of Amparo does not apply to a child custody case
The right to have an immediate determination of the
legality of the deprivation of physical liberty. When what is involved is the issue of child custody and
the exercise of parental rights over a child, who, for all
When Available intents and purposes, has been legally considered a ward
of the State, the Amparo rule cannot be properly applied.
For a person deprived of liberty due to mistaken identity. To reiterate, the privilege of the writ of amparo is a
In such cases, the person is not under any lawful process remedy available to victims of extra-judicial killings and
and is continuously being illegally detained. (In the enforced disappearances or threats of a similar nature,
Matter of the Petition for Habeas Corpus of Datukan regardless of whether the perpetrator of the unlawful act
Malang Salibo, ibid.) or omission is a public official or employee or a private
individual. It is envisioned basically to protect and
It may be availed of as a post-conviction remedy or when guarantee the right to life, liberty and security of
there is an alleged violation of the liberty of abode (Ibid.). persons, free from fears and threats that vitiate the
quality of life. (Yusay v. Segui, G.R. No. 193652, Aug. 5,
It may not be used as a means of obtaining evidence on 2014)
the whereabouts of a person, or as a means of finding out
who has specifically abducted or caused the Writ of Amparo does not cover the Constitutional right to
disappearance of a certain person. When forcible taking travel. (Reyes v. Gonzales, G.R. No. 182161, Dec. 3, 2009)
and disappearance – not arrest and detention – have
been alleged, the proper remedy is not habeas corpus Applicable even though petitioners already escaped
proceedings, but criminal investigation and proceedings. detention
Habeas corpus generally applies to all cases of illegal
confinement or detention by which any person is In case were the victims of abduction were able to
deprived of his liberty or by which the rightful custody of escape, it should be stressed that they are now free from
any person is withheld from the person entitled thereto. captivity not because they were released by virtue of a
(Martinez v. Mendoza, G.R. No. 153795, Aug. 17, 2006) lawful order or voluntarily freed by their abductors.
Understandably, since their escape, they have been
under concealment and protection by private citizens

UNIVERSITY OF SANTO TOMAS

135
FACULTY OF CIVIL LAW
 POLITICAL LAW

because of the threat to their life, liberty and security.

The threat vitiates their free will as they are forced to 136
limit their movements or activities. Precisely because UNIVERSITY OF SANTO TOMAS
they are being shielded from the perpetrators of their 2017 GOLDEN NOTES
abduction, they cannot be expected to show evidence of
overt acts of threat such as face-to-face intimidation or
written threats to their life, liberty and security.
Nonetheless, the circumstances of their abduction,
detention, torture and escape reasonably support a
conclusion that there is an apparent threat that they will
again be abducted, tortured, and this time, even
executed. These constitute threats to their liberty,
security, and life, actionable through a petition for a Writ
of Amparo. (Sec. of National Defense and AFP Chief of Staff
v. Manalo, G.R. No. 180906, Oct. 7, 2008)

Extralegal killings

Killings committed without due process of law, i.e.,

without legal safeguards or judicial proceedings.

Enforced disappearance

Arrest, detention, abduction or any other form of

deprivation of liberty committed by agents of the State or
by persons or groups of persons acting with the
authorization, support or acquiescence of the State,
followed by a refusal to acknowledge the deprivation of
liberty or by concealment of the fate or whereabouts of
the disappeared person, which places such person
outside the protection of the law. [Sec. 3(b), R.A. 10353]

As clarified in Navia, with the enactment of R.A. No. 9851

[should now be read as R.A. No. 10353], the Amparo Rule
is now a procedural law anchored, not only on the
constitutional rights to life, liberty and security, but on a
concrete statutory definition as well of what an ‘enforced
or involuntary disappearance’ is. Therefore, A.M. No. 07-
9-12-SC’s reference to enforced disappearances should
be construed to mean the enforced or involuntary
disappearance of persons contemplated in Section 3(g)
of R.A. No. 9851 [should now be read as Sec. 3(b), R.A.
10353]. Meaning, in probing enforced disappearance
cases, courts should read A.M. No. 07-9-12-SC in relation
to R.A. No. 9851[should now be read as R.A. No. 10353].
Guided by the parameters of R.A. No. 9851 [should now
be read as R.A. No. 10353], we can readily discern that
Ku’s circumstance does not come under the statutory
definition of an enforced or involuntary disappearance.
Indeed, Ku was arrested by agents of the BI, but there
was no refusal on the part of the BI to acknowledge such
arrest nor was there any refusal to give information on
the whereabouts of Ku. Neither can it be said that the BI
had any intention to remove Ku from the protection of
the law for a prolonged time. (Mison v. Gallegos, G. R. No.
210759, June 23, 2015)

Main advantages of the Writ of Amparo over the Writ

of Habeas Corpus

WRIT OF
WRIT OF
BASIS HABEAS
AMPARO
CORPUS
 A: YES. The government in general, through the PNP and the
PNP-CIDG, and in particular, the Chiefs of these
Interim reliefs, No interim organizations together with Col. Kasim, should be held fully
such as reliefs accountable for the enforced disappearance of Peregrina.
temporary Given their mandates, the PNP and the PNP-CIDG officials
protection order, and members were the ones who were remiss in their duties
As to when the government completely failed to exercise
extraordinary diligence that the
witness
availability of
protection order,
interim reliefs
inspection order
and production
order, are
available
Covers acts Limited to
which violate or cases involving
As to acts threaten to actual violation
covered violate the right of right to
to life, liberty liberty
and security
General denial is Mere denial is
As to not allowed; a ground for
allowability of detailed return dismissal of the
denial is required of the petition
respondent
No presumption Presumption of
As to of regularity; regular
applicability of must prove performance of
presumption of
observance of official duty is
regularity extraordinary applicable
diligence
Enforceable Only
anywhere in the enforceable
As to Philippines anywhere in
enforceability the Phil. if filed
with the CA or
SC justice
Exempted from Not exempted
As to payment
payment of
of docket fees
docket fees
Release of Release of
detained person detained
As to effect of
does not render person renders
release of
the petition it moot and
detained person
moot and academic
academic

---
Q: Engr. Peregrina disappeared one day and his wife filed a
petition for the Writ of Amparo with the CA directed against
the PNP, claiming that the
“unexplained uncooperative behavior” of the
respondents request for help and their failure and
refusal to extend assistance in locating the whereabouts
of Peregrina were indicative of their actual physical
possession and custody of the missing engineer.” The
PNP was held responsible for the “enforced
disappearance” of Engr. Peregrina. Is this valid?
 BILL OF RIGHTS –SELF-INCRIMINATION CLAUSE

Amparo rule requires. (Razon v. Tagitis, G.R. No. 182498, environment was recognized by the international
Dec. 3, 2009) community as early as June 16, 1972 during the
--- Stockholm Declaration. After almost two decades, the
Stockholm Declaration was reaffirmed by the Rio
Requisites for liability of the President for the Declaration.
extralegal killings and enforced disappearances or
threats committed by a public official or employee Our very own Constitution also considers as a State
under the principle of command responsibility: (S-S, policy the obligation of the State to protect and advance
K2, F) the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of
1. The existence of a Superior-subordinate nature. This right was recognized as an enforceable right
relationship between the accused as superior and the in the case of Oposa v. Factoran, G.R. No. 101083, July 30,
perpetrator of the crime as his subordinate; 1993, wherein the Supreme Court recognized the
2. The superior Knew or had reason to know that “Intergenerational Responsibility” of the people over the
the crime was about to be or had been committed; Earth’s natural resources. The first issue it resolved was
3. The superior has Knowledge that a crime or the issue of locus standi on the part of the petitioners
offense shall be committed, is being committed, or has been who claimed to represent their generation, and
committed by his subordinates, or by others within his area generations yet unborn. The Court ruled in favor of the
of responsibility and, despite such knowledge, he did not petitioners saying that the minor petitioners’ assertion of
take preventive or corrective action either before, during, or their right to a sound environment is a performance of
immediately after its commission; and their duty to preserve such for the succeeding
4. The superior Failed to take the necessary and generations.
reasonable measures to prevent the criminal acts or punish
the perpetrators thereof. More importantly, the case of Oposa clarified the fact that
although the right to a balanced and healthful ecology is
NOTE: Knowledge of the commission of irregularities, found in the Declaration of Principles of the Constitution,
crimes or offenses is presumed when: (W-R-S) this right is of equal importance with the civil and
political rights found in the Bill of Rights. Thus, in the
1. The acts are Widespread within the government exercise of the Supreme Court’s power to promulgate
official’s area of jurisdiction; rules concerning the protection and enforcement of
2. The acts have been Repeatedly or regularly constitutional rights, an environmental writ was
committed within his area of responsibility; and established to further to protect a person’s
3. Members of his immediate Staff or office personnel environmental right when measures taken by the
is involved (In Re: Petition for the Writ of Amparo and executive and the legislative are insufficient.
Habeas Data in Favor of Noriel H. Rodriguez v. Macapagal-
Arroyo, GR. No. 193160, Nov. 15, 2011). Nature of the writ of kalikasan

The Writ of kalikasan is an extraordinary remedy which

WRIT OF HABEAS DATA
may be issued depending on the magnitude of the
(See discussion under Right to privacy, after the Anti- environmental damage. The environmental damage must
Wiretapping Law) be one which prejudices the life, health or property of
inhabitants in two or more cities or provinces, or that
WRIT OF KALIKASAN which transcends political and territorial boundaries.

A remedy available to a natural or juridical person, entity It is also a remedy which enforces the right to
authorized by law, people’s organization, non- information by compelling the government or a private
governmental organization, or any public interest group entity to produce information regarding the environment
accredited by or registered with any government agency, that is within their custody.
on behalf of persons whose constitutional right to a
balanced and healthful ecology is violated, or threatened Persons who may file a petition for a writ of
with violation by an unlawful act or omission of a public kalikasan
official or employee, or private individual or entity,
involving environmental damage of such magnitude as to The Writ of Kalikasan may be availed of by any of the
prejudice the life, health or property of inhabitants in following:
two or more cities or provinces (A.M. No. 09-6-8-SC). a. Natural or juridical persons;
b. Entities authorized by law; or
Essence for the promulgation of the writ c. People’s organizations, non-governmental
organizations, or any public interest group accredited by
There is an increasing awareness of the need to protect or registered with any government agency.
the environment and conserve the finite resources of the
Earth. In fact, the urgent call for the preservation of the The petition must be “on behalf of persons whose
constitutional right to have balanced and healthful
ecology is violated” and involving environmental damage

UNIVERSITY OF SANTO TOMAS

137
FACULTY OF CIVIL LAW
 POLITICAL LAW

that injures the life, health or property of inhabitants in 1. Criminal cases

two or more cities or provinces. 2. Civil cases
3. Administrative cases
Persons against whom a petition for a writ of 4. Impeachment
kalikasan is filed 5. Other legislative investigations that possess a
criminal or penal aspect
a. A public official or employee; or
b. A private individual or entity. NOTE: It does not apply to private investigations done by
private individual (BPI v. CASA, GR.No.149454, May 28,
Where to file the petition 2004). When the privilege against self-incrimination is
violated outside of court, say, by the police, then the
a. The Supreme Court; or testimony, as already noted, is not admissible under the
b. Any station of the Court of Appeals. exclusionary rule. When the privilege is violated by the
court itself, that is, by the judge, the court is ousted of its
NOTE: The rationale for this is that the jurisdiction of jurisdiction, all its proceedings are null and void, and it is
both tribunals is national in scope which corresponds as if no judgment has been rendered. (Chavez v. CA, G.R.
with the magnitude of the environmental damage No. L-29169, Aug. 19, 1968)
contemplated by the Rules.
Incriminating question
Procedure for the issuance of a writ of kalikasan
A question tends to incriminate when the answer of the
The petitioner shall file his application for a Writ of accused or the witness would establish a fact which
kalikasan with the proper tribunal as specified in the would be a necessary link in a chain of evidence to prove
preceding paragraph. The filing of a petition for the writ the commission of a crime by the accused or the witness.
does not preclude the filing of separate civil, criminal, or
administrative actions. NOTE: The privilege against self-incrimination is not
self-executing or automatically operational. It must be
NOTE: The petitioner does not need to pay docket fees. claimed. It follows that the right may be waived,
While this is similar to the rule on filing fees for civil and expressly, or impliedly, as by a failure to claim it at the
criminal cases under the Rules, the exemption from appropriate time.
payment of docket fees under this remedy is a necessary
consequence of the fact that no award of damages to The privilege against self-incrimination can be claimed
private individuals can be made under the writ. In only when the specific question, incriminatory in
comparison to civil or criminal cases under the Rules of character, is actually addressed to the witness. It cannot
Civil Procedure, the filing fees need not be paid at the be claimed at any other time. It does not give a witness
time of filing but the same shall be imputed from the the right to disregard a subpoena, to decline to appear
award of damages that may be given to the complainant before the court at the time appointed. (Rosete v. Lim,
in the judgment. G.R. No. 136051, June 8, 2006)

Right against self-incrimination of an accused vs.

SELF-INCRIMINATION CLAUSE Right against self-incrimination of a witness

Basis ACCUSED ORDINARY WITNESS

Can refuse to take the Cannot refuse to take the
No person shall be compelled to be a witness against
witness stand altogether witness stand; can only
himself (Sec. 17, Art. III of the Constitution). (1990, 1992,
1998, 2006 Bar) by invoking the right refuse to answer specific
against self-incrimination questions which would
SCOPE AND COVERAGE incriminate him in the
commission of an offense
This constitutional privilege has been defined as a
protection against testimonial compulsion, but this has NOTE: For, in reality, the purpose of calling an accused
since been extended to any evidence “communicative in as a witness for the People would be to incriminate him.
nature” acquired under circumstances of duress. (People The rule positively intends to avoid and prohibit the
v. Olvis, G.R. No. 71092, Sept. 30, 1987) certainly inhuman procedure of compelling a person “to
furnish the missing evidence necessary for his
What is prohibited is the use of physical or moral conviction”. (Chavez v. CA, G.R. L-29169, Aug. 1968)
compulsion to extort communication from the witness or
to otherwise elicit evidence which would not exist were FOREIGN LAWS
it not for the actions compelled from the witness.
Q: Alienmae is a foreign tourist. She was asked certain
The right is available in: questions in regard to a complaint that was filed against
her by someone who claimed to have been defrauded by
her. Alienmae answered all the questions asked, except in
regard to some matters in
UNIVERSITY OF SANTO TOMAS
2017 GOLDEN NOTES
 BILL OF RIGHTS –INVOLUNTARY SERVITUDE AND POLITICAL PRISONERS

which she invoked her right against self- one who is compelled to furnish a specimen of his
incrimination. When she was pressed to elucidate, handwriting, for in both cases, the witness is required to
she said that the questions being asked might tend to furnish evidence against himself.
elicit incriminating answers insofar as her home
state is concerned. Could Alienmae invoke the right Inapplicability of the right against self-incrimination
against self-incrimination if the fear of incrimination to juridical persons
is in regard to her foreign law? (2014 Bar)
It is not available to juridical persons as “it would be a
A: No. Alienmae cannot invoke her right against self- strange anomaly to hold that a state having chartered a
incrimination even if the fear of incrimination is in regard to corporation to make use of certain franchises, could not,
her foreign law. Under the territoriality in the exercise of sovereignty, inquire how these
franchises had been employed, and whether they have
been abused, and demand the production of the
principle, the general rule is that a state has jurisdiction corporate books and papers for that purpose.” (Bataan
over all persons and property within its territory. The Shipyard and Engineering Corporation v. PCG, GR. No.
jurisdiction of the nation within its own territory is 75885, May 27, 1987)
necessary, exclusive, and absolute. However, the are a
few exceptions on when a state cannot exercise IMMUNITY STATUTES
jurisdiction even within its own territory, to wit: 1)
foreign states, head of states, diplomatic representatives, Used-and-derivative-use Immunity
and consults to a certain degree; 2) foreign state
property; 3) acts of state; 4) foreign merchant vessels A witness is only assured that his or her particular
exercising rights of innocent passage or arrival under testimony and evidence derived from it will not be used
stress; 5) foreign armies passing through or stationed in against him or her in a subsequent prosecution.
its territories with its permission; and 6) such other
persons or property, including organisations like the Transactional Immunity
United Nations, over which it may, by agreement, waive
jurisdiction. Seeing that the circumstances surrounding A witness can no longer be prosecuted for any offense
Alienmae do not fall under those exceptions, that she is a whatsoever arising out of the act or transaction. (Mapa v.
foreign tourist who received a complaint for fraud, such Sandiganbayan, G.R. No. 100295, April 26, 1994)
principle of territoriality can be exercised by the State to
get the information it needs to proceed with the case.
(UPLC Suggested Answers to the Bar)
USED-AND-DERIVATIVE- TRANSACTIONAL
USE IMMUNITY IMMUNITY
APPLICATION
Only prevents the Completely protects the
Re-enactment of a crime prosecution from using the witness from future
witness' own testimony, or prosecution for crimes
A person who is made to re-enact a crime may rightfully any evidence derived from related to his or her
invoke his privilege against self-incrimination, because the testimony, against him. testimony.
by his conduct of acting out how the crime was
However, should the
supposedly committed, he thereby practically confesses
his guilt by action which is as eloquent, if not more so, prosecutor acquire
than words. (People v. Olvis, G.R. No. 71092, Sept. 30, evidence substantiating
1987) the supposed crime—
independent of the
Handwriting is covered by the right against self- witness's testimony—the
incrimination witness may then be
prosecuted for the same.
Under Sec. 17, Art. III of the 1987 Constitution, “no
person shall be compelled to be a witness against Does not protect the Gives the witness the most
himself.” Since the provision prohibits compulsory witness quite as much, protection from
testimonial incrimination, it does not matter whether the because here the witness prosecution because that
testimony is taken by oral or written. Writing is not is only protected from witness can never be
purely a mechanical act because it requires the future prosecution based prosecuted in the future
application of intelligence and attention. The purpose of
on exactly what he or she for any crimes related to
the privilege is to avoid and prohibit thereby the
repetition and recurrence of compelling a person, in a says on the witness stand, his or her testimony.
criminal or any other case, to furnish the missing and not from any evidence
evidence necessary for his conviction. (Bermudez v. the prosecutor finds to Also known as blanket or
Castillo, July 26, 1937; Beltran v. Samson, G.R. No. 32025, substantiate the witness’ total immunity.
Sept. 23, 1929) crime.

NOTE: There is similarity between one who is compelled ---

to produce a private document (Boyd v. US, 1886), and Q: The Republic of the Philippines filed a case against
Westinghouse Corporation before the US District Court
due to the belief that Westinghouse contract for the
construction of the Bataan Nuclear Power Plant, which
was brokered by Herminio Disini’s company, had been
attended by anomalies. Having
 UNIVERSITY OF SANTO TOMAS
139
FACULTY OF CIVIL LAW
 POLITICAL LAW

worked as Herminio’s executive in the latter’s

company for 15 years, the Republic asked Jesus 3. As a rule, such infringement of constitutional right
Disini to give his testimony regarding the case. renders inoperative the testimonial compulsion, meaning,
the witness cannot be compelled to answer UNLESS a co-
An immunity agreement was entered between Jesus extensive protection in the form of IMMUNITY is offered.
and the Republic which he undertook to testify for The only way to cure the law of its unconstitutional effects is
his government and provide its lawyers with to construe it in the manner as if IMMUNITY had in fact been
information needed to prosecute the case. Said offered. The applicability of the immunity granted by P.D.
agreement gave Jesus an assurance that he shall not 1886 cannot be made to depend on a claim of the privilege
be compelled to give further testimonies in any against self-incrimination which the same law practically
proceeding other than the present matter. Jesus strips away from the witness. (Galman v. Pamaran, G.R. Nos.
complied with his undertaking. But after 18 years, 71208-09, Aug. 30, 1985)
Sandiganbayan issued a subpoena against him, ---
commanding him to testify and produce documents
before said court in an action filed against Herminio.
Can Jesus be compelled to testify before the INVOLUNTARY SERVITUDE AND POLITICAL
Sandiganbayan? PRISONERS

A: NO. A contract is the law between the parties. It cannot be

withdrawn except by their mutual consent. In the case at bar, the Involuntary servitude
Republic, through the PCGG, offered Jesus not only criminal and
civil immunity but also immunity against being compelled to Condition where one is compelled by force, coercion, or
testify in any proceeding other than the civil and arbitration imprisonment, and against his will, to labor for another,
cases identified in the agreement, just so he would agree to whether he is paid or not.
testify. When the Republic entered in such agreement, it needs to
fulfill its obligations honorably as Jesus did. The government GR: No involuntary servitude shall exist. (1993 Bar)
should be fair. (Disini v. Sandiganbayan, G.R. No. 180564, June 22,
2010) XPNs: (P-S-E-C-O-M)
--- 1. Punishment for a crime for which the party has been
--- duly convicted
Q: Lisette and Angela were called before the AGRAVA Board 2. Personal military or civil service in the interest of
to elicit and determine the surrounding facts and national defense
circumstances of the assassination of Benigno Aquino Sr. 3. In naval enlistment, a person who enlists in a merchant
Sec. 5 of PD 1886 creating the Board compels a person to ship may be compelled to remain in service until the end of a
take the witness stand, testify or produce evidence, under voyage
the pain of contempt if they failed or refused to do so. Lisette 4. Posse comitatusor the conscription of able-bodied men
and Angela gave their testimonies without having been for the apprehension of criminals
informed of their right to remain silent and that any 5. Return to work order issued by the DOLE Secretary or
statement given by them may be used against them. The the President
Board then used the information from the testimonies of 6. Minors under patria potestas are obliged to obey their
Lisette and Angela to support the prosecution's case against parents
them in Sandiganbayan. The Board contends that the fact
that Lisette and Angela testified before the Board ---
constituted as a valid waiver of their constitutional rights to Q: Yolanda is a stenographer in the RTC of Nueva Ecija.
remain silent and not to be compelled to be a witness
She is now retired, however she had unfinished work
against themselves.
left in the RTC which were on appeal, so the Court of
1. Was there a valid waiver of the rights? Appeals ordered her to finish her work. However, she
2. Are the testimonies of Lisette and Angela admissible in refused to comply as she is already retired. CA cited her
court? for contempt of court and incarcerated her. In return,
3. How can the unconstitutional effects be reconciled? Joy filed for a petition of Habeas Corpus arguing that her
incarceration constitutes illegal detention and that the
A: court making her finish her work is involuntary
1. None. In the case at bar, Lisette and Angela were under solitude. Will her petition prosper? Explain.
the directive of law and under the compulsion of fear for the
contempt powers of the Board. They were left with no choice but A: NO. The Incarceration does not amount to illegal
to provide testimonies before the Board. detention, contrary to her claim. Such incarceration is the
consequence of her non-compliance with the court order.
2. No. The manner in which testimonies were taken from The Court of Appeals, ordering her to finish her work, does
Lisette and Angela falls short of the constitutional standards not amount to involuntary servitude either. The courts have
both under the due process clause and under the exclusionary the inherent power to issue such orders as are necessary for
rule. the administration of justice. Thus,

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 BILL OF RIGHTS – INVOLUNTARY SERVITUDE AND POLITICAL PRISONERS, EXCESSIVE FINES AND CRUEL AND INHUMAN PUNISHMENTS,
NON-IMPRISONMENT FOR DEBTS, RIGHT AGAINST DOUBLE JEOPARDY

the court may order her to finish her work even if she is
no longer in the government service. If an accused fails to pay the fines imposed upon him, this
--- may result in his subsidiary imprisonment because his
liability is ex delicto and not ex contractu.

EXCESSIVE FINES AND CRUEL AND INHUMAN Generally, a debtor cannot be imprisoned for failure to
PUNISHMENTS pay his debt. However, if he contracted his debt through
fraud, he can be validly punished in a criminal action as
his responsibility arises not from the contract of loan but
from commission of a crime. (Lozano v. Martinez, G.R. No.
Coverage
L-63419, Dec.18, 1986)

It has long been held that the prohibition of cruel and

unusual punishments is generally aimed at the form or RIGHT AGAINST DOUBLE JEOPARDY
character of the punishment rather than its severity in
respect of duration or amount, and applies to (1999, 2000 Bar)
punishments which public sentiment has regarded as
cruel or obsolete, for instance, those inflicted at the No person shall be twice put in jeopardy of punishment
whipping post, or in the pillory, burning at the stake, for the same offense. If an act is punished by a law and an
breaking on the wheel, disemboweling, and the like. Fine ordinance, conviction or acquittal under either shall
and imprisonment would not thus be within the constitute a bar to another prosecution for the same act.
prohibition. It takes more than merely being harsh,
excessive, out of proportion, or severe for a penalty to be REQUISITES
obnoxious to the Constitution.
1. Valid complaint or information;
NOTE: The fact that the punishment authorized by the 2. Filed before a competent court;
statute is severe does not make it cruel and unusual. 3. The arraignment of the accused;
(Corpuz v. People, G.R. No. 180016, April 29, 2014) 4. To which he had pleaded; and
5. Defendant was previously acquitted or convicted, or
Cruel and Inhuman penalty the case dismissed or otherwise terminated without his
express consent. (Saldariega v. Panganiban, G.R. Nos.
A penalty is cruel and inhuman if it involves torture or 211933 & 211960, April 15, 2015)
lingering suffering (example: being drawn and
quartered). NOTE: Consent of the accused to the dismissal cannot be
implied or presumed; it must be expressed as to have no
Degrading penalty doubt as to the accused’s conformity. (Caes v. IAC, 179
SCRA 54)
A penalty is degrading if it exposes a person to public
humiliation (example: being tarred and feathered, then Rationale behind the right
paraded throughout town).
To reconsider a judgment of acquittal places the accused
twice in jeopardy for being punished for the crime of
NON-IMPRISONMENT FOR DEBTS which he has already been absolved. There is reason for
this provision of the Constitution. In criminal cases, the
full power of the State is ranged against the accused. If
Basis there is no limit to attempts to prosecute the accused for
the same offense after he has been acquitted, the infinite
No person shall be imprisoned for debt or non-payment power and capacity of the State for a sustained and
of a poll tax (Sec. 20, Art. III of the Constitution). (1993, repeated litigation would eventually overwhelm the
1997, 2000, 2002 Bar) accused in terms of resources, stamina, and the will to
fight. (Lejano v. People, G.R. Nos. 176389 and 176864, Dec.
Debt 14, 2010)

Any civil obligation arising from contract. Grant of demurrer to evidence operates as an
acquittal
Poll tax
The general rule that the grant of a demurrer to evidence
A specific sum levied upon any person belonging to a operates as an acquittal and is, thus, final and
certain class without regard to property or occupation unappealable, to wit:
(e.g. Community tax).
The demurrer to evidence in criminal cases, such as the
NOTE: A tax is not a debt since it is an obligation arising one at bar, is "filed after the prosecution had rested its
from law. Hence, its non-payment maybe validly case," and when the same is granted, it calls "for an
punished with imprisonment. Only poll tax is covered by appreciation of the evidence adduced by the prosecution
the constitutional provision.

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and its sufficiency to warrant conviction beyond GR: Double jeopardy is not available when the case
reasonable doubt, resulting in a dismissal of the case on is dismissed other than on the merits or other than
the merits, tantamount to an acquittal of the accused." by acquittal or conviction upon motion of the
Such dismissal of a criminal case by the grant of accused personally, or through counsel, since such
demurrer to evidence may not be appealed, for to do so dismissal is regarded as with express consent of the
would be to place the accused in double jeopardy. The accused, who is therefore deemed to have waived
verdict being one of acquittal, the case ends there. the right to plea double jeopardy.

--- XPNs:
Q: On July 19, 2016, the court granted former 1. Dismissal based on insufficiency of evidence.
president Arroyo and Aguas’ respective demurrers to (Saldariega v. Panganiban, G.R. Nos. 211933 & 211960, April 15,
evidence. The Ombudsman has moved for the 2015)
reconsideration of the decision, averring that that 2. Dismissal because of denial of accused’s right to
the prohibition against double jeopardy does not speedy trial (Ibid.)
apply because it was denied its day in court thereby
rendering the decision void. Is he correct? 3. Accused is discharged to be a State witness
A: NO. Section 23, Rule 119 of the Rules of Court
pertinently provides: “The order denying the motion for 6. When the case was provisionally dismissed.
leave of court to file demurrer to evidence or the 7. The graver offense developed due to supervening facts
demurrer itself shall not be reviewable by appeal or by arising from the same act or omission constituting the former
certiorari before judgment.“ The prohibition contained in charge.
Section 23, Rule 119 of the Rules of Court is not an
insuperable obstacle to the review by the Court of the NOTE: Doctrine of Supervening Event - The
denial of the demurrer to evidence through certiorari. accused may still be prosecuted for another offense
We have had many rulings to that effect in the past. For if a subsequent development changes the character
instance, in Nicolas v. Sandiganbayan, the Court of the first indictment under which he may have
expressly ruled that the petition for certiorari was the already been charged or convicted.
proper remedy to assail the denial of the demurrer to
evidence that was tainted with grave abuse of discretion 8. The facts constituting the graver charge became known
or excess of jurisdiction, or oppressive exercise of or were discovered only after a plea was entered in the former
judicial authority. (Macapagal-Arroyo v. People of the complaint or information.
Philippines, G.R. No. 220953, 18 April 2017) 9. The plea of guilty to a lesser offense was made without
--- the consent of the prosecutor and of the offended party except as
otherwise provided in Sec. 1(f) of Rule 116.
Related protections provided by the right ---
against double jeopardy Q: Hans, a writer in Q Magazine, published an article
about Carlo’s illicit affairs with other women. The magazine
also happened to have a website where the same article was
1. Against a second prosecution for the same offense published. Carlo then filed a libel case against Hans both under
after acquittal; the Revised Penal Code and the Cybercrime Law. Is there a
2. Against a second prosecution for the same offense violation of the proscription against double jeopardy?
after conviction;
3. Against multiple punishments for the same offense. A: YES. There should be no question that if the published
material on print, said to be libelous, is again posted online or vice
Exceptions to the right against double jeopardy versa, that identical material cannot be the subject of two separate
libels. The two offenses, one, a violation of Art. 353 of the Revised
1. When the trial court acted with grave abuse of Penal Code and the other a violation of Sec. 4(c)(4) of R.A. 10175
discretion amounting to lack or excess of jurisdiction. involve essentially the same elements and are in fact one and the
(Bangayan, Jr. v. Bangayan, G.R. No. 172777, and De Asis same offense. Online libel under Sec. 4(c)(4) is not a new crime but
Delfin v. Bangayan, G.R. No. 172792, Oct. 19, 2011) is one already punished under the Art. 353. Sec. 4(c)(4) merely
2. The accused was not acquitted nor was there a valid establishes the computer system as another means of publication.
and legal dismissal or termination of the case. Charging the offender under both laws would be a blatant violation
3. Dismissal of the case was during the preliminary of the proscription against double jeopardy. (Disini v. Secretary of
investigation. Justice, G.R. No. 203335, Feb. 11, 2014)
4. It does not apply to administrative cases. ---
5. Dismissal or termination of the case was with the ---
express consent of the accused. Q: Jet was convicted for Reckless Imprudence Resulting
in Slight Physical Injuries. Can he still be prosecuted for
NOTE: When the dismissal is made at the instance of Reckless Imprudence Resulting in
the accused, there is no double jeopardy. (People v.
Quizada, 160 SCRA 516)

142
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 BILL OF RIGHTS – EX POST FACTO LAW AND BILL OF ATTAINDER

Homicide and Damage to Property arising from the declaring the soldiers' version of Galman being
same incident? Aquino's killer a perjured story. Will the rule on
double jeopardy apply?
A: NO. The doctrine that reckless imprudence under Art. A: NO. There was no double jeopardy. It is a settled
365 is a single quasi-offense by itself and not merely a means doctrine that double jeopardy cannot be invoked against
to commit other crimes such that conviction or acquittal of this Court's setting aside of the trial courts' judgment of
such quasi-offense bars subsequent prosecution for the same dismissal or acquittal where the prosecution which
quasi-offense, regardless of its various resulting acts. Reason represents the sovereign people in criminal cases is
and precedent both coincide in that once convicted or denied due process. The proceedings that took place
acquitted of a specific act of reckless imprudence, the before was a sham and a mock trial which resulted in the
accused may not be prosecuted again for that same act. For denial of the State’s right to due process. (Galman v.
the essence of the quasi-offense of criminal negligence under Sandiganbayan, GR. No. 72670, Sept. 12, 1986)
Art. 365 of the Revised Penal Code lies in the execution of an ---
imprudent or negligent act that, if intentionally done, would
be punishable as a felony. The law penalizes thus the Effect of order of a court which lacks jurisdiction
negligent or careless act, not the result thereof. The gravity
of the consequence is only taken into account to determine Since the MTC did not have jurisdiction to take
the penalty, it does not qualify the substance of the offense. cognizance of the case pending this Court's review of the
And, as the careless act is single, whether the injurious result RTC Order, its order of dismissal was a total nullity and
should affect one person or several persons, the offense did not produce any legal effect. Thus, the dismissal
(criminal negligence) remains one and the same, and cannot neither terminated the action on the merits, nor
be split into different crimes and prosecutions. (Jason Ivler y amounted to an acquittal. The same can be said of the
Aguilar v. Hon. Modesto-San Pedro, G.R. No. 172716, Nov. 17, Order of Revival. Since both orders cannot be the source
2010) of any right nor create any obligation, the dismissal and
--- the subsequent reinstatement of Criminal Case No.
89724 did not effectively place the petitioners in double
A valid information is required in order for the first jeopardy. (Quiambao v. People, G.R. No. 185267, Sept. 17,
jeopardy to attach 2014)

When accused policemen entered their pleas of not The appeal of an accused operates as a waiver of his
guilty, and later arraigned anew by reason of amendment right against double jeopardy
of information, and consequently convicted, they were
not placed in double jeopardy. The first requirement for When an accused appeals from the sentence of the trial
jeopardy to attach – that the information were valid – court, he waives the constitutional safeguard against
has not been complied with. (Herrera v. Sandiganbayan, double jeopardy and throws the whole case open to the
G.R. Nos. 119660-61, Feb. 13, 2009) review of the appellate court, which is then called upon
to render such judgment as law and justice dictate,
whether favorable or unfavorable to the appellant." In
NOTE: When the first case was dismissed due to other words, when appellant appealed the RTC’s
insufficiency of evidence without giving the prosecution judgment of conviction for murder, he is deemed to have
the opportunity to present its evidence, jeopardy has not abandoned his right to invoke the prohibition on double
yet attached. (People v. Dumlao, G.R. No. 168918, Mar. 2, jeopardy since it became the duty of the appellate court
2009) to correct errors as may be found in the appealed
judgment. Thus, appellant could not have been placed
--- twice in jeopardy when the CA modified the ruling of the
Q: After a long and protracted trial, the accused RTC by finding him guilty of robbery with homicide as
involved in the murder of then Senator Aquino were charged in the Information instead of murder. (People v.
acquitted by the Sandiganbayan. After the EDSA People Torres, G.R. No. 189850, Sept. 22, 2014)
Power Revolution, a commission appointed by President
Aquino recommended the re-opening of the Galman- MOTION FOR RECONSIDERATION AND APPEAL
Aquino murder case after finding out that the then
authoritarian president Marcos ordered the Motion for Reconsideration
Tanodbayan and Sandiganabyan to rig the trial. Marcos
repudiated the findings of the very Fact Finding Board At any time before a judgment of conviction becomes
that he himself appointed to investigate the final, the court may on motion of the accused, or on its
assassination of Ninoy Aquino; he totally disregarded own instance with the consent of the accused, grant a
the Board's majority and minority findings of fact and new trial or reconsideration. (Rule 121, Sec. 1 of the
publicly insisted that the military's "fall guy" Rolando Revised Rules of Criminal Procedure)
Galman was the killer of Ninoy Aquino; the
Sandiganbayan's decision in effect convicted Rolando NOTE: A motion for reconsideration is a motion
Galman as Ninoy's assassin notwithstanding that he was generally filed by the accused whereby he seeks the
not on trial but the victim, and granted all 26 accused modification of the conclusions of the court in the
total absolution notwithstanding the Fact Finding Board judgment of conviction on the basis of what is already on
record. It does not call for the introduction of evidence

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unlike in new trial. (Pineda, The Revised Rules of Criminal double jeopardy to attach: (1) a valid indictment, (2)
Procedure, 2006 ed., 536-537) before a court of competent jurisdiction, (3) the
arraignment of the accused, (4) a valid plea entered by
Appeal him, and (5) the acquittal or conviction of the accused, or
the dismissal or termination of the case against him
Any party may appeal from a judgment or final order, without his express consent. However, there are two (2)
unless the accused will be placed in double jeopardy. exceptions to the foregoing rule, and double jeopardy
(Rule 122, Sec. 1 of the Revised Rules of Criminal may attach even if the dismissal of the case was with the
Procedure) consent of the accused: first, when there is insufficiency
of evidence to support the charge against him; and
NOTE: The authority to represent the State in appeals of second, where there has been an unreasonable delay in
criminal cases before the Supreme Court and the CA is the proceedings, in violation of the accused’s right to
solely vested in the Office of the Solicitor General (OSG). speedy trial.

To be sure, in criminal cases, the acquittal of the accused In the instant case, while the first four requisites are
or the dismissal of the case against him can only be present, the last requisite is lacking, considering that
appealed by the Solicitor General, acting on behalf of the here the dismissal was merely provisional and it was
State. The private complainant or the offended party may done with the express consent of the accused-petitioner.
question such acquittal or dismissal only insofar as the Roberta is not in danger of being twice put in jeopardy
civil liability of the accused is concerned. with the reopening of the case against her as it is clear
that the case was only provisionally dismissed by the
In a special civil action for certiorari filed under Sec. 1, trial court. The requirement that the dismissal of the case
Rule 65 of the Rules of Court wherein it is alleged that must be without the consent of the accused is not
the trial court committed a grave abuse of discretion present in this case. Neither does the case fall under any
amounting to lack of jurisdiction or on other of the aforementioned exceptions because, in fact, the
jurisdictional grounds, the rules state that the petition prosecution had failed to continue the presentation of
may be filed by the person aggrieved. In such case, the evidence due to the absence of the witnesses, thus, the
aggrieved parties are the State and the private offended fact of insufficiency of evidence cannot be established.
party or complainant. The complainant has an interest in Likewise, we find no unreasonable delay in the
the civil aspect of the case so he may file such special proceedings that would be tantamount to violation of the
civil action questioning the decision or action of the accused’s right to speedy trial.
respondent court on jurisdictional grounds. In so doing,
complainant should not bring the action in the name of
the People of the Philippines. The action may be EX POST FACTO LAW AND
prosecuted in name of said complainant. (Bautista & BILL OF ATTAINDER
Alcantara v. Cuneta-Pangilinan, G.R. No. 189754, Oct. 24,
2012)
An ex post facto law is any law that makes an action,
DISMISSAL WITH CONSENT OF ACCUSED done before the passage of the law, and which was
innocent when done, criminal, and punishes such action.
Q: For failure of the principal witness, PO2 Nelson Villas to (United State v. Vicente Diaz Conde and Apolinaria R. De
attend several hearings, the presiding judge of RTC Quezon Conde, G.R. No. L-18208, Feb. 14, 1922) (1990 Bar)
City Branch 227, Judge Elvira Panganiban, ordered that the
case against accused Roberta Saldariega for violation of Kinds of ex post facto law
Section 5 and 11 of RA 9165 be provisionally dismissed,
with the express consent of the accused. However, on June 5, It can be a law that:
2013, PO2 Villas moved to re-open the case, averring that 1. Makes an act, which was innocent when done,
his failure to attend was due to the successive deaths of his criminal and punishes such action
uncle and aunt, attaching thereto their respective death 2. Aggravates a crime or makes it greater than when
certificates. Judge Panganiban then granted the motion and it was committed
ordered the cases set for hearing. Roberta countered that 3. Changes the punishment and inflicts a greater
the provisional dismissal of the case with her consent but punishment than the law annexed to the crime when it was
predicated on failure to prosecute which violates her right committed
to speedy trial is equivalent to an acquittal, the reopening of 4. Alters the legal rules of evidence and receives less
which violates her right against double jeopardy. Is Roberta or different testimony than the law required at the time of
correct? the commission of the offense in order to convict the
defendant
A: NO. The proscription against double jeopardy presupposes 5. Assumes to regulate civil rights and remedies only.
that an accused has been previously charged with an offense, and In effect imposes penalty or deprivation of a right for
the case against him is terminated either by his acquittal or something which when done was lawful
conviction, or dismissed in any other manner without his 6. Deprives a person accused of a crime of some
consent. As a general rule, the following requisites must be lawful protection to which he has become entitled, such as
present for the protection of a former conviction or acquittal, or a
proclamation of

UNIVERSITY OF SANTO TOMAS

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 CITIZENSHIP

amnesty. (Nuñez v. Sandiganbayan and People, Hoc Fact-Finding Committee on Behest Loans, and
Jan. 30, 1982) provides for its composition and functions. It does not
mete out penalty for the act of granting behest loans.
--- Memorandum Order No. 61 merely provides a frame of
Q: On Oct. 8, 1992 President Ramos issued A.O. No. reference for determining behest loans. Not being penal
13 creating the Presidential AdHoc Fact-Finding laws, Administrative Order No. 13 and Memorandum
Committee on Behest Loans. The Committee was tasked Order No. 61 cannot be characterized as ex post facto
to inventory all behest loans and determine the courses laws. There is, therefore, no basis for the Ombudsman to
of action that the government should take to recover rule that the subject administrative and memorandum
these loans. orders are ex post facto. (Salvador v. Mapa, Jr., G.R. No.
135080, Nov. 28, 2007)
By Memorandum Order No. 61 dated Nov. 9, 1992, ---
the functions of the Committee were expanded to
include all non-performing loans which shall Bill of attainder
embrace behest and non-behest loans. Said
Memorandum also named criteria to be utilized as a A legislative act that inflicts punishment without trial, its
frame of reference in determining a behest loan. essence being the substitution of legislative fiat for a
judicial determination of guilt. (People v. Ferrer, G.R. Nos.
Several loan accounts were referred to the L-32613-14, Dec. 27, 1972)
Committee for investigation, including the loan
transactions between PEMI and the DBP. NOTE: It is only when a statute applies either to a named
individuals or easily ascertainable members of a group in
Consequently, Atty. Salvador, Consultant of the Fact- such a way as to inflict punishment on them without a
Finding Committee, and representing the PCGG, filed judicial trial that it becomes a bill of attainder.
with the Ombudsman a sworn complaint for
violation of Sections 3(e) and (g) of R.A. No. 3019 Two kinds of bill of attainder
against the respondents Mapa, Jr. et. al. The
Ombudsman dismissed the complaint on the ground 1. Bill of attainder proper (legislative imposition of the
of prescription. death penalty)
2. Bill of pains and penalties (imposition of a lesser
According to the Ombudsman, the loans were penalty)
entered into by virtue of public documents during
the period of 1978 to 1981. Records show that the
complaint was referred and filed with the
Ombudsman on Oct. 4, 1996 or after the lapse of
more than fifteen years from the violation of the law.
Therefore, the offenses charged had already
prescribed.

The Presidential Ad Hoc Committee on Behest Loans

was created on Oct. 8, 1992 under Administrative
Order No. 13. Subsequently, Memorandum Order No.
61, dated Nov. 9, 1992, was issued defining the
criteria to be utilized as a frame of reference in
determining behest loans.

Accordingly, if these Orders are to be considered the

bases of charging respondents for alleged offenses
committed, they become ex-post facto laws which are
proscribed by the Constitution. The Committee filed
a Motion for Reconsideration, but the Ombudsman
denied it on July 27, 1998.

Are Administrative Order No. 13 and Memorandum

Order No. 61 ex-post facto laws?

A: NO. The constitutional doctrine that outlaws an ex

post facto law generally prohibits the retrospectivity of
penal laws. Penal laws are those acts of the legislature which
prohibit certain acts and establish penalties for their
violations; or those that define crimes, treat of their nature,
and provide for their punishment. The subject
administrative and memorandum orders clearly do not
come within the shadow of this definition. Administrative
Order No. 13 creates the Presidential Ad

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NOTE: The 1935 Constitution, during which regime FPJ

CITIZENSHIP had seen first light, confers citizenship to all persons
whose fathers are Filipino citizens regardless of whether
such children are legitimate or illegitimate. (Tecson v.
Citizenship COMELEC, G.R. No. 161434, Mar. 3, 2004)

Membership in a political community, which is personal

and more or less permanent in character. MODES OF ACQUIRING CITIZENSHIP

Citizenship vs. Nationality

1. By birth
a. Jus sanguinis – acquisition of citizenship on the
Citizenship Nationality basis of blood relationship. (2015 Bar)
b. Jus soli – acquisition of citizenship on the basis of
the place of birth.
A term denoting It has broader meaning, 2. By naturalization – the legal act of adopting an alien and
membership of a citizen in embracing all who owe clothing him with the privilege of a native-born citizen.
a political society, which allegiance to a state, 3. By marriage - A foreign woman marries a Filipino
membership implies, whether democratic or husband, provided, she possesses all qualifications and none
of the disqualifications for naturalization.
reciprocally, a duty of not, without thereby (2009 Bar)
allegiance on the part of becoming citizens.
the member and duty of Because they owe Citizenship of a Filipino woman who married a
protection on the part of allegiance to it, they are foreigner under the 1935, 1973, 1987 Constitution
the state. not regarded as aliens.
Citizens of the Philippines who marry aliens shall retain
their citizenship, unless by their act or omission they are
deemed, under the law, to have renounced it. (Sec. 4, Art.
IV, 1987 Constitution) (2014 Bar)

WHO ARE FILIPINO CITIZENS A female citizen of the Philippines who marries an alien
shall retain her Philippine citizenship, unless by her act
or omission she is deemed, under the law, to have
1. Those who are Filipino citizens at the time of the adoption renounced her citizenship (1973 Constitution).
of the 1987 Constitution:
a. Those who are citizens under the Treaty of Paris; Philippine citizenship may be lost or reacquired in the
b. Those declared citizens by judicial declaration applying manner provided by law (1935 Constitution).
the jus soli principle, before Tio Tam v. Republic, G.R. No. L-9602,
April 25, 1957. In the case of a woman, upon her marriage to a foreigner
c. Those who are naturalized in accordance with law (Act if, by virtue of the laws in force in her husband's country,
2927). she acquires his nationality (Commonwealth Act 63 Sec
d. Those who are citizens under the 1935 Constitution. 1(7)).
e. Those who are citizens under the 1973 Constitution.
NOTE: Jus sanguinis and naturalization are the modes
2. Those whose fathers or mothers are Filipino citizens followed in the Philippines.
3. Those born before January 17, 1973, of Filipino mothers,
who elect Philippine citizenship upon reaching the age of Statutory formalities in selecting Philippine
majority; and citizenship

NOTE: Time to elect: within 3 years from reaching 1. A statement of election under oath;
the age of majority. 2. An oath of allegiance to the Constitution and
Government of the Philippines; and
4. Those naturalized in accordance with law. (Sec. 1, Art. IV, 3. Registration of the statement of election and of the
1987 Constitution) oath with the nearest civil registry. (Balgamelo Cabiling Ma
v. Commissioner Alipio F. Fernandez, Jr., G.R. No. 183133, July
Caram rule 26, 2010)

Under the 1935 Constitution, those born in the Registration of the act of election does not confer
Philippines of foreign parent, who before the adoption of Filipino citizenship
the Constitution had been elected to public office, are
considered Filipino citizens. (Chiongbian v. de Leon, G.R. It is not the registration of the act of election, although a
No. L-2007, Jan. 31, 1949) valid requirement under Commonwealth Act No. 625,
that will confer Philippine citizenship on the

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2017 GOLDEN NOTES
 CITIZENSHIP

petitioners. It is only a means of confirming the fact that 2. Believes in the Constitution
citizenship has been claimed. In other words, the actual 3. Conducted himself in an irreproachable
exercise of Philippine citizenship for over half a century conduct during his stay in the Philippines
by the petitioners is actual notice to the Philippine 4. Owns real estate in the Philippines not less than
public, which is equivalent to formal registration of the P5,000 in value; or has some lucrative trade,
election of Philippine citizenship (Ibid.). profession or lawful occupation that can support
himself and his family.
Registration of documents of election still allowed 5. Speaks and writes English or Filipino and any
even beyond the time frame principal Philippine dialects (as amended by Sec. 6
Art. XIV); and
It should be allowed if in the meanwhile positive acts of 6. Enrolled minor children in any public or private
citizenship have been done publicly, consistently and school recognized by the government where
continuously. These acts constitute constructive Philippine history, government and civics are taught
registration (Ibid.). as part of the curriculum, during the entire period of
residence prior to hearing of petition.
The failure to register the election of citizenship in
the civil registry will not defeat the election and Disqualified from Judicial Naturalization (CA 473)
negate the permanent fact of having a Filipino
mother 1. Persons opposed to organized government or
affiliated with any association or group of
Having a Filipino mother is permanent. It is the basis of persons which uphold and teach doctrines
the right of the petitioners to elect Philippine citizenship opposing all organized governments
(Ibid.). 2. Persons defending or teaching necessity or
propriety of violence, personal assault or
assassination for the success or predominance
NATURALIZATION AND DENATURALIZATION of their ideas
3. Polygamists or believers of polygamy

4. Persons suffering from mental alienation or

incurable contagious disease
Naturalization
5. Persons convicted of crime involving moral
turpitude
Act of formally adopting a foreigner into the political
6. Persons who, during residence in the
body of a nation by clothing him or her with the
Philippines, have not mingled socially with
privileges of a citizen.
Filipinos, or did not evince sincere desire to
learn and embrace customs, traditions and
Modes of becoming a citizen by naturalization
ideals of Filipinos
7. Citizens or subjects of nations with whom the
1. Administrative naturalization pursuant to RA 9139
Philippines is at war, during the period of such
2. Judicial naturalization pursuant to CA 473, as
war
amended; and
8. Citizens or subjects of a foreign country whose
3. Legislative naturalization in the form of a law
laws do not grant Filipinos the right to become
enacted by Congress bestowing Philippine citizenship
naturalized citizens or subjects thereof (no
to an alien. (So v. Rep., G.R. No. 170603, Jan. 29, 2007)
reciprocity)
Qualifications for Judicial Naturalization (CA No.
---
473)
Q: Karbasi, of Iranian national, is a long-time
1. Not less than 18 years of age on the date of hearing resident of Fairview, Quezon City. However, the UN
 Commission for Refugees certified his status as a
the petition (as amended by RA 6809).
refugee. He now seeks to be a Filipino citizen
2. Resided in the Philippines for not less than 10 years;
through judicial naturalization. The OSG, on the
may be reduced to 5 years, if;
other hand, opposes his petition on the ground that
a. Honorably held office under the Government of
Iranian Law does not allow naturalization of Filipino
the Philippines or under that of any of the
citizens as Iranians; thus non-compliant with the
provinces, cities, municipalities, or political
Naturalization Law that there should be reciprocity
subdivisions thereof
between Phillippine law and the foreign law. Is the
b. Established new industry or introduced a
OSG’s opposition correct?
useful invention
c. Married to a Filipino woman
A: NO. True, the Naturalization Law disqualifies citizens
d. Engaged as teacher in Philippine public or
or subjects of a foreign country whose laws do not grant
private school not established for exclusive
Filipinos the right to become naturalized citizens or
instruction of a particular nationality or race, or
subjects. A perusal of Karbasi’s petition, however,
in any branches of education or industry for a
reveals that he has successfully established his refugee
period of not less than 2 years; and
status upon arrival in the Philippines.
e. Born in the Philippines
3. Character
1. Good moral character

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In effect, the country’s obligations under its various Persons disqualified for Administrative
international commitments come into operation. naturalization (RA 9139)
Articles 6 and 34 of the 1951 Convention relating to
the Status of Refugees, to which the Philippines is a 1. Those opposed to organized government or
signatory, must be considered in this case. In the same affiliated with any association of group of persons who uphold and
vein, Article 7 of the said Convention expressly teach doctrines opposing all organized governments;
provides exemptions from reciprocity, while Article 2. Those defending or teaching the necessity of or
34 states the earnest obligation of contracting parties to propriety of violence, personal assault or assassination for the
"as far as possible facilitate the assimilation and success or predominance of their ideas;
naturalization of refugees." As applied to this case, 3. Polygamists or believers in the practice of
Karbasi's status as a refugee has to end with the polygamy;
attainment of Filipino citizenship, in consonance with 4. Those convicted of crimes involving moral
Philippine statutory requirements and international turpitude;
obligations. Indeed, the Naturalization Law must be 5. Those suffering from mental alienation or
read in light of the developments in international incurable contagious diseases;
human rights law specifically the granting of 6. Those who, during the period of their residence in
nationality to refugees and stateless persons. the Philippines, have not mingled socially with Filipinos, or who
(Republic v. Karbasi, G.R. No. 210412, July 29, 2015) have not evinced a sincere desire to learn and embrace the customs,
--- traditions and ideals of the Filipinos;
7. Citizens or subjects with whom the Philippines is at
Qualifications for Administrative Naturalization (RA war, during the period of such war; and
9139) 8. Citizens or subjects of a foreign country whose
laws do not grant Filipinos the right to be naturalized citizens or
1. The applicant must be born in the Philippines subjects thereof.
and residing therein since birth;
2. The applicant must not be less than eighteen CA 473 vs. RA 9139
(18) years of age, at the time of filing of his/her petition;
3. The applicant must be of good moral character
and believes in the underlying principles of the CA 473 RA 9139
Constitution, and must have conducted himself/herself
in a proper and irreproachable manner during his/her Judicial act Administrative act
entire period of residence in the Philippines in his Covers all aliens Applies only to aliens who
relation with the duly constituted government as well as regardless of class were born in
with the community in which he/she is living; the Philippines and have been
4. The applicant must have received his/her residing here.
primary and secondary education in any public school or
Less tedious, less technical
private educational institution dully recognized by the
Department of Education, Culture and Sports, where and more encouraging.
Philippine history, government and civics are taught and
prescribed as part of the school curriculum and where An alien who is not qualified
enrollment is not limited to any race or nationality: under R.A. No. 9139 may still
Provided, That should he/she have minor children of be naturalized under C.A. No.
school age, he/she must have enrolled them in similar 473
schools;
5. The applicant must have a known trade, (So v. Republic, G.R. No. 170603, Jan. 29, 2007)
business, profession or lawful occupation, from which
he/she derives income sufficient for his/her support and Procedure under CA 473
if he/she is married and/or has dependents, also that of
his/her family: Provided, however, That this shall not 1. Declaration of Intention
apply to applicants who are college degree holders but
are unable to practice their profession because they are NOTE: Must be done one year prior to the filing of
disqualified to do so by reason of their citizenship; petition for admission to Philippine Citizenship
6. The applicant must be able to read, write and
speak Filipino or any of the dialects of the Philippines; 2. Petition for Citizenship
and 3. Notification and Appearance
7. The applicant must have mingled with the
Filipinos and evinced a sincere desire to learn and NOTE: Publication of such petition in the Official
embrace the customs, traditions and ideals of the Filipino Gazette and in one of the newspapers of general
people. circulation in the province where the petitioner
resides

4. Hearing of the Petition

UNIVERSITY OF SANTO TOMAS 2017
5. Issuance of the Certificate of Naturalization
GOLDEN NOTES

148
 CITIZENSHIP
Before the naturalization of the father
NOTE: The petitioner shall also take an oath before
the naturalization certificate is issued.

6. Record Books
7. Charging of Fees

Procedure under RA 9139

1. Petition for Citizenship

2. Special Committee on Naturalization
3. Approval or Disapproval of the Petition
4. Decree of Naturalization
5. Charging of Fees

Direct vs. Derivative Naturalization

DIRECT DERIVATIVE
NATURALIZATION NATURALIZATION
Is effected: Is conferred:
1. By individual 1. On the wife of the
proceedings, usually naturalized husband
judicial, under 2. On the minor
general children of the
naturalization laws naturalized parent
2. By specific act of the 3. On the alien woman
legislature, often in upon marriage to a
favor of distinguished national
foreigners who have 4. The unmarried child
rendered some whether legitimate,
notable service to the illegitimate or
local state adopted, below 18
3. By collective change years of age, of those
of nationality who re-acquire
(naturalization en Philippine citizenship
masse) as a result of upon effectivity of
cession or R.A. 9225 shall be
subjugation deemed citizens of
4. In some cases, by the Philippines.
adoption of orphan (2009 Bar)
minors as nationals of
the State where they
are born

NOTE: Derivative naturalization does not always follow

as a matter of course, for it is usually made subject to
stringent restrictions and conditions. Our own laws, for
instance, provide that an alien woman married to a
Filipino shall acquire his citizenship only if she herself
might be lawfully naturalized.

Effects of naturalization

ON THE WIFE
Vests citizenship on the wife who might herself be
lawfully naturalized; She need not prove her
qualifications but only that she is not disqualified. (Moy
Ya Lim Yao v. Comm. of Immigration, G.R. No. L-21289,
Oct. 4, 1971)

ON THE MINOR CHILDREN

Born in the Philippines
Automatically becomes a citizen

Born Abroad
 monthly income differs from his monthly income as
declared in his petition for naturalization. Should
If residing in the Phil. At the Automatically becomes Robert Uy’s petition for naturalization be granted?
time of naturalization a citizen.
If not residing in the Phil. At GR: Considered citizen A: NO. In naturalization cases, when full and complete
the time of naturalization only during minority compliance with the requirements of the Revised
Naturalization Law, or Commonwealth Act No. 473 (CA
XPN: He begins to 473), is not shown, a petition for naturalization must be
reside permanently in perfunctorily denied.
the Phil.
Huang Te Fu is not engaged in a lucrative trade. Indeed,
After parents’ naturalization
his supposed income of P15,000.00 to P18,000.00 per
Considered Filipino, provided registered as such before month is not enough for the support of his family. By his
any Phil. consulate within 1 year after attaining majority own admission, most of his family’s daily expenses are
age and takes oath of allegiance. still shouldered by his parents who own the zipper
manufacturing business which employs him. This simply
--- means that Huang Te Fu continues to be a burden to, and
Q: Huang Te Fu alias Robert Uy, is a Taiwanese a charge upon, his parents; he lives on the charity of his
businessman who is married to a Filipina, and his parents. He cannot support his own family on his own.
family’s business is engaged in zipper manufacturing. He
sought to be naturalized. Before the RTC of QC, he Moreover, Huang Te Fu’s admitted false declaration
proved that he resided in the Philippines continuously under oath contained in the August 2001 deed of sale
for 23 years; obtained primary, secondary, and tertiary that he is a Filipino citizen – which he did to secure the
education in Philippine schools; and derived a seamless registration of the property in the name of his
PhP15,000 monthly income from his family’s zipper wife – is further proof of his lack of good moral character.
manufacturing business as an employee. The OSG It is also a violation of the constitutional prohibition on
opposed his petition alleging that Robert Uy does not ownership of lands by foreign individuals. His defense
possess a lucrative trade or profession; is not included that he unknowingly signed the deed is unacceptable.
in the payroll of the zipper business of which he claims First of all, as a foreigner living in a foreign land, he
to be an employee; does not have sufficient monthly should conduct himself accordingly in this country – with
income; and falsely misrepresented himself as a Filipino care, circumspect, and respect for the laws of the host.
in a Deed of Sale of a land in Antipolo City; and that his Finally, as an educated and experienced
2002, 2003, and 2004 income tax returns reveal that his

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businessman, it must be presumed that he acted with for candidates with dual citizenship, it should suffice if,
due care and signed the deed of sale with full knowledge upon the filing of their certificates of candidacy, they
of its import. (Republic v. Huang Te Fu, G.R. No. 200983, elect Philippine citizenship to terminate their status as
March 18, 2015) persons with dual citizenship considering that their
--- condition is the unavoidable consequence of conflicting
laws of different states. (Mercado v. Manzano, G.R. No.
Denaturalization 135083, May 26, 1999)

The process taken by a government to revoke the

citizenship status of an individual. LOSS AND RE-ACQUISITION OF PHILIPPINE
CITIZENSHIP
Grounds for denaturalization

1. Naturalization certificate obtained fraudulently or Grounds for loss of Philippine citizenship

illegally
2. If, within 5 years, he returns to his native country or to 1. Naturalization in a foreign country; or (1992, 2004
some foreign country and establishes residence therein Bar)
3. Naturalization obtained through invalid declaration of 2. Express renunciation of citizenship (expatriation); or
intention
4. Minor children failed to graduate through the fault of NOTE: The mere application or possession of an
parents either by neglecting support or by transferring them to alien certificate of registration does not amount to
another school renunciation. (Mercado v. Manzano, G.R. No. 135083,
5. Allowing himself to be used as a dummy May 26, 1999)

Effects of denaturalization 3. Subscribing to an oath of allegiance to the constitution

or laws of a foreign country upon attaining 21 years of age;
1. If ground affects intrinsic validity of proceedings, or
denaturalization shall divest wife and children of their derivative
naturalization NOTE: Citizens may not divest citizenship when the
2. If the ground is personal; the wife and children shall Philippines is at war.
retain citizenship.
4. Rendering service to or accepting commission in the
armed forces of a foreign country; or
DUAL CITIZENSHIP AND DUAL ALLEGIANCE
NOTE: It shall not divest a Filipino of his citizenship
if:
Dual citizenship vs. Dual allegiance (2009 Bar) a. the Philippines has a defensive and/or offensive
pact of alliance with the said foreign country;
DUAL CITIZENSHIP DUAL ALLEGIANCE b. the said foreign country maintains armed forces in
the Philippine territory with its consent provided that at the
Arises when, as a result of Refers to the situation
time of rendering said service, or acceptance of said
concurrent application of where a person
commission, and taking the oath of allegiance incident
the different laws of two or simultaneously owes, by
thereto, states that he does so only in connection with its
more States, a person is some positive act, loyalty
service to said foreign country.
simultaneously considered to two or more States.
a citizen of said states.
5. Cancellation of certificate of naturalization
Involuntary and allowed Result of an individual’s (Denaturalization); or
volition and is 6. Having been declared by final judgment a deserter of
prohibited by the the armed forces of the Philippines in times of war; or
Constitution. 7. In case of a woman, upon her marriage, to a foreigner if,
by virtue of the laws in force in her husband’s country, she
NOTE: In Section 5 in Article IV on citizenship, the acquires his nationality.
concern of the Constitutional Commission was not with
dual citizens per se but with naturalized citizens who NOTE: Citizenship is renounced expressly (Ibid.).
maintain their allegiance to their countries of origin even
after their naturalization. Hence, the phrase "dual Application of Res Judicata in Citizenship
citizenship" in R.A. No. 7160, section 40(d) and in R.A.
No. 7854, Section 20 must be understood as referring to cases GR: Res Judicata does not set in citizenship
"dual allegiance."
cases. XPNs:
Consequently, persons with mere dual citizenship do not
fall under this disqualification. Unlike those with dual
allegiance, who must, therefore, be subject to strict
process with respect to the termination of their status,

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 CITIZENSHIP

1. Person’s citizenship is resolved by a court or an Condition for the enjoyment of full civil and political
administrative body as a material issue in the controversy, rights
after a full-blown hearing
2. With the active participation of the Solicitor General Those who retain or re-acquire Philippine citizenship
or his representative; and shall enjoy full civil and political rights subject to the
3. Finding of his citizenship is affirmed by the Supreme following conditions:
Court. (Burca v. Republic G.R. No. L-24252, Jan. 30, 1967)
1. Right to vote: must meet the requirements of Sec. 1,
Ways to reacquire citizenship Art. V of the Constitution, and of Republic Act No. 9189
(The Overseas Absentee Voting Act of 2003) and other
1. Naturalization existing laws;
2. Repatriation
3. Direct act of Congress 2. Elective Public Office:
i. Possess qualification for holding such public
Naturalization vs. Repatriation office as required by the Constitution and existing laws
ii. Make a personal and sworn renunciation of any
NATURALIZATION REPATRIATION and all foreign citizenship before any public officer
Nature authorized to administer an oath, at the time of the filing
A mode of acquisition and Mode of reacquisition of of the certificate of candidacy.
reacquisition of Philippine Philippine Citizenship iii. Appointive Public Office - subscribe and swear
citizenship to an oath of allegiance to the Republic of the Philippines
As to process and its duly constituted authorities prior to their
assumption of office: Provided, That they renounce their
Very cumbersome and Simpler process
oath of allegiance to the country where they took that
tedious
oath;
Repatriation NOTE: That right to vote or be elected or appointed
to any public office in the Philippines cannot be
Recovery of the original nationality. This means that a exercised by, or extended to, those who:
naturalized Filipino who lost his citizenship will be a. Are candidates for or are occupying any public
restored to his prior status as a naturalized Filipino office in the country of which they are naturalized
citizen. On the other hand, if he was originally a natural- citizens; and/or
born citizen before he lost his Philippine citizenship, he b. Are in active service as commissioned or non-
will be restored to his former status as a natural-born commissioned officers in the armed forces of the country
Filipino. (Bengzon v. HRET and Cruz, G.R. No. 142840, May which they are naturalized citizens. (R.A. 9225)
7, 2001)
iv. Practice of profession: apply with the proper
NOTE: Repatriation shall be effected by: authority for a license or permit to engage in such
1. Taking the necessary oath of allegiance to the practice. (R.A. 9225)
Republic of the Philippines; and
2. Registration in the proper civil registry and in the
Bureau of Immigration. ---
The Bureau of Immigration shall thereupon cancel the Q: Can a legitimate child born under the 1935
pertinent alien certificate of registration and issue the Constitution of a Filipino mother and an alien father
certificate of identification as Filipino citizen to the validly elect Philippine Citizenship fourteen (14)
repatriated citizen. years after he has reached the age of majority?
Categories of Natural-Born Filipinos under RA 9225
(Citizenship Retention and Re-acquisition Act of A: NO. The election should be made within a "reasonable
2003) (2000, 2002, 2003 Bar) time" after attaining the age of majority. The phrase
"reasonable time" has been interpreted to mean that the
1. Reacquisition election should be made within three (3) years from
Natural-born citizens of the Philippines who have reaching the age of majority .(Re: Application for
lost their Filipiino citizenship due to naturalization Admission to the Philippine Bar v. Vicente Ching, B.M. No.
as citizens of a foreign country are deemed to have 914, Oct. 1, 1999)
re-acquired Philippine citizenship; and ---

2. Retention
Natural-born citizens of the Philippines who, after NATURAL-BORN CITIZENS AND PUBLIC OFFICE
the effectivity of said RA, become citizens of a
foreign country shall retain their Philippine
citizenship. (Section 3, R.A. 9225; David v. Agbay, G.R. 1. Citizens of the Philippines from birth without having
No. 199113, March 18, 2015) to perform any act to acquire or perfect their

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citizenship is an additional requisite only for those who

Philippine citizenship have retained or reacquired Philippine citizenship under
2. Those born before January 17, 1973 of Filipino mothers, R.A. No. 9225 and who seek elective public posts,
who elect Philippine citizenship upon reaching the age of considering their special circumstance of having more
majority than one citizenship. (Jacot v. Dal, G.R. No. 179848,
Nov.27, 2008)
NOTE: The term “natural-born citizens,” is defined to ---
include “those who are citizens of the Philippines from Q: Art is a naturalized citizen of another country who
birth without having to perform any act to acquire or reacquires Filipino citizenship. On the other hand,
perfect their Philippine citizenship.” (Tecson v. COMELEC, Christian possesses dual citizenship by birth. If they
GR. No. 161434, Mar. 3, 2004. desire to run for elective public office, what requirement
must they comply as regards their citizenship?
Rule regarding marriage of a Filipino to an alien
A: Art must comply with the requirements set in RA 9225.
GR: The Filipino retains Philippine citizenship. Sec 5(3) of RA 9225 states that naturalized citizens who
reacquire Filipino citizenship and desire to run for public
XPN: If, by their act or omission they are deemed, under office shall “…make a personal and sworn renunciation of
the law, to have renounced it (Sec.4, Art. IV, 1987 any and all foreign citizenship before any public officer
Constitution). authorized to administer an oath” aside from the oath of
allegiance prescribed in Sec. 3 of RA 9225.
Government officials required to be natural-born
Filipino citizens A natural-born Filipino who did not subsequently become a
naturalized citizen of another country on the other hand,
1. President (Sec.2, Art VII). need not comply with the twin requirements of swearing an
2. Vice-President (Sec. 3, Art VII). oath of allegiance and executing a renunciation of foreign
3. Members of Congress (Secs. 3 and 6, Art VI). citizenship. It is sufficed, if upon the filing of his certificate of
4. Justices of Supreme Court and lower collegiate courts candidacy, he elects Philippine citizenship to terminate his
(Sec. 7(1), Art VIII). status as person with dual citizenship considering that his
5. Ombudsman and his deputies (Sec. 8, Art XI). condition in the unavoidable consequence of conflicting laws
6. Members of Constitutional Commissions of different States. (Cordora v. COMELEC, G.R. No. 176947,
7. Members of the Central Monetary Authority (Sec. 20, Feb. 19, 2009)
Art XII). ---
8. Members of the Commission on Human Rights (Sec 17
(2), Art XIII). The filing by a person with dual citizenship of a
certificate of candidacy, containing an oath of
NOTE: The fact that a person has dual citizenship does allegiance is not considered as a renunciation of his
not disqualify him from running for public office. foreign citizenship under RA 9225
(Cordora v. COMELEC, G.R. No. 176947, Feb. 19, 2009)
The filing of a certificate of candidacy does not ipso facto
Oath of Allegiance and Renunciation of foreign amount to a renunciation of his foreign citizenship
citizenship because R.A. No. 9225 provides for more requirements. It
requires the twin requirements of swearing to an Oath of
Sec. 5(2) of RA 9225 (on the making of a personal and Allegiance and executing a Renunciation of Foreign
sworn renunciation of any and all foreign citizenship) Citizenship (Roseller De Guzman v. COMELEC, G.R. No.
requires the Filipinos availing themselves of the benefits 180048, June 19, 2009).
under the said Act to accomplish an undertaking other
than that which they have presumably complied with Renunciation of foreign citizenship required by R.A.
under Sec. 3 thereof (oath of allegiance to the Republic of 9225
the Philippines). There is little doubt, therefore, that the
intent of the legislators was not only for Filipinos By renouncing foreign citizenship, one is deemed to be
reacquiring or retaining their Philippine citizenship solely a Filipino citizen, regardless of the effect of such
under R.A. 9225 to take their oath of allegiance to the renunciation under the laws of the foreign country.
Republic of the Philippines, but also to explicitly However, this legal presumption does not operate
renounce their foreign citizenship if they wish to run for permanently and is open to attack when, after
elective posts in the Philippines. To qualify as a renouncing the foreign citizenship, the citizen performs
candidate in Philippine elections, Filipinos must only positive acts showing his continued possession of a
have one citizenship, namely, Philippine citizenship. foreign citizenship.

The oath of allegiance contained in the Certificate of The renunciation of foreign citizenship is not a hollow
Candidacy, does not constitute the personal and sworn oath that can simply be professed at any time, only to be
renunciation sought under Sec. 5(2) of RA 9225. It bears violated the next day. It requires an absolute and
to emphasize that the said oath of allegiance is a general perpetual renunciation of the foreign citizenship and
requirement for all those who wish to run as candidates
in Philippine elections; while the renunciation of foreign

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 LAW ON PUBLIC OFFICERS

a full divestment of all civil and political rights amended, and R.A. No. 9139, both of which require the
granted by the foreign country which granted the applicant to be at least eighteen (18) years old.
citizenship. (Maquiling v. COMELEC, G.R. No. 195649,
April 16, 2013) The principles found in two conventions, while yet
unratified by the Philippines, are generally accepted
Strict adherence to the Maquiling doctrine principles of international law. The first is Article 14 of
the 1930 Hague Convention on Certain Questions
The ruling in Maquiling is indeed novel. Use of a foreign Relating to the Conflict of Nationality Laws under which
passport amounts to repudiation or recantation of the a foundling is presumed to have the "nationality of the
oath of renunciation. Yet, despite the issue being novel country of birth." The second is the principle that a
and of first impression, the Court in Maquiling did not act foundling is presumed born of citizens of the country
with leniency or benevolence towards Arnado. Voting where he is found, contained in Article 2 of the 1961
10-5, the Court ruled that matters dealing with United Nations Convention on the Reduction of
qualifications for public elective office must be strictly Statelessnes. (Poe-Llamanzares v. COMELEC, GR No.
complied with. Otherwise stated, the Court in Maquiling 221697, March 8, 2016)
did not consider the novelty of the issue as to excuse
Arnado from strictly complying with the eligibility
requirements to run for public office or to simply allow
him to correct the deficiency in his qualification by
submitting another oath of renunciation. Thus, it is with
more reason that we should similarly require strict
compliance with the qualifications to run for local
elective office. (Arnado v. COMELEC, G.R. No. 210164,
August 18, 2015)

TREATMENT OF FOUNDLINGS

Foundlings are considered as natural born citizens of

the country where he is found.

As a matter of law, foundlings are as a class, natural-born

citizens. While the 1935 Constitution's enumeration is
silent as to foundlings, there is no restrictive language
which would definitely exclude foundlings either.

All three Constitutions guarantee the basic right to equal

protection of the laws. All exhort the State to render
social justice. Of special consideration is Article XV,
Section 3 which requires the State to defend the "right of
children to assistance, including proper care and
nutrition, and special protection from all forms of
neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development."

Under Article IV, Section 2 "Natural-born citizens are

those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect
their Philippine citizenship." In the first place, "having to
perform an act" means that the act must be personally
done by the citizen. In this instance, the determination of
foundling status is done not by the child but by the
authorities.

Foundlings are likewise citizens under international law.

Under the 1987 Constitution, an international law can
become part of the sphere of domestic law either by
transformation or incorporation.

The common thread of the UDHR, UNCRC, and ICCPR is

to obligate the Philippines to grant nationality from birth
and ensure that no child is stateless. This grant of
nationality must be at the time of birth, and it cannot be
accomplished by the application of our present
naturalization laws, Commonwealth Act No. 473, as

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1. Created by Constitution or by law or by some body or

LAW ON PUBLIC OFFICERS agency to which the power to create the office has been delegated;
2. Invested with Authority to exercise some portion of the
sovereign power of the State;
GENERAL PRINCIPLES 3. The powers conferred and the duties to be discharged
must be defined directly or impliedly by the Legislature or through
Public office legislative authority;
4. Duties are performed Independently without control
It is the right, authority, and duty created and conferred unless those of a subordinate;
by law, by which for a given period, either fixed by law or 5. Continuing and permanent (Fernandez v. Sto. Tomas,
enduring at the pleasure of the creating power, an G.R. No. 116418, March 7, 1995; Tejada v. Domingo, G.R. No. 91860,
individual is invested with some portion of the sovereign Jan. 13, 1992)
functions of the government, to be exercised by him for
the benefit of the public. (Fernandez v. Sto. Tomas, G.R. Public office vs. Public contract
No. 116418, March 7, 1995)

Purpose of a public office BASIS PUBLIC

PUBLIC OFFICE
A public office is created to effect the end for which CONTRACT
government has been instituted which is the common
Originates
good; not profit, honor, or private interest of any person,
family or class of persons (63C Am. Jur. 2d Public Officers from the
and Employees 667 [1997]). will of the
Incident of contracting
Characteristics of public office (P3VN)
sovereignty parties,
1. It is a Public trust – The principle of “public office is a As to creation
public trust” means that the officer holds the public office
subject to
in trust for the benefit of the people—to whom such
officers are required to be accountable at all times, and the
to serve with utmost responsibility, loyalty, and limitations
efficiency, act with patriotism and justice, and lead imposed
modest lives (1987 Constitution, Art. XI, Sec. 1). by law.
Has for its object Imposes
2. It is not a Property – The concept "public office is not
the carrying out of obligations only
a property” means that it is outside the commerce of
man; hence, it cannot be the subject of a contract. (Santos As to sovereign as well upon persons
v. Secretary of Labor, G.R. No.L-21624, Feb. 27, 1968) persons as governmental who entered the
affected functions affecting same.
3. It is personal to the Public officer – It is not a even persons not
property transmissible to the heirs of the public officer bound by contract
upon the latter’s death (Santos v. Secretary of Labor, G.R.
Embraces the idea Is almost always
No.L-21624, Feb. 27, 1968).
of tenure, limited in its
4. It is not a Vested right. duration, and duration and
continuity. The specific in its
NOTE: However, right to a public office is duties connected objects. Its
nevertheless a protected right. With the exception of As to therewith are terms define and
constitutional offices that provide for some subject generally limit the rights
immunity as regards salary and tenure, right to a
matter and continuing and and obligations
public office is protected by the constitutional
provision on security of tenure. It cannot be taken scope permanent. of the parties,
from its incumbent without due process. (Morfe v. and neither may
Mutuc, G.R. No. L-20387, Jan. 31, 1968; Aparri v. CA, depart therefrom
G.R. No. L-30057, Jan. 31, 1984) without the
consent of the
5. It is not a Natural right – Under our political system, other.
the right to hold public office exists only because and by
virtue of some law expressly or impliedly creating and
conferring it.
Public officer
Elements of a public office (CALIC)
Any person who, by direct provision of law, popular
election or appointment by competent authority, shall
take part in the performance of public functions in the
UNIVERSITY OF SANTO TOMAS 2017 government of the Philippine Islands, or shall perform in
GOLDEN NOTES said Government or in any of its branches, public duties
as an employee, agent, or subordinate official, of any
rank or class (Revised Penal Code, Art. 203).
 NOTE: Under Sec. 2. RA 3019, the term public
officer includes elective and appointive
officials and employees, permanent or
temporary, whether in the classified,

154
 LAW ON PUBLIC OFFICERS

unclassified or exempt service, receiving compensation, according to his best lights, the only condition being that
even nominal, from the government. the appointee should possess the qualifications required
by law. If he does, then the appointment cannot be
Kinds of a public officer faulted on the ground that there are others better
qualified who should have been preferred. This is a
A public officer may be: political question involving considerations of wisdom
1. Constitutional or statutory which only the appointing authority can decide. (Luego v.
2. National or local CSC, G.R. No. L-69137, Aug. 5, 1986)
3. Legislative, executive, or judicial
4. Lucrative or honorary Appointment vs. Designation
5. Discretionary or ministerial

6. Appointive or elective APPOINTMENT DESIGNATION

7. Civil or military It is the selection by the It merely connotes
8. De jure or de facto proper authority of an the imposition of
individual who is to additional duties,
Kinds of Government Employment exercise the functions of usually by law,
a given office. upon a person
CAREER SERVICE NON-CAREER SERVICE who is already in
Entrance is based on Entrance is based on public service by
merits and fitness, which qualifications other than virtue of an
is determined by merit and fitness. earlier
competitive examination appointment or
(except for non- election.
competitive positions) or It connotes It implies
based on highly technical permanence. temporariness
qualifications. and therefore
does not confer
upon the designee
security of tenure.
MODES OF ACQUIRING TITLE TO PUBLIC OFFICE
Appointing authority
Modes of filling up public offices

1. Inherently belongs to the people.

Public offices are filled up either by: It belongs to where the people have chosen to place it
1. Appointment by their Constitution or laws. (63C Am. Jur. 2d Public
2. Election Officers and Employees 738, 1997)
3. Designation – The mere imposition of new or
additional duties upon an officer to be performed by 2. Entrusted to designated elected and appointed public
him in a special manner. officials.
4. In some instances by contract or by some other The appointment of public officials is generally
modes authorized by law looked upon as properly belonging to the executive
(Preclaro v. Sandiganbayan, G.R. No. 111091, Aug. 21, department. Appointments may also be made by
1995) Congress or the courts, but when so made should be
taken as an incident to the discharge of functions
MODES AND KINDS OF APPOINTMENT within their respective spheres. [(Government v.
Springer, 50 Phil. 259, affirmed in Springer v.
Appointment
Government, 277 U.S. 189, 72 Ed. 845, 48 S.CT. 480
(1928)]
The act of designation by the executive officer, board or
body to whom that power has been delegated, the NOTE: The general rule is that the appointing power is
individual who is to exercise the powers and functions of the exclusive prerogative of the President, upon which
a given office. In this sense, it is to be distinguished from no limitations may be imposed by Congress, except those
the selection or designation by a popular vote. resulting from the need of securing the concurrence of
(Borromeo v. Mariano, G.R. No. L-16808, Jan. 3, 1921) the Commission of Appointments and from the exercise
of the limited power to prescribe the qualifications or
It refers to the nomination or designation of an disqualifications to a given appointive office. (Rafael v.
individual to an office (Borromeo v. Mariano, ibid.). Embroidery and Apparel Control and Inspections Board,
It is, in law, equivalent to “filling a vacancy”. (Conde v. G.R. No. L-19978, Sept. 29, 1967)
National Tobacco Corp., G.R. No. L-11985, Jan. 28, 1961) Where the law is silent as to who is the appointing
authority, it is understood to be the President of the
Nature of appointment
Philippines. (Rufino v. Endriga, G.R. No. 139554, July 21,
2006)
Appointment is an essentially discretionary power and
must be performed by the officer in which it is vested

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Absent any contrary statutory provision, the power to disqualifications prescribed by law for the position, not
appoint carries with it the power to remove or discipline. only at the time of his election or appointment but also
(Aguirre, Jr. v. De Castro, G.R. No. 127631, Dec. 17, 1999) during his incumbency.

Appointee’s acceptance of office General Qualifications for Public Office (CARESCAP)

GR: An appointee’s acceptance of office is not necessary 1. Citizenship

to complete or to make the appointment valid where
there is no provision of law to the contrary. NOTE: Only natural-born Filipinos who owe total
and undivided allegiance to the Republic of the
XPN: Acceptance, however, is necessary to enable the Philippines could run for and hold elective public
appointee to have full possession, enjoyment, and office. (Arnado v. COMELEC, G.R. No. 210164, Aug. 18,
responsibility of an office. (Borromeo v Mariano, G.R. No. 2015)
L-16808, Jan. 3, 1921; Lacson v. Romero, G.R. No. L-3081,
Oct. 14, 1949) Congress enacted RA 9225 allowing natural-born
citizens of the Philippines who have lost their
Procedure for the appointment of those that require Philippine citizenship by reason of their
confirmation by the Commission on Appointments naturalization abroad to reacquire Philippine
citizenship and to enjoy full civil and political rights
1. Nomination by the President; upon compliance with the requirements of the law.
2. Confirmation by the Commission on Appointments; They may now run for public office in the
3. Issuance of commission; and Philippines provided that they: (1) meet the
4. Acceptance by the appointee. qualifications for holding such public office as
required by the Constitution and existing laws; and,
NOTE: Appointment is deemed complete upon (2) make a personal and sworn renunciation of any
acceptance. Pending such acceptance, which is and all foreign citizenships before any public officer
optional on the part of the appointee, the authorized to administer an oath prior to or at the
appointment may still be validly withdrawn. time of filing of their CoC. (Arnado v. COMELEC, ibid.;
RA 9225, Sec. 5)
GR: Appointment to a public office cannot be forced
upon any citizen. This rule applies to all those who have re-acquired
their Filipino citizenship without regard as to
XPN: For purposes of defense of the State under Sec. whether they are still dual citizens or not. It is a pre-
4, Art. 2 (also an XPN to the rule against involuntary requisite imposed for the exercise of the right to run
servitude). (Lacson v. Romero, No. L-3081, Oct. 14, for public office. (Sobejana-Condon v. COMELEC, G.R.
1949) No. 198742, Aug. 10, 2012)

NOTE: For appointive public officials, RA 9225 requires an

 In ad interim appointments, steps 1, 3 and 4 precede step 2. oath of allegiance to the Republic of the Philippines
 For appointments which do not require confirmation, step 2 and its duly constituted authorities prior to their
is skipped. assumption of office: Provided, that they renounce
their oath of allegiance to the country where they
ELIGIBILITY AND QUALIFICATION REQUIREMENTS took that oath [RA 9225, Sec. 5(3)].

2. Age
Requirements for public office
3. Residence
4. Education
1. Eligibility – It is the state or quality of being legally fit or
5. Suffrage
qualified to be chosen.
6. Civil service examination
2. Qualification – This refers to the act which a person, before
7. Ability to read and write
entering upon the performance of his duties, is by law required
8. Political affiliation, as a rule, is not a qualification.
to do such as the taking, and often, subscribing and filing of an
official oath, and, in some cases, the giving of an official bond. It
XPN: Party-List, Membership in the Electoral
may refer to:
Tribunal, Commission on Appointments
a. Endowments, qualities or attributes which make an
individual eligible for public office, (e.g. citizenship); or
NOTE: The qualifications for public office are continuing
b. The act of entering into the performance of the
requirements and must be possessed not only at the time
functions of a public office, (i.e. taking oath of office).
of appointment or election or assumption of office but
during the officer’s entire tenure. Once any of the
NOTE: To entitle a public officer to hold a public office,
required qualification is lost, his title may be reasonably
he must possess all the qualifications and none of the
challenged. (Frivaldo v. COMELEC, G.R. No. 87193, June 23,
1989; Aguila v. Genato, G. R No. L-55151, March 17, 1981)
UNIVERSITY OF SANTO TOMAS Authority to prescribe qualifications
2017 GOLDEN NOTES
 LAW ON PUBLIC OFFICERS

Congress is generally empowered to prescribe the enjoyment can be terminated at the pleasure of the
qualifications for holding public office, provided it does appointing power even without hearing or cause.
not exceed thereby its constitutional powers or impose (Erasmo v. Home Insurance & Guaranty Corporation,
conditions of eligibility inconsistent with constitutional G.R. No. 139251, Aug. 29, 2002)
provisions.
However, if the appointment is for a specific period,
Limitation on the power of Congress to prescribe the appointment may not be revoked until the
qualifications expiration of the term.

Congress has no power to require qualifications other NOTE: Acquisition of civil service eligibility will not
than those qualifications specifically set out in the automatically convert the temporary appointment
Constitution. Such Constitutional criteria are exclusive. into a permanent one. (Prov. Of Camarines Sur v. CA,
G.R. No. 104639, July 14, 1995)
Power of Congress to prescribe disqualifications
3. Provisional appointment – One which may be issued,
In the absence of constitutional inhibition, Congress has upon the prior authorization of the Commissioner of the CSC,
the same right to provide disqualifications as it has to to a person who has not qualified in an appropriate
provide qualifications for office. examination but who otherwise meets the requirements for
appointment to a regular position in the competitive service,
Congress, however, may not add disqualification where whenever a vacancy occurs and the filling thereof is
the Constitution has provided them in such a way as to necessary in the interest of the service and there is no
indicate intention that the disqualifications provided appropriate register of eligibles at the time of appointment.
shall embrace all which are to be permitted. Moreover, (Jimenea v. Guanzon, G.R. No. L-24795, Jan. 29, 1968)
when the Constitution has attached a disqualification to
the holding of any office, Congress cannot remove it Temporary Appointment vs. Provisional
under the power to prescribe qualifications as to such Appointment
offices as it may create (46 C.J. 936-937).
TEMPORARY PROVISIONAL
Perfection of the Right of a Public Officer to Enter in APPOINTMENT APPOINTMENT
Office Issued to a person to a Issued prior to
position needed only for a authorization
Upon his oath of office, it is deemed perfected. Only when
limited period of CSC
the public officer has satisfied this prerequisite can his
Not to exceed Regular position
right to enter into the position be considered complete.
Until then, he has none at all, and for as long as he has 12 in the
not qualified; the holdover officer is the rightful months/no meantime
occupant. (Lecaroz v. Sandiganbayan, G.R. No. 130872, definite that no
March 25, 1999) tenure and person
is qualifies for
Kinds of Appointments dependent the position
on the
1. Permanent –an appointment in the civil service pleasure of
issued to a person who meets all the requirements for the the
position to which he is being appointed, including the appointing
appropriate eligibility prescribed, in accordance with the power
provisions of law, rules and standards promulgated in Meets all Has not qualified
pursuance thereof. It lasts until lawfully terminated, thus, requiremen in an
enjoys security of tenure [PD 807 (Civil Service Decree), Sec. ts for appropriate
25(a)]. position examination
except civil but otherwise
2. Temporary – A kind of appointment issued to a
service meets
person who meets all the requirements for the position to
eligibility requirements
which he is being appointed, except the appropriate civil
service eligibility, in the absence of appropriate eligibilities for
and it becomes necessary in the public interest to fill a appointments
vacancy [PD 807, Sec. 25(b)].
NOTE: Provisional appointments in general have
NOTE: That such temporary appointment shall not already been abolished by RA 6040. It still, however,
exceed twelve months, but the appointee may be applies with regard to teachers under the Magna
replaced sooner if a qualified civil service eligible Carta for Public School Teachers.
becomes available [PD 807, Sec. 25(b)].
4. Regular appointment – One made by the President
One who holds a temporary or acting appointment while Congress is in session, which takes effect only after
has no fixed tenure of office, and, therefore, his confirmation by the Commission on Appointment and, once
approved, continues until the end of the term of the
appointee.

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5. Ad interim appointment (1990, 1994 Bar) – One made by 2017 GOLDEN NOTES
the President while Congress is not in session, which takes effect
immediately, but ceases to be valid if:
a. disapproved by the Commission on Appointments; or
b. upon the next adjournment of Congress, either in
regular or special session, if the CA has not acted upon it

Difference between Regular appointment, Ad interim

appointment, Temporary appointment and
Designation

TEMPO- DESIGNA
REGULAR AD INTERIM RARY or -TION
ACTING
Made Made when Lasts until Mere
when Congress is a perma- imposition
Congress NOT in nent of new or
is in session appoint- additional
session ment is duties to be
issued performed
by an officer
in a special
manner
while he
performs
the function
of his perma
-nent office

Made only Made before Cannot be The officer

after the confirmation validly is already
nomina- of the CA confirmed in service
tion is by the CA by virtue of
confirmed because an earlier
by CA there was appoint-
no valid ment
nomina- performing
tion other
functions.

Continues Shall cease to May be Maybe

until the be valid if termina- terminated
expiration disapproved ted at the anytime
of the term by CA or pleasure
upon the of
next adjourn- appoint
ment of -ing
Congress power
without
hearing
or cause

Acting Appointment (2003 Bar)

An acting appointment is merely temporary. (Sevilla v.

CA, G.R. No. 88498, June 9, 1992) A temporary
appointment cannot become a permanent appointment,
unless a new appointment, which is permanent, is made.
(Marohombsar v. Alonto, G.R. No. 93711, Feb. 25, 1991)
However, if the acting appointment was made because of a
temporary vacancy, the temporary appointee holds office
until the assumption of office by the permanent appointee. In
such case, the appointing authority cannot use the acting
appointment as a justification in order to evade or avoid the
security of tenure principle provided for under the
Constitution and the Civil Service Law. (Gayatao v. CSC, G.R.
No. 93064, June 22, 1992)

---
Q: Can the CSC revoke an appointment by the appointing
power and direct the appointment of an individual of its
choice?

A: NO. The CSC cannot dictate to the appointing power whom to

appoint. Its function is limited to determining whether or not the
appointee meets the minimum qualification requirements
prescribed for the position. Otherwise, it would be encroaching
upon the discretion of the appointing power. (Medalla v. Sto.
Tomas, G.R. 94255, May 5, 1992)
---

Protest to Appointment

Any person who feels aggrieved by the appointment may file

an administrative protest against such appointment. Protests
are decided in the first instance by the Department Head,
subject to appeal to the CSC.

The protest must be for a cause (i.e. appointee is not

qualified; appointee was not the next-in-rank; unsatisfactory
reasons given by the appointing authority in making the
questioned appointment). The mere fact that the protestant
has the more impressive resume is not a cause for opposing
an appointment. (Aquino v. CSC, G.R. No. 92403, April 22, 1992)

Revocation vs. Recall of Appointment

Where an appointment requires the approval of the CSC, such

appointment may be revoked or withdrawn by the appointing
authority any time before the approval by the CSC.

After an appointment is completed, the CSC has the power to

recall an appointment initially approved on any of the
following grounds:
1. Non-compliance with procedures/criteria in merit
promotion plan;
2. Failure to pass through the selection board;
3. Violation of existing collective relative agreement to
promotion;
4. Violation of CSC laws, rules and regulations (Debulgado v.
CSC, G.R. No. 111471, Sept. 26, 1994)

DISABILITIES AND INHIBITIONS OF PUBLIC

OFFICERS

Disqualifications attached to civil service employees or

officials

1. Losing candidate in any election

a. Cannot be appointed to any office in the government or
GOCCs or their subsidiaries
 LAW ON PUBLIC OFFICERS

b. Period of disqualification: 1 year after such 1. Directly or indirectly practice any other profession;
election 2. Participate in any business, or be financially
XPN: Losing candidates in barangay elections interested in any contract with, or in any franchise, or
special privilege granted by the Government, or any
2. Elective officials: subdivision, agency or instrumentality thereof, including
GR: Not eligible for appointment or designation in GOCCs, or its subdivisions; shall avoid conflict of interest
any capacity to any public office or position during in the conduct of their office.
their tenure.
C. Members of the Constitutional Commission shall not:
XPN: May hold ex officio positions. E.g. The Vice 1. Hold any other office or employment or engage in
President may be appointed as a Cabinet member the practice of any profession or in the active
management or control of any business that may be
3. Appointive officials: affected by the functions of his office;
GR: Cannot hold any other office in the government. 2. Be financially interested, directly or indirectly, in
or any agency or instrumentality thereof, including any contract with, or in any franchise, or special privilege
GOCCs and their subsidiaries granted by the Government, or any subdivision, agencies
or instrumentalities including GOCCs, or their
XPN: Unless otherwise allowed by law, or by the subsidiaries. These shall also apply to the Ombudsman
primary functions of his position. and his deputies during his term.

NOTE: The exception does not apply to Cabinet D. Unless otherwise allowed by law or by the primary
members, and those officers mentioned in Art. VII, functions of his position, no appointive official shall hold
Sec. 13. They are governed by the stricter any other office or employment in the Government or any
prohibitions contained therein. subdivision, agency or instrumentality thereof, including
GOCCs or their subsidiaries. (Art. IX – B, Sec. 7; Flores v
Prohibitions attached to elective and appointive Drilon, G.R. No. 104732 June 22, 1993)
officials in terms of compensation
E. No member of the armed forces in the active service
GR: They cannot receive: shall, at any time, be appointed or designated in any
1. Additional compensation – An extra reward given for capacity to a civilian position in the government including
the same office e.g. bonus GOCCs or any of their subsidiaries. (1987 Constitution, Art
2. Double compensation – When an officer is given two XVI, Sec. 5 par. 4)
sets of compensation for two different offices held
concurrently by one officer. Grounds for disqualification to hold public office
3. Indirect compensation
1. Mental or physical incapacity
XPN: Unless specifically authorized by law. 2. Misconduct or commission of a crime
3. Impeachment
NOTE: “Specifically authorized” means a specific 4. Removal or suspension from office
authority particularly directed to the officer or employee
concerned. NOTE: Where there is no constitutional or statutory
declaration of ineligibility for suspension or removal
Pensions and gratuities, per diems and allowances are from office, the courts may not impose the disability.
not considered as additional, double, or indirect
compensation. (1987 Constitution Art. IX-B, Sec. 7-8) 5. Consecutive terms exceeding the allowable number
of terms
Prohibitions imposed under the Constitution against 6. Holding more than one office (except ex officio)
the holding of two or more positions 7. Relationship with the appointing power (nepotism)
(2010 Bar)
A. Members of Congress shall not: 8. Office newly created or the emoluments of which
1. Appear as counsel before any court, electoral have been increased (forbidden office)
tribunal, or quasi-judicial and other administrative bodies; 9. Being an elective official (Flores v. Drilon, G.R. No.
2. Be interested in any contract with, or in any 104732, June 22, 1993)
franchise, or special privilege granted by the Government, or 10. Losing candidate in the election within 1 year
any subdivision, agency or instrumentality thereof, including following the date of election (prohibitions from office,
GOCCs, or its subsidiary; not from employment);
3. Intervene in any matter before any office of the XPN: Losing candidates in barangay elections
Government for his pecuniary benefit or where he may be
called upon to act on account of his office. 11. Grounds provided for under the Local Government
Code.
B. The President, Vice President, Members of the Cabinet,
and their deputies or assistants, unless otherwise allowed by NOTE: The Supreme Court held that while all other
the Constitution, shall not: appointive officials in the Civil Service are allowed to
hold other office or employment in the government

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during their tenure when such is allowed by law or by 3. Shall not collect any fee for their appearance in
the primary functions of their positions, members of the administrative proceedings involving the LGU of which he is
Cabinet, their deputies and assistants may do so only an official; and
when expressly authorized by the Constitution itself. 4. May not use property and personnel of the Government,
(Civil Liberties Union v. Executive Secretary, 194 SCRA except when defending the interest of the Government.
317) ---

Prohibitions under Code of Conduct and Ethical Other prohibitions imposed on public officers
Standards for Public Officials and Employees
1. Prohibition against solicitation of gifts (RA 6713, Sec.
1. Prohibition against financial and material interest – Directly 7[d])
or indirectly having any financial or material interest in any
transaction requiring the approval of their office. NOTE: Public officers, however, may accept the
2. Prohibition against outside employment and other activities following gifts from foreign governments:
related thereto – Owning, controlling, managing or accepting a. Gifts of nominal value received as souvenir or mark
employment as officer, employee, consultant, counsel, broker, of courtesy;
agent, trustee or nominee in any private enterprise regulated, b. Scholarship or fellowship grant or medical
supervised or licensed by their office. treatment;
3. Engaging in the private practice of their profession. c. Travel grants or expenses for travel outside the
4. Recommending any person to any position in any private Philippines
enterprise which has a regular or pending official transaction (RA 6713, Sec. 7[d])
with their office.
2. Prohibition against partisan political activities (1987
NOTE: These prohibitions shall continue to apply Constitution, Art. IX[B], Sec. 2[4])
for a period of one year after resignation,
retirement, or separation from public office, except NOTE: Partisan political activity is an act designed to
in the case of participating in any business or having promote the election or defeat of a particular
financial interest in any contract with the candidate/s to a public office. It is also known as
government, but the professional concerned cannot “electioneering”. (Omnibus Election Code, Sec. 79)
practice his profession in connection with any
matter before the office he used to be with, in which Officers or employees in the Civil Service including
case the one-year prohibition shall likewise apply. members of the Armed Forces cannot engage in
such activity except to vote. They shall not use their
Prohibitions against the practice of other professions official authority or influence to coerce the political
under the LGC activity of any person. (1987 Administrative Code,
Book V, Title I, Subtitle A, Sec. 55)
1. Local Chief Executives (governors, city and municipal
mayors) are prohibited from practicing their profession Officers and employees in the Civil Service can
2. Sanggunian members may practice their profession, engage nonetheless express their views on current political
in any occupation, or teach in schools except during session issues and mention the names of the candidates they
hours support.
3. Doctors of medicine may practice their profession even
during official hours of work in cases of emergency provided that Public officers who may engage in partisan
they do not derive monetary compensation therefrom. political activities

--- a. Those holding political offices, such as the

Q: Can the members of Sanggunian engage in the practice of President of the Philippines, Vice President of the
law under the LGC? Philippines; Executive Secretary or Department Secretaries
and other Members of the Cabinet; all other elective officials
A: GR: Yes. at all levels; and those in the personal and confidential staff
of the above officials.
XPNs: NOTE: It shall, however, be unlawful for them
1. Cannot appear as counsel in any civil case wherein a LGU or to solicit contributions from their subordinates
any office, agency or instrumentality of the government is the or subject them to any of the acts involving
adverse party; subordinates prohibited in the Election Code.
2. Cannot appear as counsel in any criminal case wherein an
officer or employee of the national or local government is b. National, provincial, city and municipal elective
accused of an offense committed in relation to his office; officials (Santos v. Yatco, G.R. No. L- 16133, Nov. 6, 1959)

3. Prohibition against engaging in strike. (Social Security

System Employees Assn. v. CA, G.R No. 85279, July 28, 1989)

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 LAW ON PUBLIC OFFICERS

4. Restriction against engaging in the practice of law (RA there is grave abuse of
7160, Sec. 90) discretion
5. Prohibition against practice of other professions (RA Can be delegated Cannot be delegated unless
7160, Sec. 90) otherwise provided by law
6. Restriction against engaging in private business. (2010 Bar)
(Abeto v. Garces, A.M. No. P-88-269, December 29, 1995)
7. Restriction against accepting certain employment (RA Doctrine of Ratification
6713, Sec. 7[b])
Although the acts of a public officer may not be binding
on the State because he has exercised his powers
--- defectively, his acts may be ratified.
Q: Does the election or appointment of an attorney to a
government office disqualify him from engaging in the The doctrine does not apply where:
private practice of law? 1. There is a want of power in the public officer to
perform the original act.
A: YES. As a general rule, judges, other officials of the 2. The act was absolutely void at the time it was done.
superior courts, of the office of the Solicitor General and of 3. If the principal himself could not have lawfully done
other government prosecution offices; the President; Vice- the act, or
President, and members of the cabinet and their deputies or 4. If it could not have lawfully been done by anyone.
assistants; members of constitutional commissions; and civil
service officers or employees whose duties and Duties of public officers
responsibilities require that their entire time be at the
disposal of the government are strictly prohibited from a) Be accountable to the people;
engaging in the private practice of law (See: E.O. 297). b) Serve the people with utmost responsibility,
--- integrity, and efficiency;
c) Act with patriotism and justice and to lead modest
POWERS AND DUTIES OF PUBLIC OFFICERS lives;
d) Submit a declaration under oath of his assets,
Sources of powers of public officers liabilities, and net worth upon assumption of office and
as often thereafter as may be required by law;
1. Expressly conferred upon him by the Act appointing e) Owe the State and the Constitution allegiance at all
him; times.
2. Expressly annexed to the office by law;
3. Attached to the office by common law as incidents to Reasons for the imposition of the duty to disclose
it. financial records

NOTE: In general, the powers and duties of public 1. Maintain public confidence in the Government and
officers are prescribed by the Constitution or by statute in public officials and employees;
or both. Public officers have only those powers expressly 2. Avoid conflicts of interest from arising;
granted or necessarily implied by law. If broader powers 3. Deter corruption;
are desirable, they must be conferred by the proper 4. Provide the citizens with information concerning a
authority. They cannot merely be assumed by public officer’s financial affairs and thus enable them to
administrative officers, nor can they be created by the better judge his integrity and fitness for office.
courts in the proper exercise of their judicial functions.
[63C Am. Jur. 2d Public Officers and Employees 883 RIGHTS OF PUBLIC OFFICERS
(1997)]
Rights and privileges of public officers
Doctrine of Necessary Implication
Right to:
All powers necessary for the effective exercise of the 1. Office
express powers are deemed impliedly granted. (Pimentel 2. Compensation/salary
v. COMELEC, G.R. No. L-53581, Dec. 19, 1980) 3. Appointment
4. Vacation and sick leave
Kinds of Duties of Public Officers 5. Maternity leave
6. Retirement pay
7. Longevity pay
MINISTERIAL DISCRETIONARY 8. Pension
Discharge is imperative Public officer may do 9. Self-organization
and it must be done by whichever way he wants 10. Protection of temporary employees
the public officer provided it is in accordance
Prohibition against diminution of salary of
with law and not in a constitutional officers
whimsical manner
Can be compelled by Cannot be compelled by Congress is given the power to fix the salaries of certain
mandamus mandamus except when
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constitutional officers, but after it has done so, it may not 2. Misfeasance – The failure to observe the proper degree
reduce the salary of any of them during his term or of care, skill, and diligence required in the performance of
tenure. This provision is intended to secure their official duty; and
independence. (1987 Constitution, Art. IX [A], Sec. 3) 3. Malfeasance – Performance of an act which the officer
had no legal right to perform.
Extent of the right to self-organization of employees
in the public service NOTE: The plaintiff must show that he has suffered an
injury, and that it results from a breach of duty which the
While the Constitution recognizes the right of public officer owed him.
employees to organize, they are prohibited from staging
strikes, demonstrations, mass leaves, walk-outs and Command Responsibility Doctrine
other forms of mass action which may result to
temporary cessation of work or disturbance of public A superior officer is liable for the acts of his subordinate
service. Their right to self-organization is limited only to in the following instances:
form unions or to associate without including the right to 1. He negligently or willfully employs or retains unfit or
strike. Labor unions in the government may bargain for incompetent subordinates;
better terms and conditions of employment by either 2. He negligently or willfully fails to require his
petitioning the Congress for better terms and conditions, subordinates to conform to prescribed regulations;
or negotiating with the appropriate government agencies 3. He negligently or carelessly oversees the business of the
for the improvement of those not fixed by law. (SSS office as to give his subordinates the opportunity for default;
Employees Assn. v. CA, G.R No. 85279, July 28, 1989) 4. He directed, cooperated, or authorized the wrongful act;
5. The law expressly makes him liable.
(E.O. No. 292, Administrative Code of 1987, Book I, Chap. 9,
LIABILITIES OF PUBLIC OFFICERS Sec.38-39)

GR: A Public officer is not liable for injuries sustained by Grounds for the discipline of public officers
another due to official acts done within the scope of
authority. 1. Dishonesty
2. Oppression
XPNs: 3. Neglect of duty
1. Otherwise provided by law; 4. Misconduct
2. Statutory liability (New Civil Code, Arts. 27, 32, 34); 5. Disgraceful and immoral conduct
3. Presence of bad faith, malice, or negligence; 6. Discourtesy in the course of official duties
7. Inefficiency and incompetence in the performance of
NOTE: Absent of any showing of bad faith or malice, official duties
every public official is entitled to the presumption of 8. Conviction of a crime involving moral turpitude
good faith as well as regularity in the performance 9. Being notoriously undesirable
or discharge of official duties. (Blaquera v. Alcala, 10. Falsification of official documents
G.R. No. 109406, Sept. 11, 1998) 11. Habitual drunkenness
12. Gambling
4. Liability on contracts entered into in excess or without 13. Refusal to perform official duty or render overtime
authority; service
5. Liability on tort if the public officer acted beyond the limits 14. Physical or mental incapacity due to immoral or
of authority and there is bad faith. (USA v. Reyes, G.R. No. 79253, vicious habits
March 1, 1993) 15. Willful refusal to pay just debts or willful failure to pay
taxes
NOTE: Ruling in Arias v. Sandiganbayan that heads of
offices may rely to a certain extent on their subordinates PREVENTIVE SUSPENSION AND BACK SALARIES
is not automatic. As held in Cesa v. Office of the
Ombudsman, when there are facts that point to an Nature of preventive suspension
irregularity and the officer failed to take steps to rectify
it, even tolerating it, the Arias doctrine is inapplicable. Preventive suspension is not a penalty by itself; it is
(Ombudsman v. de los Reyes, G.R. No. 208976, Oct. 13, merely a measure of precaution so that the employee
2014) who is charged may be separated from the scene of his
alleged misfeasance while the same is being investigated,
Three-fold responsibility/liability of public officers to prevent him from using his position or office to
influence prospective witnesses or tamper with the
1. Criminal liability records, which may be vital in the prosecution of the case
2. Civil liability against him. (Beja v. CA, G.R. No. 91749, March 31, 1992)
3. Administrative liability

Liabilities of ministerial officers

1. Non-feasance – Neglect to perform an act which is the

officer's legal obligation to perform.

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 LAW ON PUBLIC OFFICERS
Q: Is a public officer entitled to back wages
during his suspension pending appeal when the
It can be ordered even without a hearing because this is result of the decision from such appeal does not
only preliminary step in an administrative investigation. amount to
(Alonzo v. Capulong, et al., G.R. No. 110590, May 10, 1995)

NOTE: When a public officer is charged with violation of

the Anti-Graft and Corrupt Practices Act or R. A No. 3019,
a pre-suspension hearing is required solely to determine
the applicability of such law and for the accused be given a
fair and adequate opportunity to challenge the validity of the
criminal proceedings against him. This may be done through
various pleadings. (Torres v. Garchitorena, G.R. No. 153666,
Dec. 27, 2002)

Periods of Preventive Suspension

1. For administrative cases:

a. Civil Service Law – 90 days
b. Local Government Code (RA 7160) –
i. Sec. 85: 60 days for appointive officials
(suspension to be imposed by the local chief executive)
ii. Sec. 63: 60 or 90 days for elective officials
c. Ombudsman Act – 6 months
2. For criminal cases: Anti-Graft and Corrupt Practices
Act (RA 3019) – 90 days by analogy (Gonzaga v.
Sandiganbayan G.R. No. 96131 September 6, 1991)

NOTE: Service of preventive suspension will not be

credited to the penalty of suspension after having been
found guilty because they are of different character. If
however the preventive suspension is indefinite wherein
his term is about to expire and suspension is not lifted
such will be considered unconstitutional for being
violative of due process of law. (Layno, Sr. v.
Sandiganbayan, G.R. No. L-65848, May 24, 1985)

Preventive Suspension Pending Investigation vs.

Preventive Suspension Pending Appeal

PENDING INVESTIGATION PENDING APPEAL

Not a penalty but only a Punitive in character

means of enabling the
disciplinary authority an
unhampered investigation

After the lapse of 90 days, If exonerated, he should

the law provides that he be be reinstated with full pay
automatically reinstated for the period of
suspension

During such preventive If during the appeal he

suspension, the employee is remains suspended and
not entitled to payment of the penalty imposed is
salaries only reprimand, the
suspension pending
appeal becomes illegal
and he is entitled to back
salary corresponding to
the period of suspension

---
 c. Suspension for more than 30 days or fine
equivalent to more than 30 day salary
complete exoneration but carries with it a certain [P.D. 807, Sec.37 par (a)]
number of days of suspension?
NOTE: Decisions are initially appealable to the
A: NO. Although entitled to reinstatement, he is not entitled department heads and then to the CSC. Only the
to back wages during such suspension pending appeal. Only respondent in the administrative disciplinary case,
one who is completely exonerated or merely reprimanded is not the complainant, can appeal to the CSC from an
entitled to such back wages. (Sec. of Education v. CA. G.R. No. adverse decision. The complainant in an
128559, October 4, 2000) administrative disciplinary case is only a witness,
--- and as such, the latter cannot be considered as an
aggrieved party entitled to appeal from an adverse
Conditions before an employee may be entitled to back decision. (Mendez v. CSC, G. R. No. 95575, December
salaries 23, 1991)
1) The employee must be found innocent of the charges; 2. Appeal is NOT available if the penalty is:
and a. Suspension for not more than 30 days
2) His suspension must be unjustified b. Fine not more than 30 day salary
(CSC v. Cruz GR No. 187858, August 9, 2011) c. Censure
d. Reprimand
Disciplinary Action e. Admonition
f. or when the respondent is exonerated
It is a proceeding, which seeks the imposition of disciplinary
sanction against, or the dismissal or suspension of, a public NOTE: In the second case, the decision becomes final and
officer or employee on any of the grounds prescribed by law executory by express provision of law.
after due hearing.
Availability of the services of the Solicitor General
Availability of appeal in administrative disciplinary cases
If the public official is sued for damages arising out of a
It depends on the penalty imposed: felony for his own account, the State is not liable and the
1. Appeal is available if the penalty is: Solicitor General is not authorized to represent him
a. Demotion therefore. The Solicitor General may only do so in suits
b. Dismissal, or for damages arising not from a crime but from the

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FACULTY OF CIVIL LAW
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performance of a public officer’s duties. (Vital-Gozon v. charged and of the offense committed must be
CA, G.R No. 101428, Aug. 5, 1992) made. If the administrative offense found to have
been actually committed is of lesser gravity than
The Office of the Solicitor General can represent the the offense charged, the employee cannot be
public official at the preliminary investigation of his case, considered exonerated if the factual premise for
and that if an information is eventually filed against the the imposition of the lesser penalty remains the
said public official, the said Office may no longer same. The employee found guilty of a lesser
represent him in the litigation. (Anti-Graft League v. offense may only be entitled to back salaries when
Ortega, G.R. No. L-33912, Sept. 11, 1980) the offense actually committed does not carry the
penalty of more than one month suspension or
Condonation Doctrine dismissal. (CSC v. Cruz, G.R. No. 187858, August 9,
2011)
The condonation doctrine connotes a complete
extinguishment of liability of a public officer or “denying IMMUNITY OF PUBLIC OFFICERS
the right to remove one from office because of
misconduct during a prior term”. Immunity

Under the new ruling, the Supreme Court simply finds no It is an exemption that a person or entity enjoys from the
legal authority to sustain the condonation doctrine in normal operation of the law such as a legal duty or
this jurisdiction. As can be seen from this discourse, it liability, either criminal or civil.
was a doctrine adopted from one class of US rulings way
back in 1959 and thus, out of touch from – and now Immunity of public officers from liabilities to third
rendered obsolete by – the current legal regime. In persons
consequence, it is high time to abandon the condonation
doctrine that originated from Pascual, and affirmed in It is well settled, as a general rule, that public officers of
the cases following the same, such as Aguinaldo, the government, in the performance of their public
Salalima, Mayor Garcia, and Governor Garcia, Jr. functions, are not liable to third persons, either for the
misfeasances or positive wrongs, or for the
NOTE: The abandonment of the condonation doctrine nonfeasances, negligence, or omissions of duty of their
should be prospective in application for the reason that official subordinates. (McCarthy v. Aldanese, G.R. No. L-
judicial decisions applying or interpreting the laws or the 19715, March 5, 1923)
Constitution, until reversed, shall form part of the legal
system of the Philippines. (Carpio-Morales v. CA, G.R. No. Rationale behind official immunity
217126-27, Nov. 10, 2015)
It promotes fearless, vigorous, and effective
The condonation doctrine would not apply to appointive administration of policies of government. The threat of
officials since, as to them, there is no sovereign will to suit could also deter competent people from accepting
disenfranchise. (Carpio-Morales v. CA, ibid.) public office.

ILLEGAL DISMISSAL, REINSTATEMENT, AND BACK The immunity of public officers from liability for the non-
SALARIES feasances, negligence or omissions of duty of their
official subordinates and even for the latter’s
Guiding Principles misfeasances or positive wrongs rests upon obvious
considerations of public policy, the necessities of the
1. Reinstatement and back salaries are separate and distinct public service and the perplexities and embarrassments
reliefs available to an illegally dismissed public officer or of a contrary doctrine. (Alberto Reyes, Wilfredo B. Domo-
employee, Ong and Herminio C. Principio v. Rural Bank of San Miguel
2. Back salaries may be awarded to illegally dismissed based (Bulacan), Inc., G.R. No. 154499, February 27, 2004)
on the constitutional provision that no officer or employee in the
civil service shall be removed or suspended except for cause Applicability of the doctrine of immunity of public
provided by law; to deny these employees their back salaries officers
amounts to unwarranted punishment after they have been
exonerated from the charge that led to their dismissal or This doctrine is applicable only whenever a public officer
suspension. The present legal basis for an award of back salaries is in the performance of his public functions. On the
is Section 47, Book V of the Administrative Code of 1987. other hand, this doctrine does not apply whenever a
3. Back salaries are ordered paid to an officer or an public officer acts outside the scope of his public
employee only if he is exonerated of the charge against him and functions.
his suspension or dismissal is found and declared to be illegal.
4. If the exoneration of the employee is relative (as NOTE: A public officer enjoys only qualified, NOT
distinguished from complete exoneration), an inquiry into the absolute immunity.
factual premise of the offense
Distinction between Official immunity from State
immunity
UNIVERSITY OF SANTO TOMAS
Immunity of public officials is a more limited principle
2017 GOLDEN NOTES
 LAW ON PUBLIC OFFICERS

than governmental immunity, since its purpose is not assumption of public office be discouraged.
directly to protect the sovereign, but rather to do so only
collaterally, by protecting the public official in the NOTE: The general rule is that a de facto officer
performance of his government function, while, the cannot claim salary and other compensations for
doctrine of State immunity principally rested upon the services rendered by him as such. However, the
tenuous ground that the king could do no wrong. It officer may retain salaries collected by him for
serves to protect the impersonal body politic or services rendered in good faith when there is no de
government itself from tort liability. jure officer claiming the office.

STATE IMMUNITY OFFICIAL IMMUNITY 3. The de facto officer is subject to the same liabilities
Principle of International Concept of Municipal Law imposed on the de jure officer in the discharge of official
duties, in addition to whatever special damages may be
Law
due from him because of his unlawful assumption of
Availed of by States Availed of by public
office.
against an international officials against the
4. The acts of the de facto public officer, insofar as they
court or tribunal members of the public
affect the public, are valid, binding and with full legal
The purpose is to protect To protect the public effect.
the assets of the State official from liability
from any judgment arising from negligence in Manner by which challenge to a de facto office is
the performance of his made
discretionary duties
1. The incumbency may not be challenged collaterally
NOTE: When public officials perform purely ministerial or in an action to which the de facto officer is not a party.
duties, however, they may be held liable. 2. The challenge must be made in a direct proceeding
where title to the office will be the principal issue.
DE JURE AND DE FACTO OFFICERS 3. The authorized proceeding is quo warranto either by
the Solicitor General in the name of the Republic or by
De jure officer any person claiming title to the office.

A de jure officer is one who is in all respects legally ---

appointed or elected and qualified to exercise the office. Q: ACE ran as congressman of Cagayan province. His
opponent, Mark, however, was the one proclaimed as
De facto officer (2000, 2004, 2009, 2010 Bar) the winner by the COMELEC. ACE filed seasonably a
protest before the HRET. After two years, the HRET
A de facto officer is one who assumed office under the reversed the COMELEC’s decision and ACE was
color of a known appointment or election but which proclaimed finally as the duly elected Congressman.
appointment or election is void for reasons that the Thus, he had only one year to serve in Congress.
officer was not eligible, or that there was want of power
in the electing body, or that there was some other defect 1. Can ACE collect salaries and allowances from the
or irregularity in its exercise, wherein such ineligibility, government for the first two years of his term as
want of power, or defect being unknown to the public. Congressman?
2. Should Mark refund to the government the
De jure officer vs. De facto officer salaries and allowances he had received as
Congressman?
3. What will happen to the bills that Mark alone
DE JURE OFFICER DE FACTO OFFICER authored and were approved by the HoR while he
Has lawful title to the Has possession of and was seated as Congressman? Reason and explain
briefly.
office performs the duties under a
colorable title without being A:
technically qualified in all 1. No. ACE cannot collect salaries and allowances from
points of law to act the government for the first two years of his term,
Holding of office rests Holding of office rests on because in the meanwhile Mark collected the salaries and
on right reputation allowances. Mark was a de facto officer while he was in
possession of the office. To allow ACE to collect the
Officer cannot be Officer may be ousted in a salaries and allowances will result in making the
removed through a direct proceeding against government pay a second time.
direct proceeding (quo him. 2. No. Mark is not required to refund to the
warranto). government the salaries and allowances he received. As a
de facto officer, he is entitled to the salaries and
allowances because he rendered services during his
Effects of the acts of de facto public officers incumbency.
3. The bills which Mark alone authored and were
1. The lawful acts, so far as the rights of third persons approved by the House of Representatives are valid
are concerned are, if done within the scope and by the
apparent authority of the office, are considered valid and
binding.
2. The de facto officer cannot benefit from his own
status because public policy demands that unlawful
 UNIVERSITY OF SANTO TOMAS
165
FACULTY OF CIVIL LAW
 POLITICAL LAW

because he was a de facto officer during his De facto officer vs. Usurper
incumbency. The acts of a de facto officer are valid
insofar as the public is concerned. (Rodriguez v. Tan,
G.R. No. L-3913, August 7, 1952)
---
DE FACTO OFFICER USURPER (2000 Bar)
Recovery of the salary received by a de facto officer
during a wrongful tenure Complies with the 3 Takes possession of an
elements of a de jure officer, office and does official
As a rule, the rightful incumbent of the public office may namely: acts without any actual or
recover from a de facto officer the salaries received by 1. existence of a de jure apparent authority
the latter during the time of the latter's wrongful tenure
office;
even though he entered into the office in good faith and
under a colorable title. The de facto officer takes the 2. must possess the legal
salaries at his risks and must therefore account to the de qualifications for the
jure officer for the amounts he received. However, where office in question;
there is no de jure officer, a de facto officer shall be 3. must have qualified
entitled to the salaries and emoluments accruing during himself to perform the
the period when he actually discharged the duties. duties of such office
(Monroy v. CA, G.R. No. L-23258, July 1, 1967)
according to the mode
NOTE: In Monroy v. CA, the Supreme Court said that the prescribed by law.
Rodriguez ruling cannot be applied for the absence of
factual and legal similarities.
Has color of right or title to Has neither color of right
Essence of de facto doctrine office or title to office

The de facto doctrine has been formulated, not for the

Acts are rendered valid as Acts are absolutely void
protection of the de facto officer principally, but rather
for the protection of the public and individuals who get to the public until his title is
involved in the official acts of persons discharging the adjudged insufficient
duties of an office without being lawful officers.
GR: Not entitled to
---
The rightful incumbent of a compensation
Q: May the salary of a public officer or employee be
subject to garnishment? Why? public office may recover
from an officer de facto the
A: No. It may not, by garnishment, attachment, or order salary received by the latter
of execution, be seized before being paid to him, and during the time of his
appropriated for the payment of his debts, because of the tenure even though he
following reasons: entered into the office in
1. While it is still in the hands of the disbursing officer, good faith and under color
it belongs to the government;
of title.
2. Public policy forbids such practice since it would be
fatal to the public service; and
XPN:
3. It would be tantamount to a suit against the State in Where there is no de jure
its own court, which is prohibited, except with its
consent. public officer, the officer de
--- facto who in good faith has
had possession of the office
and has discharged the
duties pertaining thereto, is
legally entitled to the
emoluments of the office,
and may, in an appropriate
action, recover the salary,
fees and other
compensations attached to
the office. (Gen. Manager,
Philippine Ports Authority v.
Monserrato, April 17, 2002)

Quo warranto
UNIVERSITY OF SANTO TOMAS 2017 It is a proceeding or writ issued by the court to
GOLDEN NOTES determine the right to use an office, position or franchise
and to oust the person holding or exercising such office,
 position or franchise if his right is unfounded
or if a person performed acts considered as
grounds for forfeiture of said exercise of
position, office or franchise.

NOTE: It is commenced by a verified petition

brought in the name of the Republic of the
Philippines or in the

166
 LAW ON PUBLIC OFFICERS

name of the person claiming to be entitled to a public 11. Death

office or position usurped or unlawfully held or 12. Failure to assume office
exercised by another. (Rules of Court, Rule 66, Sec. 1) 13. Conviction of a crime
14. Filing of a COC
Nature and purpose of quo warranto
NOTE: Appointive officials, active members of the
It literally means “by what authority” and the object is to Armed Forces of the Philippines, and officers and
determine the right of a person to the use or exercise of a employees of the GOCCs, shall be resigned from his
franchise or office and to oust the holder from its office upon the filing of his CoC. (Quinto v. COMELEC,
enjoyment, if his claim is not well-founded, or if he has Feb. 22, 2010, G.R. No. 189698)
forfeited his right to enjoy the office. (Tecson v. Comelec,
424 SCRA 227) Elective officials shall continue to hold office,
whether he is running for the same or a different
Quo warranto under Rule 66 vs. Quo warranto in position. (Sec. 14, Fair Elections Act expressly
electoral proceedings repealed Sec. 67 of B.P. Blg. 881)

QUO WARRANTO IN Age limit for retirement

QUO WARRANTO UNDER
ELECTORAL
RULE 66
PROCEEDINGS 1. For members of SC and judges of lower courts– 70
Issue is legality of the Issue is eligibility of the y.o.
occupancy of the office by person elected 2. Gov't officers and employees – 65 y.o.
virtue of a legal 3. Optional retirement – 60 y.o. and must have
appointment rendered at least 20 service years
Grounds: Grounds: ineligibility or
usurpation, forfeiture, or disqualification to hold Resignation (2000 Bar)
illegal association (Rules the office (Omnibus
of Court, Rule 66, Sec. 1,) Election Code, Sec. 253) It is the act of giving up or declining a public office and

Presupposes that the Petition must be filed renouncing the further right to use such office. It must be
respondent is already within 10 days from the in writing and accepted by the accepting authority as
actually holding office and proclamation of the provided for by law.
action must be candidate.
commenced within 1 year Accepting authorities for resignation
from cause of ouster or
from the time the right of 1. For appointed officers, the tender of resignation
petitioner to hold office must be given to the appointing authority;
arose. 2. For elected officers, tender to officer authorized by

Petitioner is person Petitioner may be any law to call an election to fill the vacancy. The
entitled to office voter even if he is not following authorized officers are:
entitled to the office. a. Respective chambers – For members of

Person adjudged entitled Actual or compensatory Congress;

to the office may bring a damages are recoverable b. President – For governors, vice-governors,
separate action against in quo warranto mayors and vice-mayors of highly urbanized
the respondent to recover proceedings under the cities and independent component cities;
damages (Rules of Court, Omnibus Election Code. c. Provincial governor – For municipal mayors and
Rule 66, Sec. 11). vice-mayors, city mayors and vice-mayors of
component cities;
NOTE: If the dispute is as to the counting of votes or on d. Sanggunian concerned – For sanggunian
matters connected with the conduct of the election, quo members;
warranto is not the proper remedy but an election e. Municipal/city mayors – For barangay officials.
protest. (Cesar v. Garrido, G.R. No. 30705, March 25, 1929)
Courtesy Resignation

TERMINATION OF OFFICIAL RELATIONS

It cannot properly be interpreted as resignation in the
 Modes of terminating official relationships legal sense for it is not necessarily a reflection of a public
official's intention to surrender his position. Rather, it
1. Expiration of term or tenure manifests his submission to the will of the political
2. Reaching the age limit for retirement authority and the appointing power. (Ortiz V. COMELEC,
3. Resignation G.R. No. 78957, June 28, 1988)
4. Recall
5. Removal ---
6. Abandonment Q: During the May 1998 election, petitioner Hazel
7. Acceptance of an incompatible office was elected President while respondent Kristina was
8. Abolition of office elected Vice-President. From the beginning of her
9. Prescription of the right to office term, petitioner was plagued by jueteng issues that
10. Impeachment slowly eroded her popularity. Afterwards, the

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 POLITICAL LAW

impeachment trial started and the people conducted mayor after serving three full terms as mayor since the
a 10-kilometer line holding lighted candles in EDSA recall election is not considered an immediate re-
Shrine to symbolize their solidarity in demanding election, it is not counted for purposes of the 3-term
Hazel’s resignation. On January 19, Hazel agreed to limit. Term limits should be construed strictly to give the
the holding of a snap election for President. On fullest possible effect to the right of the electorate to
January 20, Chief Justice Ramon administered the choose their leaders. (Socrates v. COMELEC, G.R. No.
oath to respondent Kristina as President of the 154512, Nov. 12, 2002)
Philippines. On the same day, Hazel issued a press
statement that she was leaving Malacañang Palace Abandonment (2000 Bar)
for the sake of peace and in order to begin the
healing process of the nation. It also appeared that It is the voluntary relinquishment of an office by the
onq the same day, she signed a letter stating that she holder with the intention of terminating his possession
was transmitting a declaration that she was unable and control thereof.
to exercise the powers and duties of his office and
that by operation of law and the Constitution, the ---
Vice-President shall be the Acting President. Are the Q: Does the acceptance of an incompatible office ipso
acts of Hazel constitutive of resignation? facto vacate the other?

A: YES. Resignation is not a high level legal abstraction. It is a A: GR: Yes.

factual question and its elements are beyond quibble: there must
be an intent to resign and the intent must be coupled by acts of XPN: Where such acceptance is authorized by law.
relinquishment (totality test). The validity of a resignation is ---
not governed by any formal requirement as to form. It can be
oral, written, express or implied. As long as the resignation is NOTE: It is contrary to the policy of the law that the
clear, it must be given legal effect. (Estrada v. Arroyo, G.R. No. same individual should undertake to perform
146738, March 2, 2001) inconsistent and incompatible duties. He who, while
--- occupying one office, accepts another incompatible with
the first, ipso facto, absolutely vacates the first office.
Removal That the second office is inferior to the first does not
affect the rule.
Forcible and permanent separation of the incumbent
from office before the expiration of the public officer's ---
term. (Feria, Jr. v. Mison, G.R. No. 8196, August 8, 1989) Q: Does the acceptance of an incompatible office pertain
to its physical impossibility or its nature?
Recall
A: By the nature and relation of the two offices to each other,
It is an electoral mode of removal employed directly by they should not be held by one person from the contrariety
the people themselves through the exercise of their right and antagonism which would result in the attempt by one
of suffrage. It is a political question not subject to judicial person to faithfully and impartially discharge the duties of
review. It is a political question that has to be decided by one, toward the incumbent of the other.
the people in their sovereign capacity. (Evardone v. ---
COMELEC, G.R. No. 94010, Dec. 2, 1991)
Prescriptive period for petitions for reinstatement
NOTE: Recall only applies to local officials. or recovery of public office

Limitations on recall It must be instituted within one (1) year from the date of
unlawful removal from the office. Such period may be
1. An elective official can be subjected to recall only once. extended on grounds of equity.
2. No recall shall take place within one (1) year from the
assumption of office or one year immediately preceding a Period to take the oath of office to avoid failure to
regular local election assume office
[Republic Act No. 7160, Sec. 74 (b)]
Failure to take the oath of office within 6 months from
NOTE: For the time bar to apply, the approaching proclamation of election shall cause the vacancy of the
local election must be one where the position of the office UNLESS such failure is for a cause beyond his
official to be recalled is to be actually contested and control. (B.P. 881, Sec. 11,)
filled by the electorate. (Angobung v. COMELEC, G.R.
No. 126576, March 5, 1997) Termination of official relationship through
conviction by final judgment
Effect of Recall on the 3-term limit rule (2010 Bar)
When the penalty imposed carries with it the accessory
The three-term limit for local elected officials is not penalty of disqualification.
violated when a local official wins in a recall election for

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 LAW ON PUBLIC OFFICERS

instrumentality thereof including GOCCs or their

THE CIVIL SERVICE subsidiaries. [1987 Constitution, Art. IX-B, Sec. 7(2)]
4. No officer or employee in the civil service shall
engage, directly or indirectly, in any electioneering or
SCOPE partisan political activity. [1987 Constitution, Art. IX-B,
Sec. 2(4)]
The Civil Service embraces every branch, agency,
subdivision, and instrumentality of the government,
including every government-owned or controlled CLASSIFICATION
corporations whether performing governmental or
proprietary functions. [1987 Constitution, Art. IX-B, Sec. 1. Career Service
2(1)] 2. Non-Career Service

As the central personnel agency of the government, it: Career Service

1. Establishes a career service;
2. Adopts measures to promote morale, efficiency, The Career Service shall be characterized by (1) entrance
integrity, responsiveness, progressiveness and courtesy in based on merit and fitness to be determined as far as
the Civil Service; practicable by competitive examinations, or based on
3. Strengthens the merits and rewards system; highly technical qualifications; (2) opportunity for
4. Integrates all human resources and development advancement to higher career positions; and (3) security
programs for all levels and ranks; of tenure.
5. Institutionalizes a management climate conducive
to public accountability. (1987 Constitution, Art. IX-B, Sec. 3) The Career Service shall include:

Composition of the CSC 1. Open Career positions for appointment to which prior
qualification in an appropriate examination is required;
A. Chairman
B. 2 Commissioners 2. Closed Career positions which are scientific or highly
technical in nature; these include the faculty and
The Chairman and the Commissioners shall be appointed academic staff of state colleges and universities, and
by the President with the consent of the Commission on scientific and technical positions in scientific or research
Appointments for a term of seven years without institutions which shall establish and maintain their own
reappointment. merit systems;

NOTE: Appointment to any vacancy shall be only for the 3. Positions in the Career Executive Service (CES);
unexpired term of the predecessor. In no case shall any namely, Undersecretary, Assistant Secretary, Bureau
Member be appointed or designated in a temporary or Director, Assistant Bureau Director, Regional Director,
acting capacity [1987 Constitution, Art. IX-B, Sec. 1(2)] Assistant Regional Director, Chief of Department Service
and other officers of equivalent rank as may be identified
Qualifications by the Career Executive Service Board, all of whom are
appointed by the President;
1. Natural-born citizen,
2. At least 35 years old at the time of appointment, NOTE: For a position to be considered as CES,
3. With proven capacity for public administration; a. The position must be among those enumerated
and under Book V, Title I, Subtitle A, Chapter 2, Section 7(3)
4. Not a candidate in any election immediately of the Administrative Code of 1987 or a position of equal
preceding the appointment [1987 Constitution, Art. IX-B, Sec rank as those enumerated and identified by the CESB to
1(1)] be such position of equal rank; and
b. The holder of the position must be a
Disqualifications presidential appointee. (Seneres v. Sabido, G.R. No.
172902, October 21, 2015)
1. No candidate who has lost in any election shall,
within 1 year after such election, be appointed to any office Requisites for a CES employee to acquire security of
in the Government of any GOCC or in any of its subsidiaries. tenure:
(1987 Constitution, Art. IX-B, Sec. 6) a. CES eligibility; and
2. No elective official shall be eligible for appointment b. Appointment to the appropriate CES rank.
or designation in any capacity to any public office or position (Seneres v. Sabido, ibid.)
during his tenure. [1987 Constitution, Art. IX-B, Sec. 7(1)]
(1995, 2002 Bar) (See more detailed discussion under Security of
3. Unless otherwise allowed by law or by the primary tenure for CES, infra.)
functions of his position, no appointive official shall hold any
other office or employment in the Government or any 4. Career officers, other than those in the Career
subdivision, agency or Executive Service, who are appointed by the President,

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such as the Foreign Service Officers in the Department of

Foreign Affairs; b) Except as herein otherwise provided, entrance to the
5. Commissioned officers and enlisted men of the Armed Forces first two levels shall be through competitive examinations,
which shall maintain a separate merit system; which shall be open to those inside and outside the service
who meet the minimum qualification requirements.
6. Personnel of government-owned or controlled corporations, Entrance to a higher level does not require previous
whether performing governmental or proprietary functions, who qualification in the lower level. Entrance to the third level
do not fall under the non-career service; and shall be prescribed by the Career Executive Service Board.

7. Permanent laborers, whether skilled, semi-skilled, or c) Within the same level, no civil service examination shall
unskilled. be required for promotion to a higher position in one or
more related occupational groups. A candidate for
Non-Career Service promotion should, however, have previously passed the
examination for that level. ( P.D. 807, Art. IV)
The Non-Career Service shall be characterized by (1)
entrance on bases other than those of the usual tests of APPOINTMENTS TO THE CIVIL SERVICE
merit and fitness utilized for the career service; and (2)
tenure which is limited to a period specified by law, or Manner of appointment to the civil service
which is coterminous with that of the appointing
authority or subject to his pleasure, or which is limited to Appointments in the civil service shall be made only
the duration of a particular project for which purpose according to merit and fitness to be determined, as far as
employment was made. practicable, and, except to positions which are policy-
determining, primarily confidential, or highly technical,
The Non-Career Service shall include: by competitive examination. (1987 Constitution, Art. IX-B
Sec. 2[2])
1. Elective officials and their personal or confidential staff;
2. Department Heads and other officials of Cabinet rank who Principal groups of position in the Civil Service, on
hold positions at the pleasure of the President and their personal the basis of appointment
or confidential staff(s);
3. Chairman and members of commissions and boards with fixed 1. Competitive positions – according to merit and fitness to
terms of office and their personal or confidential staff; be determined by competitive examinations, as far as
4. Contractual personnel or those whose employment in the practicable.
government is in accordance with a special contract to 2. Non-competitive positions – do not have to take into
undertake a specific work or job, requiring special or technical account merit and fitness. No need for competitive
skills not available in the employing agency, to be accomplished examinations.
within a specific period, which in no case shall exceed one year, a. Policy-determining – tasked to formulate a method
and performs or accomplishes the specific work or job, under his of action for the government or any of its subdivisions.
own responsibility with a minimum of direction and supervision b. Primarily confidential – duties are not merely
from the hiring agency; and clerical but devolve upon the head of an office, which, by
5. Emergency and seasonal personnel. reason of his numerous duties, delegates his duties to others,
the performance of which requires skill, judgment, trust and
Classes of Positions in the Career Service confidence

a) Classes of positions in the career service appointment to Proximity Rule

which requires examinations shall be grouped into three major
levels as follows: The test used to determine confidentiality of a
position. The occupant of a particular position
1. The first level shall include clerical, trades, crafts, and could be considered a confidential employee if the
custodial service positions which involve non-professional or predominant reason why he was chosen by the
sub-professional work in a non-supervisory or supervisory appointing authority was the latter’s belief that he
capacity requiring less than four years of collegiate studies; can share a close intimate relationship with the
2. The second level shall include professional, technical, occupant which ensures freedom of discussion
and scientific positions which involve professional, technical, or without fear of embarrassment or misgivings of
scientific work in a non-supervisory or supervisory capacity possible betrayals of personal trust and
requiring at least four years of college work up to Division Chief confidential matters of State. (De los Santos v.
level; and Mallare, G.R. No. L-3881, August 31, 1950)
3. The third level shall cover positions in the Career
Executive Service. c. Highly technical – requires technical skill or
training in the highest degree

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NOTE: The test to determine whether the position is in an acting capacity, which can be terminated at any
non-competitive is the nature of the responsibilities, time, the officer cannot invoke the security of tenure.
not the description given to it. The Constitution does
not exempt the above-given positions from the NOTE: The holder of a temporary appointment cannot
operation of the principle that “no officer or claim a vested right to the station to which assigned, nor
employee of the civil service shall be removed or to security of tenure thereat. Thus, he may be reassigned
suspended except for cause provided by law.” to any place or station. (Teotico v. Agda, G.R. No. 87437,
May 29, 1991)

--- Attachment of security of tenure

Q: Who may be appointed in the civil service?
It attaches once an appointment is issued and the
A: Whoever fulfills all the qualifications prescribed by moment the appointee assumes a position in the civil
law for a particular position may be appointed therein. service under a completed appointment, he acquires a
legal, not merely equitable, right (to the position) which
NOTE: The CSC cannot disapprove an appointment just is protected not only by statute, but also by the
because another person is better qualified, as long as the constitution, and cannot be taken away from him either
appointee is himself qualified. It cannot add by revocation of the appointment, or by removal, except
qualifications other than those provided by law. (Cortez for cause, and with previous notice and hearing. (Aquino
v. CSC, G.R. No. 92673, March 13, 1991) v. CSC, G.R. No. 92403, April 22, 1992)
---
Security of tenure for Career Executive Service(CES)
Security of tenure
Security of tenure in the CES is thus acquired with
It means that no officer or employee in the civil service respect to rank and not to position. The guarantee of
shall be suspended or dismissed except for cause security of tenure to members of the CES does not extend
provided by law, and after due process or after he shall to the particular positions to which they may be
have been given the opportunity to defend himself. appointed - a concept which is applicable only to first
and second-level employees in the civil service - but to
NOTE: One must be validly appointed to enjoy security the rank to which they are appointed by the President.
of tenure. Thus, one who is not appointed by the proper Within the CES, personnel can be shifted from one office
appointing authority does not acquire security of tenure. or position to another without violation of their right to
security of tenure because their status and salaries are
Once an appointment is issued and completed and the based on their ranks and not on their jobs. (Seneres v.
appointee assumes the position, he acquires a legal right, Sabido, G.R. No. 172902, Oct. 21, 2015)
not merely an equitable right to the position. (Lumigued
v. Exevea, G.R. No. 117565, November. 18, 1997) Illustration: The position of NCC (National Computer
Center) Director General is a CES position equivalent to
Regardless of the characterization of the position held by Career Executive Service Officer (CESO) Rank I. Seneres
a government employee covered by civil service rules, be is already CES eligible, but no President has yet
it career or non-career position, such employee may not appointed him to any CES rank (despite the previous
be removed without just cause. (Jocom v. Regalado, G.R. recommendation of the CESB for his appointment to
No. 77373, August 22, 1991) CESO Rank I). Therefore, Seneres's membership in the
CES is still incomplete. Falling short of one of the
Bases of the constitutional guaranty of security of qualifications that would complete his membership in
tenure in the civil service (1999, 2005 Bar) the CES, Seneres cannot successfully interpose
violation of security of tenure. His appointment to the
The prohibition against suspension or dismissal of an position of NCC Director General could only be
officer or employee of the Civil Service “except for cause construed as temporary, and he could be removed any
provided by law” is “a guaranty of both procedural and time even without cause. Even assuming that he was
substantive due process.” “Not only must removal or already conferred with a CES rank, his appointment
suspension be in accordance with the procedure would be permanent as to his CES rank only but not as
prescribed by law, but also they can only be made on the to his position as NCC Director General. As member of
basis of a valid cause provided by law.” (Land Bank of the the CES, he could be reassigned or transferred from
Philippines v Rowena O. Paden, G.R. No. 157607, July 7, one position to another from one department, bureau,
2009). or office to another provided that there would be no
reduction in his rank or salary and that his
Characteristic of security of tenure reassignment/transfer was not oftener than every two
years, among other conditions. (Seneres v. Sabido, ibid.)
It is the nature of the appointment that characterizes
security of tenure and not the nature of one’s duties or
functions. Security of tenure for non-competitive positions

Where the appointment is permanent, it is protected by 1. Primarily confidential officers and employees hold
the security of tenure provision. But if it is temporary or office only for so long as confidence in them

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remains. If there is genuine loss of confidence, there In fine, a primarily confidential position is characterized
is no removal, but merely the expiration of the term by the close proximity of the positions of the appointer
of office. and appointee as well as the high degree of trust and
2. Non-career service officers and employees’ security of confidence inherent in their relationship.
tenure is limited to a period specified by law, coterminous with
the appointing authority or subject to his pleasure, or which is In the light of the instant controversy, the Court's view is
limited to the duration of a particular purpose. that the greater public interest is served if the position of
3. Political appointees in Foreign Service possess tenure a corporate secretary is classified as primarily
coterminous with that of the appointing authority or subject to confidential in nature. (CSC v. Javier, G.R. No. 173264,
his pleasure. February 22, 2008)
---
Instances where a transfer may be considered
violative of employee’s security of tenure
PERSONNEL ACTIONS
When the transfer is a preliminary step toward his
removal, or a scheme to lure him away from his Any action denoting movement or progress of personnel
permanent position, or when it is designed to indirectly in the civil service. (City Mayor Debulgado v. CSC, G.R. No.
terminate his service, or force his resignation. Such a 111471, Sept. 26, 1994)
transfer would in effect circumvent the provision that
safeguards the tenure of office of those who are in the Personnel actions include
Civil Service. (CSC v. PACHEO, G.R. No. 178021, January
25, 2012) 1. Appointment through Certification – Issued to a person
who has been selected from a list of qualified persons
NOTE: Acceptance of a temporary appointment or certified by the Commission from an appropriate register of
assignment without reservation or upon one’s own eligible and who meets all other requirements of the
volition is deemed waiver of security of tenure. (Palmera position [Revised Administrative Code of 1987, Title I-A, Book
v. CSC, G.R. No. 110168, August 4, 1994) V, Chapter 5, Sec. 26(2)].
2. Promotion – Movement from one position to another
Rules applicable to temporary employees vis-a-vis with increase in duties and responsibilities as authorized by
security of tenure law and usually accompanied by an increase in pay [Revised
Administrative Code of 1987, Title I-A, Book V, Chapter 5, Sec.
1. Not protected by security of tenure – can be removed 26(2)].
anytime even without cause. 3. Transfer – A movement from one position to another
2. If they are separated, this is considered an expiration of which is of equivalent rank, level or salary without break in
term. But, they can only be removed by the one who appointed service involving issuance of an appointment.
them. 4. Reinstatement – A person who has been permanently
3. Entitled to such protection as may be provided by law. appointed to a position in the career service and who has,
[1987 Constitution, Art. IX-B, Sec. 2(6)] through no delinquency or misconduct, been separated
therefrom, may be reinstated to a position in the same level
--- for which he is qualified.
Q: May the courts determine the proper classification of a 5. Reemployment – Persons who have been appointed
position in government? Is the position of corporate permanently to positions in the career service and who have
secretary in a GOCC primarily confidential in nature? been separated as result of reduction in force and or
reorganization shall be entered in a list from which selection
A: The courts may determine the proper classification of a for reemployment shall be made (The Revised Administrative
position in government. A strict reading of the law (EO 292) Code of 1987, Chapter 5, Book V, Title I-A, Sec. 26[5]).
reveals that primarily confidential positions fall under the non- 6. Detail – A movement of an employee from one agency to
career service. The tenure of a confidential employee is another without issuance of an appointment and shall be
coterminous with that of the appointing authority, or is at the allowed, only for a limited period in the case of employees
latter's pleasure. However, the confidential employee may be occupying professional, technical and scientific positions
appointed or remain in the position even beyond the compulsory (The Revised Administrative Code of 1987, Chapter 5, Book V,
retirement age of 65 years. Title I-A, Sec. 26[6]).
7. Reassignment – An employee may be reassigned from
Jurisprudence establishes that the Court is not bound by one organizational unit to another in the same agency,
the classification of positions in the civil service made by provided that such reassignment shall not involve a
the legislative or executive branches, or even by a reduction in rank, status or salary [Revised Administrative
constitutional body like the CSC. The Court is expected to Code of 1987, Title I-A, Book V, Chapter 5, Sec. 26(7)].
make its own determination as to the nature of a 8. Demotion – A movement from one position to another
particular position, such as whether it is a primarily involving the issuance of an appointment
confidential position or not, without being bound by
prior classifications made by other bodies.

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with diminution in duties, responsibilities, status or construction of the Constitution, on which students of law
rank which may or may not involve reduction in may sincerely differ, cannot be considered a valid ground
salary. for impeachment.
9. Secondment – movement of an employee from one
department or agency to another which is temporary in Betrayal of public trust
nature. It may or may not require the issuance of an
appointment, and may involve an increase in compensation Refer to “acts which are just short of being criminal but
and benefits. Acceptance of a secondment is voluntary on the constitute gross faithlessness against public trust,
part of the employee. The payment of salaries of a seconded tyrannical abuse of power, inexcusable negligence of duty,
employee shall be borne by the receiving agency and the favoritism, and gross exercise of discretionary powers.”
seconded employee shall be on leave without pay in his Acts that should constitute betrayal of public trust as to
mother agency for the duration of his secondment. (Seneres v. warrant removal from office may be less than criminal but
Sabido, G.R. No. 172902, Oct. 21, 2015) must be attended by bad faith and of such gravity and
seriousness as the other grounds for impeachment.
(Gonzales III v. Office of the President, G.R. No. 196231,
ACCOUNTABILITY OF PUBLIC OFFICERS September 4, 2012)

Steps in the impeachment process (2012 Bar)

IMPEACHMENT
(2012 Bar) 1. Initiating impeachment case
a. Verified complaint filed by any member of the
Method by which persons holding government positions House of Representatives or any citizen upon resolution of
of high authority, prestige, and dignity and with definite endorsement by any member thereof.
tenure may be removed from office for causes closely
related to their conduct as public officials. NOTE: If the verified complaint is filed by at
least 1/3 of all its members of the House of
NOTE: It is a national inquest into the conduct of public Representatives, the same shall constitute the
men. It is primarily intended for the protection of the Articles of Impeachment, and trial by the Senate
State, not for the punishment of the offender. The shall forthwith proceed. [1987 Constitution, Art.
penalties attached to the impeachment are merely XI, Sec. 3 (4)]
incidental to the primary intention of protecting the
people as a body politic. b. Inclusion in the order of business within 10
session days.
Impeachable officers c. Referred to the proper committee within 3
session days from its inclusion.
1. President d. The committee, after hearing, and by majority
2. Vice-President vote of all its members, shall submit its report to the House
3. Members of the Supreme Court of Representatives together with the corresponding
4. Members of the Constitutional Commissions resolution.
5. Ombudsman e. Placing on calendar the Committee resolution
within 10 days from submission;
NOTE: The enumeration is exclusive (1987 Constitution, f. Discussion on the floor of the report;
Art. XI, Sec. 2). g. A vote of at least 1/3 of all the members of the
House of Representatives shall be necessary either to
Grounds for impeachment (CTB-GOB) (1999, 2012, affirm a favorable resolution with the Articles of
2013 Bar) Impeachment of the committee or override its contrary
resolution. [(1987 Constitution, Art. XI, Sec. 3 (2-3)]
1. Culpable violation of the Constitution
2. Treason 2. Trial and Decision in impeachment proceedings
3. Bribery a. The Senators take an oath or affirmation
4. Graft and Corruption
5. Other high crimes NOTE: When the President of the Philippines
6. Betrayal of public trust (1987 Constitution, Art. XI, shall be impeached, the Chief Justice of the
Sec. 2) Supreme Court shall preside, otherwise the
Senate President shall preside in all other cases
NOTE: The enumeration is exclusive. of impeachment (Senate Resolution No. 890).

Culpable violation of the Constitution b. A decision of conviction must be concurred in by

at least 2/3 of all the members of Senate.
It refers to wrongful, intentional or willful disregard or
flouting of the fundamental law. Obviously, the act must be NOTE: The power to impeach is essentially a non-
deliberate and motivated by bad faith to constitute a legislative prerogative and can be exercised by Congress
ground for impeachment. Mere mistakes in the proper only within the limits of the authority conferred upon it

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by the Constitution (Gutierrez v. House of Representatives 2. Not more than one impeachment proceeding shall be
Committee on Justice, G.R. No. 193459, Feb. 15, 2011). initiated against the same official within a period of one year.
(One-year bar rule)
The Senate has the sole power to try and decide all cases
of impeachment. (1987 Constitution, Art. XI, Sec. 3[6]) NOTE: An impeachment case is the legal controversy
that must be decided by the Senate while an
Impeachment is deemed initiated impeachment proceeding is one that is initiated in
the House of Representatives. For purposes of
A verified complaint is filed and referred to the applying the one-year bar rule, the proceeding is
Committee on Justice for action. This is the initiating step initiated or begins when a verified complaint is filed
which triggers the series of steps that follow. The term and referred to the Committee on Justice for action.
“to initiate” refers to the filing of the impeachment (Francisco v. House of Representatives, et. al., G.R. No.
complaint coupled with Congress’ taking initial action of 160261, Nov. 10, 2003)
said complaint. (Francisco v. House of Rep., G.R. No.
160261, Nov. 10, 2003) The power to impeach is essentially a non-
legislative prerogative and can be exercised by
NOTE: Initiation takes place by the act of filing of the Congress only within the limits of the authority
impeachment complaint and referral to the House conferred upon it by the Constitution (Francisco v.
Committee on Justice. Once an impeachment complaint House of Representatives, ibid). It is, by its nature, a
has been initiated in the foregoing manner, another may sui generis politico-legal process. (Gonzales III v.
not be filed against the same official within a one year Office of the President, G.R. 196231, January 28,
period. (Gutierrez v. House of Representatives Committee 2014)
on Justice, G.R. No. 193459, Feb. 15, 2011)
One-year bar rule (2014 Bar)
Determination of sufficiency of form and substance
of an impeachment complaint Initiation takes place by the act of filing of the
impeachment complaint and referral to the House
An exponent of the express constitutional grant of Committee on Justice. Once an impeachment complaint
rulemaking powers of the HoR. has been initiated in the foregoing manner, another may
not be filed against the same official within a one year
In the discharge of that power and in the exercise of its period. (Gutierrez v. HoR Committee on Justice, ibid.).
discretion, the House has formulated determinable
standards as to form and substance of an impeachment NOTE: refers to the element of time, and not the number
complaint. Furthermore, the impeachment rules are of complaints. The impeachable officer should defend
clear in echoing the constitutional requirements in himself in only one impeachment proceeding, so that he
providing that there must be a “verified complaint or will not be precluded from performing his official
resolution” and that the substance requirement is met if functions and duties. Similarly, Congress should run only
there is “a recital of facts constituting the offense charged one impeachment proceeding so as not to leave it with
and determinative of the jurisdiction of the committee.” little time to attend to its main work of law-making.
(Gutierrez v. House of Representatives Committee on (Gutierrez v. The House of Representatives Committee on
Justice, G.R. No. 193459, Feb. 15, 2011) Justice, ibid.)

Power of the HoR to determine the sufficiency of Purpose of the one-year bar rule
form and substance of an impeachment complaint
The purpose of the one-year bar is two-fold:
It is an exponent of the express constitutional grant of 1. To prevent undue or too frequent harassment
rulemaking powers of the House of Representatives. In 2. To allow the legislature to do its principal task of
the discharge of that power and in the exercise of its legislation (Francisco v. House of Representatives ibid.).
discretion, the House has formulated determinable
standards as to form and substance of an impeachment The consideration behind the intended limitation refers
complaint. Furthermore the impeachment rules are clear to the element of time, and not the number of complaints.
in echoing the constitutional requirements in providing The impeachable officer should defend himself in only
that there must be a “verified complaint or resolution” one impeachment proceeding, so that he will not be
and that the substance requirement is met if there is “a precluded from performing his official functions and
recital of facts constituting the offense charged and duties. Similarly, Congress should run only one
determinative of the jurisdiction of the committee” impeachment proceeding so as not to leave it with little
(Gutierrez v. House of Representatives Committee on time to attend to its main work of law-making. The
Justice, ibid.). doctrine laid down in Francisco that initiation means
filing and referral remains congruent to the rationale of
Limitations imposed by the Constitution upon the the constitutional provision (Gutierrez v. The House of
initiation of impeachment proceedings Representatives Committee on Justice, G.R. No. 193459,
Feb. 15, 2011)
1. The House of Representatives shall have the exclusive
power to initiate all cases of impeachment. NOTE: Congress may look into separate complaints
against an impeachable officer and consider the

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inclusion of matters raised therein, in the adoption of the Government, the investigation of such cases;
Articles of Impeachment. (Francisco v. House of (2012 Bar)
Representatives, et. al., G.R. No. 160261, Nov. 10, 2003) 2. Direct, upon complaint or at its own instance, any
officer or employee of the Government, or of any
Effects of conviction in impeachment (2012 Bar) subdivision, agency or instrumentality thereof, as well
as any government-owned or controlled corporations
1. Removal from office with original charter, to perform and expedite any act
2. Disqualification to hold any other office under the or duty required by law, or to stop, prevent, and
Republic of the Philippines correct any abuse or impropriety in the performance
3. Party convicted shall be liable and subject to of duties;
prosecution, trial and punishment according to law. [1987 3. Direct the officer concerned to take appropriate
Constitution, Art. XI, Sec. 3 (7)] action against a public officer or employee at fault or
who neglect to perform an act or discharge a duty
--- required by law, and recommend his removal,
Q: Can a Supreme Court Justice be charged in a suspension, demotion, fine, censure, or prosecution,
criminal case or disbarment proceeding instead of an and ensure compliance therewith; or enforce its
impeachment proceeding? disciplinary authority as provided in Section 21 of R.A.
6770: provided, that the refusal by any officer without
A: No, because the ultimate effect of either is to remove just cause to comply with an order of the Ombudsman
him from office, circumventing the provision on removal by to remove, suspend, demote, fine, censure, or
impeachment thus violating his security of tenure. (In Re: First prosecute an officer or employee who is at fault or
Indorsement from Hon. Raul Gonzalez, A.M. No. 88-4-5433, April who neglects to perform an act or discharge a duty
15, 1988) required by law shall be a ground for disciplinary
action against said officer; (2009 Bar)
An impeachable officer who is a member of the 4. Direct the officer concerned, in any appropriate
Philippine bar cannot be disbarred first without being case, and subject to such limitations as it may provide
impeached. (Jarque v. Desierto, A.C. No. 4509, 5 December in its rules of procedure, to furnish it with copies of
1995) documents relating to contracts or transactions
--- entered into by his office involving the disbursement
or use of public funds or properties, and report any
Judicial Review in Impeachment Proceedings irregularity to the Commission on Audit for
appropriate action;
The precise role of the judiciary in impeachment cases is 5. Request any government agency for assistance
a matter of utmost importance to ensure the effective and information necessary in the discharge of its
functioning of the separate branches while preserving responsibilities, and to examine, if necessary,
the structure of checks and balance in our government. pertinent records and documents;
The acts of any branch or instrumentality of the 6. Publicize matters covered by its investigation of
government, including those traditionally entrusted to the matters mentioned in paragraphs (1), (2), (3) and
the political departments, are proper subjects of judicial (4) hereof, when circumstances so warrant and with
review if tainted with grave abuse or arbitrariness. (Chief due prudence: provided, that the Ombudsman under
Justice v. Senate, G.R. No. 200242, July 17, 2012) its rules and regulations may determine what cases
may not be made public: provided, further, that any
publicity issued by the Ombudsman shall be balanced,
OMBUDSMAN fair and true;
7. Determine the causes of inefficiency, red tape,
Composition: mismanagement, fraud, and corruption in the
Government, and make recommendations for their
1. The Ombudsman elimination and the observance of high standards of
2. One overall Deputy ethics and efficiency;
3. At least one Deputy each for Luzon, Visayas and 8. Administer oaths, issue subpoena and subpoena
Mindanao duces tecum, and take testimony in any investigation
4. One Deputy for the military establishment or inquiry, including the power to examine and have
(1987 Philippine Constitution, Art. XI, Section 5) access to bank accounts and records;
9. Punish for contempt in accordance with the Rules
FUNCTIONS of Court and under the same procedure and with the
same penalties provided therein;
1. Investigate and prosecute on its own or on 10. Delegate to the Deputies, or its investigators or
complaint by any person, any act or omission of any public representatives such authority or duty as shall ensure
officer or employee, office or agency, when such act or the effective exercise or performance of the powers,
omission appears to be illegal, unjust, improper or inefficient. functions, and duties herein or hereinafter provided;
It has primary jurisdiction over cases cognizable by the 11. Investigate and initiate the proper action for the
Sandiganbayan and, in the exercise of this primary jurisdiction, recovery of ill-gotten and/or unexplained wealth
it may take over, at any stage, from any investigatory agency of

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amassed after February 25, 1986 and the Rank and salary
prosecution of the parties involved therein (R.A.
6770, Sec. 15). The Ombudsman and his Deputies shall have the rank of
12. Promulgate its rules of procedure and exercise such other Chairman and Members, respectively, of the
powers or perform such functions or duties as may be provided Constitutional Commissions, and they shall receive the
by law (1987 Constitution, Art. XI, Sec. 13[7]; see also RA 6770, same salary, which shall not be decreased during their
Sec. 18). term of office (1987 Philippine Constitution, Art. XI, Sec.
10).
NOTE: Ombudsman can investigate the acts of the
Supreme Court. (2003 Bar) Disqualifications and inhibitions

The powers of the Ombudsman are not merely 1. Shall not hold any other office or employment;
recommendatory. His office was given teeth to render 2. Shall not engage in the practice of any profession or in
this constitutional body not merely functional but also the active management or control of any business which in
effective. Under RA 6770 and the 1987 Constitution, the any way may be affected by the functions of his office;
Ombudsman has the constitutional power to directly 3. Shall not be financially interested, directly or indirectly,
remove from government service an erring public official in any contract with, or in any franchise or privilege granted
other than a member of Congress and the Judiciary. by the government, or any of its subdivisions, etc.
(Estarija v. Ranada, G.R No. 159314, June 26, 2006) Shall not be qualified to run for any office in the
election immediately succeeding their cessation
Effect of charges arising from same act/omission from office (RA 6770, Sec. 9)
lodged before the Ombudsman and regular courts
Scope of powers
Administrative and criminal charges filed before the
Office of the Ombudsman and the trial court, 1. The Ombudsman can investigate only officers of
respectively, are separate and distinct from each other government owned corporations with original charters.
even if they arise from the same act or omission. This is (Khan, Jr v. Ombudsman, G.R. No. 125296, July 20, 2006)
because the quantum of proof required in criminal cases 2. The jurisdiction of the Ombudsman over disciplinary
is proof beyond reasonable doubt, while in cases involving public school teachers has been modified by
administrative cases, only substantial evidence is Sec. 9 of RA 4670 (Magna Carta for Public School Teachers)
required. Moreover, the purpose of the administrative which says that such cases must first go to a committee
proceedings is mainly to protect the public service, based appointed by the Secretary of Education. (Ombudsman v.
on the time-honored principle that a public office is a Estandarte, G.R. 168670, April 13, 2007)
public trust. On the other hand, the purpose of the 3. The Ombudsman Act authorizes the Ombudsman to
criminal prosecution is the punishment of crime. Thus, impose penalties in administrative cases. (Ombudsman v. CA,
even the dismissal of a criminal case does not necessarily G.R. No. 167844, Nov. 22, 2006; Ombudsman v. Lucero, G.R. No.
foreclose the administrative action against the 168718 November 24, 2006)
respondent. (Gonzales v. Serrano. G.R. No. 175433, March
11, 2015) NOTE: According to Section 60 of the LGC, elective
officials may be dismissed only by the proper court.
Ombudsman’s fiscal autonomy “Where the disciplining authority is given only the
power to suspend and not the power to remove, it
The Ombudsman shall enjoy fiscal autonomy. Its should not be permitted to manipulate the law by
approved annual appropriations shall be automatically usurping the power to remove.” (Sangguniang
and regularly released. (1987 Constitution, Sec. 14, Art. Barangay v. Punong Barangay, G.R. No. 170626,
XI) March 3, 2008)

Term of office 4. The Special Prosecutor may not file information without
authority from the Ombudsman. (Perez v. Sandigabayan, G.R.
7 years without reappointment. (1987 Constitution, Art. No. 166062, Sept. 26, 2006)
XI, Sec. 11) 5. The Ombudsman has been conferred rule making
power to govern procedures under it. (Buencamino v. CA, GR
Qualifications of the Ombudsman and his Deputies 175895, April 12, 2007)
6. A preventive suspension will only last ninety (90) days,
1. Natural born citizen of the Philippines; not the entire duration of the criminal case. (Villasenor v.
2. At least 40 years of age at the time of appointment; Sandiganbayan G.R. No. 180700, March 4, 2008)
3. Of recognized probity and independence; 7. Section 14, first paragraph, of the Ombudsman Act,
4. Member of the Philippine Bar; which says, “No writ of injunction shall be issued by any court
5. Must not have been candidate for any elective office in the to delay an investigation being conducted
immediately preceding election;
6. For Ombudsman: He must have been for ten years or more,
a judge or engaged in the practice of law in the Philippines.

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by the Ombudsman under this Act, unless there is a The Ombudsman may still investigate even if the
prima facie evidence that the subject matter of the private complainants lack sufficient personal
investigation is outside the jurisdiction of the Office of interest in the subject matter of grievance
the Ombudsman” is DECLARED INEFFECTIVE until
SC issues a procedural rule on the matter. (Carpio- Section 20 of RA 6770 has been clarified by the Rules of
Morales v. CA, G.R. No. 217126-27, Nov. 10, 2015) Procedure of the Office of the Ombudsman. Under,
8. Section 14, second paragraph, of the Ombudsman Section 4, Rule III thereof, even if the ground raised is the
Act, which says, “No court shall hear any appeal or supposed lack of sufficient personal interest of
application for remedy against the decision or complainants in the subject matter of the grievance
findings of the Ombudsman, except the Supreme under Section 20(4) [RA 6770], the dismissal on that
Court, on pure question of law” is ground is not mandatory and is discretionary on the
UNCONSTITUTIONAL for it attempts to effectively part of the Ombudsman or Deputy Ombudsman
increase SC’s appellate jurisdiction without its evaluating the administrative complaint. The
advice and concurrence. (Carpio-Morales v. Binay, Ombudsman cannot be faulted for exercising its
Jr., ibid.) discretion under Section 20 of RA 6670, which allows the
Ombudsman to decide not to conduct the necessary
Delegability of the powers of the Ombudsman investigation of any administrative act or omission
complained of, if it believes that the complainant has no
The power to investigate or conduct a preliminary sufficient personal interest in the subject matter of the
investigation on any Ombudsman case may be exercised grievance. (Bueno v. Office of the Ombudsman, G.R. No.
by an investigator or prosecutor of the Office of the 191712, Sept. 17, 2014)
Ombudsman, or by any Provincial or City Prosecutor or
their assistants, either in their regular capacities or as ---
deputized Ombudsman prosecutors. (Honasan II v. Panel Q: Can the claim of confidentiality prevent the
of Investigators of the DOJ, G.R. No. 159747, June 15, 2004) Ombudsman from demanding the production of
documents needed for their investigation?
NOTE: While the Ombudsman’s power to investigate is
primary, it is not exclusive and, under the Ombudsman A: NO. In Almonte v. Vasquez, G.R. No. 95367, May 23,
Act of 1989, he may delegate it to others and take it back 1995, the Court said that where the claim of
any time he wants to. (Acop v. Ombudsman, G.R. No. confidentiality does not rest in the need to protect
120422, September 27, 1995) military, diplomatic or the national security secrets but
on general public interest in preserving confidentiality,
Power of the Ombudsman to directly dismiss a public the courts have declined to find in the Constitution an
officer absolute privilege even for the President.

Under Sec. 13(3) of Art. XI, the Ombudsman can only Moreover, even in cases where matters are really
recommend to the officer concerned the removal of a confidential, inspection can be done in camera.
public officer or employee found to be administratively ---
liable. (Tapiador v. Office of the Ombudsman, G.R. No.
129124. March 15, 2002). Be that as it may, the refusal, JUDICIAL REVIEW IN ADMINISTRATIVE
without just cause, of any officer to comply with such an PROCEEDINGS
order of the Ombudsman to penalize erring officer or
employee is a ground for disciplinary action. Thus, there Authority of the Ombudsman in reviewing
is a strong indication that the Ombudsman’s Administrative proceedings
recommendation is not merely advisory in nature but
actually mandatory within the bounds of law. This Sec. 19 of the Ombudsman Act further enumerates the
should not be interpreted as usurpation of the types of acts covered by the authority granted to the
Ombudsman of the authority of the head of office or any Ombudsman. The Ombudsman shall act on all complaints
officer concerned. It has long been settled that the power relating, but not limited to acts or omissions which:
of the Ombudsman to investigate and prosecute any 1. Are contrary to law or regulation;
illegal act or omission of any public official is not an 2. Are unreasonable, unfair, oppressive or
exclusive authority, but a shared or concurrent authority discriminatory;
in respect of the offense charged. (Ledesma v. CA, G.R. No. 3. Are inconsistent with the general course of an
161629, July 29, 2005) agency's functions, though in accordance with law;
4. Proceed from a mistake of law or an arbitrary
Power of the Military Deputy Ombudsman to ascertainment of facts;
investigate civilian police 5. Are in the exercise of discretionary powers but for
an improper purpose; or
Since the power of the Ombudsman is broad and the 6. Are otherwise irregular, immoral or devoid of
Deputy Ombudsman acts under the direction of the justification
Ombudsman, the power of the Military Deputy to
investigate members of the civilian police has also been In the exercise of its duties, the Ombudsman is given full
affirmed. (Acop v. Ombudsman, G.R. No. 120422, administrative disciplinary authority. His power is not
September 27, 1995) limited merely to receiving, processing complaints, or
recommending penalties. He is to conduct investigations,

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hold hearings, summon witnesses and require 1. Violations of the Anti-Graft and Corrupt Practices Act
production of evidence and place respondents under (RA 3019), RA 1379, Chapter II, Section 2, Title VII, Book II of
preventive suspension. This includes the power to the Revised Penal Code, and Executive Order Nos. 1, 2, 14
impose the penalty of removal, suspension, demotion, and 14-A, issued in 1986.
fine, or censure of a public officer or employee. 2. The offender who violates RA 3019, RA 1379, the RPC
(Ombudsman v. Galicia, G.R. No. 167711, Oct. 10, 2008) provisions, and other offenses is a public official or employee
holding any of the positions enumerated in par. a, Sec. 4, RA
NOTE: Appeals from resolutions of the Office of the 8249.
Ombudsman in administrative disciplinary cases should 3. Other offenses or felonies whether simple or complexed
be taken to the Court of Appeals via Petition for Review with other crimes committed by the public officials and
under Rule 43 of the Rules of Court. (Fabian v. Desierto, employees in relation to their office (RA 10660).
G.R. No. 129742, Sept. 16, 1998)
NOTE: In case private individuals are charged as co-
JUDICIAL REVIEW IN PENAL PROCEEDINGS principals, accomplices or accessories with the public
officers or employees, they shall be tried jointly with said
Authority of the Ombudsman in reviewing penal public officers and employees. (PD 1606, Sec. 4)
proceedings
Private persons may be charged together with public
In the exercise of its investigative power, the Court has officers to avoid repeated and unnecessary presentation
consistently held that courts will not interfere with the of witnesses and exhibits against conspirators in
discretion of the fiscal or the Ombudsman to determine different venues, especially if the issues involved are the
the specificity and adequacy of the averments of the same. It follows therefore that if a private person may be
offense charged. He may dismiss the complaint forthwith tried jointly with public officers, he may also be
if he finds it to be insufficient in form and substance or if convicted jointly with them. (Balmadrid v.
he otherwise finds no ground to continue with the Sandiganbayan, G.R. No. L-58327 March 22, 1991)
inquiry; or he may proceed with the investigation of the
complaint if, in his view, it is in due and proper form. Determination of the jurisdiction of the
[Ocampo v. Ombudsman, 225 SCRA 725 (1993)] Sandiganbayan

It shall be determined by the allegations in the

NOTE: In Garcia-Rueda v. Pascasio, G.R. No. 118141, information specifically on whether or not the acts
September 5, 1997, the Court held that “while the complained of were committed in relation to the official
Ombudsman has the full discretion to determine functions of the accused. It is required that the charge be
whether or not a criminal case is to be filed, the Court is set forth with particularity as will reasonably indicate
not precluded from reviewing the Ombudsman’s action that the exact offense which the accused is alleged to
when there is grave abuse of discretion.” have committed is one in relation to his office. (Lacson v.
Executive Secretary¸G.R. No. 128096, Jan. 20, 1999)
SANDIGANBAYAN
Voting Requirement
Sandiganbayan is a special appellate collegial court in
the Philippines. The special court was established by All three members of a division shall deliberate on all
Presidential Decree No. 1486, as subsequently modified matters submitted for judgment, decision, final order or
by Presidential Decree No. 1606 and by Republic Acts resolution.
numbered 7975 and 8249.
The concurrence of a majority of the members of a
Composition of the Sandiganbayan division shall be necessary to render a judgment,
decision, or final order, or to resolve interlocutory or
Under PD 1606, as amended by RA 8249, further incidental motions (RA 10660).
amended by RA 10660, it is composed of:
1. Presiding Justice Mandatory Suspension of a Public Officer Against
2. Twenty Associate Justices, with the rank of Justice of the Whom a Valid Information is Filed
Court of Appeals
It is now settled that Sec. 13, RA 3019, makes it
NOTE: It sits in 7 divisions with three members each. mandatory for the Sandiganbayan to suspend any public
officer against whom a valid information charging
Nature of the Sandiganbayan violation of that law, or any offense involving fraud upon
the government or public funds or property is filed.
Sandiganbayan is NOT a constitutional court. It is a (Bolastig v. Sandiganbayan, G.R. No. 110503, August 4,
statutory court; that is, it is created not by the 1994)
Constitution, but by statute, although its creation is
mandated by the Constitution. NOTE: Under Sec. 13, RA 3019, any public officer against
whom any criminal prosecution under a valid
Exclusive original jurisdiction of the Sandigabayan information under this Act or under the provisions of the
Revised Penal Code on bribery is pending in court, shall

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be suspended from office. Should he be convicted by final transferees, shall not be barred by prescription, laches or
judgment, he shall lose all retirement or gratuity benefits estoppel," has already been settled in Presidential Ad Hoc
under any law, but if he is acquitted, he shall be entitled Fact-Finding Committee on Behest Loans v. Desierto. G.R.
to reinstatement and to the salaries and benefits which No. 130140, where the Court held that the above cited
he failed to receive during suspension, unless in the constitutional provision "applies only to civil actions for
meantime administrative proceedings have been filed recovery of ill-gotten wealth, and NOT to criminal cases.
against him. (Presidential Ad Hoc Fact- Finding Committee On Behest
Loans v. Desierto, G.R. No. 135715, April 13, 2011)
Appeal from a decision of the Sandiganbayan to the
SC
TERM LIMITS
The appellate jurisdiction of the Supreme Court over
decisions and final orders of the Sandiganbayan is (Correlate discussion on Term Limits under Local
limited to questions of law. (Cabaron v. People, G.R. No. Governments)
156981, Oct. 5, 2009)
Term vs. Tenure
ILL-GOTTEN WEALTH

Any asset, property, business enterprise or material TERM TENURE

possession of any person within the purview of Sec. 2 of
RA 7080, acquired by him directly or indirectly through The time during which the Represents the period
dummies, nominees, agents, subordinates and/or officer may claim to hold the during which the
business associates by any combination or series of the office as a right, and fixes the incumbent actually
following means or similar schemes: interval after which the several holds the office;
1. Through misappropriation, conversion, misuse, or incumbents shall succeed one
malversation of public funds or raids on the public treasury; another;
2. By receiving, directly or indirectly, any commission,
It is not affected by It may be shorter
gift, share, percentage, kickbacks or any other form of
pecuniary benefit from any person and/or entity in holding over of than term.
connection with any government contract or project or by the incumbent
reason of the office or position of the public officer after expiration
concerned; of the term for
3. By the illegal or fraudulent conveyance or which he was
disposition of assets belonging to the National Government
appointed or
or any of its subdivisions, agencies or instrumentalities or
government-owned-or-controlled corporations and their elected.
subsidiaries;
4. By obtaining, receiving or accepting directly or NOTE: Term of office is different from the right to hold
indirectly any shares of stock, equity or any other form of office. The latter is the just and legal claim to hold and
interest or participation including promise of future enjoy the powers and responsibilities of the office.
employment in any business enterprise or undertaking; (Casibang v. Aquino, G.R. No. L-38025, Aug. 20, 1979)
5. By establishing agricultural, industrial or
commercial monopolies or other combinations and/or Kinds of terms
implementation of decrees and orders intended to benefit
particular persons or special interests; 1. Term fixed by law
6. By taking undue advantage of official position, 2. Term dependent on good behavior until reaching
authority, relationship, connection or influence to unjustly retirement age
enrich himself or themselves at the expense and to the 3. Indefinite term, which terminates at the pleasure of
damage and prejudice of the Filipino people and the the appointing authority.
Republic of the Philippines (Borres v. CA, G.R. No. L-36845, Aug. 21, 1998)

(RA 7080, “An Act Defining and Penalizing the Crime

of Plunder”). 3-Term Limit Rule

Non-applicability of prescription, laches and The term of office of elective local officials, except
estoppel in criminal prosecution for the recovery of barangay officials, which shall be determined by law,
ill-gotten wealth shall be three years and no such official shall serve for
more than three consecutive terms.
The provision found in Sec. 15, Art. XI of the 1987
Constitution that "the right of the State to recover NOTE: Voluntary renunciation of the office for any length
properties unlawfully acquired by public officials or of time shall not be considered as an interruption in the
employees, from them or from their nominees or continuity of his service for the full term for which he
was elected. (1987 Constitution, Art. X, Sec. 8)

For the three-term limit rule for elective local

government officials to apply, two conditions or
requisites must concur, to wit: 1) that the official
concerned has been elected for three consecutive terms
in the same local government post, and 2) that he has
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fully served three consecutive terms. (Lonzanida v.

COMELEC, G.R. No. 135150, July 28, 1999) ADMINISTRATIVE LAW

Rationale: To prevent the establishment of political

dynasties and to enhance the freedom of choice of the
people. (Borja, Jr. v. COMELEC, G.R. No. 133495, Sept. 3, GENERAL PRINCIPLES
1998)

Hold-over Administrative Law

In the absence of an express or implied constitutional or It is a branch of public law fixing the organization and
statutory provision to the contrary, an officer is entitled determines the competence of administrative
to hold office until his successor is elected or appointed authorities, and indicates the individual remedies for the
and has qualified. (Lecaroz v. Sandiganbayan, G.R. No. violation of the rights. [Administrative Code, Sec. 2(3)]
130872, March 25, 1999)
Scope:
Term limits of elective officers
1. Fixes the administrative operation and structure of the
1. President – 6 years, without re-election government
2. Vice President – 6 years, with 1 re-election if 2. Executes or enforces that which is entrusted to
consecutive administrative authorities (all those public officers and organs of the
3. Senators – 6 years, with 1 re-election if consecutive government charged with the amplification, application and
4. Representative – 3 years, with 2 re-elections if execution of the law)
consecutive 3. Governs public officers and creates administrative
5. Local Executive Officials – 3 years, with 2 re- officers
elections if consecutive, in the same position 4. Provides remedies to those aggrieved by these agencies
5. Governs Judicial Review
6. Includes rules, regulation, orders and decisions made by
administrative authorities
7. Includes the body of judicial doctrines on any of the
above

Classifications:

As to Source
Law that controls Law made by the
administrative administrative
authorities authorities
Constitution, statutes, General regulations and
judicial decisions, particular determinations;
Executive Orders, constitute under
Administrative Orders, delegations of power
etc. embodied in statutory
administrative law, and
imposing and constantly
expanding body of law.
As to Purpose
Adjective or Procedural Substantive
Administrative Law Administrative Law
Establishes the procedure Derived from same
which an agency must or sources but contents are
may follow in the pursuit different in that the law
of its legal purpose. establishes primary rights
and duties.

As to Applicability
General Administrative Special/ particular
Law Administrative Law
Part that is of general Part that pertains to
nature and common to all, particular service;
or most, administrative proceeds from the
agencies; chiefly but not particular statute creating

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 ADMINISTRATIVE LAW

exclusively procedural law. the individual agency. government or a distinct unit therein. (Administrative
Code, Sec. 2)

Department
Kinds:
An executive department created by law. [Administrative
1. Statutes setting up administrative authorities. Code of 1987, Sec. 2(7)]
2. Body of doctrines and decisions dealing with the
creation, operation, and effect of determinations and Bureau
regulations of such administrative authorities.
3. Rules, regulations, or orders of such administrative Any principal subdivision or unit of any department.
authorities in pursuance of the purposes, for which [Administrative Code, Sec. 2(8)]
administrative authorities were created or endowed.
Example: Omnibus Rules Implementing the Labor Office
Code, circulars of Central Monetary Authority
4. Determinations, decisions, and orders of such It refers to any major functional unit of a department or
administrative authorities in the settlement of controversies bureau including regional offices. It may also refer to any
arising in their particular field. position held or occupied by individual persons, whose
Example: Awards of NLRC with respect to money functions are defined by law or regulation
claims of employees [Administrative Code, Sec. 2(9)].

MANNER OF CREATION
ADMINISTRATIVE AGENCIES
Creation and Abolition of Office

DEFINITION The creation and abolition of public offices is primarily a

legislative function (Eugenio v. CSC, G.R. No. 115863,
It is an organ of government, other than a court and the March 31, 1995). However, the President may abolish an
legislature, which affects the rights of private parties office either from a valid delegation from Congress, or his
either through adjudication or rule making. inherent duty to faithfully execute the laws. (Biraogo v.
Philippine Truth Commission of 2010, G.R. No. 192935,
Interpretation of the powers of the administrative December 7, 2010)
agencies
Manner of creation
Administrative agencies have powers and functions
which may be administrative, investigatory, regulatory, 1. Constitutional provision
quasi-legislative, or quasi-judicial or mix of the five, as 2. Authority of law
may be conferred by the constitution or by the statute. 3. Legislative enactment
They have in fine only such powers or authority as are
granted or delegated, expressly or impliedly, by law. And Reasons for the creation of administrative agencies
in determining whether an agency has certain powers,
the inquiry should be from the law itself. But once 1. Help unclog court dockets
ascertained as existing, the authority given should be 2. Meet the growing complexities of modern society
liberally construed. (Soriano v. MTRCB, G.R. No. 165785, 3. Help in the regulation of ramified activities of a
April 29, 2009) developing country

Instrumentality Elements of a valid abolition of office

It refers “to any agency of the National Government, not 1. In good faith; (good faith is presumed)
integrated within the department framework, vested 2. Not for political or personal reasons; and
with special functions or jurisdiction by law, endowed 3. Not in violation of law.
with some if not all corporate powers, administering
special funds and enjoying operational autonomy, NOTE: The Congress has the right to abolish an office
usually through a charter. It includes regulatory even during the term for which an existing incumbent
agencies, chartered institutions and government-owned may have been elected EXCEPT when restrained by the
or controlled corporations.” (United Residents of Constitution.
Dominican Hills v. Commission on the Settlement of Land
Problems, G.R. No. 135945, March 7, 2001) Reorganization

Agency Reorganization involves the reduction of personnel,

consolidation of offices, or abolition thereof by reason of
Any of the various units of the government, including a economy or redundancy of functions. It alters the
department, bureau, office, instrumentality, or existing structure of government offices or the units
government-owned or controlled corporations, or a local therein, including the lines of control, authority and
responsibility between them to make the bureaucracy

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more responsive to the needs of the public clientele as ---

authorized by law. (Pan v. Pena G.R. No. 174244, Feb. 13, ---
2009) Q: Is the creation of the PTC justified by the
President’s power of control?
Circumstances that may be considered as evidence of
bad faith in a removal pursuant to reorganization, A: NO. Control is essentially the power to alter or modify or
thus warranting reinstatement or reappointment nullify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment
1. Where there is a significant increase in the number of of the former with that of the latter. Clearly, the power of
positions in the new staffing pattern of the department or agency control is entirely different from the power to create public
concerned; offices. The former is inherent in the Executive, while the
2. Where an office is abolished and other performing latter finds basis from either a valid delegation from
substantially the same functions is created; Congress, or his inherent duty to faithfully execute the laws
3. Where incumbents are replaced by those less qualified in (Cotiangco v. Province of Biliran, G.R. No. 157139, Oct. 19,
terms of status of appointment, performance and merit; 2011)
4. Where there is reclassification of offices in the department ---
or agency concerned and the classified offices perform ---
substantially the same function as the original offices; Q: What then could be the justification for the
5. Where the removal violates the order of separation President’s creation of the PTC?
provided in Sec. 3 of R.A. 6656 (Cotiangco v. Province of Biliran,
G.R. No. 157139, Oct. 19, 2011) A: The creation of the PTC finds justification under Sec. 17,
Art. VII of the Constitution imposing upon the President the
--- duty to ensure that the laws are faithfully executed. The
Q: President Aquino signed EO No. 1 establishing the President’s power to conduct investigations to aid him in
Philippine Truth Commission of 2010 (PTC), an ad hoc body ensuring the faithful execution of laws – in this case,
with the primary task to investigate reports of graft and fundamental laws on public accountability and transparency
corruption. Biraogo asserts that the PTC is a public office – is inherent in the President’s powers as the Chief
and not merely an adjunct body of the Office of the Executive. That the authority of the President to conduct
President. Thus, in order that the President may create a investigations and to create bodies to execute this power is
public office he must be empowered by the Constitution, a not explicitly mentioned in the Constitution or in statutes
statute or an authorization vested in him by law. He claims does not mean that he is bereft of such authority.
that Section 31 of the Administrative Code of 1987, granting
the President the continuing authority to reorganize his The Executive is given much leeway in ensuring that our
office, cannot serve as basis for the creation of a truth laws are faithfully executed. The powers of the President
commission considering the aforesaid provision merely are not limited to those specific powers under the
uses verbs such as reorganize, transfer, consolidate, merge, Constitution. One of the recognized powers of the
and abolish. Insofar as it vests in the President the plenary President granted pursuant to this constitutionally-
power to reorganize the Office of the President to the extent mandated duty is the power to create ad hoc committees.
of creating a public office, Section 31 is inconsistent with the This flows from the obvious need to ascertain facts and
principle of separation of powers enshrined in the determine if the laws have been faithfully executed. It
Constitution and must be deemed repealed upon the should be stressed that the purpose of allowing ad hoc
effectivity thereof. Does the creation of the PTC fall within investigating bodies to exist is to allow an inquiry into
the ambit of the power to reorganize as expressed in Sec. 31 matters which the President is entitled to know so that
of the Revised Administrative Code? he can be properly advised and guided in the
performance of his duties relative to the execution and
A: NO. Reorganization refers to the reduction of personnel, enforcement of the laws of the land (Cotiangco v.
consolidation of offices, or abolition thereof by reason of Province of Biliran, ibid.)
economy or redundancy of functions. This refers to situations ---
where a body or an office is already existent but a modification
or alteration thereof has to be effected. The creation of an office NOTE: The SC, however, declared the creation of PTC as
is nowhere mentioned, much less envisioned in said provision. unconstitutional for violating the equal protection clause.
To say that the PTC is borne out of a restructuring of the Office of
the President under Sec. 31 is a misplaced supposition, even in
the plainest meaning attributable to the term KINDS
‘restructure’ and ‘alteration of an existing structure.’
Evidently, the PTC was not part of the structure of the Kinds of administrative bodies or agencies according
Office of the President prior to the enactment of EO 1. to their purpose
(The Philippine Truth Commission of 2010 v. Lagman, G.R.
No. 192935, December 7, 2010) 1. Those created to function in situations where the
government offers gratuity, grant, or special privilege
Example: GSIS, SSS, PAO

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 ADMINISTRATIVE LAW

2. Those set up to function in situations where the when the law requires it). when the law does not
government seeks to carry on certain functions of require it).
government May be assailed in court Appealed to the Court of
Example: BIR, BOC, BOI through an ordinary Appeals via petition for
3. Those set up in situations where the government action. review (Rule 43).
performs business service for the public Example: PNR,
MWSS, NFA, NHA Non-similarity of functions and powers of
4. Those set up to function in situations where the administrative agencies
government seeks to regulate businesses imbued with public
interest Not all administrative agencies perform the same
Example: Insurance Commission, LTFRB, NTC functions or exercise the types of powers. While some act
5. Those set up to function in situations where the merely as investigative or advisory bodies, most
government seeks under the police power to regulate private administrative agencies have investigative, rule-making,
businesses and individuals Example: SEC, MTRCB and determinative functions, or at least two of such
6. Those agencies set up to function in situations functions.
where the government seeks to adjust individual
controversies because of strong social policy involved QUASI-LEGISLATIVE (RULE-MAKING) POWER
Example: NLRC, ECC, SEC
Quasi-legislative power/Rule-Making

ADMINISTRATIVE AGENCIES The exercise of delegated legislative power, involving no

discretion as to what the law shall be, but merely the
authority to fix the details in the execution or
Administrative power or function enforcement of a policy set out in the law itself.

Involves the regulation and control over the conduct and Legislative vs. Quasi-legislative power
affairs of individuals for their own welfare and the
promulgation of rules and regulations to better carry out
the policy of the legislature or such as are devolved upon LEGISLATIVE QUASI-LEGISLATIVE
the administrative agency by the organic law of its
existence. (In re: Rodolfo U. Manzano, A.M. No. 88-7-1861- Determine what the law Determine how the
RTC, October 5, 1988) shall be law shall be
enforced
Powers of administrative agencies
Cannot be
1. Discretionary – the law imposes a duty upon a public Can be delegated
officer, and gives him the right to decide how or when the delegated
duty shall be performed.
2. Ministerial – one which is as clear and specific as to Limitations to the exercise of quasi-legislative power
leave no room for the exercise of discretion in its
performance. 1. Within the limits of the powers granted to
administrative agencies.
Basic powers of administrative agencies 2. Cannot make rules or regulations which are
inconsistent with the provision of the Constitution or
1. Quasi-legislative power or rule-making power statute.
2. Quasi-judicial or adjudicatory power 3. Cannot defeat the purpose of the statute.
3. Determinative power 4. May not amend, alter, modify, supplant, enlarge, or
limit the terms of the statute.
Quasi-legislative vs. Quasi-judicial power 5. A rule or regulation must be uniform in operation,
reasonable and not unfair or discriminatory.
QUASI-LEGISLATIVE QUASI-JUDICIAL
Operates on the future Operates based on past Administrative rule
facts
General application Particular application Any agency statement of general applicability, which
(applies only to the implements or interprets a law fixes and describes
parties involved) procedures in, or practice requirements of, an agency,
May be assailed in court Only be challenged in including its regulations. The term includes memoranda
without subscribing to the court with prior or statements concerning the internal administration or
doctrine of exhaustion of exhaustion of management of an agency not affecting the rights of, or
procedure available to the public. [Administrative Code of
administrative remedies administrative
1987, Sec. 2 (2)]
(DEAR). remedies.
Does not require prior Requires prior notice
Source of the power to promulgate administrative
notice and hearing (except and hearing (except rules and regulations

Derived from the legislature, by virtue of a valid

delegation, either express or implied.

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Doctrine of Subordinate Legislation

Non-applicability of notice and hearing in the
Power of administrative agency to promulgate rules and issuance of an administrative rule or regulation
regulations on matters within their own specialization.
GR: An administrative body need not comply with the
Reason behind the delegation requirements of notice and hearing, in the performance
of its executive or legislative functions, such as issuing
It is well established in this jurisdiction that, while the rules and regulations. (Corona v. United Harbor Pilots
making of laws is a non-delegable activity that Association of the Philippines, G.R. No. 111963, December
corresponds exclusively to Congress, nevertheless the 12, 1997)
latter may constitutionally delegate authority to
promulgate rules and regulations to implement a given XPNs:
legislation and effectuate its policies, for the reason that The legislature itself requires it and mandates that the
the legislature often finds it impracticable (if not regulation shall be based on certain facts as determined
impossible) to anticipate and provide for the at an appropriate investigation. (Hon. Executive Secretary
multifarious and complex situations that may be met in v. Southwing Heavy Industries, Inc., G.R. No. 164171,
carrying the law into effect. All that is required is that: August 22, 2006)
(1) the regulation should be germane to the objects and
purposes of the law; The administrative rule goes beyond merely providing
(2) that the regulation be not in contradiction with for the means that can facilitate or render least
it, but conforms to the standards that the law cumbersome the implementation of the law but
prescribes substantially adds to or increases the burden of those
(People of the Philippines v. Exconde, G.R. No. L-9820, governed. (CIR v. CA, G.R. No. 11976, August 26, 1996)
August 30, 1957)
Filing of copies of administrative rules and
--- regulations before the UPLC
Q: Respondent was an operator of a domestic air carrier
primarily that of transporting live fish from Palawan to fish Each agency must file with the Office of the National
traders. Petitioner is the government agency responsible for Administrative Register (ONAR) of the University of the
the governance, implementation, and policy direction of the Philippines Law Center three (3) certified copies of every
Strategic Environment Plan (SEP) for Palawan pursuant to rule adopted by it. Administrative issuances which are
which Administrative Order No. 00-05 was issued. Said not published or filed with the ONAR are ineffective and
Order provided that only accredited domestic air carriers may not be enforced. (Administrative Code of 198, Sec. 3;
shall be allowed to operate as ‘common carriers’ licensed GMA v. MTRCB, G.R. No. 148579, February 5, 2007)
under said rule. Respondent assails the validity of A. O. No.
00-05 on the ground that it was issued in excess of Publication requirement
petitioner’s authority as an administrative agency. Was
respondent’s contention valid? Required as a condition precedent to the effectivity of a
law to inform the public of the contents of the law or
A: NO. Petitioner’s issuance of the assailed order was well rules and regulations before their rights and interests
within its statutory authority. Administrative agencies possess are affected by the same. (Philippine International
two kinds of powers, the quasi-legislative or rule-making power, Trading Corporation v. COA, G.R. No. 132593, June 25,
and the quasi-judicial or administrative adjudicatory power. The 1999)
first is the power to make rules and regulations resulting from a
valid delegated legislation that is within the confines of the NOTE: If not otherwise required by law, an agency shall,
granting statute and in accord with the doctrine of non- as far as practicable, publish or circulate notices of
delegability and separability of powers. The second is the power proposed rules and afford interested parties the
to hear and determine questions of fact to which the legislative opportunity to submit their views prior to the adoption
policy is to apply and to decide in accordance with the standards of any rule. [1987 Administrative Code, Administrative
laid down by the law itself in enforcing and administering the Procedure, Sec. 9(1)] (2000, 2009 Bar)
same law. Petitioner had the explicit authority to fill in the
details as to how to carry out or effectively implement the Exceptions to the requirement of publication
objectives of R.A. No. 7611 in protecting and enhancing 1. Interpretative regulations
Palawan's natural resources consistent with the SEP. In fact, the 2. Internal regulations
petitioner was expressly given the authority to impose penalties 3. Letters of instructions
and sanctions in relation to the implementation of the SEP and (Tañada v. Tuvera G.R. No. L-63915, December 29, 1986)
the other provisions of R.A. No. 7611. (The Palawan Council for
Sustainable Development v. Ejercito Lim, G.R. No. 183173, August Effectivity of administrative rules
24, 2016)
--- GR: Administrative rules take effect depending on the
date provided by it.

XPN: If the administrative rule is silent on the matter of

UNIVERSITY OF SANTO TOMAS its date of effectivity, it shall take effect after 15 days
2017 GOLDEN NOTES following the completion of their publication.
 ADMINISTRATIVE LAW

2. Sufficient Standard Test - Statute fixes a standard,

mapping out the boundaries of the agency’s authority to
Penal sanctions in administrative rules and which it must conform
regulations
It lays down a sufficient standard when it provides
Requisites to be complied with: adequate guidelines or limitations in the law to map out
1. Law must declare the act punishable; the boundaries of the delegate’s authority and prevent
2. Law must define the penalty; the delegation from running riot. To be sufficient, the
3. Rules must be published in the Official Gazette or in standard must specify the limits of the delegate’s
a newspaper of general circulation . authority, announce the legislative policy and identify
(Hon. Secretary Perez v. LPG Refillers Association of the the conditions under which it is to be implemented.
Philippines, G.R. No. 159149, June 26, 2006) (ABAKADA Guro Party List v. Purisima, G.R. No. 166715,
August 14, 2008)
Authority of Administrative Officers to Interpret the
Law The administrative body may not make rules and
regulations which are inconsistent with the provisions of
Tasked to implement the law and authorized to interpret the Constitution or a statute, particularly the statute it is
it because they have the expertise to do so. administering or which created it, or which are in
derogation of, or defeat, the purpose of a statute. (Dagan
Contemporaneous Construction v. Philippine Racing Commission G.R. No. 175220,
February 12, 2009
The construction placed upon the statute by an executive
or administrative officer called upon to execute or QUASI-JUDICIAL (ADJUDICATORY) POWER
administer such statute.
Quasi-judicial power
Usually in the form of circulars, directives, opinions, and
rulings. Power of administrative authorities to make
determinations of facts in the performance of their
Effect of Administrative Interpretations to Courts official duties and to apply the law as they construe it to
the facts so found. It partakes the nature of judicial
They are not binding upon the courts. However, they are power, but exercised by a person other than a judge.
given great weight unless such construction is clearly
shown to be in sharp contrast with the governing law of Limited jurisdiction of quasi-judicial agencies
the state. (Nestle Philippines Inc. v. CA, G.R. No. 86738,
November 13, 1991) An administrative body could wield only such powers as
are specifically granted to it by its enabling statute. Its
KINDS OF ADMINISTRATIVE RULES AND jurisdiction is interpreted strictissimi juris.
REGULATIONS
Conditions for the Proper Exercise of Quasi-Judicial
1. Supplementary or detailed legislation Power
2. Interpretative legislation
3. Contingent legislation 1. Jurisdiction must be properly acquired by the
4. Procedural administrative body;
5. Interpretative 2. Due process must be observed in the conduct of the
6. Internal proceedings.
7. Penal
Classifications of Adjudicatory Powers
Administrative issuances according to their nature and
substance: 1. Enabling powers – Permits the doing of an act which
the law undertakes to regulate and which would be
1. Legislative Rule – It is in the matter of subordinate unlawful without governmental orders. It is
legislation, designed to implement a primary legislation by characterized by the grant or denial of permit or
providing the details thereof. authorization.
2. Interpretative rule – Provides guidelines to the law Example: Issuance of licenses to engage in a
which the administrative agency is in charge of enforcing . particular business.
(BPI Leasing v. CA, G.R. No. 127624, November 18, 2003) 2. Directing powers – – Orders the doing or performing
of particular acts to ensure the compliance with the law
REQUISITES FOR VALIDITY and are often exercised for corrective purposes.
Examples: public utility commissions, powers of
Requisites for a valid delegation of quasi-legislative assessment under the revenue laws, reparations under
or rule-making power public utility laws, and awards under workmen’s
compensation laws, and powers of abstract
1. Completeness Test - The statute is complete in itself, determination such as definition-valuation, classification
setting forth the policy to be executed by the agency and fact finding

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3. Dispensing powers – Exemplified by the authority to exempt process is the denial of the opportunity to be heard.
from or relax a general prohibition, or authority to relieve from (Flores v. Montemayor, G.R. No. 170146, June 6, 2011)
an affirmative duty. Its difference from licensing power is that
dispensing power sanctions a deviation from a standard. Effect of Non-observance of Notice and Hearing
4. Summary powers –Apply compulsion or force against person
or property to effectuate a legal purpose without a judicial As a rule, it will invalidate the administrative
warrant to authorize such action. proceedings. A failure to comply with the requirements
Examples: Abatement of nuisance, summary may result in a failure to acquire jurisdiction.
restraint, levy of property of delinquent taxpayers
5. Equitable powers –The power to determine the law upon a NOTE: Right to notice may be waived.
particular state of facts that has the right to, and must, consider
and make proper application of the rules of equity. Necessity of Notice and Hearing
Examples: Power to appoint a receiver, power to
issue injunctions A hearing may take place after the deprivation occurs.
6. Examining powers– This is also called as investigatory What the law prohibits is not the absence of previous
power. Requires production of books, papers, etc., and the notice but the absolute absence thereof and the lack of
attendance of witnesses and compelling the testimony. opportunity to be heard.

ADMINISTRATIVE DUE PROCESS NOTE: There has been no denial of due process if any
irregularity in the premature issuance of the assailed
Nature of administrative proceedings decision has been remedied by an order giving the
petitions the right to participate in the hearing of the MR.
It is summary in nature. The opportunity granted by, technically, allowing
petitioners to finally be able to file their comment in the
Inapplicability of Technical Rules of Procedure and case, resolves the procedural irregularity previously
Evidence in Administrative Proceedings inflicted upon petitioners. (Nasecore v. ERC, G.R. No.
190795, July 6, 2011)
The technical rules of procedure and of evidence
prevailing in courts of law and equity are not controlling Exceptions to the Requirement of Notice and Hearing
in administrative proceedings to free administrative
boards or agencies from the compulsion of technical 1. Urgency of immediate action
rules so that the mere admission of matter which would 2. Tentativeness of administrative action
be deemed incompetent in judicial proceedings would 3. Grant or revocation of licenses or permits to operate
not invalidate an administrative order. certain businesses affecting public order or morals
4. Summary abatement of nuisance per se which affects
Cardinal Requirements of Due Process in safety of persons or property
Administrative Proceedings (1994 Bar) 5. Preventive suspension of public officer or employee
facing administrative charges
1. Right to a hearing which includes the right to present one’s 6. Cancellation of a passport of a person sought for
case and submit evidence in support thereof. criminal prosecution
2. The tribunal must consider the evidence presented. 7. Summary proceedings of distraint and levy upon
3. The decision must be supported by evidence. property of a delinquent taxpayer
4. Such evidence must be substantial. 8. Replacement of a temporary or acting appointee
5. The decision must be rendered on the evidence presented at 9. Right was previously offered but not claimed
the hearing or at least contained in the record, and disclosed to
the parties affected. Inapplicability of the Right to Counsel in
6. The tribunal or body or any of its judges must act on its own Administrative Inquiries
independent consideration of the law and facts of the
controversy in arriving at a decision. The right to counsel which may not be waived, unless in
7. The board or body should render decision in such a manner writing and in the presence of counsel, as recognized by
that parties can know the various issues involved and the the Constitution, is a right of a suspect in a custodial
reasons for the decision rendered. investigation. It is not an absolute right and may, thus, be
(Ang Tibay v. CIR, G.R. No. L-46496, February 27, 1940). invoked or rejected in criminal proceeding and, with
more reason, in an administrative inquiry. (Lumiqued v.
NOTE: The essence of due process in administrative Exevea, G.R No. 117565, November 18, 1997)
proceedings is the opportunity to explain one’s side or
seek a reconsideration of the action or ruling complained Quantum of Proof Required in Administrative
of. As long as the parties are given the opportunity to be Proceedings
heard before judgment is rendered, the demands of due
process are sufficiently met. What is offensive to due Substantial evidence – that amount of relevant evidence
that a reasonable mind might accept as adequate to
support a conclusion.
UNIVERSITY OF SANTO TOMAS
ADMINISTRATIVE APPEAL AND REVIEW
2017 GOLDEN NOTES
 ADMINISTRATIVE LAW

Administrative Appeal 1. Naturalization proceedings or those involving

citizenship and immigration;
Review by a higher agency of decisions rendered by an 2. Labor relations;
administrative agency, commenced by petition of an 3. Decisions affecting family relations, personal status
interested party. or condition, and capacity of persons.

NOTE: Under the 1987 Administrative Code, NOTE: It is well settled that findings of fact of quasi-
administrative appeals from a decision of an agency are judicial agencies, such as the COA, are generally accorded
taken to the Department Head, unless such appeal is respect and even finality by this Court, if supported by
governed by a special law. substantial evidence, in recognition of their expertise on
the specific matters under their jurisdiction. (Reyna v.
Administrative Review COA, G.R. No. 167219, February 8, 2011)

A superior officer or department head, upon his or her FACT-FINDING, INVESTIGATIVE, LICENSING AND
own volition, may review the decision of an RATE-FIXING POWERS
administrative agency or that of a subordinate’s decision
pursuant to the power of control. Fact-finding Power

It is, however, subject to the caveat that a final and a) Power to declare the existence of facts which call
executory decision is not included within the power of into operation the provisions of a statute;
control, and hence can no longer be altered by b) Power to ascertain and determine appropriate facts
administrative review. as a basis for procedure in the enforcement of particular
laws
Different Kinds of Administrative Appeal and Review
NOTE: The mere fact that an officer is required by law to
1. Inheres in the relation of administrative superior to inquire the existence of certain facts and to apply the law
administrative subordinate thereto in order to determine what his official conduct
2. Statutes which provide for determination to be shall be does not affect private rights do not constitute
made by a particular officer or body subject to appeal, an exercise of judicial powers. (Lovina v. Moreno, G.R. No.
review or redetermination by another officer or body in the L-17821, November 21, 1963)
same agency or in the same administrative system.
3. The statute makes or attempts to make a court a Exceptions to the Rule that Findings of Facts of
part of the administrative scheme by providing in terms or Administrative Agencies are Binding on the Courts
effect that the court, on review of the action of an
administrative agency. 1. Findings are vitiated by fraud, imposition, or
4. The statute provides that an order made by a collusion
division of a commission or board has the same force and 2. Procedure which led to factual findings is irregular
effect as if made by the subject to a rehearing by the 3. Palpable errors are committed
commission. 4. Factual findings not supported by evidence
5. The statute provides for an appeal to an officer on 5. Grave abuse of discretion, arbitrariness, or
an appeal to the head of the department or agency. capriciousness is manifest
6. Statutes which provide for appeal at the highest 6. When expressly allowed by statute
level namely, the president 7. Error in appreciation of the pleadings and in the
(De Leon, page 311). interpretation of the documentary evidence presented
by the parties
Enforcement of Administrative Decisions
Fact-finding Quasi-judicial Body
1. As provided for by law
2. Through the court’s intervention A fact-finding quasi-judicial body (e.g., Land
Transportation Franchising and Regulatory Board)
ADMINISTRATIVE RES JUDICATA whose decisions (on questions regarding certificate of
public convenience) are influenced not only by the facts
Non-applicability of the Doctrine of Res Judicata as disclosed by the evidence in the case before it but also
by the reports of its field agents and inspectors that are
The doctrine of res judicata applies only to judicial or periodically submitted to it, has the power to take into
quasi-judicial proceedings and not to the exercise of consideration the result of its own observation and
purely administrative functions. Administrative investigation of the matter submitted to it for decision, in
proceedings are non-litigious and summary in nature; connection with other evidence presented at the hearing
hence, res judicata does not apply. (Nasipit Lumber of the case. (Pantranco South Express, Inc. v Board of
Company, Inc. v. NLRC, G.R. No. 54424, August 31, 1989) Transportation, G.R. No. L-49664, November 22, 1990)

Exceptions to the Non-Applicability of Res Judicata in Investigatory Power

Administrative Proceedings
Power to inspect, secure, or require the disclosure of
information by means of accounts, records, reports,

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statements and testimony of witnesses. It is implied and notice and hearing. [1987 Administrative Code, Sec. 17(2),
not inherent in administrative agencies. Administrative Procedure]

Power to issue subpoena not inherent in Nature of an administrative agency’s act if it is

administrative bodies empowered by a statute to revoke a license for non-
compliance or violation of agency regulations
It is settled that these bodies may summon witnesses
and require the production of evidence only when duly Where a statute empowers an agency to revoke a license
allowed by law, and always only in connection with the for non-compliance with or violation of agency
matter they are authorized to investigate. regulations, the administrative act is of a judicial nature,
since it depends upon the ascertainment of the existence
Power to cite a person in contempt not inherent in of certain past or present facts upon which a decision is
administrative bodies to be made and rights and liabilities determined.

It must be expressly conferred upon the body, and Rate

additionally, must be used only in connection with its
quasi-judicial as distinguished from its purely It means any charge to the public for a service open to all
administrative or routinary functions. and upon the same terms, including individual or joint
rates, tolls, classification or schedules thereof, as well as
NOTE: If there is no express grant, the agency must communication, mileage, kilometrage and other special
invoke the aid of the RTC under Rule 71 of the Rules of rates which shall be imposed by law or regulation to be
Court. observed and followed by a person. [1987 Administrative
Code, Administrative Procedure, Sec. 2(3)]
---
Q: May administrative agencies issue warrants of arrest or Rate-fixing power
administrative searches?
Power usually delegated by the legislature to
A: GR: No. Under the 1987 Constitution, only a judge may issue administrative agencies for the latter to fix the rates
warrants. which public utility companies may charge the public.

XPN: In cases of deportation of illegal and undesirable NOTE: The power to fix rates is essentially legislative but
aliens, whom the President or the Commissioner of may be delegated. (Philippine Inter-Island v. CA, G.R. No.
Bureau of Immigration and Deportation may order 100481, Jan. 22, 1997)
arrested following a final order of deportation. (Salazar
v. Achacoso, G.R. No. 81510, March 14, 1990) The legislature may directly provide for these rates,
--- wages, or prices. But while the legislature may deal
directly with these subjects, it has been found more
Licensing power advantageous to place the performance of these
functions in some administrative agency. The need for
The action of an administrative agency in granting or dispatch, for flexibility and technical know-how is better
denying, or in suspending or revoking, a license, permit, met by entrusting the rate-fixing to an agency other than
franchise, or certificate of public convenience and the legislature itself. (Cortes, 1963)
necessity.
Rate-fixing procedure
License
The administrative agencies perform this function either
Includes the whole or any part of any agency’s permit, by issuing rules and regulations in the exercise of their
certificate, passport, clearance, approval, registration, quasi-legislative power or by issuing orders affecting a
charter, membership, statutory exemption or other form specified person in the exercise of its quasi-judicial
of permission, or regulation of the exercise of a right or power.
privilege. [1987 Administrative Code, Sec. 2(10),
Administrative Procedure] NOTE: In the fixing of rates, no rule or final order shall
be valid unless the proposed rates shall have been
Licensing published in a newspaper of general circulation at least 2
weeks before the first hearing thereon. [1987
Includes agency process involving the grant, renewal, Administrative Code, Administrative Procedure, Sec. 9(2)]
denial, revocation, suspension, annulment, withdrawal, (2000, 2009 Bar)
limitation, amendment, modification or conditioning of a
license. [1987 Administrative Code, Sec. 2(11), Requirements for the delegation of the power to
Administrative Procedure] ascertain facts to be valid

NOTE: Except in cases of willful violation of pertinent The law delegating the power to determine some facts or
laws, rules and regulations or when public security, state of things upon which the law may take effect or its
health, or safety requires otherwise, no license may be operation suspended must provide the standard, fix the
withdrawn, suspended, revoked or annulled without limits within which the discretion may be exercised, and

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 ADMINISTRATIVE LAW

define the conditions therefor. Absent these NOTE: The mere silence of the law does not necessarily
requirements, the law and the rules issued thereunder imply that judicial review is unavailable.
are void, the former being an undue delegation of
legislative power and the latter being the exercise of Requisites of Judicial Review of Administrative
rule-making without legal basis. (U.S. v. Ang Tang Ho, G.R. Action
No. L-17122, February 27, 1992) 1. Principle of finality of administrative action -
Administrative action must have been completed
Standard required on delegated power to fix rates 2. Principle of exhaustion of administrative remedies -
Administrative remedies must have been exhausted
That the rate be reasonable and just. (American Tobacco
Co. v. Director of Patents, G.R. No. L-26803, October 14, Limitations on Judicial Review
1975)
1. Final and executory decisions cannot be made the
In any case, the rates must both be non-confiscatory and subject of judicial review.
must have been established in the manner prescribed by 2. Administrative acts involving a political question
the legislature. Even in the absence of an express are beyond judicial review, except when there is an
requirement as to reasonableness, this standard may be allegation that there has been grave abuse of discretion.
implied. A rate-fixing order, though temporary or 3. Courts are generally bound by the findings of fact of
provisional it may be, is not exempt from the procedural an administrative agency.
requirements of notice and hearing when prescribed by
statute, as well as the requirement of reasonableness. NOTE: Courts will not render a decree in advance of
(Philippine Communications Satellite Corporation v. NTC, administrative action. Such action would be rendered
G.R. No. 84818, December 18, 1989) nugatory.

Re-delegating power to fix rates is prohibited It is not for the court to stop an administrative officer
from performing his statutory duty for fear that he will
The power delegated to an administrative agency to fix perform it wrongly.
rates cannot, in the absence of a law authorizing it, be
delegated to another. This is expressed in the maxim, Doctrine of Ripeness for Review (2001 Bar)
potestas delagata non delegari potest. (Kilusang Mayo
Uno Labor Center v. Garcia, Jr., G.R. No. 115381, December It is similar to that of exhaustion of administrative
23, 1994) remedies except that it applies to the rule-making power
and to administrative action which is embodied neither
in rules and regulations nor in adjudication or final
POWER TO FIX RATES POWER TO FIX RATE order.
EXERCISED AS A EXERCISED AS A QUASI-
Purpose of the Doctrine of Ripeness of Review
LEGISLATIVE FUNCTION JUDICIAL FUNCTION
Rules and/or rates laid Rules and the rate imposed 1. To prevent the courts, through avoidance of
down are meant to apply apply exclusively to a premature adjudication, from entangling themselves in
to all enterprises particular party abstract disagreements over administrative policies
Prior notice and hearing Prior notice and hearing 2. To protect the agencies from judicial interference
until an administrative decision has been formalized and
to the affected parties is are essential to the validity
its effects felt in a concrete way by the
not a requirement, except of such rates. But an challenging parties
where the legislature administrative agency may (Abbott Laboratories v. Gardner, 387 U.S. 136, 1967).
itself requires it. be empowered by law to
approve provisionally, Application of the Doctrine of Ripeness of Review
when demanded by urgent
public need, rates of public 1. When the interest of the plaintiff is subjected to or
imminently threatened with substantial injury.
utilities without a hearing.
2. If the statute is self-executing.
3. When a party is immediately confronted with the
problem of complying or violating a statute and there is a
risk of criminal penalties.
4. When plaintiff is harmed by the vagueness of the
JUDICIAL RECOURSE AND REVIEW statute.

Two Tests to Determine Whether or Not a

Judicial Review Controversy is Ripe For Adjudication
Re-examination or determination by the courts in the 1. Fitness of the issue for judicial decision
exercise of their judicial power in an appropriate case
instituted by a party aggrieved thereby as to whether the
questioned act, rule, or decision has been validly or
invalidly issued or whether the same should be nullified,
affirmed or modified.

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1. By the court's determination, the legislature did not

2. Hardship to the parties of withholding court consideration intend that the issues be left solely to the initial
(Abbott Laboratories v. Gardner, ibid.) determination of the administrative body.
2. The issues involve purely questions of law.
Questions Reviewable by the Courts 3. Courts and administrative bodies have concurrent
jurisdiction.
1. Questions of fact
GR: Courts will not disturb the findings of Exceptions to the Doctrine of Primary Jurisdiction
administrative agencies acting within the
parameters of their own competence, special 1. Where there is estoppel on the part of the party
knowledge, expertise, and experience. The courts invoking the doctrine
ordinarily accord respect if not finality to factual 2. Where the challenged administrative act is patently
findings of administrative tribunals. illegal, amounting to lack of jurisdiction
XPN: If findings are not supported by 3. Where there is unreasonable delay or official inaction
substantial evidence. that will irretrievably prejudice the complainant
2. Questions of Law – administrative decisions may be 4. Where the amount involved is relatively small so as to
appealed to the courts independently of legislative permission. It make the rule impractical and oppressive
may be appealed even against legislative prohibition because the
5. Where the question involved is purely legal and will
judiciary cannot be deprived of its inherent power to review all
ultimately have to be decided by the courts of justice
decisions on questions of law.
6. Where judicial intervention is urgent
3. Mixed (law and fact) – when there is a mixed question of law
and fact and the court cannot separate the elements to see 7. When its application may cause great and irreparable
clearly what and where the mistake of law is, such question is damage
treated as question of fact for purposes of review and the courts 8. Where the controverted acts violate due process
will not ordinarily review the decision of the administrative 9. When the issue of non-exhaustion of administrative
tribunal. remedies has been rendered moot
10. When there is no other plain, speedy and adequate
DOCTRINE OF PRIMARY ADMINISTRATIVE remedy
JURISDICTION 11. When strong public interest is involved
12. In quo warranto proceedings
Doctrine of Primary Jurisdiction or Doctrine of Prior (The Province of Aklan v. Jody King Construction and
Resort (1996 Bar) Development Corp., G.R. Nos. 197592 & 202623, November
27, 2013)
Under the principle of primary jurisdiction, courts
cannot or will not determine a controversy involving Raising the Issue of Primary Jurisdiction
question within the jurisdiction of an administrative
body prior to the decision of that question by the The court may motu proprio raise the issue of primary
administrative tribunal where the: jurisdiction and its invocation cannot be waived by the
1. Question demands administrative determination requiring failure of the parties to argue it, as the doctrine exists for
special knowledge, experience and services of the administrative the proper distribution of power between judicial and
tribunal; administrative bodies and not for the convenience of the
2. Question requires determination of technical and intricate parties. In such case the court may:
issues of a fact; 1. Suspend the judicial process pending referral of such
3. Uniformity of ruling is essential to comply with purposes of issues to the administrative body for its review; or
the regulatory statute administered 2. If the parties would not be unfairly disadvantaged,
dismiss the case without prejudice.
NOTE: In such instances, relief must first be obtained in (Euro-Med Laboratories Phil. v. Province of Batangas, G.R
administrative proceeding before a remedy will be No. 148106, July 17, 2006)
supplied by the courts even though the matter is within
the proper jurisdiction of a court. The judicial process is Applicability of the Doctrine of Primary Jurisdiction
accordingly suspended pending referral of the claim to
the administrative agency for its view.
In recent years, it has been the jurisprudential trend to
Rationale: apply this doctrine to cases involving matters that
demand the special competence of administrative
1. To take full advantage of administrative expertness agencies even if the question involved is also judicial in
2. To attain uniformity of application of regulatory laws which character. It applies where a claim is originally
can be secured only if determination of the issue is left to the cognizable in the courts, and comes into play whenever
administrative body enforcement of the claim requires the resolution of
issues which, under a regulatory scheme, have been
Instances Where the Doctrine Finds No Application placed within the special competence of an
administrative body; in such case, the judicial process is
suspended pending referral of such issues to the

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 ADMINISTRATIVE LAW

administrative body for its view. (Villaflor v. Court of A: NO. The CA erred in ruling that Petitioner’s funds
Appeals, G.R. No. 95694, October 9, 1997) could be the proper subject of a writ of execution or
garnishment. The settlement of the monetary claim was
--- still subject to the primary jurisdiction of the COA
Q: A civil case for the collection of sum of money was despite the final decision of the RTC having already
filed by X Company against the province of Batangas validated the claim. The funds of Petitioner are
before the RTC. After the petitioner’s presentation of government funds that are public in character, including
evidence, the province of Batangas moved for the any interest accruing from the deposit of such funds in
dismissal of the case on the ground that it is the any banking institution, which constitute a "special trust
Commission on Audit which has primary jurisdiction fund," the disbursement of which should always be
over the matter for it involves transactions with the subject to auditing by the COA. As such, the private
province which was governed by the Local Government claimants had no alternative except to first seek the
Code provisions and COA rules and regulations on approval of the COA of their monetary claim. Trial judges
supply and property management in local governments. should not immediately issue writs of execution or
Is the contention of the province of Batangas correct? garnishment against the Government or any of its
subdivisions, agencies and instrumentalities to enforce
A: YES. It is the COA and not the RTC which has primary money judgments. It is settled jurisprudence that upon
jurisdiction to pass upon petitioner’s money claim against determination of State liability, the prosecution,
respondent local government unit. Such jurisdiction may not enforcement or satisfaction thereof must still be pursued
be waived by the parties’ failure to argue the issue nor active in accordance with the rules and procedures laid down
participation in the proceedings. The doctrine of primary in P.D. No. 1445, otherwise known as the Government
jurisdiction holds that if a case is such that its determination Auditing Code of the Philippines which pertains to COA’s
requires the expertise, specialized training and knowledge of primary jurisdiction to examine, audit and settle all
an administrative body, relief must first be obtained in an claims of any sort due from the Government or any of its
administrative proceeding before resort to the courts is had subdivisions, agencies and instrumentalities. Rejection of
even if the matter may well be within their proper the claim will authorize the claimant to elevate the
jurisdiction. It applies where a claim is originally cognizable
in the courts and comes into play whenever enforcement of
the claim requires the resolution of issues which, under a matter to the Supreme Court on certiorari and in effect,
regulatory scheme, have been placed within the special sue the State thereby. (University of the Philippines v.
competence of an administrative agency. In such a case, the Dizon, G.R. No. 171182 , August 23, 2012)
court in which the claim is sought to be enforced may ---
suspend the judicial process pending referral of such issues
to the administrative body for its view or, if the parties DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE
would not be unfairly disadvantaged, dismiss the case REMEDIES
without prejudice. (Euro-Med Laboratories Phil. Inc. v.
Province of Batangas, G.R. No. 148106, July 17, 2006) Doctrine of Exhaustion of Administrative Remedies
--- (1996, 1998, 2000, 2015 Bar)
---
Q: Petitioner university contracted the services of It calls for resorting first to the appropriate
Stern Builders Corporation for the construction and administrative authorities in the resolution of a
renovation of its buildings in UP Los Banos. In an action controversy falling under their jurisdiction and must first
filed by Stern Builder against petitioner, the RTC be appealed to the administrative superiors up to the
rendered a favorable judgment and granted the motion highest level before the same may be elevated to the
for execution filed therewith by Stern Builders. courts of justice for review.
Consequently, the sheriff served notices of garnishment
on the petitioner’s depository banks. Premature invocation of court intervention is fatal to
Petitioner filed an urgent motion to quash the one’s cause of action. Exhaustion of administrative
notices of garnishment; and a motion to quash the remedies is a prerequisite for judicial review; it is a
writ of execution on the ground that government condition precedent which must be complied with.
funds and properties could not be seized by virtue of
writs of execution or garnishment except in Rationale:
pursuance of an appropriation law or other specific
statutory authority. However RTC, through 1. To enable the administrative superiors to correct
respondent Judge, authorized the release of the the errors committed by their subordinates.
garnished funds of the UP. CA upheld RTC’s judgment 2. Courts should refrain from disturbing the findings of
and the issuance of the writ of garnishment of administrative bodies in deference to the doctrine of
petitioner’s funds. Was the appellate court correct in separation of powers.
sustaining RTC’s jurisdiction to issue the writ of 3. Courts should not be saddled with the review of
garnishment against petitioner? administrative cases.
4. Judicial review of administrative cases is usually
effected through special civil actions which are available
only if there is no other plain, speedy, and adequate
remedy.

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5. To avail of administrative remedy entails lesser expenses implementing a rate increase greater than 60% of
and provides for a speedier disposition of controversies. current rate and failing to conduct public hearing for
the imposed rate of ₱90. ALWAD filed a Motion to
Exceptions to the Application of the Doctrine (1991, Dismiss for failure to exhaust administrative remedy
2000, 2004 Bar) under PD 198 as amended. One of the respondents
then questioned the legality of the water rate
1. Violation of due process increase before the National Water Resources Board
2. When there is estoppel on the part of the administrative (NWRB). RTC denied ALWAD’s Motion to Dismiss. On
agency concerned appeal, CA affirmed the RTC. Does RTC have
3. When the issue involved is a purely legal question jurisdiction over the matter?
4. When there is irreparable injury
5. When the administrative action is patently illegal A: YES. The failure to exhaust administrative remedy does
amounting to lack or excess of jurisdiction not affect the RTC’s jurisdiction. Non-exhaustion of
6. When the respondent is a Department Secretary whose acts administrative remedies only renders the action premature,
as an alter ego of the President bears the implied and assumed that the cause of action is not ripe for judicial determination.
approval of the latter It is incumbent upon the party who has an administrative
7. When the subject matter is a private land case proceedings remedy to pursue the same to its appropriate conclusion
8. When it would be unreasonable before seeking judicial intervention. Although the doctrine of
9. When no administrative review is provided by law exhaustion does not preclude in all cases a party from
10. When the rule does not provide a plain, speedy, and seeking judicial relief, cases where its observance has been
adequate remedy disregarded require a strong showing of the inadequacy of
11. When the issue of non-exhaustion of administrative the prescribed procedure and of impending harm. (Merida
remedies has been rendered moot Water District v. Bacarro, G.R. No. 165993, September 30,
12. When there are circumstances indicating the urgency of 2008)
judicial intervention ---
13. When it would amount to a nullification of a claim; and ---
14. Where the rule on qualified political agency applies (Laguna Q: Deputy Ombudsman Katerina Sanchez was
CATV Network v. Maraan, G.R. No. 139492, November 19, 2002) dismissed by the Office of the President on the ground of
betrayal of public trust and a disciplinary proceeding
Effect of Non-exhaustion of Administrative Remedies against Special Prosecutor Miranda Ramos is pending
before the OP. For this reason, Sanchez and Ramos
Failure to observe the doctrine of exhaustion of challenged the constitutionality of Section 8(2) of R.A.
administrative remedies does not affect the jurisdiction 6770 or The Ombudsman Act of 1989 regarding the
of the Court. The only effect of non-compliance with this president’s disciplinary jurisdiction over a deputy
rule is that it will deprive the complainant of a cause of ombudsman and a special prosecutor. The Supreme
action, which is a ground for a motion to dismiss. If not Court rendered its decision upholding the
invoked at the proper time, this ground is deemed constitutionality of the said law and ordered the
waived and the court can take cognizance of the case and reinstatement of Sanchez. As regards Ramos, the Court
try it. (Republic v. Sandiganbayan, G.R. Nos. 112708-09, ruled that the disciplinary proceeding against her
March 29, 1996) should be continued because Section 8(2) of R.A. No.
6770 is not unconstitutional. Only the OP, through the
Effect of Non-compliance OSG moved for the reconsideration of the Court’s ruling.
What then is the effect of the absence of motion for
Non-compliance with the doctrine of primary reconsideration on the part of Sanchez and Ramos?
jurisdiction or doctrine of exhaustion of administrative
remedies is not jurisdictional for the defect may be A: NONE. The omission of the filing of a motion for
waived by a failure to assert the same at the earliest reconsideration poses no obstacle for the Court’s review of
opportune time. its ruling on the whole case since a serious constitutional
question has been raised and is one of the underlying bases
--- for the validity or invalidity of the presidential action. If the
Q: Alicia Water District (ALWAD), a GOCC that operates President does not have any constitutional authority to
water utility services conducted public hearing for the discipline a Deputy Ombudsman and/or a Special Prosecutor
purpose of increasing the water rate. They subsequently in the first place, then any ruling on the legal correctness of
received a letter from the Local Water Utilities the OP’s decision on the merits will be an empty one. In
Administration (LWUA) confirming the proposed water other words, since the validity of the OP’s decision on the
rates. ALWAD issued a resolution implementing the water merits of the dismissal is inextricably anchored on the final
rate increase of P90 for the first ten cubic meters of water and correct ruling on the constitutional issue, the whole case
consumption. Because of this, consumers filed a Petition for – including the constitutional issue – remains alive for the
Injunction against the petitioner before the RTC alleging Court’s consideration on motion for reconsideration. (Emilio
that ALWAD violated LOI 700 by A. Gonzales III v. Office of the President/Wendell Bareras-Sulit
v. Atty. Paquito N. Ochoa, Jr., G.R. No. 196231/G.R. No. 196232,
January 28, 2014)

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 ELECTION LAW

4. Order is not reviewable in any other way and the

--- complainant will suffer great and obvious damage if the
order is carried out
Doctrine of Primary Jurisdiction vs. Doctrine of 5. Interlocutory order affects the merits of a
Exhaustion of Administrative Remedies controversy
6. Order made in excess of power, contrary to specific
prohibition in the statute governing the agency and thus
DOCTRINE OF operating as a deprivation of a right assured by the
statute
DOCTRINE OF
7. When review is allowed by statutory provisions.
EXHAUSTION OF
PRIMARY NOTE: Appeal to the CA is allowed because a quasi-
ADMINISTRATIVE judicial agency is equivalent in rank with the RTC. (Rules
JURISDICTION of Court, Rule 43)
REMEDIES
Both deal with the proper relationships between the
courts and administrative agencies.
ELECTION LAW
Case is within the Claim is cognizable in the
concurrent jurisdiction first instance by an
of the court and an administrative agency
administrative agency alone SUFFRAGE
but the determination of
the case requires the
technical expertise of the Suffrage is the right to vote in the election of officers
chosen by the people and in the determination of
administrative agency
questions submitted to the people. It includes election,
Although the matter is Judicial interference is plebiscite, initiative and referendum. [NACHURA (2009),
within the jurisdiction of withheld until the supra at 513]
the court, it must yield to administrative process
Right of suffrage not absolute
the jurisdiction of the has been completed
administrative agency The exercise of the right of suffrage is subject to existing
substantive and procedural requirements embodied in
NOTE: The general rule is that before a party may seek our Constitution, statute books and other repositories of
the intervention of the court, he should first avail of all law (Akbayan-Youth v. COMELEC, G.R. No. 147066, March
the means afforded him by administrative processes. The 26, 2001).
issues which administrative agencies are authorized to
decide should not be summarily taken from them and Election
submitted to a court without first giving such
administrative agency the opportunity to dispose of the Election is the means by which people choose their
same after due deliberation. officials for a definite and fixed period and to whom they
entrust for the time being the exercise of the powers of
Corollary to the doctrine of exhaustion of administrative government. [NACHURA (2009), supra at 513]
remedies is the doctrine of primary jurisdiction; that is,
courts cannot or will not determine a controversy Components of an election
involving a question which is within the jurisdiction of
the administrative tribunal prior to the resolution of that 1. Choosing or selecting candidates to public office by
question by the administrative tribunal, where the popular vote;
question demands the exercise of sound administrative 2. Holding of electoral campaign;
discretion requiring the special knowledge, experience 3. Conducting of the polls;
and services of the administrative tribunal to determine 4. Listing of votes;
technical and intricate matters of fact. (Republic v. Lacap, 5. Casting and receiving the ballots from the voters;
G.R. No. 158253, March 2, 2007) 6. Counting the ballots;
7. Making the election returns; and
DOCTRINE OF FINALITY OF 8. Proclaiming the winning candidates
ADMINISTRATIVE ACTION
Kinds of elections
It provides that no resort to courts will be allowed unless
administrative action has been completed and there is There are two kinds of elections:
nothing left to be done in the administrative structure. 1. Regular election – an election participated in by
those who possess the right of suffrage, not otherwise
Instances where the doctrine finds no application disqualified by law, and are registered voters.

1. Grant of relief to preserve the status quo pending

further action by the administrative agency
2. Essential to the protection of the rights asserted
from the injuries threatened
3. Administrative officer assumes to act in violation of
the Constitution and other laws
 UNIVERSITY OF SANTO TOMAS
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NOTE: The SK election is not a regular election

because the latter is participated in by youth with QUALIFICATION AND
ages ranging from 15-21 (now 15-30 per RA 10742), DISQUALIFICATION OF VOTERS
some of whom are not qualified voters to elect local
or national elective officials. (Paras v. COMELEC, G.R.
No. 123169, November 4, 1996) Qualifications for the exercise of suffrage

2. Special election – held when there is failure of election on 1. Filipino citizenship;

the scheduled date of regular election in a particular place or to 2. At least 18 years of age;
fill a vacancy in office before the expiration of the term for which 3. Resident of the Philippines for at least one year;
the incumbent was elected. 4. Resident of the place where he proposes to vote for at
least 6 months immediately preceding the election; and
Scope of Suffrage 5. Not otherwise disqualified by law. (1987 Constitution,
Art. V, Sec. 1)
1. Plebiscite - electoral process by which an initiative on the
Constitution is approved or rejected by the people. NOTE: These qualifications are continuing requirements.
Congress may not add qualifications but can provide for
2. Initiative - the power of the people to propose amendments procedural requirements and disqualifications. However,
to the Constitution or to propose and enact legislations through the disqualifications must not amount to qualifications.
election called for the purpose. [R.A. 6735, The Initiative and
Referendum Act, Sec. 3(a)] Disqualifications for the exercise of suffrage
a. Initiative on the Constitution
b. Initiative on Statutes 1. Sentenced by final judgment to suffer imprisonment for
c. Initiative on Local Legislation not less than one (1) year, unless pardoned or granted
amnesty;
3. Referendum - power of the electorate to approve or reject a 2. Conviction by final judgment of any of the following:
piece of legislation through an election called for the purpose. a. Crime involving disloyalty to the government;
i. Referendum on Statutes Referendum on Local Laws b. Violation against national security; and
4. Recall - mode of removal of an elective public officer by the c. Firearms laws
people before the end of his term of office.
NOTE: The right to vote is reacquired upon
Rules on construction of election laws expiration of 5 years after service of sentence
referred to in the two preceding items.
CONSTRUCTION OF ELECTION LAW
Laws for conduct of Before the election: 3. Insanity or incompetence declared by competent
elections Mandatory authority. (OEC, Art. XII, Sec. 118)
After the election:
Directory Residence and domicile

Laws for Mandatory and strictly In election cases, the Court treats domicile and residence
Candidates construed as synonymous terms. Both import not only an intention
Procedural rules Liberally construed in to reside in a fixed place but also personal presence in
favor of ascertaining the that place, coupled with conduct indicative of such
will of the electorate intention. (Pundaodaya v. COMELEC, G.R. No. 179313,
September 17, 2009).
Election period
Effect of transfer of residence
As a general rule, the period of election starts at ninety
(90) days before and ends thirty (30) days after the election Any person, who transfers residence solely by reason of
date pursuant to Section 9, Article IX-C of the Constitution and his occupation, profession or employment in private or
Section 3 of BP 881 otherwise known as the Omnibus Election public service, education, etc., shall not be deemed to
Code (OEC). This rule, however, is not without exception. Under have lost his original residence. [OEC, Art. XII, Sec.
these same provisions, the COMELEC is not precluded from 117(2); Asistio v. Aguirre, G.R. No. 191124, April 27, 2010].
setting a period different from that provided thereunder.
(Aquino v. COMELEC, G.R. No. 211789-90, March 17, 2015). Establishing a new domicile

To establish a new domicile of choice, personal presence

in the place must be coupled with conduct indicative of
this intention. It requires not only such bodily presence
in that place but also a declared and probable intent to
make it one’s fixed and permanent place of abode.
(Jalover v. de la Pena, G.R. No. 209286, Sept. 23, 2014).
UNIVERSITY OF SANTO TOMAS
2017 GOLDEN NOTES
 ELECTION LAW

Illiterate and disabled voters

REGISTRATION OF VOTERS
Any illiterate person may register with the assistance of
the Election Officer or any member of an accredited
Registration citizen’s arms. The application for registration of a
physically disabled person may be prepared by any
Registration is the act of accomplishing and filing a relative within the fourth civil degree of consanguinity or
sworn application for the registration by a qualified affinity or by the Election Officer or any member of an
voter before the election officer of the city or accredited citizen’s arm using the data supplied by the
municipality wherein he resides and including the same applicant. The fact of illiteracy or disability shall be so
in the book of registered voters upon approval by the indicated in the application. (RA 8189, Sec. 14)
Election registration Board. [Voter’s Registration Act of
1996, RA. 8189, Sec. 3 Par. (a)] It does not confer the right Kinds of registration system
to vote; it is but a condition precedent to the exercise of
the right. Registration is a regulation, not a qualification. 1. Continuing; and
(Yra v. Abano, G.R. No. 30187, November 5, 1928) 2. Computerized

Double-registrant System of continuing registration

Any person who, being a registered voter, registers anew GR: It is a system where the application of registration of
without filing an application for cancellation of his voters shall be conducted daily in the office hours of the
previous registration. [OEC, Art. XXII, Sec. 261, par. (y), election officer during regular office hours.
sub-par. (5)]
XPN: No registration shall be conducted during the
Double registrants are still qualified to vote provided period starting 120 days before a regular election and 90
that COMELEC has to make a determination on which days before a special election. (RA 8189, Sec. 8)
registration is valid, and which is void. COMELEC laid
down the rule in Minute Resolution No. 00-1513 that ---
while the first registration of any voter subsists, any Q: On Nov. 12, 2008, COMELEC issued Resolution
subsequent registration thereto is void ab initio 8514 setting Dec. 2, 2008 to Dec.15, 2009 as the
(Maruhom v. COMELEC, G.R. No. 179430, July 27, 2009). period of continuing voter registration.
Subsequently, COMELEC issued Resolution 8585 on
--- February 12, 2009 adjusting the deadline of voter
Q: Wil filed a petition for the cancellation of the COC registration for the May 10, 2010 national and local
of Allen for Mayor of South Upi alleging that Allen was elections to Oct. 31, 2009 instead of Dec. 15, 2009 as
not a registered voter in the Municipality of South Upi previously fixed by Resolution 8514. Petitioners
since Allen failed to sign his application for registration, challenged the validity of COMELEC Resolution 8585
thus, the unsigned application for registration has no and seek the declaration of its nullity. Petitioners
legal effect. In refutation, Allen asseverated that his further contend that COMELEC Resolution 8585 is an
failure to sign his application for registration did not encroachment on the legislative power of Congress
affect the validity of his registration since he possesses as it amends the system of continuing voter
the qualifications of a voter set forth in the Omnibus registration under Sec. 8 of RA 8189. Is COMELEC
Election Code as amended by Sec. 9 of RA 8189. Should Resolution 8585 valid?
Allen be disqualified?
A: NO. In the present case, the Court finds no ground to
A: YES. RA 8189 (The Voter’s Registration Act of 1996) hold that the mandate of continuing voter registration
specifically provides that an application for registration shall cannot be reasonably held within the period provided by
contain specimen signatures of the applicant as well as Sec. 8, RA 8189, which is daily during the office hours,
his/her thumbprints, among others. The evidence shows except during the period starting 120 days before the
that Allen failed to sign very important parts of the May 10, 2010 regular elections. There is thus no occasion
application, which refer to the oath which Allen should have for the COMELEC to exercise its power to fix other dates
taken to validate and swear to the veracity of the contents or deadlines thereof.
appearing in the application for registration. Plainly, from
the foregoing, the irregularities surrounding Allen’s The present case differs significantly from the Akbayan-
application for registration eloquently proclaims that he did Youth v. COMELEC, G.R. No. 147066, March 26, 2001. In
not comply with the minimum requirements of RA 8189. the said case, the Court held that the COMELEC did not
This leads to only one conclusion: that Allen, not having abuse its discretion in denying the request of the therein
demonstrated that he duly accomplished an application for petitioners for an extension of the Dec. 27, 2000 deadline
registration, is not a registered voter. Hence, he must be of voter registration for the May 14, 2001 elections. The
disqualified to run for Mayor. (Gunsi Sr. v. COMELEC, G.R. No. therein petitioners filed their petition with the court
168792, Feb. 23, 2009) within the 120-day prohibitive period for the conduct of
--- voter registration under Sec. 8, RA 8189, and sought the
conduct of a two-day registration of February 17, and 18,
2001, clearly also within the 120-day prohibited period.

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The clear import of the Court’s pronouncement in 1. Where the mailing system is fairly well-developed and
Akbayan-Youth is that had therein petitioners filed their secure to prevent the occasion of fraud;
petition – and sought an extension date that was – before 2. Where there exists a technically established
the 120-day prohibitive period, their prayer would have identification system that would preclude multiple or proxy
been granted pursuant to the mandate of RA 8189. In the voting; and;
present case, as reflected earlier, both the dates of filing 3. Where the system of reception and custody of mailed
of the petition (October 30, 2009) and the extension ballots in the embassies, consulates and other foreign
sought (until January 9, 2010) are prior to the 120 day service establishments concerned are adequate and well-
prohibitive period. The Court therefore, finds no legal secured. (RA 9189, Sec. 17.1)
impediment to the extension prayed for. (Kabataan
Partylist v. COMELEC, G.R. No. 189868, Dec. 15, 2009) Local absentee voting
---
It refers to a system of voting whereby government
Overseas Voting officials and employees, including members of the Armed
Forces of the Philippines (AFP), and the Philippine
The process by which qualified citizens of the Philippines National Police (PNP) as well as members of the media,
abroad exercise their right to vote. [R.A. 10590, Sec. 3(k), media practitioners including their technical and support
amending R.A. 9189, Sec. 3] staff (media voters) who are duly registered voters, are
allowed to vote for the national positions in places where
1. Qualifications they are not registered voters but where they are
a. All Filipino citizens abroad; temporarily assigned to perform election duties on
b. Not otherwise disqualified by law; and election day. [COMELEC Resolution 9637, Sec. 1(a), 13
c. At least 18 years of age on the day of elections. February 2013]

2. Coverage Book of Voters

May vote for President, Vice-President, Senators and
Party-List Representatives, as well as in all national Classified as permanent whereby each precinct shall
referenda and plebiscites. (R.A. 10590, Sec. 4, have a permanent list of all registered voters residing
amending R.A. 9189) within the territorial jurisdiction of the precinct.

3. Disqualifications Grounds for alteration

a. Those who have lost their Filipino citizenship in
accordance with Philippine laws; 1. Deactivation/Reactivation;
b. Those who have expressly renounced their Philippine 2. Exclusion/ Inclusion;
citizenship and who have pledged allegiance to a foreign country, 3. Cancellation of Registration in case of death;
except those who have reacquired or retained their Philippine 4. Annulment of Book of Voters;
citizenship under R.A. 9225; 5. New Voters; and
c. Those who have committed and are convicted in a 6. Transfer of residence
final judgment by a Philippine court or tribunal of an offense
punishable by imprisonment of not less than one (1) year, such Deactivation
disability not having been removed by plenary pardon or
amnesty: Provided, however, That any person disqualified to Removal from the registration records from the precinct
vote under this subsection shall automatically acquire the right books of voters and places the same, properly marked
to vote upon the expiration of five (5) years after service of and dated in indelible ink, in the inactive file after
sentence; and entering the cause of deactivation.
d. Any citizen of the Philippines abroad previously
declared insane or incompetent by competent authority in the Grounds for deactivation
Philippines or abroad, as verified by the Philippine embassies,
consulates or Foreign Service establishments concerned, unless 1. Any person who has been sentenced by final judgment
such competent authority subsequently certifies that such to suffer imprisonment for not less than one year, such
person is no longer insane or incompetent. (R.A. 10590, Sec. 5, disability not having been removed by plenary pandon or
amending R.A. 9189) amnesty;

Voting by mail NOTE: The right to vote may be automatically

reacquired upon expiration of five (5) years after
Voting by mail may be allowed in countries that satisfy service of sentence as certified by the clerk of court.
the following conditions:
2. Any person who has been adjudged by a final judgment
by a competent court or tribunal pf having
caused/committed any crime involving disloyalty to the duly
constituted government such as rebellion, sedition, violation
UNIVERSITY OF SANTO TOMAS of the anti-subversion and firearm laws, or any crime against
2017 GOLDEN NOTES national security, unless restored to his full civil and political
rights in accordance with law;
 ELECTION LAW

disapproved by the Sec. 142)

NOTE: The right to vote may be regained automatically Election
upon expiration of five (5) years after service of
Registration Board 2. Representative of
sentence.
political party
3. Any person declared by competent authority to be 2. Those whose
insane or incompetent unless such disqualification has been names were 3. Election
subsequently removed by a declaration of a proper authority stricken out from officer
that such person is no longer insane or incompetent; the list of voters
(OEC, Sec. 139) 4. COMELEC
4. Any person who did not vote in the two successive
preceding regular elections as shown by their voting records. 3. COMELEC
For this purpose, regular elections do not include SK
elections; Period Any day except
Anytime except 100
for 105 days before days before a regular
5. Any person whose registration has been ordered filing regular election or election or 65 days
excluded by the Court; 75 days before a
before a special
election
6. Any person who has lost his Filipino citizenship. special election (COMELEC
(R.A. 8189, Sec. 27) (COMELEC Resolution No. 9021).
Resolution No.
Reactivation
8820).
Any voter whose registration has been deactivated may
file with the Election Officer a sworn application for Ground 1. Application for 1. Not qualified for
reactivation of his registration in the form of an affidavit s registration has possessing
stating that the grounds for the deactivation no longer been disapproved disqualification
exist at any time but not later than one hundred twenty by the board
(120) days before a regular election and ninety (90) days
2. Flying voters
before a special election. (R.A. 8189, Sec. 28)
2. Name has been
stricken out 3. Ghost voters
INCLUSION AND EXCLUSION PROCEEDINGS

Res judicata not applicable

Inclusion Proceedings
The proceedings for the exclusion or inclusion of voters
Any person whose application for registration has been in the list of voters are summary in character. Except for
disapproved by the Board or whose name has been the right to remain in the list of voters or for being
stricken out from the list may file with the court a excluded therefrom for the particular election in relation
petition to include his name in the permanent list of to which the proceedings had been held, a decision in an
voters in his precint. exclusion or inclusion proceeding, even if final and
unappealable, does not acquire the nature of res judicata.
Exclusion Proceedings In this sense, it does not operate as a bar to any further
action that a party may take concerning the subject
Any registered voter, representative of a political party passed upon in the proceeding. Thus, a decision in an
or the Election Officer, may file with the court a sworn exclusion proceeding would neither be conclusive on the
petition for the exclusion of a voter from the permanent voter’s political status, nor bar subsequent proceedings
list of voters giving the name, address and the precint of on his right to be registered as a voter in any other
the challenged voter. election. (Domino v. COMELEC, G.R. No. 134015, July 19,
1999)
Jurisdiction
Voter using fake address not excluded
1. MTC – original and exclusive
2. RTC – appellate jurisdiction A citizen cannot be disenfranchised for the flimsiest of
3. SC – appellate jurisdiction over RTC on question of reasons. Only on the most serious grounds, and upon
law clear and convincing proof, may a citizen be deemed to
have forfeited this precious heritage of freedom. (Asistio
Who may file, period of filing and grounds v. Aguirre, G.R. No. 191124, April 27, 2010)

POLITICAL PARTIES
Inclusion Exclusion
Who 1. Any private 1. Any registered
may file person whose voter in the city or Any organized group of citizens advocating an ideology
application was municipality (OEC, or platform, principles and policies for the general
conduct of government and which, as the most
immediate means of securing their adoption, regularly
nominates and supports certain of its leaders and
members as candidates in public office.
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NOTE: R.A 7941 does not require national and regional No votes cast in favor of political party, organization or
parties or organizations to represent the “marginalized coalition shall be valid except for those registered under
and underrepresented” sectors. (Atong Paglaon v. the party-list system. (1987 Constition, Article IX-C, Sec.
COMELEC, G,R, No. 203766, April 2, 2013) 7)

JURISDICTION OF COMELEC OVER POLITICAL Grounds for refusal or cancellation of registration

PARTIES
The COMELEC may, motu proprio or upon verified
Sec. 2(5), Art. IX-C of the Constitution grants the complaint and after due notice and hearing, cancel the
Commission the power to register political parties. It also registration of a party, organization or coalition on any of
has the power to require candidates to specify in their the following grounds:
certificates of candidacy their political affiliation, allow
political parties to appoint watchers, limit their 1. Religious sect or denomination, organization or
expenditures, and determine whether their registrations association, organized for religious purposes;
should be cancelled in appropriate proceedings. These 2. Advocates violence or unlawful means to seek its goal;
powers necessarily include the jurisdiction to resolve 3. Foreign party or organization;
issues of political leadership in a political party, and to 4. Receiving support from any foreign government,
ascertain the identity of political party and its legitimate foreign political party, foundation, organization, whether
officers. (Palmares v. COMELEC, G.R. No. 86177, Aug. 31, directly or through any of its officers or members or
1989) indirectly through third parties for partisan election
purposes;
Kinds of Parties 5. Violates or fails to comply with laws, rules or
regulations relating to elections;
1. National party - constituency is spread over the 6. Declares untruthful statements in its petition;
geographical territory of at least a majority of the regions. 7. Ceased to exist for at least one (1) year; or
2. Regional party - constituency is spread over the 8. Fails to participate in the last two (2) preceding
geographical territory of at least a majority of the cities and elections or fails to obtain at least two per centum (2%) of
provinces comprising the region. the votes cast under the party-list system in the two (2)
3. Sectoral party – organized group of citizens belonging to preceding elections for the constituency in which it has
any of the following sectors: labor, peasant, fisherfolk, urban registered (RA 7941, Sec. 6).
poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers and professionals Illustrative case:
whose principal advocacy pertains to the special interests and
concerns of their sector. Under Article IX-C, Section 2(5) of the 1987 Constitution,
parties, organizations and coalitions that seek to achieve
REGISTRATION OF POLITICAL PARTIES their goals through violence or unlawful means shall be
denied registration. This disqualification is reiterated in
Registration Section 61 of B.P. 881, which provides that no political
party which seeks to achieve its goal through violence
Any organized group of persons may register as a party, shall be entitled to accreditation. Violence is the unjust or
organization or coalition for purposes of the party-list unwarranted exercise of force, usually with the
system by filing with the COMELEC not later than ninety accompaniment of vehemence, outrage or fury. It also
(90) days before the election a petition verified by its president denotes physical force unlawfully exercised; abuse of
or secretary stating its desire to participate in the party-list force; that force which is employed against common
system as a national, regional, or sectoral party or organization right, against the laws, and against public liberty. On the
or a coalition of such parties or organizations, attaching thereto other hand, an unlawful act is one that is contrary to law
its constitutions, by-laws, platform or program of government, and need not be a crime, considering that the latter must
list of officers, coalition agreement and other relevant still unite with evil intent for it to exist.
information. (R.A. 7941, Sec. 5)
The Oakwood incident was one that was attended with
Purpose of registration violence. As publicly announced by the leaders of
MAGDALO during the siege, their objectives were to
A party, organization or coalition must be registered in express their dissatisfaction with the administration of
order to: former President Arroyo, and to divulge the alleged
1. Acquire juridical personality; corruption in the military and the supposed sale of arms
2. Entitle it to rights and privileges granted to political to enemies of the state. Ultimately, they wanted the
parties; and President, her cabinet members, and the top officials of
3. Participate in the party-list system. (B.P. 881, Secs. 60 the AFP and the PNP to resign. To achieve these goals,
and 61) MAGDALO opted to seize a hotel occupied by civilians,
march in the premises in full battle gear with
ammunitions, and plant explosives in the building. These
Effect of non-registration
brash methods by which MAGDALO opted to ventilate
the grievances of its members and withdraw its support
from the government constituted clear acts of violence.
UNIVERSITY OF SANTO TOMAS
2017 GOLDEN NOTES
 ELECTION LAW

of the election. (1987 Constitution, Art. VI, Sec.

The assertions of MAGDALO that no one was held 3)
hostage or that no shot was fired do not mask its use of
impelling force to take over and sustain the occupation of Local Level
Oakwood. Neither does its express renunciation of the
use of force, violence and other unlawful means in its A. For District Representatives
Petition for Registration and Program of Government 1. Natual-born citizen;
obscure the actual circumstances surrounding the 2. Registered voter in the district in which he shall
encounter. The deliberate brandishing of military power, be elected;
which included the show of force, use of full battle gear, 3. Resident of the same district for a period not
display of ammunitions, and use of explosive devices, less than one (1) year immediately preceding the day of
engendered an alarming security risk to the public. At the election;
the very least, the totality of these brazen acts fomented 4. Able to read and write; and
a threat of violence that preyed on the vulnerability of 5. At least 25 years old on the day of the election.
civilians. The COMELEC did not, therefore, commit (1987 Constitution, Art. VI, Sec. 6)
grave abuse of discretion when it treated the
Oakwood standoff as a manifestation of the B. For Governor, Vice Governor, Mayor, Vice-Mayor,
predilection of MAGDALO for resorting to violence or Punong Barangay and Sangguniang Members (1994,
threats thereof in order to achieve its objectives. 2005 BAR)
(Magdalo Para sa Pagbabago v. COMELEC, G.R. No. 1. Citizen of the Philippines;
190793, June 19, 2012) 2. Registered voter in the barangay, municipality,
city, or province or, in the case of a member of the
sangguniang panlalawigan, sangguniang panlungsod, or
CANDIDACY sangguniang bayan, the district where he intends to be
elected;
3. Resident therein for at least one (1) year
Candidate immediately preceding the day of the election;
4. Able to read and write Filipino or any other
It refers to any person aspiring for or seeking an elective local language or dialect.
public office, who has filed a CoC by himself or through (RA 7160 Local Government Code of the
an accredited political party, aggroupment or coalition of Philippines, Sec. 39)
parties. [OEC, Sec. 79(a)]

Any person may thus file a Certificate of Candidacy on NOTE: Congress may not add to qualifications for
any day within the prescribed period for filing a elective officials provided in the Constitution.
Certificate of Candidacy yet that person shall be
considered a candidate, for purposes of determining Purpose of the residency requirement
one’s possible violations of election laws, only during the
campaign period. (Penera v. COMELEC, G.R. No. 181613, The minimum requirement under our Constitution and
Nov. 25, 2009) election laws for the candidates' residency in the political
unit they seek to represent has never been intended to
QUALIFICATIONS AND DISQUALIFICATION be an empty formalistic condition. it carries with it a very
OF CANDIDATES specific purpose: to prevent “stranger[s] or newcomer[s]
unacquainted with the conditions and needs of a
Qualifications of Candidates community” from seeking elective offices in that
community. (Jalover v. de la Pena, G.R. No. 209286, Sept.
National Level 23, 2014)

A. For President and Vice-President Registered property as residency proof

1. Natural-born citizen;
2. At least 40 years old on the day of the election; The fact that a candidate has no registered property
3. Able to read and write; under his name in the locality wherein he seeks to be
4. Registered voter; and elected does not belie his actual residence therein
5. Resident of the Philippines for at least ten (10) because property ownership is not among the
years immediately preceding the day of the election. (1987 qualifications required of candidates for local election. It
Constitution, Art. VII, Secs. 2 and 3) is enough that he should live in the locality, even in a
rented house or that of a friend or relative. (Jalover v.
B. For Senator dela Pena, ibid.)
1. Natural-born citizen;
2. At least 35 years old on the day of the election; ---
3. Able to read and write; Q: Caballero was a natural-born Filipino who had his
4. Registered voter; and domicile of origin in Uyugan, Batanes. However, he
5. Resident of the Philippines for not less than later worked in Canada and became a Canadian
two (2) years immediately preceding the day citizen. Notwithstanding, he frequently visited
Uyugan, Batanes during his vacation from work in

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Canada. Where is his residence for the purpose of

elections? FILING OF CERTIFICATES OF CANDIDACY

A: CANADA. In Coquilla v. COMELEC, SC ruled that

naturalization in a foreign country may result in an EFFECT OF FILING
abandonment of domicile in the Philippines. This holds true in
Caballero's case as permanent resident status in Canada is A CoC evidences candidate’s statutory eligibility to be
required for the acquisition of Canadian citizenship. Hence, elected for an elective post. It is the document which
Caballero had effectively abandoned his domicile in the formally accords upon a person the status of a candidate.
Philippines and transferred his domicile of choice in Canada. His (Tagolino v. HRET and Lucy Torres-Gomez, G.R. No.
frequent visits to Uyugan, Batanes during his vacation from work 202202, March 19. 2013)
in Canada cannot be considered as waiver of such abandonment
(Caballero v. COMELEC, G.R. No. 209835, Sept. 22, 2015). NOTE: A CoC may be amended before the elections, even
--- after the date of its filing.

Grounds for disqualification (1994, 1999, 2010 Bar) Provisions of the election law on certificates of candidacy
are mandatory in terms. However, after the elections,
1. Declared as incompetent or insane by competent authority they are regarded as directory so as to give effect to the
2. Convicted by final judgment for subversion, insurrection, will of the electorate. (Saya-Ang Sr. v. COMELEC, G.R. No.
rebellion, or any offense for which he has been sentenced to a 155087, November 28, 2003)
penalty of 18 months imprisonment
3. Convicted by final judgment for a crime involving moral Purpose
turpitude
4. Election offenses under Sec. 261 of the OEC 1. Enable the voters to know, at least 60 days before the
5. Committing acts of terrorism to enhance candidacy regular election, the candidates among whom they have to
6. Spending in his election campaign an amount in excess of choose; and
that allowed 2. Avoid confusion and inconvenience in the tabulation of
7. Soliciting, receiving, making prohibited contributions the votes cast. (Miranda v. Abaya, G.R. No. 136351, July 28,
8. Not possessing qualifications and possessing 1999)
disqualifications under the Local Government Code
9. Sentenced by final judgment for an offense involving moral Filing CoC on the tenure of incumbency
turpitude or for an offense punishable by one year or more of
imprisonment within two years after serving sentence 1. Appointive official – considered ipso facto RESIGNED
10. Removed from office as a result of an administrative case from his office upon the filing of his CoC. and such
11. Convicted by final judgment for violating the oath of resignation is irrevocable (OEC, Sec. 66) (2002 Bar)
allegiance to the Republic 2. Elective .official – No effect. The candidate shall continue
12. Dual citizenship (more specifically, dual allegiance) to hold office, whether he is running for the same or a
13. Fugitives from justice in criminal or non-political cases here different position. (Fair Elections Act, Sec. 14, expressly
or abroad repealed BP 881, Sec. 67)
14. Permanent residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail of the ---
same right Q: Do the deemed-resigned provisions which are
15. Insane or feeble-minded applicable to appointive officials and not to elective
16. Nuisance candidate officials violate the equal protection clause of the
17. Violation of Sec. 73 OEC with regard to CoC constitution?
18. Violation of Sec. 78: material misrepresentation in the COC
A: NO. Substantial distinctions clearly exist between
Effect of an unsworn renunciation of foreign elective officials and appointive officials. The former occupy
citizenship their office by virtue of the mandate of the electorate. They
are elected to an office for a definite term and may be
Failure to renounce foreign citizenship in accordance removed therefrom only upon stringent conditions. On the
with the exact tenor of Sec. 5(2) of RA 9225 renders a other hand, appointive officials hold their office by virtue of
dual citizen ineligible to run for and thus hold any their designation thereto by an appointing authority. Some
elective public office (Sobejana-Condon v. COMELEC, G.R. appointive officials hold their office in a permanent capacity
No. 198742, Aug. 10, 2012). and are entitled to security of tenure while others serve at
the pleasure of the appointing authority. (Quinto v.
COMELEC, G.R. 189698, December 1, 2009)
---

Effect of filing two certificates of candidacy

UNIVERSITY OF SANTO TOMAS
2017 GOLDEN NOTES It disqualifies the person to run for both elective
positions (OEC, Sec. 73).
 ELECTION LAW

However, before the expiration of the period for the filing disqualified candidate did not have a valid and
of CoC, the person who has filed more than one certificate seasonably filed CoC, he is and was not a candidate at all.
of candidacy may declare under oath the office for which If a person was not a candidate, he cannot be substituted
he desires to be eligible and cancel the CoC for the other under Sec. 77 of the Omnibus Election Code. If we were
office or office/s. A person who has filed a certificate of to allow the so-called "substitute" to file a "new" and
candidacy may, prior to election, withdraw the same. The "original" CoC beyond the period for the filing thereof, it
filing of a withdrawal certificate of candidacy shall not would be a crystalline case of unequal protection of the
affect whatever civil, criminal, or administrative liabilities law. Thus, there was no valid candidate for Adrianne to
as candidate may have incurred. (COMELEC Resolution substitute due to Raphael’s ineligibility. The existence of
8678, Sec. 1) a valid CoC is therefore a condition sine qua non for a
disqualified candidate to be validly substituted.
SUBSTITUTION OF CANDIDATES (Tagolino v. HRET and Lucy Torres-Gomez, G.R. No.
202202, March 19. 2013)
Substitution (1995 & 2009 Bar) ---
---
An official candidate of a duly registered political party Q: Han was a candidate for Vice Mayor in the First
or coalition who dies, withdraws, or is disqualified for Order City. His Certificate of Nomination and
any cause after the last day for the filing of CoCs may be Acceptance (CONA) was signed by his party’s chapter
substituted by a candidate belonging to, and nominated president Chewie. It appears, however, that his
by, the same political party or coalition. chapter president was not authorized by their
national party leader Luke to sign Han’s CONA. So,
No substitute shall be allowed for any independent COMELEC considered him an independent candidate
candidate. instead of being a candidate by his party.
Subsequently, Han’s party submitted proof that
The substitute for a candidate who died or is disqualified Chewie was authorized to sign Han’s CONA. Few days
by final judgment, may file a CoC up to mid-day of after filing his CoC, Hans died due to a heart attack.
Election Day; Provided that, the substitute and the Leia, Han’s wife, filed her CoC to substitute her
substituted have the same surnames. deceased husband. Han, despite his demise, received
twice as much votes as Kylo, Han’s rival for the
If the death or disqualification should occur between the position. Kylo then questioned the substitution of
day before the election and mid-day of Election Day, the Leia saying that an independent candidate cannot be
substitute candidate may file a CoC with any Board of substituted. COMELEC agreed with Kylo. Leia sought
Election Inspectors, Election Officers, Provincial Election to reverse COMELEC’s decision before the SC. Who
Supervisor, or Regional Election Director, as the case should the SC favor?
may be, in the political subdivision where such person is
a candidate, or in the case of a candidate for President, A: LEIA. Petitioner’s deceased husband’s name remained
Vice-President or Senator, with the Law Department; on the ballot notwithstanding his death even before the
Provided that, the substitute and the substituted campaign period for the local elections began on March
candidate have the same surnames. (COMELEC 29, 2013. Yet, he received almost twice the number of
Resolution 9984, August 18, 2015) votes as the second placer, private respondent, in a
decisive victory. Since the people could not have possibly
Requisites for valid substitution meant to waste their votes on a deceased candidate, we
conclude that petitioner was the undisputed choice of
1. The substitute must belong to the same party or the electorate as Vice Mayor on the apparent belief that
coalition; and she may validly substitute her husband. That belief was
2. The deceased, disqualified or withdrawn candidate not contradicted by any official or formal ruling by the
must have duly filed a valid CoC. COMELEC prior to the elections.

NOTE: The second requisite is a condition sine qua The late submission of the authority to sign the CONA to
non. (Tagolino v. HRET and Lucy Torres-Gomez, G.R. the COMELEC was a mere technicality that cannot be
No. 202202, March 19. 2013) used to defeat the will of the electorate in a fair and
honest election. Non-compliance with formal
--- requirements laid down in election laws when not used
Q: Raphael and Jimlan filed their CoCs for the as a means for fraudulent practice will be considered a
position of Mayor of Lucena City. Jimlan filed a petition harmless irregularity. Allowing the belated submission of
to disqualify Raphael, alleging that Raphael still filed his the authority to sign CONAs will not result in the
CoC despite knowing that he had exceeded the 3-term situation proscribed by Section 77 of the Omnibus
limit as Mayor of Lucena City. COMELEC 1st Division Election Code – that an independent candidate will be
disqualified Raphael. Adrianne, the wife of Raphael, filed invalidly substituted. In the case at bar, neither the
her own CoC in substitution of her husband, Raphael. COMELEC nor private respondent contended the
Can Adrianne validly substitute her husband? deceased was not in fact a bona fide member of his party.
The record is bereft of any allegation that the authority
A: NO. A disqualified candidate may only be substituted was inexistent, forged or in any way defective. The only
if he had a valid CoC in the first place because, if the issue was that it was not submitted within the

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prescribed deadline. (Engle v. COMELEC, G.R. No. 215995, 3. Clearly demonstrate that the candidate has no bona fide
January 19, 2016) intention to run for the office for which the CoC has been
--- filed and thus prevent a faithful determination of the true
will of the electorate. (OEC, Sec. 69)
Stray votes
Power of COMELEC
In case of valid substitutions after the official ballots
have been printed, the votes cast for the substituted GN: The COMELEC may, motu proprio or upon verified
candidates shall be considered as stray votes but shall petition of an interested party, refuse to give due course
not invalidate the whole ballot. For this purpose, the to or cancel a CoC upon showing of the above-stated
official ballots shall provide spaces where the voters may circumstances. (OEC, Sec. 69)
write the name of the substitute candidates if they are
voting for the latter: Provided, however, That if the XPN: The COMELEC cannot motu proprio deny due
substitute candidate of the same family name, this course to or cancel an alleged nuisance candidate’s
provision shall not apply. [R.A. 9006 (Fair Elections Act), certificate of candidacy without providing the candidate
Sec. 12] his opportunity to be heard. (Timbol v. COMELEC, G.R. No.
206004, Feb. 24, 2015)
No substitution under Sec. 78 of OEC
Effect of voting a nuisance candidate
Section 77, OEC requires that there be a candidate in
order for substitution to take place. Thus, if a person’s The votes cast for a nuisance candidate are not stray but
CoC had been denied due course to and/or cancelled counted in favor of the bona fide candidate. (Dela Cruz v.
under Section 78, OEC, he or she cannot be validly COMELEC, G.R. No. 192221, Nov. 13, 2012)
substituted in the electoral process. Stated differently,
since there would be no candidate to speak of under a PETITION TO DENY DUE COURSE OR
denial of due course to and/or cancellation of a CoC case, CANCEL A CERTIFICATE OF CANDIDACY
then there would be no candidate to be substituted.
(Tagolino v. HRET and Lucy Torres-Gomez, G.R. No. Petition to deny due course or cancel a CoC (2009
202202, March 19. 2013) Bar)

MINISTERIAL DUTY OF COMELEC A verified petition seeking to deny due course or to

TO RECEIVE CERTIFICATES cancel a CoC may be filed by the person exclusively on
the ground that any material representation contained
Duty of the COMELEC in receiving CoCs therein as required under Sec. 74 of the OEC is false (B.P.
881, Sec. 78), provided that:
GR: When a candidate files his certificate of candidacy, 1. The false representation pertains to material matter
the COMELEC has a ministerial duty to receive and affecting substantive rights of a candidate; and
acknowledge its receipt. (OEC, Sec. 7; Cerafica v. 2. The false representation must consist of deliberate
COMELEC, G.R. No. 205136, Dec. 2, 2014) attempt to mislead, misinform, or hide a fact which would
otherwise render a candidate ineligible. (Salcedo II v.
XPNs: COMELEC may go beyond the face of the CoC in COMELEC, G.R. No. 135886, Aug. 16, 1999)
the following:
1. Nuisance candidates; (OEC, Sec. 69) NOTE: These two requirements must concur to warrant
2. Petition to deny due course or to cancel a CoC; (OEC, Sec. 78) the cancellation of the CoC.
3. Filing of a disqualification case on any of the grounds
enumerated in Sec. 68, OEC. Period to file a petition to deny due course to or
cancel a CoC
NUISANCE CANDIDATES
The petition may be filed at any time not later than 25
Any registered candidate for the same office may file a days from the time of the filing of the CoC and shall be
petition to declare a duly registered candidate as a decided, after due notice and hearing, not later than 15
nuisance candidate, personally or through duly days before the election.
authorized representative with COMELEC, within 5 days
from the last day of filing of CoC. [RA 6646 (The Electoral NOTE: Jurisdiction over a petition to cancel a certificate
Reforms Law of 1987), Sec. 5] of candidacy lies with the COMELEC in division, not with
the COMELEC en banc. (Gravida v. Sales, G.R. No. 122872,
Grounds September 10, 1997)

The COMELEC may motu proprio or upon verified Material misrepresentation

petition refuse to give due course to or cancel a
certificate of candidacy if shown that it was filed to: Material misrepresentation in a CoC refers to the
1. Put the election process in mockery or disrepute; qualification for elective office, which includes false
2. Cause confusion among the voters by the similarity of the
names of the registered candidates; or

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 ELECTION LAW

statement as to age, residency, citizenship, being a because the votes cast in favor of an eligible candidate do
registered voter and any other legal qualifications not constitute the sole and total expression of the
necessary to run for an elective office. sovereign voice (Maquiling v. COMELEC, ibid.).
---
NOTE: A misrepresentation which does not affect one’s ---
qualification to run or hold public office will not suffice Q: What if the Mayor was disqualified because of an
for the cancellation of a CoC. election offense under Sec. 68 of the Omnibus
Election Code? Who will succeed?
---
Q: Alejandro Salvador II and Barbara Salvador both A: Vice Mayor. The effect of the Mayor’s disqualification
ran for the position of Mayor in the Municipality of is a permanent vacancy in the position. Under Sec. 44 of
Alicia, Isabela. Carlo filed a disqualification the Local Government Code, in case of permanent
complaint against Barbara since she was using the vacancy in the position of Mayor, the Vice Mayor will
surname Salvador when in fact her marriage to succeed.
Michael Salvador was void. Barb,ara claims that she ---
did not know that Michael has a subsisting marriage
when they got married. Did Barbara commit any Application of the rule on succession
material misrepresentation by using Salvador as her
surname when in fact their marriage was void? MAQUILING CASE E.R. EJERCITO CASE
The rule on succession The rule on succession
A: NO. A false representation under section 78 must under the Local provided for in Sec. 44 of
consist of a "deliberate attempt to mislead, misinform, or Government Code will RA 7160 or the Local
hide a fact which would otherwise render a candidate not apply because the Government Code applies
ineligible." It must be made with an intention to deceive issue here is his in this case because what
the electorate as to one's qualifications for public office. citizenship which is a occurred here after his
The use of a surname, when not intended to mislead or continuing requirement. disqualification is a
deceive the public as to one's identity, is not within the Being a continuing permanent vacancy in the
scope of the provision. (Salcedo II v. COMELEC, supra.) requirement, he must position. What is involved
--- possess it before and in this case is the
after elections until the commission of an election
EFFECT OF DISQUALIFICATION end of his term. His use offense (overspending)
of US Passport after provided for in Sec. 68 of
1. Final judgment before election – The candidate shall reacquiring his OEC which, in effect,
not be voted for, and the votes cast for him shall not be citizenship negated his disqualifies the candidate
counted. (1991 Bar) Affidavit of Renunciation. from holding office.
As a dual citizen, he is
2. No final judgment until after election and receives the disqualified from the Here, the candidate
highest number of votes in the election – The Court or very beginning to run for possesses all the
Commission shall continue with the trial and hearing of office. With him being qualifications and none of
the action, inquiry or protest and upon motion of the
complainant or any intervenor, may, during the barred to run for office, the disqualifications to run
pendency thereof, order the suspension of the he is not considered as a for office. Therefore, he is a
proclamation of such candidate whenever the evidence candidate at all. valid candidate. (Emilio
of his guilt is strong. (Maquiling v. COMELEC, Ramon "E.R." P. Ejercito v.
G.R No. 195649, April 16, Comelec, G.R. No. 212398.
--- 2013) November 25, 2014)
Q: Should the Vice Mayor succeed the Mayor’s CoC be
denied or cancelled subsequent to his proclamation NOTE: Correlate the foregoing with the discussion under
because it was later found that he is ineligible to run Remedies and Jurisdiction in Election Law.
for the position?

WITHDRAWAL OF CANDIDATES
A: NO. The candidate for the same position who
garnered the next highest vote shall be proclaimed as the The withdrawal of the certificate of candidacy shall effect
winner. Technically, such candidate is the first-placer for the disqualification of the candidate to be elected for the
the reason that a void CoC cannot produce any legal position. The withdrawal of the withdrawal, for the
effect and therefore, an ineligible candidate is not purpose of reviving the certificate of candidacy, must be
considered a candidate at all. (Maquiling v. COMELEC, G.R made within a period provided by law for the filing of
No. 195649, April 16, 2013) certificates of candidacy. (Monsale v. Nico, G.R, No. L-
--- 2539, May 28, 1949. The filing or withdrawal of a
--- certificate of candidacy shall not affect whatever civil,
Q: What will happen to the votes of the electorate for criminal, or administrative liabilities which a candidate
the ineligible candidate? may have incurred. (B.P. 881, Sec. 73)

A: It will not be considered at all. However, even if it is

disregarded, the will of the electorate is still respected

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XPN: Political parties may hold political conventions to

CAMPAIGN nominate their official candidates within 30 days before
the start of the period for filing a certificate of candidacy.
[RA 9369 (Poll Automation Law), Sec. 15]
Election campaign
NOTE: The use of lawful election propaganda under the
An act designed to promote the election or defeat of a Fair Elections Act is subject to the supervision and
particular candidate or candidates to a public office regulation by the COMELEC in order to prevent
which shall include: premature campaigning and to equalize, as much as
1. Forming organizations, associations, clubs, committees or practicable, the situation of all candidates by preventing
other groups of persons for the purpose of soliciting votes popular and rich candidates from gaining undue
and/or undertaking any campaign for or against a candidate; advantage in exposure and publicity on account of their
2. Holding political caucuses, conferences, meetings, rallies, resources and popularity. (Chavez v. COMELEC, G.R. No.
parades, or other similar assemblies, for the purpose of soliciting 162777, Aug. 31, 2004)
votes and/or undertaking any campaign or propaganda for or
against a candidate; ---
3. Making speeches, announcements or commentaries, or Q: Petitioner Iah and respondent Yen ran for mayor of
holding interviews for or against the election of any candidate Sta. Monica, Surigao Del Norte during the May 14,
for public office; 2007 elections. Yen’s political party held a
4. Publishing or distributing campaign literature or materials motorcade preceding the filing of her CoC
designed to support or oppose the election of any candidate; or announcing her candidacy for mayor. Yen filed her
5. Directly or indirectly soliciting votes, pledges or support for CoC on March 29, 2007. Because of this, Iah filed a
or against a candidate. (OEC, Sec. 79) petition to disqualify Yen for engaging in premature
campaigning in violation of Sec. 80 and 68 of the OEC.
NOTE: The foregoing enumerated acts if performed for Did Yen violate the prohibition against premature
the purpose of enhancing the chances of aspirants for campaigning?
nomination for candidacy to a public office by a political
party or coalition of parties shall not be considered as A: NO. The campaign period for local officials began on
election campaign or partisan election activity. 30 March 2007 and ended on 12 May 2007. Yen filed her
CoC on 29 March 2007. Yen was thus a candidate on 29
Period to campaign March 2007 only for purposes of printing the ballots
under Sec. 11 of RA 8436. Acts committed by Yen prior to
1. Presidential and Vice presidential election – 90 days; 30 March 2007, the date when she became a "candidate",
2. Election of members of the Congress and local election – 45 even if constituting election campaigning or partisan
days; political activities, are not punishable under Sec. 80 of
3. Barangay Election – 15 days the OEC. Such acts are within the realm of a citizen’s
4. Special election under Art. VIII, Sec. 5(2) of the Constitution – protected freedom of expression. Acts committed by Yen
45 days within the campaign period are not covered by Sec. 80 as
Sec. 80 punishes only acts outside the campaign period.
NOTE: The campaign periods shall not include the day
before and the day of the election (OEC, Sec. 3).
A candidate is liable for an election offense only for acts
Persons prohibited to campaign done during the campaign period, not before. The law is
clear as daylight — any election offense that may be
1. Members of the Board of Election Inspectors (OEC, Sec. committed by a candidate under any election law cannot
173); be committed before the start of the campaign period.
2. Civil service officers or employees [1987 Constitution, Art. (Penera v. COMELEC, G.R. No. 181613, November 25,
IX-B, Sec. 2(4)]; 2009)
3. Members of the military [1987 Constitution, Art. XVI, Sec.
5(3)]; ---
4. Foreigner, whether juridical or natural persons ---
Q: Is a candidate liable for an election offense for acts
done before the campaign period?

PREMATURE CAMPAIGNING A: No. A candidate is liable for an election offense only for
acts done during the campaign period, not before. Any
Premature campaign (2012 Bar) unlawful act or omission applicable to a candidate shall take
effect only upon the start of the campaign period. The plain
GN: Any election campaign or partisan political activity meaning of this provision is that the effective date when
for or against any candidate outside of the campaign partisan political acts become unlawful as to a candidate is
period is prohibited and shall be considered as an when the campaign period starts. Before the start of the
election offense. (OEC, Sec. 80) campaign period, the same partisan political acts are lawful.
(Penera v. COMELEC, G.R. No. 181613, November 25, 2009)
---

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 ELECTION LAW

PROHIBITED CONTRIBUTIONS drawn, with or without sound systems or loud

speakers and with or without lights; and
No contribution for purposes of partisan political activity 7. All other forms of election propaganda not
shall be made directly or indirectly by any of the prohibited by the OEC or this Act (RA 9006, The Fair
following: Elections Act, Sec. 3,).

1. Public or private financial institutions, unless such Rules on election propaganda

institutions are legally in the business of lending money, and
the loan was made in accordance with laws and in the 1. All registered parties and bona fide candidates shall
ordinary course of business; have a right to reply to charges published against them;
2. Natural and juridical persons operating public 2. No movie, cinematographic, documentary
utilities or in possession of or exploiting natural resources of portraying the life or biography of a candidate shall be
the nation; publicly exhibited in theatre, TV station, or any public
3. Natural and juridical persons who hold contracts or forum during the campaign period;
sub-contracts to supply the government with goods or 3. No movie, cinematograph, documentary portrayed
services or to perform construction or other works; by an actor or media personality who is himself a
4. Grantees of franchises, incentives, exemptions, candidate shall be publicly exhibited in a theatre, TV
allocations, or similar privileges or concessions by the station or any public form during the campaign period;
government; 4. All mass media entities shall furnish the COMELEC
5. Natural and juridical persons who, within one year with the copies of all contracts for advertising,
prior to the date of the election, have been granted by the promoting, or opposing any political party or the
government loans or other accommodations in excess of candidacy of any person for public office within 5 days
P100,000; after its signing;
6. Educational institutions which have received grants 5. Any media personality who is a candidate or is
of public funds not less than P100,000; campaign volunteer for or employed or retained in a
7. Officials or employees in the Civil Service or capacity by any candidate or political party shall be
members of the Armed Forces of the Philippines; and deemed resigned, if so requires by their employer, shall
8. Foreigners and foreign corporations (OEC, Secs. 95 take a LOA from his work as such during campaign
and 96). period.

Prohibited fund-raising activities Right to Reply

1. Holding any of the following activities: All registered parties and candidates shall have the right
a. Dances; to reply to charges published or aired against them. The
b. Lotteries; reply shalt be given publicity by the newspaper,
c. Cockfights; television, and/or radio station which first printed or
d. Games; aired the charges with the same prominence or in the
e. Boxing bouts; same page or section, or in the same time slot as the first
f. Bingo; statement. (COMELEC Resolution 10049, Sec. 16, February
g. Beauty contests; and 1, 2016)
h. Entertainments, cinematographic, theatrical, or
other performances; and Procedure to invoke the right to reply
2. Solicit and/or accept from any candidate for public
office or his representative any gift, food, transportation, Registered parties and candidates may invoke the right
contribution or donation in cash or in kind. (OEC, Sec. 97) to reply by submitting within a non-extendible period of
thirty-six (36) hours from first broadcast or publication,
LAWFUL AND PROHIBITED PROPAGANDA a formal verified claim against the mass media entity to
the COMELEC, through the appropriate Regiional
Lawful election propaganda Election Director (RED), or in the case of the NCR, the
Education and Information Department. (EID)
1. Written printed materials (does not exceed 8 ½ in. (COMELEC Resolution 10049, Sec. 16, February 1, 2016).
width by 14 in. length);
2. Handwritten/printed letters; Period of resolution
3. Posters (not exceeding 2 x 3 ft. or 3 x 8 ft.);
4. Print ads – ¼ page in broadsheets and ½ page in The COMELEC, through the appropriate RED or the EID,
tabloids thrice a week per newspaper, magazine or other shall review the formal verified claim within thirty-six
publication during the campaign period (COMELEC Res. (36) hours from receipt thereof, and if circumstances
9615, Sec. 6, January 15, 2013); warrant, endorse the same to the mass media entity
5. Broadcast media (i.e. TV and radio); involved, which shall, within twenty-four (24) hours,
6. Mobile units, vehicles motorcades of all types, submit its report to the RED or EID, as the case maybe,
whether engine or manpower driven or animal explaining the action it has taken to address the claim.
The mass media entity must likewise furnish a copy of
the said report to the claimant invoking the right to

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reply. (COMELEC Resolution 10049, Sec. 16, February 1, f. To post, display or exhibit any election campaign or
2016) propaganda material outside of authorized common poster areas, in
public places, or in private properties without the consent of the
Remedy when right to reply not addressed owner thereof.

Should the claimant insist that his/her right to reply was

not addressed, he/she may file the appropriate petition Public places include any of the following:
and/ or complaint before the COMELEC Main Office. 1. Publicly-owned electronic announcement boards,
(COMELEC Resolution 10049, Sec. 16, February 1, 2016) such as light-emitting diode (LED) display boards located along
highways and streets, liquid crystal display (LCD) posted on walls of
Prohibited forms of election propaganda public buildings, and other similar devices which are owned by local
government units, government~ owned or controlled corporations,
It shall be unlawful: or any agency or instrumentality of the Government;
a. To print, publish, post or distribute any newspaper, 2. Motor vehicles used as patrol cars, ambulances, and
newsletter, newsweekly, gazette or magazine for other similar purposes that are owned by local government
advertising, pamphlet, leaflet, card, decal, bumper units, government-owned or controlled corporations, and other
sticker, poster, comic book, circular, handbill, streamer, agencies and instrumentalities of the Government, particularly those
sample list of candidates or any published or printed bearing government license plates.
political matter, and to air or broadcast any election 3. Public transport vehicles owned and controlled by
propaganda or political advertisement by television or the government such as the Metro Rail Transit (MRT), Light Rail
radio or on the Internet for or against a candidate or Transit (LRT), and Philippine National Railway trains and the like.
group of candidates to any public office, unless they bear 4. Waiting sheds, sidewalks, street and lamp posts,
and be identified by the reasonably legible, or audible electric posts and wires, traffic signages and other signboards
words "political advertisement paid for," followed by the erected on public property, pedestrian overpasses and underpasses,
true and correct name and address of the candidate or flyovers and underpasses, bridges, main thoroughfares, center
party for whose benefit the election propaganda was islands of roads and highways;
printed or aired. It shall likewise be unlawful to publish, 5. Schools, public shrines, barangay halls, government
print or distribute said campaign materials unless they offices, health centers, public structures and buildings or any edifice
bear, and are identified by, the reasonably legible, or thereof;
audible words "political advertisements by," followed by 6. Within the premises of public transport terminals,
the true and correct name and address of the payor; owned and controlled by the government, such as bus terminals,
b. To print, publish, broadcast, display or exhibit any airports, seaports, docks, piers, train stations and the like (Sec. 7,
such election propaganda donated or given free of COMELEC Resolution 10049, February 1, 2016).
charge by any person or mass media entity to a
candidate or party without the written acceptance of the
said candidate or party, and unless they bear and be ALLOWABLE COMELEC AIR TIME FOR CANDIDATES
identified by the words "printed free of charge," or (Fair Elections Act)
"airtime for this broadcast was provided free of charge NATIONAL POSITIONS LOCAL POSITIONS
by", respectively, followed by the true and correct name 120 minutes for TV 60 minutes for TV
and address of the said mass media entity; 180 minutes for radio 90 minutes for radio
c. To show, display or exhibit publicly in a theater,
through a television station, or any public forum any Aggregate-based airtime limit
movie, cinematography or documentary, including
concert or any type of performance portraying the life or
COMELEC went beyond the authority granted it by RA
biography of a candidate, or in which a character is
9006 in adopting “aggregate basis” in the determination
portrayed by an actor or media personality who is
of allowable time. The law, on its face, does not justify the
himself or herself a candidate;
conclusion that the maximum allowable airtime should
d. For any newspaper or publication, radio, television
be based on the totality of possible broadcast in all
or cable television station, or other mass media entity, or
television or radio stations. The legislative intent relative
any person making use of the mass media to sell or give
to airtime allowed is “on a per station basis”. Congress
free of charge print or advertising space or airtime for
intended to provide a more expansive and liberal means
campaign or election propaganda purposes to any
by which the candidates, political parties, citizens and
candidate or party in excess of the size, duration or
other stake holders in the periodic electoral exercise may
frequency authorized by law or these Rules;
be given a chance to fully explain and expound on their
e. For any radio, television, cable television station, candidacies and platforms of governance, and for the
announcer or broadcaster to allow the scheduling of any electorate to be given a chance to know better the
program, or permit any sponsor to manifestly favor or personalities behind the candidates.
oppose any candidate or party by unduly or repeatedly
referring to, or unnecessarily mentioning his name, or
including therein said candidate or party; and

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 ELECTION LAW

The assailed rule on "aggregate-based" airtime limits is Section shall constitute an election offense. (COMELEC
unreasonable and arbitrary as it unduly restricts and Resolution 10049, Sec. 28, February 1, 2016)
constrains the ability of candidates and political parties ---
to reach out and communicate with the people. (GMA
Network, Inc., v. COMELEC, G.R. No. 205357, Sept. 2, 2014) Exit Poll

COMELEC supervision over media An exit poll is a species of electoral survey conducted by
qualified individuals or groups of individuals for the
During the election period the COMELEC may supervise purpose of determining the probable result of an election
or regulate the media of communication or information by confidentially asking randomly selected voters whom
to ensure equal opportunity, time, and space among they have voted for, immediately after they have
candidates with the objective of holding free, orderly, officially cast their ballots. The revelation of whom an
honest, peaceful, and credible elections. To allow elector has voted for is not compulsory, but voluntary.
candidates who are supported by more than one political Indeed, narrowly tailored countermeasures may be
party to purchase more air time and advertising space prescribed by the COMELEC, so as to minimize or
than candidates supported by one political party only suppress incidental problems in the conduct of exit polls,
will deprive the latter of equal time and space in the without transgressing the fundamental rights of our
media. (1987 Constitution, Art. IX-C, Sec. 4) people. (ABS-CBN Broadcasting Corporation v. COMELEC,
G.R. No. 133486, Jan. 28, 2000)
Election Survey
Requirements in the conduct of exit polls
Prohibiting publication of survey results 15 days
immediately preceding a national election and 7 days a. Pollster shall not conduct their surveys within fifty
before a local election (RA 9006, Sec. 5.4) violates the (50) meters from the polling place, whether said
constitutional rights of speech, expression and the press survey is taken in a home, dwelling place and other
because: places;
1. It imposes a prior restraint on the freedom of b. Pollsters shall wear distinctive clothing and
expression; prominently wear their identification cards issued by the
2. It is a direct and total suppression of a category of organization they represent;
expression and even though such suppression is only for a c. Pollsters shall inform the voters that they may
limited period; and refuse to answer; and
3. The governmental interest sought to be promoted d. The results of the exit polls may be announced after
can be achieved by means other than the suppression of the closing of the polls on Election Day, and must identify
freedom of expression. (SWS v. COMELEC, G.R. No. 147571, the total number of respondents, and the places where
May 5, 2001) they were taken. Said announcement shall state that the
same is unofficial and does not represent a trend. (RA
--- 9006, Sec. 5.5)
Q: May the media be compelled to publish the results
of the election survey? ---
Q: Does the conduct of exit polls transgress the
A: NO, but should they decide to publish the said survey sanctity and secrecy of the ballot?
for public consumption, they must likewise publish the
following information: A: NO. In exit polls, the contents of the official ballot are
a. The name of the person, candidate, party, or not actually exposed. Furthermore, the revelation of
organization that commissioned, paid for, or subscribed to whom an elector has voted for is not compulsory, but
the survey; voluntary.
b. The name of the person, polling firm or survey
organization which conducted the survey; Voters may also choose not to reveal their identities.
c. The period during which the survey was conducted, Indeed, narrowly tailored countermeasures may be
the methodology used, including the number of individual prescribed by the COMELEC, so as to minimize or
respondents and the areas from which they were selected, suppress incidental problems in the conduct of exit polls,
and the specific questions asked; without transgressing the fundamental rights of our
d. The margin of error of the survey; people. (ABS-CBN Broadcasting Corporation v. COMELEC,
e. For each question where the margin of error is G.R. No. 133486, January 28, 2000)
greater than that reported under paragraph d the ---

f. margin of error for that question; and LIMITATION ON EXPENSES

g. A mailing address and telephone number at which
the sponsor can be contacted to obtain a written Lawful expenditures
report regarding the survey in accordance with the
next succeeding paragraph. 1. Traveling expenses;
The survey, together with raw data gathered to support 2. Compensation of persons actually employed in the
its conclusions shall be available for inspection, copying campaign;
and verification by the COMELEC. Any violation of this 3. Telegraph and telephone tolls, postage, freight and
express delivery charges;

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4. Stationery, printing and distribution of printed No person elected to any public office shall enter upon
matters relative to candidacy; the duties of his office until he he and the political party
5. Employment of watchers at the polls; that nominated him has filed the statement of
6. Rent, maintenance and furnishing of campaign contributions and expenditures required by law. Except
headquarters, office or place of meetings; candidates for elective barangay office, failure to file the
7. Political meetings or rallies; statements or reports shall constitute an administrative
8. Advertisements’ offense. (R.A. 7166, Sec. 14)
9. Employment of counsel;
10. Copying and classifying list of voters, investigating Administrative fines that may be imposed in cases of
and challenging the right to vote of persons registered in failure to file said statement
the lists; and
11. Printing sample ballots. (OEC, Sec. 102) 1. 1st offense – P1,000.00 to P30,000.00, in the discretion of
the Commission.
NOTE: The cost of numbers 9, 10, 11 shall not be taken 2. 2nd offense – P2,000.00 to P30,000.00, in discretion of the
into account in determining the amount of expenses Commission, and the offender shall be subject to perpetual
which a candidate or political party may have incurred. disqualification to hold public office. (RA 7166, Sec. 14)

Limitations on expenses

The aggregate amount that candidate or party may

spend for an election campaign shall be as follows: BOARD OF ELECTION INSPECTORS (BEI)
a. Candidates for President and Vice-President - Ten AND BOARD OF CANVASSERS (BOC)
pesos (P10.00) for every registered voter;
b. For other candidates - Three pesos (P3.00) for every
voter currently registered in the constituency where the COMPOSITION & POWERS
candidate filed his certificate of candidacy;
c. For candidates under the above paragraph (b) Composition of BEI
without any political party and without support from any
political party - Five pesos (P5.00) for every voter 1. Chairman ;
currently registered in the constituency where the 2. Poll Clerk; and
candidate filed his certificate of candidacy; and
d. For Political Parties and party-list groups - Five NOTE: The Chairman and the Poll Clerk must be
pesos (P5.00) for every voter currently registered in the public school teachers and priority to be given to
constituency or constituencies where it has official civil service eligibles.
candidates (COMELEC Resolution 10049, Sec. 5, February
1, 2016). Where an Automated Election System (AES) is
adopted, at least one member of the Board of
Election expenses inclusive of contributor, supporter Election Inspectors shall be an information
or donor technology-capable person, who is trained or
certified by the DOST to use the AES (R.A. 9369, Sec.
Sections 100, 101, and 103 of OEC regulate not just the 3).
election expenses of the candidate but also of his
contributor/supporter/donor. (Ejercito v. COMELEC, G.R. 3. Two members, each representing the two accredited
No. 212398, Nov. 25, 2014). political parties (OEC, Art. XIV Sec. 164).

STATEMENT OF CONTRIBUTIONS Qualifications of BEI

AND EXPENSES
1. Good moral character and irreproachable reputation;
Every candidate and treasurer of the political party shall, 2. Registered voter of the city or municipality;
within 30 days after the day of the election, file in
triplicate with the offices of the Commission where he 3. Never been convicted of any election offense or any
filed his Certificate of Candidacy, except for national other crime punishable by more than 6 months of imprisonment, or
if he has pending against him an information for any election
positions which should be filed with the Campaign
offense;
Finance Unit of the COMELEC, a full, true and itemized
statement of all contributions and expenditures in 4. Speak, read and write English or the local dialect; and
connection with the elections. (RA 7166, Sec. 14). 5. At least 1 member of the BEI shall be an information
technology-capable person who is trained and
Candidates who withdrew after the filing of their COCs certified by the DOST to use the AES (where AES
are required to comply with the filing of statement of all shall be adopted). (OEC, Sec. 166)
contributions and expenses. (Pilar v, COMELEC, G.R, No.
115245, July 11, 1995) Disqualifications of BEI

Effects of failure to file statement of contributions

and expenses
208
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 ELECTION LAW

1. Related within fourth degree of consanguinity or representative from each of the ruling party
affinity to any member of the BEI; and the dominant opposition political party
2. Related within fourth degree of consanguinity or entitled to be represented
affinity to any candidate to be voted in the polling place or 5. BOC for newly created political subdivisions – The
his spouse; and Commission shall constitute a board of canvassers and
3. Not engaged in any partisan political activity or take appoint the members thereof for the first election in a
part in the election except to discharge his duties as such newly created province, city or municipality in case the
and to vote (OEC, Secs. 167 and 173) officials who shall act as members thereof have not yet
assumed their duties and functions. (OEC, Sec. 221)
Period of Constitution of the BEI
Powers of the BOC
At least thirty days before the date when the voters list is
to be prepared in accordance with the Omnibus Election The board of canvassers is a ministerial body. It is
Code, in the case of a regular election or fifteen days enjoined by law to canvass all votes on election returns
before a special election. (OEC, Secs. 167 and 173) submitted to it in due form. Its powers are “limited
generally to the mechanical or mathematical function of
Powers of the BEI ascertaining and declaring the apparent result of the
election by adding or compiling the votes cast for each
1. Conduct the voting and counting of votes in their candidate as shown on the face of the returns before
respective polling places; them, and then declaring or certifying the result so
2. Act as deputies of the Commission in the ascertained. (Abes v, COMELEC, G.R. No. L-28348,
supervision and control of the election in the polling places December 15, 1967)
wherein they are assigned, to assure the holding of the same
in a free, orderly and honest manner; and Canvass by the BOC
3. Perform such other functions prescribed by this
Code or by the rules and regulations promulgated by the Canvassing is the process by which the results in the
Commission. (OEC, Art. XIV, Sec. 168) election returns are tallied and totaled.

Composition of BOC Certificate of canvass is the official tabulations of votes

accomplished by district, municipal, city and provincial
1. Provincial BOC – canvassers based on the election returns, which are the
a. Chairman: the provincial election supervisor or results of the ballot count at the precinct level.
a senior lawyer in the regional office of the
Commission Manner of delivery and transmittal of election
returns
b. Vice-Chairman: the provincial fiscal
c. Members: the provincial superintendent of
CITY AND MUNICIPAL PROVINCIAL AND
schools, and one representative from each of
BOC DISTRICT BOC IN
the ruling party and the dominant opposition
METROPOLITAN
political party in the constituency concerned
MANILA
entitled to be represented.
2. City BOC – The copy of the election returns must be:
a. Chairman: the city election registrar or a
lawyer of the Commission a. Duly placed inside a Personally delivered by
b. Members: the city fiscal, the city sealed envelope signed b. the members of the BEI
superintendent of schools, and one Affixed with the imprint to the Election Registrar
representative from each of the ruling party of the thumb of the right for transmittal to the
and the dominant opposition political party hand of all the proper BOC under
entitled to be represented. members of the BEI proper receipt to be
3. District BOC of Metropolitan Manila – c. Personally delivered by signed by all the
the members of the BEI members thereof [OEC,
a. Chairman: a lawyer of the Commission
to the city or municipal Sec. 299(b)].
b. Members: a ranking fiscal in the district, the
BOC under proper
most senior district school supervisor in the
receipt to be signed by
district to be appointed upon consultation with
all the members thereof
the Ministry of Justice and the Ministry of [OEC, Sec. 299(a)].
Education, Culture and Sports, respectively, and
one representative from each of the ruling
party and the dominant opposition political The Election Registrar concerned shall place all the
party in the constituency concerned returns intended for the BOC inside a ballot box provided
4. Municipal BOC – with three padlocks whose keys shall be kept as follows:
a. Chairman: the election registrar or a
representative of the Commission a. one by the election registrar;
b. Members: the municipal treasurer, the district b. another by the representative of the ruling party;
supervisor or in his absence any public school and
principal in the municipality, and one

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c. the third by the representative of the dominant political 1. Obtain such missing election returns from the BEI
opposition party (OEC, Sec. 229). concerned;
2. If said returns have been lost or destroyed, the BOC,
Safekeeping of transmitted election returns upon prior authority of the Commission, may use any of the
authentic copies or a certified copy of said election returns
The BOC shall keep the ballot boxes containing the issued by the Commission; and
election returns in a safe and secure room before and 3. Direct its representative to investigate the case and
after the canvass. immediately report the matter to the Commission.

Poll watchers NOTE: The BOC, notwithstanding the fact that not all the
election returns have been received by it, may terminate
Every registered political party or coalition of political the canvass and proclaim the candidates elected on the
parties, and every candidate shall each be entitled to one basis of the available election returns if the missing
watcher in every polling place and canvassing center; election returns will not affect the results of the election.
Provided, candidates for the Sangguniang Panlalawigan, (OEC, Sec. 233)
Sangguniang Panlunsod, or Sangguniang Bayan
belonging to the same slate or ticket shall collectively be When integrity of ballots is violated
entitled to only one watcher.
The Commission shall not recount the ballots but shall
There shall also be recognized six principal watchers, forthwith seal the ballot box and order its safekeeping
representing the six accredited major political parties (OEC, Sec. 237).
excluding the dominant majority and minority parties, 1. Material defects– If it should clearly appear that some
who shall be designated by the Commission upon requisites in form or data had been omitted in the election
nomination of the said parties [R.A. 9369, (Election returns, the BOC shall call for all the members of the BEI
Automation Law), Sec. 34]. concerned by the most expeditious means, for the same
board to effect the correction (OEC, Sec. 234).
Process of canvassing by the BOC 2. Omission in the election returns of the name of any
candidate and/or his corresponding votes – The BOC shall
1. The BOC shall meet not later than six o'clock in the require the BEI concerned to complete the necessary data in
afternoon of Election Day at the place designated by the the election returns and affix therein their initials (OEC, Sec.
Commission to receive the election returns and to immediately 234).
canvass those that may have already been received; 3. Falsified or appear to be tampered with – If the election
2. It shall meet continuously from day to day until the canvass returns submitted to the BOC appear to be tampered with,
is completed, and may adjourn but only for the purpose of altered or falsified after they have left the hands of the BEI,
awaiting the other election returns from other polling places or otherwise not authentic, or were prepared by the BEI
within its jurisdiction; under duress, force, intimidation, or prepared by persons
3. Each time the board adjourns, it shall make a total of all the other than the member of the BEI, the BOC shall use the
votes canvassed so far for each candidate for each office, other copies of said election returns and, if necessary, the
furnishing the Commission in Manila by the fastest means of copy inside the ballot box which upon previous authority
communication a certified copy thereof, and making available given by the Commission may be retrieved in accordance
the data contained therein to the mass media and other with Sec. 220 hereof (OEC, Sec. 235).
interested parties; 4. Discrepancies – If it appears to the BOC that there exists
4. As soon as the other election returns are delivered, the discrepancies in the other authentic copies of the election
board shall immediately resume canvassing until all the returns returns from a polling place or discrepancies in the votes of
have been canvassed; any candidate in words and figures in the same return, and
5. The respective BOC shall prepare a certificate of canvass in either case the difference affects the results of the
duly signed and affixed with the imprint of the thumb of the right election, the Commission, upon motion of the BOC or any
hand of each member, supported by a statement of the votes candidate affected and after due notice to all candidates
received by each candidate in each polling place and, on the basis concerned, shall:
thereof, shall proclaim as elected the candidates who obtained a. proceed summarily to determine whether the
the highest number of votes cast in the province, city, integrity of the ballot box had been preserved, and
municipality or barangay (Sec. 231, OEC). b. once satisfied thereof shall order the opening of
the ballot box to recount the votes cast in the polling place
NOTE: Failure to comply with this requirement shall solely for the purpose of determining the true result of the
constitute an election offense. count of votes of the candidates concerned (OEC, Sec. 236).

Duty of BOC on missing, lost or destroyed election NOTE: In abovementioned cases, the BOC shall continue
returns the canvass of the remaining or unquestioned returns. If,
after the canvass of all the said returns, it should be

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determined that the returns which have been set aside correctly written shall be counted in his favor. (OEC, Sec.
will affect the result of the election, no proclamation 211)
shall be made except upon orders of the Commission
after due notice and hearing. Any proclamation made in
violation hereof shall be null and void (OEC, Sec. 238). REMEDIES AND JURISDICTION
IN ELECTION LAW
Void proclamation

A void proclamation is no proclamation at all, and the PETITION TO DENY DUE COURSE TO OR CANCEL A
proclaimed candidate’s assumption into office cannot CERTIFICATE OF CANDIDACY
deprive the COMELEC of its power to annul the
proclamation. A proclamation is void when it is based on A verified petition seeking to deny due course to
incomplete returns (Castromayor v. COMELEC, G.R. No. acertificate of candidacy may be filed by any person
120426, November 23, 1995) or when there is no exclusively on the ground that nay material
complete canvass yet (Jamil v. COMELEC, G.R. No. 123648, representation contained therein as required is false. The
December 15, 1997). petition may be filed not later than 25 days from the time
of filing of the certificate of candidacy, and shall be
Partial proclamation decided, after due notice and hearing, not later than 15
days before the election.
Notwithstanding pendency of any pre-proclamation
controversy, COMELEC may summarily order In addition, the COMELEC may motu proprio or upon
proclamation of winning candidates whose election will verified petition refuse to give due course to or cancel a
not be affected by the outcome of the controversy (RA certificate of candidacy if show that it was filed:
7166, Sec. 21).
1. Put the election process in mockery or disrepute;
Tie in election result 2. Cause confusion among the voters by the similarity of
the names of the registered candidates; or
1. Two or more candidates have received an equal and 3. Clearly demonstrate that the candidate has no bona
highest number of votes, or fide intention to run for the office for which the CoC has
2. In cases where two or more candidates are to be been filed and thus prevent a faithful determination of
elected for the same position and two or more candidates the true will of the electorate. (OEC, Sec. 69)
received the same number of votes for the last place in the
number to be elected (OEC, Sec. 240). PETITION FOR DISQUALIFICATION

Duty of the BOC in case of tie It is the remedy against any candidate who does not
possess all the qualifications required by the
The BOC, after recording this fact in its minutes, shall by Constitution or law, or who commits any act declared by
resolution, upon five days notice to all the tied law to be grounds for disqualification. (COMELEC Rules
candidates, hold a special public meeting at which the of Procedure, Rule 25, Sec.1)
BOC shall proceed to the drawing of lots of the
candidates who have tied and shall proclaim as elected Time of filing the petition for disqualification
the candidates who may be favored by luck. The BOC
shall forthwith make a certificate stating the name of the It may be filed any day after the last day for filing of
candidate who had been favored by luck and his certificates of candidacy, but not later than the date of
proclamation on the basis thereof (OEC, Sec. 240). proclamation. (COMELEC Rules of Procedure, Rule 25, Sec.
3)
BOC proceedings when considered illegal
Nature of the proceedings
There is an illegal proceeding of the BOC when the
canvassing is a sham or mere ceremony, the results of The petition is heard summarily (COMELEC Rules of
which are pre-determined and manipulated as when any Procedure, Rule 25, Sec. 4). However, the COMELEC
of the following circumstances are present: cannot disqualify a candidate without hearing and
1. Precipitate canvassing; affording him opportunity to adduce evidence to support
2. Terrorism; his side and taking into account such evidence.
3. Lack of sufficient notice to the members of the BOC;
or Final and executory judgment
4. Improper venue (COMELEC Res. 8804, Rule 4, Sec. 2,
March 22, 2010). A Decision or Resolution is deemed final and executory if,
in case of a Division ruling, no motion for
Idem Sonans (1994 Bar) reconsideration is filed within the reglementary period,
or in cases of rulings of the Commission En Banc, no
The idem sonans rule means that a name or surname restraining order is issued by the Supreme Court within
incorrectly written which, when read, has a sound five (5) days from receipt of the decision or resolution.
similar to the name or surname of a candidate when

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(2013 COMELEC Rules of Procedure, Rule 23, Sec. 8, as petition for suspension of the proclamation of the
amended by COMELEC Resolution No. 9523) respondent.

Grounds for disqualification 5. Submission of recommendation to Commission en banc –

The Law Department shall terminate the preliminary investigation
1. Any person who has been declared by competent within 30 days from receipt of the referral and shall submit its study,
authority insane or incompetent, or has been sentenced report and recommendation to the Commission en banc within 5
by final judgment for subversion, insurrection, rebellion days from the conclusion of the preliminary investigation. If it makes
or for any offense for which he has been sentenced to a a prima facie finding of guilt, it shall submit with such study the
penalty of more than 18 months or for a crime involving Information for filing with the appropriate court.
moral turpitude (OEC, Sec. 12);
2. Any candidate who, in action or protest in which he Remedy if petition for disqualification is unresolved
is a party, is declared by final decision guilty of or found on election day
by COMELEC of having:
a. Given money or other material consideration to The petitioner may file a motion with the Division or
influence, induce or corrupt the voters of public officials Commission En Banc where the case is pending, to
performing electoral functions; suspend the proclamation of the candidate concerned,
b. Committed acts of terrorism to enhance his provided that the evidence for the grounds to disqualify
candidacy; is strong. For this purpose, at least three (3) days prior to
c. Spent in his election campaign an amount in any election, the Clerk of the Commission shall prepare a
excess of the allowed; and list of pending cases and furnish all Commissioners
d. Solicited, received or made any contribution copies of said the list.
prohibited under the Omnibus Election Code (OEC, Sec.
68). In the event that a candidate with an existing and
3. Any person who is a permanent resident of or an pending Petition to disqualify is proclaimed winner, the
immigrant to a foreign country, unless said person has Commission shall continue to resolve the said Petition
waived his status as permanent resident or immigrant of (COMELEC Rules of Procedure, Rule 25, Sec. 5, as amended
a foreign country. (OEC, Sec. 68) by COMELEC Resolution 9523, Sept. 25, 2012).

NOTE: R.A. 9225 expressly provides for the conditions Petition to deny due course to or cancel CoC vs.
before those who re-acquired Filipino citizenship may petition for disqualification
run for a public office in the Philippines.

(See earlier discussion on the grounds for disqualification

under Candidacy for a longer list.)

Rules on disqualification cases PETITION TO DENY DUE

PETITION FOR
1. Complaint filed before election – The Commission COURSE TO OR CANCEL
shall determine whether the acts complained of have in DISQUALIFICATION
fact been committed. If so, the COMELEC shall order the CoC
disqualification of the respondent candidate.
Based on a statement of a Premised on Sec. 12 of
2. Complaint not resolved before election – COMELEC material representation in OEC, or Sec. 40 of the LGC.
may motu propio or on motion of any of the parties refer the said certificate that is
the complaint to the Law Department of the Commission. false.
The person whose A person who is
3. Complaint filed after election and proclamation of certificate is cancelled or disqualified under Sec. 68
winner – The complaint shall be dismissed.
denied due course under is merely prohibited to
Sec. 78 is not treated as a continue as a candidate.
NOTE: The complaint shall be referred for
preliminary investigation to the Law Department. candidate at all, as if he
never filed a CoC.
4. Complaint filed after election but before
proclamation of winner – The complaint shall be A person whose CoC has Thus, a candidate who is
dismissed. been denied due course or disqualified under Sec. 68
cancelled under Sec. 78 can be validly substituted
cannot be substituted under Sec. 77 of the OEC
NOTE: The complaint shall be referred for because he is never because he remains a
preliminary investigation to the Law Department. If
considered as candidate. candidate until
the Law Department makes a prima facie finding of
guilt and the corresponding information has been disqualified.
filed with the trial court, the complainant may file a
PETITION TO DECLARE FAILURE OF ELECTIONS

UNIVERSITY OF SANTO TOMAS 2017 Grounds for failure of elections

GOLDEN NOTES
Failure of elections may be declared in the following
cases:
1. The election in any polling place has not
been held on the date fixed on account of force majeure,

212
 ELECTION LAW

violence, terrorism, fraud, or other analogous 1. Declaration of Failure 1. Election is postponed

causes; of elections 2. Conduct elections
2. The election in any polling place had been 2. Holding of reasonably close to
suspended before the hour fixed by law for the continuation of elections not held, but
closing of the voting on account of force majeure, elections reasonably not later than 30 days
violence, terrorism, fraud, or other analogous close to election not from cessation of
causes; and held, but not later than cause
3. After the voting and during the preparation and 30 days from cessation
transmission of the election returns or canvass of cause.
thereof such election results in failure to elect on

account of force majeure, violence, fraud or

analogous causes. (Banaga Jr. v. COMELEC, G.R. No.
---
134696, July 31, 2000)
Q: A and D both ran for the position of representative
of the first district of Northern Samar. A won while D
NOTE: There is failure of elections only when the will of
placed second. D filed an election protest before the
the electorate has been muted and cannot be
HRET against A, alleging terrorism committed by the
ascertained. (Benito v. COMELEC, G.R. No. 134913, Jan. 19,
supporters of A before, during, and after the
2001)
elections. D prayed for the annulment of A’s election.
A argued that HRET has no jurisdiction over the
Requisites for declaration of failure of elections
protest on the premise that annulment of election
returns on the ground of terrorism is akin to a
The following requisites must concur:
declaration of failure of elections which is under the
1. No voting has taken place in the precincts
exclusive jurisdiction of COMELEC. Is A correct?
concerned on the date fixed by law, or even if there
was voting, the election nonetheless resulted in a
A: NO. The power of the HRET to annul elections differs
failure to elect; and
from the power granted to the COMELEC to declare
2. The votes cast would affect the results of the
failure of elections. The Constitution no less, grants the
election.
HRET with exclusive jurisdiction to decide all election
contests involving the members of the House of
Power to declare a failure of election
Representatives, which necessarily includes those which
raise the issue of fraud, terrorism or other
The COMELEC en banc has the original and exclusive
irregularities committed before, during or after the
jurisdiction to hear and decide petitions for declaration
elections. To deprive the HRET the prerogative to annul
of failure of election or for annulment of election results.
elections would undermine its constitutional fiat to
(R.A. 7166, Sec. 4)
decide election contests. The phrase “election, returns
and qualifications” should be interpreted in its totality as
Failure of Elections vs. Postponement of Elections
referring to all matters affecting the validity of the
contestee's title. Consequently, the annulment of election
FAILURE OF ELECTIONS POSTPONEMENT OF
ELECTIONS results is but a power concomitant to the HRET's
constitutional mandate to determine the validity of the
Any serious cause of: contestee's title.
a. Force Majeure
b. Violence The power granted to the HRET by the Constitution is
c. Terrorism intended to be as complete and unimpaired as if it had
d. Loss or destruction of election paraphernalia remained originally in the legislature. Thus, the HRET, as
e. Other analogous cases the sole judge of all contests relating to the election,
returns and qualifications of members of the House of
Failure to elect and affect Serious impossibility to Representatives, may annul election results if in its
results of elections have free and orderly determination, fraud, terrorism or other electoral
elections irregularities existed to warrant the annulment. Because

in doing so, it is merely exercising its constitutional duty

Grounds may occur any Grounds must exist
to ascertain who among the candidates received the
time before proclamation before voting
majority of the valid votes cast. (Abayon v. HRET, G.R. No.
223032, May 3, 2016)

1. Verified petition by 1. Verified petition by ---

any interested person any interested person
2. Due Notice or motu proprio by PRE-PROCLAMATION CONTROVERSY
3. Hearing COMELEC en banc
2. Due notice Pre-proclamation controversy refers to any question
3. Hearing pertaining to or affecting the proceedings of the Board of
Canvassers, which may be raised by any candidate or by
any registered political party or coalition of political

parties, or by any accredited and participating party list

group, before the Board or directly with the COMELEC.
(COMELEC Resolution No. 8804, Rule 3, Sec. 1)

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b. Obviously manufactured or not authentic

Purpose 4. Substituted or fraudulent returns in controverted
polling places were canvassed, the results of which
To ascertain winners in the elections on basis of election materially affected the standing of the aggrieved
returns duly authenticated by BEI and admitted by the candidate(s).
BOC. (Abella v. Larrazabal, G.R. No. 87721-30, Dec. 21, 5. Manifest errors in the Certificates of Canvass or Election
1989) Returns (R.A. 7166, Sec. 15; Chavez v. COMELEC, G.R. No.
16277, August 31, 2004)
Jurisdiction
NOTE: The enumeration is restrictive and exclusive.
COMELEC has exclusive jurisdiction over pre- (Suhuri v. Commission on Elections, G.R. No. 181869,
proclamation controversies arising from national, October 2, 2009).
regional, or local elections. . It may motu proprio or upon
written petition, and after due notice and hearing the Issues that cannot be raised
partial or total suspension of the proclamation of any
candidate-elect or annul partially or totally any
1. Appreciation of ballots, as this is performed by the BEI
proclamation, if one has been made, as the evidence shall
warrant. (OEC, Sec. 242). at the precinct level and is not part of the proceedings of the
BOC (Sanchez v. COMELEC, G.R. No. 78461, August 1987);
Nature and execution of judgment 2. Technical examination of the signatures and thumb
marks of voters (Matalam v. COMELEC, G.R. No. 123230, April
It shall be heard summarily by the COMELEC. Its decision 18, 1997);
shall be executory after 5 days from receipt by the losing 3. Prayer for re-opening of ballot boxes (Alfonso v.
party, unless otherwise ordered. COMELEC, G.R. No. 107847, June 2, 1994);
4. Padding of the Registry List of Voters of a municipality,
When not allowed (2008 Bar) massive fraud and terrorism (Ututalum v. COMELEC, G.R. No.
84843-44, January 22, 1990);
1. For the positions of President, Vice President, Senator and 5. Challenges directed against the BEI (Ututalum v.
Member of House of Representatives (RA 7166, Sec. 15). COMELEC, G.R. No. 84843-44, January 22, 1990); and

XPNs: 6. Fraud, terrorism and other illegal electoral practices.

a. Correction of manifest errors These are properly within the office of election contests over
b. Questions affecting the composition or proceedings of which electoral tribunals have sole, exclusive jurisdiction
the Board of Canvassers (COMELEC Res. No. 8804, March 22, (Loong v. COMELEC, G.R. No. 93986, December 22, 1992).
2010, Rule 3, Sec. 1); and
Effect of filing of pre-proclamation controversy
NOTE: However, this does not preclude the
authority of the appropriate canvassing body, 1. The period to file an election contest shall be suspended
motu proprio or upon written complaint of an during the pendency of the pre-proclamation contest in the
interested person, to correct manifest errors in COMELEC or the Supreme Court;
the certificate of canvass or election before it 2. The right of the prevailing party in the pre-
(RA 9369, Sec. 38). proclamation contest to the execution of COMELEC’s
decision does not bar the losing party from filing an election
c. Determination of the authenticity and due execution of contest; and
certificates of canvass as provided in Sec. 30 of RA 7166, as 3. Despite the pendency of a pre-proclamation contest, the
amended by RA 9369. COMELEC may order the proclamation of other winning
candidates whose election will not be affected by the
2. No pre-proclamation cases are allowed in case of barangay outcome of the controversy.
election. (RA 6679, Sec. 9)
Termination of pre-proclamation cases
Issues that may be raised (1996 Bar)
GR: At the beginning of term of the officers (RA 7166, Sec.
1. Illegal composition or proceedings of the board of election 16).
canvassers;
2. Canvassed election returns are either: XPNs:
a. Incomplete 1. When based on evidence, COMELEC determines that
b. Contain material defects petition is meritorious;
c. Appear to be tampered with or falsified 2. The SC in a petition for certiorari issues a contrary
d. Contain discrepancies in the same returns or in order; or
authentic copies 3. The case is not a pre-proclamation case. (Peñaflorida v.
3. The election returns were: COMELEC, G.R. No. 125950, November 18, 1997)
a. Prepared under duress, threats, coercion, intimidation

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 ELECTION LAW

ordinary action. (Vialogo v. COMELEC, G.R. No. 194143,

--- Oct. 4, 2011)
Q: Is the COMELEC precluded from exercising powers
over pre proclamation controversies, when the Electoral Where election protests can be filed
Tribunal acquires jurisdiction?
1. COMELEC – sole judge of all contests relating to
A: elections, returns, and qualifications of all elective
GR: YES. COMELEC is precluded from exercising powers regional, provincial and city officials (reviewable by SC
over pre-proclamation controversies when the Electoral under Rule 64 using Rule 65).
Tribunal acquires jurisdiction.
NOTE: Decisions of COMELEC En Banc are
XPNs: appealable to SC. (2001 Bar)
1. BOC was improperly constituted;
2. Proclamation was null and void; 2. Presidential Electoral Tribunal – President and Vice
3. Quo warranto is not the proper remedy President
4. What was filed was a petition to annul a 3. SET – Senator
proclamation, and not a quo warranto or election protest; 4. HRET – representative
and 5. RTC – over contests for municipal officials which
5. Election contest expressly made without prejudice may be appealed to COMELEC
to pre-proclamation controversy or it was made ad 6. MeTC or MTC – for barangay officials which may be
cautelam appealed to COMELEC
---
Grounds for the filing of election protests
Petition to annul or suspend the proclamation
1. Fraud;
It is a remedy where there is a manifest error on the face 2. Vote-buying;
of the transmitted returns or variance of results from the 3. Terrorism;
election returns and CoC, and a winning candidate is 4. Presence of flying voters;
about to be, or has already been proclaimed on the basis 5. Misreading or misappreciation of ballots;
thereof. 6. Disenfranchisement of voters;
7. Unqualified members of board of election inspector;
The COMELEC is required to hear the petition and
immediately and the ballots may be ordered to be 8. Other election irregularities.
manually recounted to verify the manifest errors or
alleged variance. NOTE: Pendency of election protest is not sufficient
basis to enjoin the protestee from assuming office.
NOTE: The filing of a petition to annul or suspend the
proclamation shall suspend the running of the period Content of an election protest
within which to file an election protest or quo warranto
proceedings. It must be initiated by filing a protest that must contain
the following allegations:
ELECTION PROTEST a. The protestant is a candidate who duly filed a COC
and was voted for in the election;
Post-election disputes b. The protestee has been proclaimed; and
c. The petition was filed within ten (10) days after the
They are disputes which arise or are instituted after proclamation. (Miro v. COMELEC, G.R. No. L-57574, April
proclamation of winning candidates and which issues 20, 1983)
pertain to the casting and counting of votes (election
protests), or to the eligibility or disloyalty of the winning Effect if the protestant accepts a permanent
candidates (quo warranto). appointment

Nature and purpose of an election contest Acceptance of a permanent appointment to a regular

office during the pendency of his protest is an
It is a special summary proceeding the object of which is abandonment of the electoral protest. The same is true if
to expedite the settlement of controversies between a protestant voluntarily sought election to an office
candidates as to who received the majority of legal votes. whose term would extend beyond the expiry date of the
term of the contested office, and after winning the said
NOTE: Statutes providing for election contests are to be election, took her oath and assumed office and there
liberally construed to the end that the will of the people after continuously serves it. The reason for this is that
in the choice of public officers may not be defeated by the dismissal of the protest would serve public interest
mere technical objections. It is imperative that his claim as it would dissipate the aura of uncertainty as to the
be immediately cleared not only for the benefit of the results of the presidential election, thereby enhancing
winner but for the sake of public interest, which can only the all-to crucial political stability of the nation during
be achieved by brushing aside technicalities of procedure this period of national recovery. (Santiago v. Ramos,
which protract and delay the trial of an P.E.T. Case No. 001, Feb. 13, 1996)

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Refers to an election contest relating to the qualifications

In assuming the office of Senator, one has effectively of an elective official on the ground of (1) ineligibility
abandoned or withdrawn this protest. Such or (2) disloyalty to the Republic of the Philippines.
abandonment or withdrawal operates to render moot The issue is whether respondent possesses all the
the instant protest. Moreover, the dismissal of this qualifications and none of the disqualifications
protest would serve public interest as it would dissipate prescribed by law. (A.M. No. 07-4-15-SC, May 15, 2007)
the aura of uncertainty as to the results of the election.
(Legarda v. De Castro, PET case no. 003, January 18, 2008) NOTE: Quo warranto proceedings against a
Congressman-elect, Senator-elect, President-elect and
Requisites for an execution pending appeal in VP-elect are brought before the appropriate electoral
election protest cases tribunals created by the Constitution.

1. It must be upon motion by the prevailing party with notice Quo warranto proceedings against any regional,
to the adverse party; provincial or city officials are brought before the
2. There must be good reasons for the said execution; and COMELEC.
3. The order granting the said execution must state the good
reasons (Navarosa v. COMELEC, G.R. No. 157957, Sept. 18, 2003) Quo warranto proceedings against municipal officials
and barangay officials are brought before the RTCs and
“Good reasons” MTCs respectively.

A combination of two or more of the following: Election protest vs. Quo warranto case under the OEC
1. That public interest is involved or the will of the electorate; (2001, 2006 Bar)
2. The shortness of the remaining portion of the term of the
contested office;
3. The length of time that the election contest has been BASIS ELECTION QUO WARRANTO
pending (Ramas v. COMELEC, G.R. No. 130831. Feb. 10, 1998). PROTEST (2009 Bar)
NOTE: If instead of issuing a preliminary injunction in By a losing By any voter who
place of a TRO, a court opts to decide the case on its candidate for the is a registered
merits with the result that it also enjoins the same acts same office for voter in the
covered by its TRO, it stands to reason that the decision Who may which the winner constituency
amounts to a grant of preliminary injunction. Such file filed his COC where the winning
injunction should be deemed in force pending any appeal candidate sought
from the decision. The view that execution pending
to be disqualified
appeal should still continue notwithstanding a decision
of the higher court enjoining such execution—does not ran for office
make sense. It will render quite inutile the proceedings Who received the Whether the
before such court. (Panlilio v. COMELEC, G.R. No. 184286, majority or candidate who was
Feb. 26, 2010) plurality of the proclaimed and
votes which were elected should be
Best pieces of evidence in an election contest
legally cast? disqualified
1. Ballots are the best and most conclusive evidence in an because of
election contest where the correctness of the number of votes of Issue/s Whether there ineligibility or
each candidate is involved (Delos Reyes, G.R. No. 170070, Feb. 28, were disloyalty to the
2007); and irregularities in Philippines.
2. Election returns are the best evidence when the ballots are the conduct of the
lost, destroyed, tampered or fake. election which
affected its
Right to withdraw
results.
A protestant has the right to withdraw his protest or
drop polling places from his protest. The protestee, in Effect of filing an election protest or a petition for
such cases, has no cause to complain because the quo warranto
withdrawal is the exclusive prerogative of the protestant.
Generally, it bars the subsequent filing of a pre-
QUO WARRANTO proclamation controversy or a petition to annul
proclamation. It also amounts to the abandonment of one
Quo warranto proceeding for an elective office (2012 filed earlier, thus, depriving the COMELEC of the
Bar) authority to inquire into and pass upon the title of the
protestee or the validity of his proclamation. Once the
competent tribunal has acquired jurisdiction over an
election protest or a petition for quo warranto, all
questions relative thereto will have to be decided in the
UNIVERSITY OF SANTO TOMAS case itself and not in another proceeding. (Villamor v.
2017 GOLDEN NOTES COMELEC, G.R. No. 169865, July 21, 2006)

---
Q: In March 2013, COMELEC First Division issued a
resolution cancelling Kat’s CoC on the ground that
 LOCAL GOVERNMENTS

she is not a citizen of the Philippines because of her 7. Appointment of new employees, creation of new
failure to comply with the requirements of the position, promotion, giving of salary increases;
Citizenship Retention and Re-acquisition Act of 2003. 8. Intervention of public officers and employees;
On April 8, 2013, Kat filed an MR claiming that she is 9. Undue influence;
a natural-born Filipino citizen, but it was denied by 10. Unlawful electioneering;
COMELEC on May 14 for lack of merit and declared it 11. Carrying firearms outside the residence or place of
final and executory. Kat, however, was proclaimed business; and
the winner of the May 2013 elections, and took her 12. Used of armored land, water or aircraft (OEC. Sec.
oath of office but is yet to assume office on June 30, 261)
2013. Kat contends that COMELEC lost jurisdiction
pursuant to Sec. 17, Art. 6 of the 1897 Constitution Prescriptive period of election offenses
which states that HRET has the exclusive jurisdiction
to be the “sole judge of all contests relating to the 5 years from the date of their commission (OEC, Sec. 267)
election, returns and qualifications” of the Members
of the HOR. Is the contention of Kat correct? Jurisdiction to investigate and prosecute election
offenses
A: NO. The Court has invariably held that once a winning
candidate has been proclaimed, taken his oath, According to Sec. 2 (6), Article IX-C of the 1987
and assumed office as a Member of the HOR, the Constitution, the COMELEC has jurisdiction to investigate
COMELEC's jurisdiction over election contests relating to and prosecute cases involving violations of election laws,
his election, returns, and qualifications ends, and the but it may delegate the power to the Provincial
HRET's own jurisdiction begins. Here, Kat, the winning prosecutor (People v. Judge Basilia, G.R. Nos. 83938-40,
candidate cannot be considered a Member of the HOR November 6, 1989). The COMELEC shall, through its duly
because, primarily, he has not yet assumed office. To authorized legal officers, have the power, concurrent
repeat what has earlier been said, the term of office of a with the other prosecuting arms of the government, to
Member of the HOR begins only “at noon on the thirtieth conduct preliminary investigation of all election offenses
day of June next following their election.” Thus, until punishable under this Code, and prosecute the same.
such time, the COMELEC retains jurisdiction. (Reyes v. (R.A. 9369, Sec. 43)
COMELEC, G.R. No. 207264, June 25, 2013)
--- Jurisdiction to try and decide violation of election
laws

PROSECUTION OF ELECTION OFFENSES GR: The RTC has the exclusive and original jurisdiction
to hear and decide any criminal action or proceedings for
violation of the OEC.
Authority to prosecute election offenses
XPN: The MTC has jurisdiction over offenses relating to
DOJ and COMELEC exercise concurrent jurisdiction in failure to register or failure to vote. (OEC, Sec 267)
conducting preliminary investigation of election
offenses. The grant of exclusive power to investigate and
prosecute cases of election offenses to the COMELEC was ELECTION AUTOMATION LAW
not by virtue of the Constitution but by the OEC which (R.A. 8436, AS AMENDED BY R.A. 9369)
was eventually amended by Sec. 43 of RA 9369. Thus, the
DOJ now conducts preliminary investigation of election Automated Election System (AES)
offenses concurrently with the COMELEC and no longer
as mere deputies (Jose Miguel T. Arroyo v. DOJ, et al., G.R. A system using appropriate technology which has been
No. 199082, Sept. 18, 2012). demonstrated in the voting, counting, consolidating,
canvassing, and transmission of election results, and
Prosecution of election offenses other electoral processes. [R.A. 9369, Sec. 2(1)]

Election offenses are prohibited acts such as: Equipment to be used in AES subject to public testing
1. Vote buying and vote selling (1991 Bar);
2. Conspiracy to bribe voters; COMELEC shall allow the political parties and candidates
3. Wagering upon result of election; or their representatives, citizens’ arm or their
4. Coercion of subordinates; representatives to examine and test the equipment or
device to be used in the voting and counting before
NOTE: Coercion of subordinates as an election voting starts. Test ballots and test forms shall be
offense [OEC, Sec. 261(d)] has been expressly provided by the Commission. (R.A. 9369, Sec. 12)
repealed by Sec. 2, R.A. 7890 and the express repeal
has been affirmed by SC in Javier v. COMELEC, G.R. Voter Verification Paper Audit Trail (VVPAT) or
No. 215847, January 12, 2016. Voter’s Receipt

5. Threats, intimidation, terrorism, use of fraudulent A mechanism that allows the voter to verify his or her
device or other forms of coercion; choice of candidates will ensure a free, orderly, honest,
6. Coercion of election officials and employees; peaceful, credible, and informed election. The voter is

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not left to wonder if the machine correctly appreciated

his or her ballot. The voter must know that his or her LOCAL GOVERNMENTS
sovereign will, with respect to the national and local
leadership, was properly recorded by the vote counting
machines. The minimum functional capabilities Local Government Unit (LGU)
enumerated under Section 6 of Republic Act 8436, as
amended, are mandatory. These functions constitute the A political subdivision of the State which is constituted
most basic safeguards to ensure the transparency, by law and possessed of substantial control over its own
credibility, fairness and accuracy of the upcoming affairs. Remaining to be an intra-sovereign subdivision
elections. of one sovereign nation, but not intended, however, to be
an imperium in imperio (empire within empire), the local
The law is clear. A “voter verified paper audit trail” government unit is autonomous in the sense that it is
requires the following: given more powers, authority, responsibility and
resources. (Alvarez v. Guingona, G.R. No. 118303, January
a. individual voters can verify whether the machines have 31, 1996)
been able to count their votes; and
b. that the verification at minimum should be paper based Kinds of Local Governments
There appears to be no room for further interpretation 1. Provinces – A political and territorial corporate body
of a “voter verified paper audit trail.” The paper audit consisting of several municipalities and cities.
trail cannot be considered the physical ballot, because 2. Municipalities – Consist of groups of barangays,
there may be instances where the machine may translate including municipal districts.
the ballot differently, or the voter inadvertently spoils his 3. Cities – Consist of more urbanized and developed
or her ballot. barangays.
a. Highly urbanized cities – Determined by law.
The VVPAT ensures that the candidates selected by the b. Cities not raised to highly urbanized category but
voter in his or her ballot are the candidates voted upon their charters prohibit their voters from voting in provincial
and recorded by the vote-counting machine. The voter elections.
himself or herself verifies the accuracy of the vote. In c. Component cities – Still under the province in some
instances of Random Manual Audit, and election protests, way.
the VVPAT becomes the best source of raw data for 4. Barangays – Basic political and territorial self-governing
votes. (Bagumbayan-VNP Movement and Richard J. body corporate and is subordinate to the municipality or city
Gordon v. COMELEC, G.R. No. 222731, March 8, 2016) of which it forms part.
5. Autonomous Regions – A political and territorial
subdivision that has a certain degree of freedom from the
national government.

PUBLIC CORPORATIONS

It is one created by the State, either by general or special

act for purposes of administration of local government,
or rendering service for the public interest.

Criterion to determine whether a corporation is a

public corporation

It is the relationship of the corporation to the state. If it

was created by the State as its own agency to help it in
carrying out its governmental functions, it is public.
Otherwise, it is private.

Dual characteristic of public corporation

1. Public or governmental - It acts as an agent of the State

as the government of the territory it occupies and its
inhabitants within the municipal limits. The municipal
corporation exercises, by delegation, a part of the
sovereignty of the state.
2. Private or proprietary - It acts as an agent of the
community in the administration of local affairs which is
wholly beyond the sphere of public purposes, for which its
governmental powers are

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 LOCAL GOVERNMENTS

conferred. It acts as separate entity for its own Proprietary in

purposes, and not as a subdivision of the State. nature.

NOTE: Not all corporations, which are not government

owned or controlled, are ipso facto private corporations.

These corporations are treated by law as agencies or

Created by the Created by Congress
instrumentalities of the government which are not
state, either by or by incorporators.
subject to the tests of ownership or control and As to Who
general act or
economic viability but to different criteria relating to Creates
special act.
their public purposes/interests or constitutional policies
and objectives and their administrative relationship to the
government or any of its Departments or Offices.
Through legislation. 1) Original charters
or special laws; or
As to How
The economic viability test would only apply in cases Created 2) General
wherein the corporation is engaged in some economic corporation law, as a

activity or business function for the government. (Boy

stock or non-stock
Scouts of the Philippines v. COA, G.R. No. 177131, June 7,
2011)

DISTINGUISHED FROM GOCC CLASSIFICATIONS

Kinds of corporations
Government owned and controlled corporations
(GOCC)
1. Quasi-public corporations - Private corporations
that render public service, supply public wants, or
Any agency organized as a stock or non-stock
pursue other eleemosynary objectives. While
corporation, vested with functions relating to public
purposely organized for the gain or benefit of its
needs, whether governmental or proprietary in nature,
members, they are required by law to discharge
and owned by the Government of the Republic of the
functions for the public benefit. It must be
Philippines directly or through its instrumentalities
either wholly or, where applicable as in the case of stock
2. stressed that a quasi-public corporation is a
corporations, to the extent of at least a majority of its
specie of private corporation, but the
outstanding capital stock. [R.A. 10149, GOCC Governance
qualifying factor is the type of service the former
Act of 2011, Chapter 1, Sec. 3 (o)]
renders to the public: if it performs a public
NOTE: Provided that such agencies are further service, then it becomes a quasi-public
categorized by Department of Budget, CSC, and COA for corporation. (Philippine Society for the Prevention
purposes of the exercise and discharge of their respective of Cruelty to Animals v. Commission on Audit, G.R. No.
powers, functions and responsibilities. [E.O. No. 292, 169752, September 25, 2007)
Administrative Code of 1987, Sec. 2 (13)]
3. Municipal corporations - A political and
Elements of a GOCC corporate body constituted by the incorporation of
inhabitants for the purpose of local government. It
1. Any agency organized as a stock or non-stock is established by law, partly as an agency of the
 corporation State to assist in the civil government of the
2. Vested with functions relating to public needs country, but chiefly to regulate and administer the
whether governmental or proprietary in nature local or internal affairs of the city, town or district
3. Owned by the government directly or through its which is incorporated.
instrumentalities either wholly, or, where
applicable as in the case of stock corporations, to the
extent of at least fifty-one (51) of its capital stock. MUNICIPAL CORPORATIONS
(Leyson, Jr. v. Office of the Ombudsman, G.R. No.
134990, April 27, 2000)
Essential elements of a municipal corporation
Public corporation vs. GOCC
1. Legal creation or incorporation;

2. Corporate name;
Public
Basis GOCC
Corporation

NOTE: The Sangguniang Panlalawigan may, in

consultation with the Philippine Historical

Administration of Performance of
Commission, change the name of component cities
local government or functions relating to
As to and municipalities, upon the recommendation of the
rendering service public needs,
Purpose sanggunian concerned. (Local Government Code, Sec.
for the public whether
13)
interest. Governmental or

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3. Inhabitants; and legal sense the successor of the old. The argument that
4. Territory. by the change in the sovereignty the old city was
extinguished in the same manner that the agency dies
Nature of a municipal corporation upon the death of the principal, loses sight of the dual
character of municipal corporations, government and
Every LGU created or recognized under the LGC is a body corporate. Only such governmental functions as are
politic and corporate endowed with powers to be incompatible with the present sovereignty may be
exercised by it in conformity with law. As such, it shall considered suspended. The juristic identity of the
exercise powers as a political subdivision of the National corporation is not affected by the change of sovereignty.
Government and as a corporate entity representing the The City of Manila is liable to its creditors. (Vilas v. City of
inhabitants of its territory. (Local Government Code, Sec. Manila, G.R. Nos. 53-54 and 207, April 3, 1911)
15) ---

Dual function of Municipal Corporation In the exercise of corporate, non-governmental

functions, municipal governments stand on the same
1. Public or governmental - It acts as an agent of the State or level as the National Government
the government of the territory it occupies and its inhabitants.
Examples are: The constitutional provision limiting the authority of the
a. Delivery of sand and gravel for the construction of a President over local governments to general supervision
municipal bridge. (Municipality of San Fernando v. Firme, G.R. No. is unqualified and applies to all constitutional powers of
L-52179, April 8, 1901) the President as regards the corporate functions of local
b. The collection and disposal of garbage as conserving governments, inasmuch as the Executive never had any
the public health is governmental in nature. (Department of control over said functions. The same powers are not
Public Services Labor Unions v. CIR, G.R. No. L-15458, January 28, under the control even of Congress, for, in the exercise of
1961) corporate, non-governmental or non-political functions,
municipal corporations stand practically on the same
2. Private or proprietary - It acts as an agent of the community level as the National Government or the State as private
in the administration of local affairs. As such, it acts as a separate corporations. (Hebron v. Reyes, G.R. No. L-9124, July 28,
entity acting for its own purposes, and not as a subdivision of the 1958)
State. (Bara Lidasan v. COMELEC, G.R. No. L-28089, October 25,
1967) Types of municipal corporations

Examples are: 1. De jure municipal corporations - Created or recognized

a. Maintenance of cemeteries (City of Manila v. IAC, G.R. by operation of law.
No. 71159, November 15, 1989). 2. Municipal corporations by prescription -Exercised their
b. The renting of a city of its private property. (Chamber powers from time immemorial with a charter, which is
of Filipino Retailers v. Villegas, G.R. No. L-29819, April 14, 1972) presumed to have been lost or destroyed.
3. De facto municipal corporations – It is where the people
--- have organized themselves, under color of law, into ordinary
Q: The plaintiffs are creditors of the City of Manila as it municipal bodies and have gone on, year after year, raising
existed during the Spanish colonial rule. As the Philippine taxes, making improvements, and exercising their usual
Islands was ceded to the United States, the old City of Manila franchises, with their rights dependent quite as much on
was reincorporated during the American regime. An action acquiescence as on the regularity of their origin.
was brought against the City of Manila upon the theory that
the city, under its present charter from the government of NOTE: Inquiries about the legal existence of a de
the Philippine Islands, is the same juristic person as it facto corporation is reserved to the State in a
existed during the Spanish rule and liable upon the proceeding for quo warranto or other direct
obligations of the old city. Is the present municipality liable proceeding. (Mun. of Malabang, Lanao del Sur v.
for the civil obligations of the city incurred prior to the Benito, G.R. No. L-28113, March 28, 1969)
cession to the United States?
---
A: YES. While military occupation or territorial cession may Q: President Garcia issued EO 353 creating the
work a suspension of the governmental functions of municipal municipal district of San Andres, Quezon, by segregating
corporations, such occupation or cession does not result in their from the municipality of San Narciso 6 barrios and their
dissolution. The legal entity of the City of Manila survived both respective sitios. By virtue of EO.
its military occupation by, and its cession to, the United States, 174, issued by President Macapagal, the municipal
and, as in law, the present city, as the successor of the former district of San Andres was later officially recognized
city, is entitled to the property rights of its predecessor, it is also to have gained the status of a fifth class municipality.
subject to its liabilities. The present city is in every
The Municipality of San Narciso filed a petition for
quo warranto with the RTC, against the officials of
the Municipality of San Andres, seeking the
UNIVERSITY OF SANTO TOMAS declaration of nullity of EO 353. The municipality
2017 GOLDEN NOTES
 LOCAL GOVERNMENTS

contended that EO 353, a presidential act, was a clear

usurpation of the inherent powers of the legislature A: NO. The case of Municipality of San Narciso is different
and in violation of the constitutional principle of from the case of Andong. Unlike in San Narciso, the
separation of powers. The Municipality of San Executive Order creating Andong was judicially declared
Andres, however, contended that the case had null and void ab initio by the Court in the case of Pelaez.
become moot and academic with the enactment of Andong also does not meet the requisites set forth by
Sec. 442 (d) of the LGC which provides for the Sec. 442 (d) of the LGC which requires that in order for a
continued existence of municipalities created by municipality created by executive order to receive
executive orders. Is the Municipality of San Narciso recognition, it must have a set of elective municipal
correct? officials holding office at the time of effectivity of the
LGC. Andong has never elected its municipal officers at
A: NO. EO 353 was issued in 1959 but it was only after all. Out of obeisance to the ruling in Pelaez, the national
30 years that the Municipality of San Narciso finally decided government ceased to recognize the existence of Andong,
to challenge the legality of the EO. Created in 1959, the depriving it of its share of the public funds, and refusing
Municipality had been in existence for 6 years when the to conduct municipal elections for the void municipality.
Court decided the case of Pelaez v. Auditor General which Section 442(d) does not serve to affirm or reconstitute
declared void ab initio several EOs creating 33 the judicially dissolved municipalities which had been
municipalities in Mindanao. The ruling could have sounded previously created by executive orders. They remain
the call for a similar declaration of the unconstitutionality of inexistent unless recreated through specific legislative
EO 353 but it was not to be the case. Granting that EO 353 enactments. The provision only affirms the legal
was a complete nullity for being result of an unconstitutional personalities only of those municipalities which may
delegation of legislative power, the Municipality of San have been created through executive fiat but whose
Andres created by the EO attained the status of a de facto existence have not been judicially annulled. (Camid v.
municipal corporation. Certain governmental acts all pointed Office of the President, G.R. No. 161414, January 17, 2005)
to the State’s recognition of the continued existence of the ---
municipality, i.e., it being classified as a fifth class
municipality, the municipality had been covered by the 10 th NOTE:
Municipal Circuit Court and its inclusion in the Ordinance
appended to the 1987 Constitution. Equally significant is I. The color of authority required for the organization of
Section 442(d) of the Local Government Code to the effect a de facto municipal corporation may be:
that municipal districts organized pursuant to presidential 1. A valid law enacted by the legislature.
issuances or executive orders and which have their 2. An unconstitutional law, valid on its face, which
respective sets of elective municipal officials holding office at has either:
the time of the effectivity of the Code shall henceforth be a. been upheld for a time by the courts; or
considered as regular municipalities. The power to create b. not yet been declared void; provided that a
political subdivisions is a function of the legislature. warrant for its creation can be found in some other valid
Congress did just that when it incorporated Sec. 442 (d) in law or in the recognition of its potential existence by the
the LGC. Curative laws are validly accepted in this general laws or constitution of the state.
jurisdiction, subject to the usual qualification against
impairment of vested rights. All considered, the de jure II. There can be no de facto municipal corporation unless
status of the Municipality of San Andres in the province of either directly or potentially, such a de jure corporation
Quezon must now be conceded. (Municipality Of San Narciso is authorized by some legislative fiat.
v. Mendez, G.R. No. 103702, December 6, 1994)
--- III. There can be no color of authority in an
--- unconstitutional statute alone, the invalidity of which is
Q: President Macapagal issued several executive apparent on its face.
orders creating 33 municipalities in Mindanao, one of
which is the Andong in Lanao Del Sur. He justified the IV. There can be no de facto corporation created to take
creation of such municipalities under Sec. 68 of the the place of an existing de jure corporation, as such
Revised Administrative Code. However, in the case of organization would clearly be a usurper. (Municipality of
Pelaez v. Auditor General, the Court held that these EOs Malabang v. Benito, G.R. No. L-28113, March 28, 1968)
were null and void because Sec. 68 did not meet the
requirements for a valid delegation of legislative power Creation of municipalities by the president
to the executive branch. Among the annulled EOs was
the one creating the Municipality of Andong. Petitioner The EOs, which created municipalities are declared null
Camid is a resident of Andong and claims that despite and void because Sec. 68 of the Revised Administrative
the ruling in Pelaez, Andong remains in existence citing code was repealed by the 1935 constitution. (Pelaez v.
the case of Municipality of San Narciso where the Court Auditor General, G.R. No. L-23825, December 24, 1965)
affirmed the status of the Municipality of San Andres as Hence, municipalities created by an EO could not claim
a de facto municipal corporation and citing Sec. 442 (d) to be a de facto municipal corporation, because there
of the LGC recognizing municipal corporations created was no valid law authorizing incorporation.
by executive order. Is Camid correct?

---

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Q: The Municipality of Sinacaban was created by EO 258 of

then President Quirino. Based on the technical description of EO It primarily attends to the
258, Sinacaban laid claims to 5 barrios located in the adjoining needs of the general
Municipality of Jimenez. The Municipality of Jimenez, while welfare.
conceding that under EO 258 the disputed area is part of
Sinacaban, nonetheless, asserted jurisdiction based on an REQUISITES FOR CREATION, CONVERSION,
agreement it had with the Municipality of Sinacaban which fixed
DIVISION, MERGER, AND DISSOLUTION
the common boundaries of the two municipalities. The Provincial
Board declared the disputed area to be part of Sinacaban.
Territorial and political subdivisions
Jimenez filed a petition in the RTC alleging that in accordance
with Pelaez v. Auditor General, the power to create municipalities
1. Barangays
is essentially legislative and consequently, Sinacaban which was
2. Municipalities
created by an executive order, had no legal personality and no
3. Cities
right to assert the territorial claim vis-à-vis Jimenez, of which it
4. Provinces (1987 Constitution, Art. X, Sec.1)
remains part. The RTC, however, held that Sinacaban is a de facto
corporation since it had completely organized itself even prior to
Authority to create municipal corporations
the Pelaez case and exercised corporate powers for forty years
before its existence was questioned. Does the municipality of
A LGU may be created, divided, merged, abolished, or its
Sinacaban legally exist?
boundaries substantially altered either:
1. By law enacted by Congress in case of province,
A: YES. The factors are present as to confer to Sinacaban the
city, municipality or any other political subdivision;
status of at least a de facto municipal corporation, in the sense that
2. By an ordinance passed by the Sangguniang
its legal existence has been recognized and acquiesced publicly
Panlalawigan or Sangguniang Panlungsod concerned in the
and officially. Sinacaban had been in existence for 16 years when
case of a barangay located within its territorial jurisdiction,
Pelaez v. Auditor General was decided on, yet the validity of EO
subject to such limitations and requirements prescribed in
258 had never been questioned. On the contrary, the State and
the Local Government Code (LGC). (Local Government Code,
even the municipality of Jimenez itself have recognized
Sec. 6)
Sinacaban’s corporate existence. Lastly, Sec. 442 (d) of the LGC
must be deemed to have cured any defect in the creation of
NOTE: Failure to provide for seat of government is not
Sinacaban. (Mun. of Jimenez v. Baz Jr, G.R. No. 105746, December 2,
fatal. Under Sec. 12 of the LGC, the city can still establish a
1996)
seat of government after its creation. (Samson v. Aguirre,
---
G.R. No. 133076, September 22, 1999)
Essential requisites of de facto corporation (VACA)
Requisites or limitations imposed on the creation or
conversion of municipal corporations
1. Valid law authorizing incorporation
2. Attempt in good faith to organize under it
1. Plebiscite requirement – Must be approved by majority
3. Colorable compliance with law
of the votes cast in a plebiscite called for such purpose in the
4. Assumption of corporate powers
political unit or units directly affected. (Local Government
Code, Sec. 20)
De facto Municipal Corporation vs. Municipal
Corporation by Estoppel (2010 Bar)
NOTE: The residents of the mother province must
participate in the plebiscite to conform to the
De Facto Estoppel constitutional requirement. (Tan v. COMELEC, G.R.
A public corporation that A corporation which is so No. 73155, July 11, 1986; Padilla v. COMELEC, G.R. No.
exists although it has not defectively formed as not 103328, October 19, 1992)
complied with the to be a de facto
statutory requirements corporation but is Income requirement – Must be sufficient and based
like: considered a corporation on acceptable standards to provide for all essential
in relation to someone government facilities and services and special
a. Authorization by a who dealt with it and functions, commensurate with the size of its
valid law acquiesced in its exercise population as expected by the LGU concerned.
b. A colorable and bona of its corporate functions
fide attempt to or entered into a contract Average annual income for the last consecutive year
organize under a with it. should be at least:
valid law (Martin, Public a. Province – P 20M
c. An assumption of Corporations, 1985 b. Highly Urbanized City – P 50M
powers conferred ed.,p.20) c. City – P 100M (R.A. 9009 amending Sec. 450 of LGC)
under the law d. Municipality – P 2.5M

NOTE: The income requirement for the conversion

of municipality to a component city only includes

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 LOCAL GOVERNMENTS

locally generated average annual income. (RA. 9009, challenged “cities” claim that it was the intent of the
amending Sec. 450 of LGC) Congress to grant them exemption from the income
requirement, as per the deliberations of the 11th
2. Population requirement – determined as the total Congress.
number of inhabitants within the territorial
jurisdiction of the LGU concerned. The required a. Are the cityhood laws valid?
minimum population shall be: b. What will become of the cityhood bills and
a. Barangay – 2,000 their deliberations that were pending at the
adjournment of the 11th Congress?
XPN: barangays located in:
i. Metro Manila – 5,000 A:
ii. Highly urbanized cities – 5,000 a. YES. The cities covered by the Cityhood Laws not
only had conversion bills pending during the 11th
b. Municipality – 25,000 Congress, but have also complied with the requirements
c. City – 150,000 of the LGC prescribed prior to its amendment by RA
d. Highly Urbanized Cities – 200,000 9009. Congress undeniably gave these cities all the
e. Province – 250,000 considerations that justice and fair play demanded.
Hence, the Court should do no less by stamping its
3. Land requirement - Must be contiguous, unless it is imprimatur to the clear and unmistakable legislative
comprised of two or more islands, or is separated by a LGU intent and by duly recognizing the certain collective
independent to the others. It must be properly identified by wisdom of Congress. Congress, who holds the power of
metes and bounds with technical descriptions, and sufficient the purse, only sought the well-being of respondent
to provide for such basic services and facilities. Area municipalities in enacting the Cityhood Laws, having
requirements are: seen their respective capacities to become component
a. Barangay – may be created out of a contiguous cities of their provinces, which was temporarily stunted
territory. (LGC, Sec. 386) by the enactment of RA 9009. By allowing respondent
b. Municipality – 50 sq. km. (LGC, Sec. 442) municipalities to convert into component cities, Congress
c. City – 100 sq. km (LGC, Sec. 450). desired only to uphold the very purpose of the LGC, i.e.,
d. Province – 2,000 sq.km. (LGC, Sec. 461) to make the LGUs “enjoy genuine and meaningful local
autonomy to enable them to attain their fullest
NOTE: Compliance with the foregoing indicators shall be development as self-reliant communities and make them
attested to by: more effective partners in the attainment of national
a. The Department of Finance (Income requirement); goals,” which is the very mandate of the
b. NSO (Population requirement); and Constitution. (League of Cities of the Philippines. v.
c. The Lands Management Bureau of DENR (Land COMELEC, G.R. No. 176951, April 12, 2011)
requirement) [LGC, Sec. 7(c)]
b. Notwithstanding that both the 11th and 12 th
Corporate existence Congress failed to act upon the pending Cityhood bills,
both the letter and intent of Sec. 450 of the LGC, as
Corporate existence of LGUs commences upon the amended by RA 9009, were carried on until the 13th
election and qualification of its chief executive and Congress, when the Cityhood Laws were enacted. The
majority of the members of its sanggunian, unless some exemption clauses found in the individual Cityhood Laws
other time is fixed therefor by law or ordinance creating are the express articulation of the intent to exempt
it. (LGC, Sec. 14) respondent municipalities from the coverage of RA 9009.
(League of Cities of the Philippines v. COMELEC, G.R.
--- No. 176951, February 15, 2011)
Q: At the end of the 11 th Congress’ existence, several ---
bills aiming to convert certain municipalities into cities
were pending. The same were not, however, passed into NOTE: On November 18, 2008, the SC ruled the cityhood
law. During the 12th Congress, RA 9009 was enacted, laws unconstitutional. On December 21, 2009, it reversed
amending the LGC which increased the income the ruling. Then again, on August 24, 2010, it decided to
requirement for the conversion of municipalities into uphold the 2008 ruling. And finally, on April 12, 2011 it
cities, from P20M to P100M. Congress deliberated on upheld the constitutionality of the creation of the 16 new
exempting the municipalities mentioned earlier from the cities.
new income requirement, yet, no concrete action came
out of such deliberations. ---
Q: May Congress validly delegate to the ARMM
Through their respective sponsors, the municipalities Regional Assembly the power to create provinces,
filed individual cityhood bills containing a common cities, and municipalities within the ARMM pursuant
proviso exempting them from the new income to Congress’s plenary legislative powers?
requirement. The Congress approved the same.
Concerned parties protested that such laws allowed a A: IT DEPENDS. There is no provision in the
“wholesale conversion” of municipalities and is
therefore unconstitutional. The

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Constitution that conflicts with the delegation to between the entitlement of a city to a district, on one
regional legislative bodies of the power to create hand, and the entitlement of a province to a district on
municipalities and barangays. However, the creation of the other. For while a province is entitled to at least a
provinces and cities is another matter. Only Congress representative, with nothing mentioned about
can create provinces and cities, because the creation of population, a city must first meet a population minimum
the same necessarily includes the creation of legislative of 250,000 in order to be similarly entitled (Aquino and
districts, a power only Congress can exercise under Sec. Robredo v. COMELEC, G.R. No. 189793, April 7, 2010).
5 Art. VI of the Constitution and Sec. 3 of the Ordinance
appended to it. ---
---
The ARMM Regional Assembly cannot enact a law Q: Sec. 461 of the LGC provides that before a province
creating a national office like the office of a district could be created, it must comply with the 2000-km land
representative of Congress because the legislative area requirement. Art. 9(2) of the LGC-IRR, however,
powers of the ARMM Regional Assembly operate only exempts the creation of provinces with more than one
within its territorial jurisdiction as provided in Sec. 20 island from the said land area requirement. Thus,
Art. X of the Constitution. (Sema v. COMELEC, G.R. No. Dinagat Province – consisting of more than one island,
177597, July 16, 2008) with a total land area of 802.12 sq. km, and has an
--- average annual income of P82 M as certified by the
--- Bureau of Local Government Finance– was created
Q: Congress enacted a law creating the legislative district of through a law pursuant to the exception expressly
Malolos based on a certification of the demographic provided in the said LGC-IRR provision. Is the creation of
projection from NSO stating that by 2010, Malolos is Dinagat Province valid?
expected to reach the population of 250,000, hence entitling
it to one legislative district. Is the law valid? A: YES. When the exemption was expressly provided in Art.
9(2) of the LGC-IRR, the inclusion was intended to correct
A: NO. Congress cannot establish a new legislative district the congressional oversight in Sec. 461 of the LGC and to
based on a projected population of the National Statistics Office reflect the true legislative intent, which is to allow an
(NSO) to meet the population requirement of the Constitution in exception to the land area requirement in cases of non-
the reapportionment of legislative districts. contiguity also as regards to provinces especially
considering the physical configuration of the Philippine
A city that has attained a population of 250,000 is archipelago. The land area requirement should be read
entitled to a legislative district only in the “immediately together with the territorial contiguity, whereas the land
following election.” In short, a city must first attain the area, while considered as an indicator of viability of LGU, is
250,000 population, and thereafter, in the immediately not conclusive in showing that Dinagat Province cannot
following election, such city shall have a district become a province taking into account its average annual
representative. There is no showing in the present case income. Hence, the basic services to its constituents has been
that the City of Malolos has attained or will attain a proven possible and sustainable making Dinagat Province
population of 250,000, whether actual or projected, ready and capable of becoming a province. (Navarro v.
before May 10, 2010 elections. Thus, the City of Malolos Executive Secretary, G.R. No. 180050, April 12, 2011)
is not qualified to have a legislative district of its own
under Sec. 5(3), Art. VI of the 1987 Constitution and Sec In exempting provinces composed of one or more islands
3 of the Ordinance appended to the 1987 Constitution. from both the contiguity and land area requirements,
(Aldaba v. COMELEC, G.R. No. 188078, January 25, 2010) Article 9 of the IRR cannot be considered inconsistent
--- with the criteria under Section 461 of the Local
--- Government Code. Far from being absolute regarding
Q: Congress enacted a law reapportioning the composition application of the requirement of a contiguous territory
of the Province of Camarines Sur and created legislative of at least 2,000 square kilometers as certified by the
districts thereon. Frankie challenged the law because it runs Land Management Bureau, Section 461 allows for said
afoul to the constitutional requirement that there must be at exemption by providing, under paragraph (b) thereof,
least a population of 250,000 to create a legislative district. that the territory need not be contiguous if (the new
COMELEC argued that the mentioned requirement does not province) comprises two or more islands or is separated
apply to provinces. Is the 250,000 population standard an by a chartered city or cities which do not contribute to
indispensable requirement for the creation of a legislative the income of the province. For as long as there is
district in provinces? compliance with the income requirement, the legislative
intent is, after all, to the effect that the land area and
A: NO. Sec. 5(3), Art. VI of the 1987 Constitution which population requirements may be overridden by the
requires 250,000 minimum population apply only for a city to be established economic viability of the proposed province.
entitled to a representative but not for a province. (2014 Bar)
---
The provision draws a plain and clear distinction ---
Q: Congress passed a law providing for the
apportionment of a new legislative district in CDO City.
COMELEC subsequently issued a resolution
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implementing said law. Zander now assails the 10, Art. X of the Constitution?
resolution, contending that rules for the conduct of a
plebiscite must first be laid down, as part of the A: YES. While conversion to an HUC is not explicitly
requirements under the Constitution. According to provided in Sec. 10, Art. X of the Constitution, the Court
Zander, the apportionment is a conversion and nevertheless observes that the conversion of a
division of CDO City, falling under Sec. 10 Art. X of the component city into an HUC is a substantial alteration of
Constitution, which provides for the rule on creation, boundaries.
division, merger, and abolition of LGUs. Decide.
“Substantial alteration of boundaries” involves and
necessarily entails a change in the geographical
A: There is no need for a plebiscite. CDO City politically configuration of LGU or units. However, the phrase
remains a single unit and its administration is not divided “boundaries” should not be limited to the mere physical
along territorial lines. Its territory remains whole and intact. one, referring to the metes and bounds of the LGU, but
Thus, Sec. 10, Art. X of the Constitution does not come into also to its political boundaries. It also connotes a
play. modification of the demarcation lines between political
subdivisions, where the LGU’s exercise of corporate
No plebiscite is required for the apportionment or power ends and that of the other begins. And as a
reapportionment of legislative districts. A legislative qualifier, the alteration must be “substantial” for it to be
district is not a political subdivision through which within the ambit of the constitutional provision. (Umali
functions of government are carried out. It can more v. COMELEC, G.R. No. 203974, April 22, 2014)
appropriately be described as a representative unit that ---
merely delineates the areas occupied by the people who
will choose a representative in their national affairs. A NOTE: It is the duty of the President to declare a city as
plebiscite is required only for the creation, division, highly urbanized after it shall have met the minimum
merger, or abolition of local government units. requirements, upon proper application and ratification
(Bagabuyo v. COMELEC, G.R. No. 176970, December 8, in a plebiscite by qualified voters therein (Sec. 453, LGC).
2008) The provision makes it ministerial for the President,
--- upon proper application, to declare a component city as
--- highly urbanized once the minimum requirements,
Q: The Municipality of Dagupan was converted into the which are based on certifiable and measurable indices
City of Dagupan by virtue of Act No. 170. However, before under Sec. 452 of LGC, are satisfied. The mandatory
the government of the city was organized, the government language “shall” used in the provision leaves the
of the Municipality of Dagupan continued to act as a President with no room for discretion. (Ibid.)
municipality. Are the acts of the municipality considered to
be acts of the city? Requirements for division and merger of LGUs

A: NO. After Act No. 170 which created the City of 1. It shall not reduce the income, population or land
Dagupan took effect and before the organization of the area of the LGU/s concerned to less than minimum
government of the City of Dagupan, the political subdivision requirements prescribed;
which comprises the territory of the Municipality of 2. Income classification of the original LGU/s shall not
Dagupan continued to act as a municipality because the fall below its current income classification prior to
government of the city had not yet been organized and the division (LGC, Sec. 8);
other officers thereof appointed or elected. The conversion 3. Plebiscite be held in LGUs affected (LGC, Sec. 10);
of that municipality into a city did not make ipso facto the 4. Assets and liabilities of the municipality/ies affected
acts of the elected officials of the said municipality the acts of by such organization or creation of a new municipality
the City of Dagupan because the latter can only act as a city shall be equitably distributed between the LGUs affected
through the city officers designated by law after they have and new LGU. [RA 688, Sec. 1 (3)]
been appointed or elected and have qualified. In the
meantime or during the period of transition, the
Municipality had to function temporarily as such; otherwise NOTE: When a municipal district of other territorial
there would be chaos or no government at all within the divisions is converted or fused into a municipality all
boundaries of the territory. The status of the Municipality property rights vested in original territorial organization
may be likened to that of a public officer who cannot shall become vested in the government of the
abandon his office although the successor had already been municipality. [RA 688, Sec. 1 (4)]
appointed, and has to continue his/her office whatever
length of time the interregnum, until the successor qualifies Abolition of LGU
or takes possession of the office. (Mejia v. Balolong, G.R. No.
L-1925, September 16, 1948) LGUs may be abolished by:
--- 1. Congress – In case of provinces, city, municipality, or
--- any other political subdivision.
Q: Is the conversion of a component city to a highly 2. Sangguniang Panlalawigan or Sangguniang
urbanized city considered within the ambit of “creation, Panlungsod – In case of a barangay
division, merger, abolition or substantial alteration of
boundaries” under Sec. XPN: Metropolitan Manila area and in cultural
communities.

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When RA 7720 upgraded the status of XYZ City from a

LGUs may be abolished when its income, population, or municipality to an independent component city, it
land area has been irreversibly reduced to less than the required the approval of its people through a plebiscite
minimum standards prescribed for its creation, as called for that purpose because the consent of the people
certified by the national agencies in Sec. 17 to Congress serves as a checking mechanism to any exercise of
or to the sanggunian concerned. The law or ordinance legislative power. Hence, there is no reason why the
abolishing a LGU shall specify the province, city, same should not be done when RA 8528 downgrades the
municipality, or barangay with which the LGU sought to status of their city. The rules cover all conversions,
be abolished will be incorporated or merged. (LGC, Sec. whether upward or downward so long as the result is a
9) material change in the LGU directly affected. (Miranda v.
Aguirre, G.R. No. 133064, September 16, 1999)
Required vote on creation, division, merger, abolition, ---
or substantial alteration of boundaries of LGUs ---
Q: BP Blg. 885 was enacted creating a new province in
Majority of the votes cast in a plebiscite called for the the island of Negros to be known as the Province of
purpose in the political unit or units directly affected. Negros del Norte. Pursuant to such, the COMELEC
conducted a plebiscite. Petitioners opposed this and
NOTE: Said plebiscite shall be conducted by the contended that BP Blg. 885 is unconstitutional and is not
COMELEC within one hundred twenty (120) days from in complete accord with the LGC because the voters of
the date of effectivity of the law or ordinance effecting the parent province of Negros Occidental, other than
such action, unless said law or ordinance fixes another those living within the territory of the new province of
date. (LGC, Sec. 10) Negros del Norte, were not included in the plebiscite.
Are the petitioners correct?
A barangay may officially exist on record and the fact
that nobody resides in the place does not result in its A: YES. The Constitution provides that whenever a province
automatic cessation as a unit of local government. is created, divided or merged and there is substantial
alteration of the boundaries, “the approval of a majority of
Under the LGC of 1991, the abolition of an LGU may be votes in the plebiscite in the unit or units affected” must first
done by Congress in the case of a province, city, be obtained. The creation of the proposed new province of
municipality, or any other political subdivision. In the Negros del Norte will necessarily result in the division and
case of a barangay, except in Metropolitan Manila area alteration of the existing boundaries of Negros Occidental
and in cultural communities, it may be done by the (parent province). Plain and simple logic will demonstrate
Sangguniang Panlalawigan or Sangguniang Panglungsod that two political units would be affected. The first would be
concerned subject to the mandatory requirement of a the parent province of Negros Occidental because its
plebiscite conducted for the purpose in the political units boundaries would be substantially altered. The other
affected. (Sarangani v. COMELEC, G.R. No. 135927, June affected entity would be composed of those in the area
26, 2000) subtracted from the mother province to constitute the
proposed province of Negros del Norte. (Tan v. COMELEC,
--- G.R. No. 73155, July 11, 1986)
Q: Through a plebiscite, RA 7720 took effect and converted ---
Municipality XYZ to an independent component city. RA ---
8528 was later enacted and amended RA 7720 that Q: Prior to R.A. 7675 which converts the Municipality
downgraded XYZ from an independent component city to a of Mandaluyong into a Highly Urbanized City, the
component city without the approval of the people of XYZ in municipalities of Mandaluyong and San Juan belonged to
a plebiscite. Is a plebiscite required when a local only one legislative district. After the law was passed,
government unit is downgraded? the people of Mandaluyong approved of the conversion
of the Municipality of Mandaluyong into a highly
A: YES. Sec. 10, Art. X of the Constitution calls for the people of urbanized city. The turnout at the plebiscite was only
the LGU directly affected to vote in a plebiscite whenever there is 14.41% of the voting population. Nevertheless, there
a material change in their rights and responsibilities. were many who voted "yes" than those who voted "no."
By virtue of these results, RA. 7675 was deemed ratified
They may call the downgrading of XYZ to a component and in effect. Should the people of San Juan participate
city as a mere transition but they cannot blink away from in the plebiscite on whether to convert Mandaluyong
the fact that the transition will radically change its into a highly urbanized city?
physical and political configuration as the rights and
responsibilities of its people. As such, the city mayor will A: NO. The principal subject involved in the plebiscite was
be placed under the administrative supervision of the the conversion of Mandaluyong into a highly urbanized city.
provincial governor; the resolutions and ordinances of The matter of separate district representation was only
the city council will have to be reviewed by the ancillary thereto. Thus, the inhabitants of San Juan were
Provincial Board; taxes collected by the city will have to properly excluded from the said plebiscite as they had
be shared with the province; and there would be a nothing to do with the change of status of neighboring
reduction in their IRA. Thus, the changes are substantial. Mandaluyong. (Tobias et al. v. Abalos, G.R. No. L-114783,
December 8, 1994)

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 LOCAL GOVERNMENTS

--- development. But to enable the country to develop as a

whole, the programs and policies effected locally must
NOTE: When an inquiry is focused on the legal existence be integrated and coordinated towards a common
of a body politic, the action is reserved to the State in a national goal. (Pimentel Jr. v. Aguirre, G.R. No. 132988,
proceeding for quo warranto, which must be timely filed, July 19, 2000)
or any other direct proceeding which must be brought in
the name of the Republic. (Municipality of San Narciso v. Decentralization
Mendez, G.R. No. 103702, December 6, 1994)
Decentralization is a decision by the central government
authorizing its subordinates, whether geographically or
PRINCIPLES OF LOCAL AUTONOMY functionally defined, to exercise authority in certain areas. It
involves decision-making by sub-national units. It is
typically delegated power, wherein a larger government
Local autonomy means a more responsive and chooses to delegate certain authority to more local
accountable local government structure instituted governments. (Disomangcop v. Secretary of Public Works
through a system of decentralization. Autonomy does not
contemplate making mini-states out of local government and Highways, G.R. No. 149848, November 25, 2004)
units, as in the federal governments of the USA.
Autonomy, in the constitutional sense, is subject to the Forms of Decentralization: Deconcentration and
guiding star, though not control, of the legislature, albeit Devolution
the legislative responsibility under the Constitution and
as the “supervision clause” itself suggest, is to wean local Deconcentration Devolution
government units from over-dependence on the central It is administrative in It connotes political
government. nature and involves the decentralization, or the
transfer of functions or the transfer of powers,
Autonomy, however, is not meant to end the relation of delegation of authority and responsibilities, and
partnership and interdependence between the central responsibility from the resources for the
administration and local government units. Local national office to the performance of certain
governments, under the Constitution, are subject to regional and local office. functions from the central
regulation, however limited, and for no other purpose government to the local
than precisely, albeit paradoxically, to enhance self- This is also referred to as government units. This is a
government. (Ganzon v. Court of Appeals, G.R. No. 93252, administrative more liberal form of
August 5, 1991) decentralization. decentralization since
there is actual transfer of
Forms of Local Autonomy: Decentralization of powers and
Administration and Decentralization of Power responsibilities.

Decentralization of Decentralization of NOTE: Devolution aims to grant greater autonomy to

Administration Power local government units in cognizance of their right to
The central government Involves abdication, by the self-government, to make them self-reliant, and to
merely delegates national government, of improve their administrative and technical capabilities.
(Disomangcop v. Secretary of Public Works and Highways,
administrative powers to political power in favor of
G.R. No. 149848, November 25, 2004)
political subdivisions in LGUs declared to be
order to broaden the base autonomous. The Consequences of Devolution
of the government power, autonomous government
and incidentally making becomes accountable not 1. The devolution shall include the transfer to the LGU
LGUs more responsive and to the central authorities the records, equipment, and other assets and personnel of
accountable. but to its constituency national agencies and offices corresponding to the
devolved powers, functions, and responsibilities.
(Limbona v. Mangelin, G.R.
2. Personnel of said national agencies or offices shall be
It relieves the central No .80391, February 28, absorbed by the LGUs to which they belong or in whose
government of the burden 1989). areas they are assigned to the extent that it is
of managing local affairs administratively viable.
and enables it to
concentrate on national NOTE: The rights accorded to such personnel
concerns. pursuant to civil service law, rules and regulations
shall not be impaired.

3. Regional directors who are career executive service

officers and other officers of similar rank in the said
Scope of Delegated Power regional offices who cannot be absorbed by the LGU shall
be retained by the national government,
Under the Philippine concept of local autonomy, only
administrative powers over local affairs are delegated to
political subdivisions. In turn, economic, political and
social developments at the smaller political units are
expected to propel social and economic growth and
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without any diminution of rank, salary or tenure. regular head. (Plaza II and Tuazon v. Cassion, G.R. No.
[LGC, Sec. 17 (i)] 136809, July 27, 2004)
---
NOTE: The LGC did not fully devolve the enforcement of ---
the small-scale mining law to the provincial government, Q: When can the local chief executive choose not to
as its enforcement is subject to the supervision, control absorb a national government agency personnel?
and review of the DENR, which is in charge, subject to
law and higher authority, of carrying out the State's A: Absorption is mandatory on the part of the local chief
constitutional mandate to control and supervise the executive and incumbent upon the personnel absorbed.
exploration, development, utilization of the country's The word “shall” is used both in Sec. 17 (i) of LGC, and
natural resource. (League of Provinces of the Philippines Sec. 2 (a)(2) of EO. 503, which connotes a mandatory
v. DENR, G.R. 175368, April, 11, 2013) order.

--- The only instance that the LGU concerned may choose
Q: Before the passage of RA. 7160, the task of delivering not to absorb the NGA personnel is when absorption is
basic social services was dispensed by the national not administratively viable, meaning, it would result
government through the DSWD. Upon the promulgation and to duplication of functions. However, in the absence of
implementation of the LGC, some of the functions of the the recognized exception, devolved permanent
DSWD were transferred to the LGUs. Mayor Plaza II signed a personnel shall be automatically reappointed (Sec.
MOA for the Devolution of the DSWD to the City of Butuan. 2(12), EO 503) by the local chief executive concerned
DSWD’s services, personnel, assets and liabilities, immediately upon their transfer which shall not go
and technical support systems were transferred to beyond June 30, 1992. (CSC v. Yu, G.R. No. 189041, July
its city counterpart. By virtue of the MOA, Mayor 31, 2012)
Plaza issued EO. 06-92 reconstituting the City Social ---
Services Development Office (CSSDO), devolving or
adding thereto 19 national DSWD employees, its
office was transferred from the original CSSDO POWERS OF LOCAL GOVERNMENTS
building to the DSWD building.

Aida, Lorna and Fe refused to recognize Joaquin as Sources of powers of a municipal corporation
their new head and to report at the DSWD building. 1. Constitution
They contended that the issuance of EO. 06-92 by 2. Statutes (e.g. LGC)
Mayor Plaza and the designation of Joaquin as 3. Charter
Officer -in-charge of the CSSDO are illegal. Despite 4. Doctrine of right to self-government
Mayor Plaza’s series of orders to Aida, Lorna and Fe
to report for work at the DSWD building, they failed Classifications of municipal powers
to do so.
1. Express, implied, inherent
Is Mayor Plaza empowered to issue EO. 06-92 in 2. Government or public, corporate or private
order to give effect to the devolution and have 3. Intramural, extramural
authority over Aida, Lorna and Fe?
NOTE: Extramural powers – Boundaries usually
A: YES. Section 17 of the Local Government Code authorizes the mark the limit for the exercise of the police powers
devolution of personnel, assets and liabilities, records of basic by a municipality. However, in certain instances –
services, and facilities of a national government agency to local the performance of police functions, the
government units. preservation of the public health and acquisition of
Under this Code, the term “devolution” refers to the act territory for water supply – the municipality is
by which the national government confers power and granted police power beyond its boundaries. (Rivera
authority upon the various local government units to v. Campbell, G.R. No. 11119, March 23, 1916)
perform specific functions and responsibilities. As a
consequence, EO. 503 was enacted by then President 4. Mandatory, directory; ministerial, discretionary
Corazon Aquino to govern and ensure the efficient
transfer of responsibilities to the LGU concerned. Section Execution of powers of LGU
2 (g) provides: “The local chief executive shall be
responsible for all devolved functions. He may delegate 1. Where statute prescribes the manner of exercise,
such powers and functions to his duly authorized procedure must be followed.
representative xxx”. 2. Where the law is silent, LGU has the discretion to select
reasonable means and methods to exercise
It is clear that Mayor Plaza is empowered to issue EO.
06-92 in order to give effect to the devolution decreed by
the LGC. As the local chief executive of Butuan City, Governmental powers of LGU
Mayor Plaza has the authority to reappoint devolved
personnel and may designate an employee to take 1. Police power
charge of a department until the appointment of a
2. Basic services and facilities
3. Power to generate and apply resources

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 LOCAL GOVERNMENTS

4. Power of eminent domain 1. The interests of the public generally, as distinguished

5. Taxing Power from those of a particular class, require the interference
6. Reclassification of Land of the state. (Equal Protection Clause)
7. Local legislative power 2. The means employed are reasonably necessary for the
8. Closure and opening of roads attainment of the object sought to be accomplished and
9. Corporate Powers not duly oppressive. (Due Process Clause)
10. Liability of LGUs
11. Settlement of Boundary Disputes 3. Exercisable only within the territorial limits of the
12. Succession of Local Officials LGU, except for protection of water supply. (LGC, Sec. 16)
13. Discipline of Local Officials 4. Must not be contrary to the Constitution and the
14. Authority over police units laws.

Interpretation of powers of LGUs NOTE: There must be a concurrence of a lawful subject

and lawful method. (Lucena Grand Central v. JAC, G.R. No.
Where a law is capable of two interpretations, one in 148339 February 23, 2005)
favor of centralized power in Malacañ ang and the other
beneficial to local autonomy, the scales must be weighed Tests when police power is invoked as the rationale
in favor of autonomy. (San Juan v. Civil Service for the valid passage of an ordinance
Commission, G.R. No. 92299, April 29, 1991)
1. Rational relationship test – An ordinance must pass
POLICE POWER the requisites as discussed above.
2. Strict scrutiny test – The focus is on the presence of
Nature of the police power of the LGU compelling, rather than substantial, governmental
interest and on the absence of less restrictive means for
The police power of the LGU is not inherent. LGUs achieving that interest. (Fernando v. St.
exercise the police power under the general welfare Scholastica’s College, G.R. No. 161107, March 12, 2013)
clause. (LGC, Sec. 16,)
---
General welfare clause Q: The Sangguniang Panlungsod of Davao City
enacted an ordinance imposing a ban against aerial
LGUs shall exercise powers that are necessary, spraying as an agricultural practice by all agricultural
appropriate, or incidental for its efficient and effective entities within Davao City. Pursuant to the ordinance,
governance, and those which are essential to the the ban against aerial spraying would be strictly
promotion of general welfare. Within their respective enforced three months thereafter. The Pilipino
territorial jurisdiction, LGUs shall ensure and support, Banana Growers and Exporters Association, Inc.
among other things, the preservation and enrichment of (PBGEA) filed a petition in the RTC to challenge the
culture, promote health and safety, enhance the right of constitutionality of the ordinance, alleging that the
the people to a balanced ecology, encourage and support ordinance exemplified the unreasonable exercise of
the development of appropriate and self-reliant scientific police power and violated the equal protection
and technological capabilities, improve public morals, clause. The RTC declared that the ordinance is valid
enhance economic prosperity and social justice, promote and constitutional saying that the City of Davao had
full employment among its residents, maintain peace and validly exercised police power under the General
order, and preserve the comfort and convenience of their Welfare Clause of the Local Government Code and that
inhabitance. (RA 7160, Sec. 16) the ordinance was consistent with the Equal
Protection Clause. On appeal, however, the CA,
Two branches of the General Welfare Clause reversed the judgment of the RTC. Is the ordinance
valid?
1. General Legislative Power – Authorizes the municipal
council to enact ordinances and make regulations not A: NO. Requiring the respondents and other affected
repugnant to law, as may be necessary to carry into effect and individuals to comply with the consequences of the ban
discharge the powers and duties conferred upon the within the three-month period under pain of penalty like
municipal council by law. fine, imprisonment and even cancellation of business
permits would definitely be oppressive as to constitute
2. Police Power Proper – Authorizes the municipality to abuse of police power.
enact ordinances as may be necessary and proper for the
health and safety, prosperity, morals, peace, good order, The ordinance violated the equal protection clause. The
comfort, and convenience of the municipality and its imposition of the ban is too broad because the ordinance
inhabitants, and for the protection of their property. (Rural applies irrespective of the substance to be aerially
Bank of Makati v. Municipality of Makati, July 2, 2004) applied and irrespective of the agricultural activity to be
conducted. Such imposition becomes unreasonable
inasmuch as it patently bears no relation to the
Requisites/limitations for the proper exercise of the purported inconvenience, discomfort, health risk and
police power (IREN) environmental danger which the ordinance seeks to
address. The burden will now become more onerous to

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various entities, including those with no connection empowered the mayor to order the closure and removal
whatsoever to the intended purpose of the ordinance. of illegally constructed establishments for failing to
(Mosqueda vs. Pilipino Banana Growers & Exporters secure the necessary permits.
Assoc., G.R. No. 189185 & 189305, August 16, 2016)
--- In the case at bar, Boracay West Cove admittedly failed to
secure the necessary permits, clearances, and
Ministerial duty of the Local Chief Executive exemptions before the construction, expansion, and
operation of Boracay West Cove’s hotel in Malay, Aklan.
The LGC imposes upon the city mayor, to “enforce all laws To recall, Boracay West Cove declared that the
and ordinances relative to the governance of the city.” As application for zoning compliance was still pending with
the chief executive of the city, he has the duty to enforce the office of the mayor even though construction and
an ordinance as long as it has not been repealed by the operation were already ongoing at the same time. As
Sanggunian or annulled by the courts. He has no other such, it could no longer be denied that it openly violated
choice. It is his ministerial duty to do so. (Social Justice Municipal Ordinance 2000-131. (Aquino v. Municipality of
Society v. Atienza, Jr., G.R. No. 156052, March 7, 2007) Malay, Aklan, G.R. No. 211356, September 29, 2014)
---
Abatement of nuisance without judicial proceeding
NOTE: Based on law and jurisprudence, the office of the
The abatement of nuisances without judicial proceedings mayor has quasi-judicial powers to order the closing and
applies to nuisance per se or those which affect the demolition of establishments. This power granted by the
immediate safety of persons and property and may be LGC, is not the same power devolved in favor of the LGU
summarily abated under the undefined law of necessity. under Sec. 17 (b)(2)(ii), which is subject to review by the
(Tayaban v. People, G.R. No. 150194, March 6, 2007) DENR. The fact that the building to be demolished is
located within a forestland under the administration of
the DENR is of no moment, for what is involved herein,
The LGUs have no power to declare a particular thing as a strictly speaking, is not an issue on environmental
nuisance unless such a thing is a nuisance per se; nor can protection, conservation of natural resources, and the
they effect the extrajudicial abatement of a nuisance per maintenance of ecological balance, but the legality or
accidens. Those things must be resolved by the courts in illegality of the structure. Rather than treating this as an
the ordinary course of law. (AC Enterprises, Inc. v. environmental issue then, focus should not be diverted
Frabelle Properties Corp., G.R. No. 166744, November 2, from the root cause of this debacle-compliance. (Aquino
2006) v. Municipality of Malay, Aklan, supra.)

--- Powers deemed implied in the power to grant

Q: The Mayor of Malay, Aklan ordered through Executive permits and licenses
Order No. 10 the demolition of the Boracay West Cove Resort
and Hotel without first conducting judicial proceedings on the Power to issue licenses and permits include power to
ground that the said hotel was built on a "no build zone" as revoke, withdraw or restrict through the imposition of
demarcated in Municipal Ordinance 2000-131. The owner of certain conditions. However, the conditions must be
the Boracay West Cove imputed grave abuse of discretion on the reasonable and cannot amount to an arbitrary
part of the Mayor. Is the owner correct? interference with the business. (Acebedo Optical
Company, Inc. v. CA, G.R. No. 100152, March 31, 2000)
A: NO. Generally, LGUs have no power to declare a particular
thing as a nuisance unless such a thing is a nuisance per se. Object of the permit requirement
Despite the hotel’s classification as a nuisance per accidens,
however, We still find in this case that the LGU may nevertheless The object of the permit requirement is the proper
properly order the hotel’s demolition. This is because, in the supervision of the enumerated businesses, trades or
exercise of police power and the general welfare clause, property occupation.
rights of individuals may be subjected to restraints and burdens
in order to fulfill the objectives of the government. NOTE: The issuance of permits and licenses is a function
Otherwise stated, the government may enact legislation of the local chief executive.
that may interfere with personal liberty, property, lawful
businesses and occupations to promote the general
welfare. License/permit to do business vs. License to engage
in a profession
One such piece of legislation is the LGC, which authorizes
city and municipal governments, acting through their
local chief executives, to issue demolition orders. Under License/Permit To Do License to Engage in a
existing laws, the office of the mayor is given powers not Business Profession
only relative to its function as the executive official of the
town; it has also been endowed with authority to hear Granted by the local Board or Commission
issues involving property rights of individuals and to authorities. tasked to regulate the
come out with an effective order or resolution thereon. particular profession.
Pertinent herein is Sec. 444 (b)(3)(vi) of the LGC, which

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 LOCAL GOVERNMENTS

Authorizes the person to Authorizes a natural in no case shall walls and fences be built within the
engage in the business or person to engage in the five meter parking area allowance located between
some form of commercial practice or exercise of his the front monument line and the building line of
activity. or her profession. commercial and industrial establishments and
educational and religious institutions. Is the
ordinance valid?
--- A: NO. It has long been settled that the State may not,
Q: Acebedo Optical Company applied with the Office under the guise of police power, permanently divest
of the City Mayor of Iligan for a business permit. The City owners of the beneficial use of their property solely to
Mayor issued such permit subject to special conditions preserve or enhance the aesthetic appearance of the
that the company cannot put up an optical clinic but only community. Compelling the respondents to construct
a commercial store; it cannot examine patients and their fence in accordance with the assailed ordinance is,
prescribe glasses; and it cannot sell eyeglasses without a thus, a clear encroachment on their right to property,
prescription from an independent optometrist. Samahan which necessarily includes their right to decide how best
ng Optometrist ng Pilipinas lodged a complaint against to protect their property. (Fernando v. St. Scholastica's
Acebedo for violating the conditions which resulted in College, G.R. No. 161107, March 12, 2013)
the revocation of its permit. Did the City Mayor have the ---
authority to impose special conditions in the grant of the ---
business permit? Q: Can the City Mayor of Manila validly take custody
of several women of ill repute and deport them as
A: NO. Police power is essentially regulatory in nature laborers without knowledge and consent to the said
and the power to issue license or grant business permits, if deportation?
for a regulatory purpose, is within the ambit of this power.
This power necessarily includes the power to revoke and to A: NO. One can search in vain for any law, order, or
impose conditions. However, the power to grant or issue regulation, which even hints at the right of the Mayor of
licenses or business permits must always be exercised in the city of Manila or the chief of police of that city to
accordance with law, with utmost observance of the rights of force citizens of the Philippine Islands — and these
all concerned to due process and equal protection of the law. women despite their being in a sense lepers of society
What is sought by Acebedo from the City Mayor is a permit to are nevertheless not chattels but Philippine citizens
engage in the business of running an optical shop. It does not protected by the same constitutional guaranties as are
purport to seek a license to engage in the practice of other citizens — to change their domicile from Manila to
optometry. A business permit is issued primarily to regulate another locality. (Villavicencio v. Lukban, G.R. No. L-
the conduct of business and the City Mayor cannot, through 14639, March 25, 1919)
the issuance of such permit, regulate the practice of a ---
profession. Such a function is within the exclusive domain of ---
the administrative agency specifically empowered by law to Q: May an LGU require customers to fill out a
supervise the profession, in this case the Professional prescribed form stating personal information such
Regulations Commission and the Board of Examiners in as name, gender, nationality, age, address and
Optometry. (Acebedo Optical Company Inc. v. Court of Appeals, occupation before they could be admitted to a motel,
G.R. No. 100152, March 31, 2000) hotel, or lodging house?
---
A: YES. The Ordinance was enacted precisely to
NOTE: However, certain professions may be affected by minimize certain practices hurtful to public morals such
the exercise of police power. An ordinance in Manila was as the increase in the rate of prostitution, adultery and
held not to regulate the practice of massage, much less fornication in Manila traceable in great part to the
restrict the practice of such profession. Instead, the end existence of motels, which "provide a necessary
sought to be obtained was to prevent the commission of atmosphere for clandestine entry, presence and exit" and
immorality under the practice of prostitution in an thus become the "ideal haven for prostitutes and thrill-
establishment masquerading as a massage clinic where seekers". Precisely it was intended to curb the
the operation thereof offers to massage superficial parts opportunity for the immoral or legitimate use to which
of the bodies of customers for hygienic or aesthetic
purposes. (Physical Therapy Organization of the such premises could be and are being devoted. (Ermita-
Philippines v. Municipal Board of Manila, G.R. No. L-10488, Malate Hotel and Motel Operations Association v. City
August 30, 1957) Mayor of Manila, G.R. No. L-24693, July 31, 1967)
---
--- ---
Q: The Sangguniang Panglungsod of Marikina City Q: Mayor Lim signed into law, City Ordinance 7774,
enacted an ordinance “Regulating the Construction of which prohibits short time admission in hotels,
Fences and Walls in the City of Marikina”. The ordinance motels, lodging houses, pension houses and similar
provided, among others, that fences should not be more establishments in the City of Manila to protect public
than 1 meter and fences in excess of 1 meter shall be 80% morals. Pursuant to the above policy, short-time
see-thru. It further provided that admission and rate, wash-up rate or other similarly
concocted terms, are hereby prohibited in hotels,
motels, inns, lodging houses, pension houses and

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similar establishments in the City of Manila. the property for their own purposes, property
Petitioners argued that the Ordinance is owners relinquish the use of the space as an arcade
unconstitutional and void since it violates the right for pedestrians.
to privacy and the freedom of movement; it is an
invalid exercise of police power; and it is an Subsequently, Justice Gancayo sought to be exempted
unreasonable and oppressive interference in their from the application of the ordinance, which the City
business. Is the ordinance valid? Council responded favorably in his favor.

A: NO. Individual rights may be adversely affected only to the MMDA then sent a notice of demolition to Justice
extent that may fairly be required by the legitimate demands of Gancayco, alleging that a portion of his building
public interest or public welfare. However well-intentioned the violates the National Building Code in relation to the
Ordinance may be, it is in effect an arbitrary and whimsical ordinance. Is the Ordinance a valid exercise of police
intrusion into the rights of the establishments as well as their power in regulating the use of property in a business
patrons. The Ordinance needlessly restrains the operation of the zone?
businesses of the petitioners as well as restricting the rights of
A: YES. In the exercise of police power, property rights of
their patrons without sufficient justification. The Ordinance
rashly equates wash rates and renting out a room more than individuals may be subject to restraints and burdens in order to
twice a day with immorality without accommodating innocuous fulfill the objectives of the government. Property rights must
bow down to the primacy of police power because it must yield
intentions. (White Light Corp., v. City of Manila, G.R. No. 122846,
January 20, 2009) to the general welfare. It is clear that the objective of the
ordinance were the health and safety of the city and its
--- inhabitants. At the time he ordinance was passed, there was no
--- national building code, thus there was no law which prohibits
Q: The Sangguniang Panlungsod of Pasay City passed an the city council from regulating the construction of buildings,
ordinance requiring all disco pub owners to have all their arcades and sidewalks in their jurisdiction. (Gancayco v. City
hospitality girls tested for the AIDS virus. Both disco pub Government of Quezon City, G.R. No. 177807, Oct. 11, 2011)
owners and the hospitality girls assailed the validity of the ---
ordinance for being violative of their constitutional rights to ---
privacy and to freely choose a calling or business. Is the Q: Rivera was found washing her clothing near the
ordinance valid? Explain. (2010 Bar) Santolan pumping station near Boso-Boso dam.
Rivera’s act of washing clothing interfered with the
A: YES. The ordinance is a valid exercise of police power. The right purity of the water which was supplied to Manila by
to privacy yields to certain paramount rights of the public and defers the Santolan pumping station. She was charged with
to the exercise of police power. The ordinance is not prohibiting the violation of Sec. 4(f) of Ordinance No. 149 which
disco pub owners and the hospitality girls from pursuing their prohibited washing of garments in the waters of any
calling or business but is merely regulating it. (Social Justice Society river or water course. Manila’s municipal board
v. Dangerous Drugs Board, G.R. No. 157870, Nov. 3, 2008) adopted the same section by virtue of the Acts of the
--- Philippine Commission and was authorized to purify
the source of water supply as well as the drainage
This ordinance is a valid exercise of police power, because area of such water supply. Rivera contented that the
its purpose is to safeguard public health. (Beltran v. municipal court of the City of Manila and the Court of
Secretary of Health, G.R. No. 133640, November 25, 2005) First Instance of the City of Manila had no
jurisdiction to try her for the crime committed. Does
NOTE: Municipal corporations cannot prohibit the the CFI of Manila have jurisdiction over the offense,
operation of night clubs. They may be regulated, but not considering that the washing of clothes was in the
prevented from carrying on their business. (Dela Cruz v. Mariquina River?
Paras, G.R. Nos. L-42571-72, July 25, 1983)
A: YES. Boundaries usually mark the limit for the
--- exercise of the police powers by the municipality.
Q: The Quezon City Council issued Ordinance 2904 which However, in certain instances – the performance of
requires the construction of arcades for commercial buildings police functions, the preservation of public health and
to be constructed in zones designated as business zones in the acquisition of territory for water supply – the
zoning plan of Quezon City, along EDSA. However, at the time municipality is granted police power beyond its
the ordinance was passed there was yet no building code boundaries. The Santolan pumping station is a part of the
passed by the legislature. Thus, the regulation of the public water supply of Manila with water taken from that
construction of the buildings are left to the discretion of the part of the Mariquina River, in the waters of which
LGUs. Under this ordinance, the city council required that the Rivera washed clothes. Public water supply is not limited
arcade is to be created, in a way, that building owners are not to water supply owned and controlled by a municipal
allowed to construct his wall up to the edge of the property line, corporation, but should be construed as meaning a
thereby creating a space under the first floor. In effect, instead supply of water for public and domestic use, furnished or
of using to be furnished from water works. The provisions of the
Ordinance No. 149 would be meaningless and absurd if
made applicable only to the Santolan pumping station
and not to that part of the Mariquina River immediately
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2017 GOLDEN NOTES
 LOCAL GOVERNMENTS

above it and from which the pumping station draws 1. An Ordinance is enacted by the local legislative
water for the use of the inhabitants of the City of Manila. council authorizing the local chief executive, in
(Rivera v. Campbell, G.R. No. L-11119, March 23, 1916) behalf of the LGU, to exercise the power of eminent
--- domain or pursue expropriation proceeding over a
--- particular private property.
Q: The Sanggunian of Cagayan De Oro enacted 2. It must be for Public use, purpose or welfare or for
Ordinance No. 3353 prohibiting the issuance of business the benefit of the poor or landless
permits and cancelling existing business permits for the
operation of casinos; and Ordinance No. 3375-93, NOTE: Property already devoted to public use may
prohibiting the operation of a casino. Z assailed the not be taken for another public use. (City of Manila
validity of the ordinances on the ground that both v. Chinese Community of Manila, G.R. No. L-14355,
violated P.D. 1869 which permits the operation of October 31, 1919)
casinos, centralized and regulated by PAGCOR. The
Sanggunian, however, contended that pursuant to the 3. There must be payment of just Compensation
LGC, they have the police power to prohibit the 4. A valid and definite Offer has been previously made
operations of casinos for the general welfare. Was there to the owner of the property sought to be expropriated,
a valid exercise of police power? but said offer was not accepted. (Municipality of
Paranaque v. V.M. Realty Corporation, G.R. No. 127820.
A: NO. PD 1869 creating the PAGCOR expressly July 20, 1998)
authorized it to centralize and regulate all games of chance
including casinos. This has not been amended by the LGC Due process requirements in eminent domain
which empowers LGUs to prevent or suppress only those (PRP)
forms of gambling prohibited by law. Casino gambling is,
however, authorized under PD 1869. This decree has the Offer must be in writing specifying:
status of a statute that cannot be annulled or amended by a 1. Property sought to be acquired
mere ordinance. PAGCOR can set up casinos with or without 2. The reason for the acquisition
the consent of the host local government. (Magtajas v. Pryce 3. The price offered
Properties and PAGCOR, G.R. No. 111097, July 20, 1994)
--- NOTE:
1. If owner accepts offer: a contract of sale will be
EMINENT DOMAIN executed.
(2005, 2010 Bar) 2. If owner accepts but at a higher price: Local chief
executive shall call a conference for the purpose of
Local government units have no inherent power of reaching an agreement on the selling price; If agreed,
eminent domain. Local governments can exercise such contract of sale will be drawn. (Implenting Rules and
power only when expressly authorized by the Regulations of LGC, Art. 35)
Legislature. By virtue of the Local Government Code,
Congress conferred upon local government units the Elements for an authorized immediate entry
power to expropriate (Masikip v. City of Pasig, G.R. No.
136349, January 23, 2006). 1. Filling of a complaint for expropriation which is
sufficient in form and substance
However, while the power of eminent may be validly 2. Deposit of the amount equivalent to fifteen percent
delegated to LGUs, the exercise of such power by the (15%) of the fair market value of the property to be
delegated entities is not absolute. The scope of such expropriated based on its current tax declaration.
delegated power is narrower than that of the delegating
authority and may be exercised only when authorized by
Congress, subject to its control and the restraints NOTE: Upon compliance, the issuance of writ of
imposed through the law conferring the power. Strictly possession becomes ministerial. (City of Iloilo v. Legaspi,
speaking, the power of eminent domain delegated to an G.R. No. 154614, Nov. 25, 2004)
LGU is in reality not eminent but “inferior”. The national
legislature is still the principal of the LGUs, and the latter Phases of expropriation proceedings
cannot go against the principal’s will or modify the same.
(Beluso v. Municipality of Panay, G.R. No. 153974, August 1. The determination of the authority of the plaintiff to
7, 2006) exercise the power of eminent domain and the propriety
of its exercise in the context of the facts involved in the
NOTE: LGUs may, through its local chief executive and suit.
acting pursuant to an ordinance, exercise power of
eminent domain for public use, or purpose, or welfare for NOTE: It ends with an order, if not dismissal of
the benefit of the poor and the landless, upon payment of action, of condemnation declaring that the plaintiff
just compensation. (LGC, Sec. 19) has a lawful right to take the property sought to be
condemned, for the public use or purpose described
Requisites for the valid exercise of the power of in the complaint, upon the payment of just
eminent domain (OPO) compensation to be determined as of the date of the
filing of the complaint.

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An order of dismissal, if this be ordained, would be a the particular property to be expropriated must be
final one, since it finally disposes of the action and necessary, does not mean an absolute, but only a
leaves nothing more to be done by the Court on the reasonable or practical necessity, such as would combine
merits. The order of condemnation shall be a final the greatest benefit to the public with the least
one, as the Rules expressly state, in the proceedings inconvenience and expense to the condemning party and
before the Trial Court, no objection to the exercise of the property owner consistent with such benefit.
the right of condemnation (or the propriety thereof) (Masikip v. City of Pasig, G.R. No. 136349, Jan. 23, 2006)
shall be filed or heard.

2. The determination by the RTC of the just compensation for ---

the property sought to be taken. Q: May LGUs expropriate a property to provide a right-
of-way to residents of a subdivision?
This is done by the Court with the assistance of not
more than three (3) commissioners. The order A: NO. Considering that the residents who need a feeder
fixing the just compensation on the basis of the road are all subdivision lot owners, it is the obligation of the
evidence before, and findings of, the commissioners subdivision owner to acquire a right-of-way for them.
would be final. It would finally dispose of the second However, the failure of the subdivision
stage of the suit, and leave nothing more to be done owner to provide an access road does not shift the
by the Court regarding the issue. (Brgy. San Roque, burden to the LGU concerned. To deprive respondents of
Talisay, Cebu v. Hrs. of Francisco Pastor, G.R. No. their property instead of compelling the subdivision
138896, June 20, 2000) owner to comply with his obligation under the law is an
abuse of the power of eminent domain and is patently
NOTE: LGU’s prolonged occupation of private property illegal. Worse, the expropriation will actually benefit the
without the benefit of expropriation proceedings entitles subdivision’s owner who will be able to circumvent his
the landowner to damages. (City of Iloilo v. Judge commitment to provide road access to the subdivision in
Contreras-Besana, G.R. No. 168967, February 12, 2010) conjunction with his development permit and license to
sell from the Housing and Land Use Regulatory Board,
Satisfaction of “public use” requirement and also be relieved of spending his own funds for a
right-of-way. (Barangay Sindalan v. CA G.R. No. 150640,
In cases where only a few could actually benefit from the March 22, 2007)
expropriation of the property does not diminish its ---
public use character. It is simply not possible to provide ---
for all at once, land and shelter, for all who need them. Q: Municipality of Panay issued resolutions authorizing
Corollary to the expanded notion of public use, the municipal government through the Mayor to initiate
expropriation is not anymore confined to vast tracts of expropriation proceedings. A petition for expropriation
land and landed estates. It is therefore of no moment was filed by the Municipality of Panay. Petitioners are the
that the land sought to be expropriated is less than half a owners of parcels of land which is going to be expropriated
hectare only. Through the years, the public use by the LGU. Petitioners argue that such expropriation was
requirement in eminent domain has evolved into a based only on a resolution and not on an ordinance
flexible concept, influenced by changing conditions. contrary to Sec. 19 of LGC. Is the exercise of eminent
Public use now includes the broader notion of indirect domain by the Municipality of Panay valid?
public benefit or advantage including in particular,
urban land reform and housing. (Philippine Columbian A: NO. The LGC expressly requires an ordinance for the
Association v. Panis, G.R. No. L-106528, Dec. 21, 1993) purpose of expropriation, and a resolution which merely
expresses the sentiment of the municipal council will not suffice.
NOTE: The passage of RA 7279, the “Urban Development As respondent's expropriation in this case was based merely on
and Housing Act of 1992” introduced a limitation on the a resolution, such expropriation is clearly defective. While the
size of the land sought to be expropriated for socialized Court is aware of the constitutional policy promoting local
housing. The law expressly exempted “small property autonomy, the court cannot grant judicial sanction to an LGU's
owners” from expropriation of their land for urban land exercise of its delegated power of eminent domain in
reform. (City of Mandaluyong v. Aguilar, G.R. No. 137152, contravention of the very law giving it such power. [Beluso v.
Jan. 29, 2001) Municipality of Panay (Capiz), G.R. No. 153974, Aug. 7, 2006]
---
Satisfaction of “genuine necessity” requirement

The right to take private property for public purposes ---

necessarily originates from “the necessity” and the Q: Spouses Yusay owned a parcel of land, half of which
taking must be limited to such necessity. In City of they used as their residence, and the rest they rented
Manila v. Chinese Community of Manila, it is held that the out to nine other families. Allegedly, the land was their
very foundation of the right to exercise eminent domain only property and only source of income. The
is a genuine necessity and that necessity must be of a Sangguniang Panglungsod of Mandaluyong City adopted
public character. Moreover, the ascertainment of the a resolution authorizing the City Mayor to take the
necessity must precede or accompany and not follow the necessary legal steps for the expropriation
taking of the land. In City of Manila v. Arellano Law
College, the necessity within the rule that

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2017 GOLDEN NOTES
 LOCAL GOVERNMENTS

of the land of the spouses spouses for the purpose of includes destruction, restriction, diminution, or
developing it for low cost housing for the less interruption of the rights of ownership or of the common
privileged but deserving city inhabitants. The and necessary use and enjoyment of the property in a
spouses then filed a petition for certiorari and lawful manner, lessening or destroying its value.
prohibition in the RTC, praying for the annulment of (NAPOCOR v. Hrs. of Macabangkit Sangkay, G.R. No.
the Resolution due to its being unconstitutional, 165828, Aug. 24, 2011)
confiscatory, improper, and without force and effect. ---
The City countered that the Resolution was a mere ---
authorization; hence, the suit of the spouses was Q: Petitioner Himlayang Pilipino filed a petition to
premature. Will the petition for certiorari and annul an ordinance which provides that at least 6%
prohibition prosper? of the total area of every private cemetery shall be
set aside for charity burial grounds of deceased
A: NO. Certiorari did not lie against the Sangguniang paupers. Petitioner alleged that the ordinance is an
Panglungsod, which was not a part of the Judiciary settling invalid exercise of the power of eminent domain as
an actual controversy involving legally demandable and they were not paid just compensation. The City
enforceable rights when it adopted Resolution No. 552, but a government of Quezon City, however, argued that the
legislative and policy-making body declaring its sentiment or ordinance is an exercise of police power, hence, just
opinion. Furthermore, the remedy of prohibition was not compensaition is not necessary. Is the ordinance
called for, considering that only a resolution expressing the valid?
desire of the
Sangguniang Panglungsod to expropriate the petitioners’ A: NO. The power to regulate does not include the power
property was issued. It was premature for the petitioners to prohibit. A fortiori, the power to regulate does not
to mount any judicial challenge, for the power of eminent include the power to confiscate. The ordinance in
domain could be exercised by the City only through the question not only confiscates but also prohibits the
filing of a verified complaint in the proper court. Before operation of a memorial park cemetery. There is no
the City as the expropriating authority filed such verified reasonable relation between the setting aside of at least
complaint, no expropriation proceeding could be said to 6% of the total area of a private cemeteries for charity
exist. Until then, the petitioners as the owners could not burial grounds of deceased paupers and the promotion
also be deprived of their property under the power of of health, morals, good order, safety, or the general
eminent domain. (Spouses Antonio And Fe V. Court Of welfare of the people.
Appeals, City Mayor And City Council Of Mandaluyong
City, G.R. No. 156684, 6 April 2011) Section 9 of the assailed Ordinance is not a mere police
regulation but an outright confiscation. It is not an
--- exercise of police power but eminent domain. It deprives
--- a person of his private property without due process of
Q: NAPOCOR undertook the Agus River law and without payment of just compensation. Instead
Hydroelectric Power Plant Project to generate of building or maintaining a public cemetery for this
electricity for Mindanao. The project included the purpose, the city passes the burden to private
construction of several underground tunnels to be used cemeteries. Police power does not involve the taking or
in diverting the water flow from the Agus River to the confiscation of property with the exception of few cases
hydroelectric plants. Merry, Pippin and Sam belatedly where there is a necessity to confiscate private property
discovered that one of the underground tunnels of in order to destroy it for the purpose of protecting the
NAPOCOR traversed their land. The said underground peace and order and of promoting the general welfare.
tunnel had been constructed without their knowledge (Quezon City v. Ericta, G.R. No. L-34915, June 24, 1983)
and consent. ---
---
Merry, Pippin and Sam now seek for recovery of the Q: The municipal council of Baao, Camarines Sur,
property and damages because according to them, passed an ordinance providing that any person who
the presence of the tunnel deprived them of the will construct or repair a building should before
agricultural, commercial, industrial, and residential doing such, obtain a written permit from the
value of their land. Moreover, according to Merry, Municipal Mayor and if said building destroys the
Pippin and Sam their land had also become an unsafe view of the Public Plaza or occupies any public
place for habitation because of the loud sound of the property, it shall be removed at the expense of the
water rushing through the tunnel and the constant owner of the building or house. X filed a written
shaking of the ground. request for a permit to construct a building on a
parcel of land adjacent to their gasoline station. The
Does the construction of the tunnel constitute taking request was denied because the proposed building
of land which entitles Merry, Pippin and Sam to just would destroy the view or beauty of the public plaza.
compensation? X proceeded with the construction of the building
without a permit because his former house was
A: YES. There was full taking on the part of NAPOCOR, destroyed by a typhoon. X was charged and convicted
notwithstanding that the owners were not completely and of violating the Ordinance for having constructed a
actually dispossessed. Taking of private property for public building that destroys the view of the public plaza
use, to be compensable, need not be an actual physical taking without a mayor’s permit. Is the ordinance valid?
or appropriation. Compensable taking

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domain when there is no law or ordinance requiring

A: NO. The ordinance is unreasonable and oppressive, in private land owners to conform to the proposed
that it operates to permanently deprive appellants of the widening of the street approved by the Urban
right to use their own property; hence, it oversteps the Commission. Where the City has not expropriated the
bounds of police power, and amounts to a taking of strip of land affected by the proposed widening of the
appellants’ property without just compensation. But street, inasmuch as there is no legislative authority to
while property may be regulated in the interest of the establish a building line, the denial of this permit would
general welfare and, in its pursuit, the State may prohibit amount to taking of private property for public use
structures offensive to sight, the State may not, under the under the power of eminent domain without following
guise of police power, permanently divest owners of the the procedure prescribed for the exercise of such power.
beneficial use of their property and practically confiscate The city engineer required to issue the building permit
them solely to preserve or assure the aesthetic upon payment of the fees. (Hipolito v. City of Manila, G.R
appearance of the community. To legally achieve that No. L-3887, Aug. 21, 1950)
result, the municipality must give the owners just ---
compensation and an opportunity to be heard. The
Ordinance was beyond the authority of said municipality TAXING POWER
to enact, and is therefore null and void. (People v.
Fajardo, G.R No. L-12172, Aug. 29, 1958) Nature of the power of taxation of LGUs
---
--- The power to tax is primarily vested in the Congress;
Q: The Philippine Tourism Authority sought the however, in our jurisdiction, it may be exercised by local
expropriation of 282 hectares of rolling land situated legislative bodies, no longer merely by virtue of a valid
in Barangay Alubog and Babag, Cebu City, under an delegation as before, but pursuant to direct authority
express authority to acquire by purchase or by any conferred by Section 5, Article V of the 1987
other means any private land within the tourism Constitution. The exercise of the power may be subject to
zone. Petitioner contended that the taking was not such guidelines and limitations as the Congress may
for public use and that there is no specific provide which, however, must be consistent with the
constitutional provision authorizing the taking of basic policy of local autonomy. (MIAA v. Marcos, G.R. No.
private property for tourism purposes. Is the 120082, Sept. 11, 1996)
contention valid?
NOTE: While the power to tax is inherent in the State,
A: NO. Expropriation by the PTA under PD 564 of land the same is not true for LGUs because although the
owned by the local government for promotion of tourism mandate to impose taxes granted to LGUs is categorical
is a valid exercise of the State’s power of eminent and long established in the 1987 Philippine Constitution,
domain. The concept of public use is not limited to the same is not all encompassing as it is subject to
traditional purposes. Here, as elsewhere, the idea that limitations as explicitly stated in Section 5, Article X of
“public use” is strictly limited to clear cases of “use by the 1987 Constitution. The LGUs’ power to tax is subject
the public” has been discarded. The State’s power of to the limitations set forth under Section 133 of the LGC.
eminent domain extends to the expropriation of land for (Batangas City v. Pilipinas Shell Petroleum Philippines,
tourism purposes although this specific objective is not G.R. No. 187631, July 8, 2015)
expressed in the Constitution. The policy objectives of
the framers can be expressed only in general terms such Rationale for local taxation
as social justice, local autonomy, conservation and
development of the national patrimony public interest, The power of taxation is an essential and inherent
and general welfare, among others. (Heirs of Ardona v. attribute of sovereignty. It is a power that is purely
Reyes, G.R. No. G.R No. L-60549, Oct. 26, 1983) legislative and which the central legislative body cannot
--- delegate to either executive or judicial department
--- without infringing upon the theory of separation of
Q: Sps. Hipolito are the registered owners of a parcel powers. The exception, however, lies in the case of
of land in Santa Ana, Manila. They applied for municipal corporations, to which said theory does not
permission to erect a strong-material residential apply. Legislative powers may be delegated to legislative
building on the lot. For more than forty days, the city governments in respect of matters of local concern. This
engineer took no action. Wherefore, Hipolito wrote is sanctioned by immemorial practice. By necessary
him a letter manifesting his readiness to pay the fee implication, legislative power to create political
and to comply with existing ordinances governing corporations for purposes of local self-government
the issuance of building permits. The engineer carries with it the power to confer on such local
declined to issue the permit as according to the government agencies the power to tax. (Pepsi-Cola
Urban Commission’s Adopted Plan for the Sta. Ana, Bottling Co. v. Municipality of Tanauan, G.R. No. L-31156,
the streets will be widened to the respective widths Feb. 27, 1976)
of 22-m. and 10 m and will affect the proposed
building. Was the engineer correct in not issuing the ARMM’s taxing power
permit?
The ARMM has the legislative power to create sources of
A: NO. The refusal of the city engineer to issue a building revenues within its territorial jurisdiction and subject to
permit to private landowners constitutes eminent

236
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 LOCAL GOVERNMENTS

the provisions of the 1987 Constitution and national Constitution. The LGC specifies further that the release
laws. [1987 Constitution, Art. X, Sec. 20(2)] shall be made directly to the LGU concerned within five
days after every quarter of the year and “shall not be
Power to tax by ordinary LGUs vs. Power to tax by subject to any lien or holdback that may be imposed by
Autonomous Regions the national government for whatever purpose.” As a
rule, the term "shall" is a word of command that must be
given a compulsory meaning. The provision is, therefore,
LGU’s Outside LGU’S Inside imperative. (Pimentel Jr. v. Aguirre, G.R. No. 132988, July
19, 2000)
Basis Autonomous Autonomous
---
Regions Regions ---
Q: In 1993, Cebu City imposed amusement taxes under
Sec. 5, Art. X, 1987 Sec. 20(b), Art. X, Sec. 140 of the LGC and passed “Revised Omnibus Tax
As to Taxing Ordinance of the City of Cebu.” Secs. 42 and 43, Chapter
Constitution 1987 Constitution XI of the city ordinance requires proprietors, lessees or
operators of theatres, cinemas, concert halls, circuses,
Power
boxing stadia, and other places of amusement, to pay an
amusement tax equivalent to 30 percent of the gross
receipts of admission fees. Meanwhile, RA 9167 was
As to LGC of 1991 Respective
enacted on June 7, 2002 creating the Film Development
governing Organic Act Council of the Philippines (FDCP). Secs 13 and 14 of RA
guidelines 9167 provided for the tax treatment of certain graded
and films
limitations — film producers were to be entitled to an incentive
equivalent to the amusement tax imposed and
collected by the cities, subject to various rates
NOTE: Unlike Sec. 5, Art. X, Sec. 20, Art. X of the 1987 depending on the grade of their film, to be remitted
Constitution is not self-executing. It merely authorizes to the FDCP. FDCP had sent demand letters for
Congress to pass the Organic Act of the autonomous unpaid amusement tax reward with five percent
regions which shall provide for legislative powers to levy surcharge for each month of delinquency due to the
taxes upon their inhabitants. producers. The proprietors and cinema operators
refused to remit the amounts as FDCP demanded
Local Fiscal Autonomy while Cebu City insisted on its claim on the amounts
in question. Then, Cebu City filed a petition for
Fiscal autonomy means that local governments have the declaratory relief before RTC, Branch 14, asking it to
power to create their own sources of revenue in addition declare Secs. 13 and 14 of RA 9167 invalid and
to their equitable share in the national taxes released by unconstitutional. Colon Heritage Corporation filed a
the national government, as well as the power to allocate similar petition before the RTC Branch 5, seeking to
their resources in accordance with their own priorities. declare Sec. 14 unconstitutional. The RTC declared
It extends to the preparation of their budgets, and local Secs. 13 and 14 of RA 9167 unconstitutional. The
officials in turn have to work within the constraints RTC said what RA 9167 seeks to accomplish is the
thereof. They are not formulated at the national level and segregation of amusement taxes raised and collected
imposed on local governments, whether they are by Cebu City and its subsequent transfer to FDCP.
relevant to local needs and resources or not. Further, a This, it said, is a confiscatory measure where the
basic feature of local fiscal autonomy is the national government extracts money from the local
constitutionally mandated automatic release of the government’s coffers and transfers it to the FDCP, a
shares of local governments in the national internal private agency, which in turn, will award the money
revenue. (Province of Batangas v. Romulo, G.R. No. to private persons, film producers, for having
152774, May 27, 2004) produced graded films. Is the RTC correct?

NOTE: A “no report, no release” policy may not be validly A: YES. Under RA 9167, covered LGUs still have the power
enforced against offices vested with fiscal autonomy such to levy amusement taxes, albeit at the end of the day, they
as Constitutional Commissions and local governments. will derive no revenue therefrom. The same, however,
The automatic release provision found in the cannot be said for FDCP and the producers of graded films
Constitution means these local governments units cannot since the amounts thus levied by the LGUs which should
be required to perform any act to receive the “just share” rightfully accrue to them, they being the taxing authority-
accruing to them from the national coffers. (Civil Service will be going to their coffers. As a matter of fact, it is only
Commission v. Department of Budget and Management, through the exercise by the LGU of said power that the
G.R. No. 158791, July 22, 2005) funds to be used for the amusement tax reward can be
raised. Without said imposition, the producers of graded
--- films will receive nothing from the owners, proprietors and
Q: The President, through AO 372, ordered the lessees of cinemas operating within the territory of the
withholding of 10% of the LGUs' IRA "pending the covered LGU.
assessment and evaluation by the Development Budget
Coordinating Committee of the emerging fiscal situation" Taking the resulting scheme into consideration, it is
in the country. Is the AO valid?

A: NO. A basic feature of local fiscal autonomy is the

automatic release of the shares of LGUs in the national
internal revenue. This is mandated by no less than the
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apparent that what Congress did in this instance was not provided therein.
to exclude the authority to levy amusement taxes from 5. Each local government unit shall, as far as practicable,
the taxing power of the covered LGUs, but to earmark, if evolve a progressive system of taxation. (LGC, Sec. 130)
not altogether confiscate, the income to be received by
the LGU from the taxpayers in favor of and for Principles governing financial affairs, transactions
transmittal to FDCP, instead of the taxing authority. This and operations of LGUs
is in clear contravention of the constitutional command
that taxes levied by LGUs shall accrue exclusively to said 1. No money shall be paid out of the local treasury except
LGU and is repugnant to the power of LGUs to apportion in pursuance of an appropriation ordinance or law;
their resources in line with their priorities. 2. Local government funds and monies shall be spent
solely for public purposes;
It is a basic precept that the inherent legislative powers of 3. Local revenue is generated only from sources expressly
Congress, broad as they may be, are limited and confined authorized by law or ordinance, and collection thereof shall
within the four walls of the Constitution. Accordingly, at all times be acknowledged properly;
whenever the legislature exercises its power to enact, 4. All monies officially received by a local government
amend, and repeal laws, it should do so without going officer in any capacity or on any occasion shall be accounted
beyond the parameters wrought by the organic law. for as local funds, unless otherwise provided;
5. Trust funds in the local treasury shall not be paid out
In the case at bar, through the application and except in the fulfillment of the purpose for which the trust
enforcement of Sec. 14 of RA 9167, the income from the was created or the funds received;
amusement taxes levied by the covered LGUs did not and 6. Everyofficer of the LGU whose duties permit or require
will under no circumstance accrue to them, not even the possession or custody of local funds shall be properly
partially, despite being the taxing authority therefor. bonded, and such officer shall be accountable and
Congress, therefore, clearly overstepped its plenary responsible for said funds and for the safekeeping thereof in
legislative power, the amendment being violative of the conformity with the provisions of law;
fundamental law's guarantee on local autonomy. (Film 7. Local governments shall formulate sound financial
Development Council of the Philippines v. Colon Heritage plans and local budgets shall be based on functions,
Realty Corporation, G.R. No. 203754, June 16, 2015) activities, and projects in terms of expected results;
---
8. Local budget plans and goals shall, as far as practicable,
Main sources of revenues of LGUs (1991, 1996, 1999, be harmonized with national development plans, goals and
2007 Bar) strategies in order to optimize the utilization of resources
and to avoid duplication in the use of fiscal and physical
1. Taxes, fees, and charges. (1987 Constitution Art. X, Sec. 5) resources.
9. Local budgets shall operationalize approved local
2. Internal Revenue Allotment (IRA) - Just share in the national development plans;
taxes which shall be automatically released to them. (1987 10. LGUs shall ensure that their respective budgets
Constitution Art. X, Sec. 6) incorporate the requirements of their component units and
provide for equitable allocation of resources among these
NOTE: The current sharing is 40% local and 60% component units;
national. The share cannot be reduced except if 11. National planning shall be based on local planning to
there is unmanageable public sector deficit. ensure that the needs and aspirations of the people as
articulated by the LGUs in their respective local
3. Equitable share in the proceeds of the utilization and development plans are considered in the formulation of
development of the national wealth within their areas. (1987 budgets of national line agencies or offices;
Constitution Art. X, Sec. 7) 12. Fiscal responsibility shall be shared by all those
exercising authority over the financial affairs, transactions
Principles governing exercise of taxing and revenue- and operations of LGUs; and
sharing powers of LGUs 13. The LGU shall endeavor to have a balanced budget in
each fiscal year of operation. (LGC, Sec. 305)
1. Taxation shall be uniform in each LGU
2. Taxes, fees, charges and other impositions shall be equitable Requirements for a valid tax ordinance (PUJ-NO)
and based as far as practicable on the taxpayer’s ability to pay; it
shall be levied and collected only for public purpose; it must not 1. The tax is for a public purpose;
be unjust, excessive, oppressive, or confiscatory; it must not be 2. The rule on uniformity of taxation is observed;
contrary to law, public policy, national economic policy, or 3. Either the person or property taxed is within the
restraint of trade; jurisdiction of the government levying the tax; and
3. The collection of local taxes, fees, charges and other 4. In the assessment and collection of certain kinds of
impositions shall in no case be let to any private person.
4. The revenue collected shall inure solely to the benefit of,
and be subject to disposition by, the
local government unit, unless specifically

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
 LOCAL GOVERNMENTS

taxes, notice and opportunity for hearing are questions on the legality and constitutionality of
provided. (Pepsi-Cola Bottling Co. v. Municipality of ordinances or revenue measures.
Tanauan, G.R. No. L-31156, February 27, 1976)
Such questions shall be raised on appeal within thirty
Procedural requirements for a valid revenue days from the effectivity thereof to the Secretary of
ordinance Justice who shall render a decision within sixty days
from the date of receipt of the appeal.
1. A prior public hearing on the measure to be
conducted according to the prescribed rules. NOTE: Such appeal shall not have the effect of
suspending the effectivity of the ordinance and the
NOTE: An ordinance levying taxes, fees or charges accrual and payment of the tax, fee, or charge levied
shall not be enacted without any prior public therein: Provided, finally, that within thirty days after
hearing conducted for the purpose. (Figuerres v. CA, receipt of the decision or the lapse of the sixty-day
G.R. No. 119172, March 25, 1999) period without the Secretary of Justice acting upon the
appeal, the aggrieved party may file appropriate
2. Publication of the tax ordinance, within 10 days proceedings with a court of competent jurisdiction
after their approval, for 3 consecutive days in a newspaper (RTC). (LGC, Sec. 187)
of local circulation, provided that in provinces, cities, and
municipalities where there are no newspapers of local Tax Protest
circulation, the same may be posted in at least two (2)
conspicuous and publicly accessible places. The formal statement, usually in writing, made by a
person who is called upon by public authority to pay a
NOTE: If the tax ordinance or revenue measure sum of money, in which he declares that he does not
contains penal provisions as authorized in Art. 280 of concede the legality or justice of the claim or his duty to
this Rule, the gist of such tax ordinance or revenue pay it, or that he disputes the amount demanded; the
measure shall be published in a newspaper of general object being to save his right to recover or reclaim the
circulation within the province where the sanggunian amount, which right would be lost by his acquiescence.
concerned belongs. (IRR of LGC, Art. 276) Thus, taxes may be paid under "protest". (Black’s Law
Dictionary)
Effectivity of tax ordinance
Requisites of a valid tax protest in a LGU (PAP)
In case the effectivity of any tax ordinance or revenue
measure falls on any date other than the beginning of 1. Taxpayer first pays the taxes
the quarter, the same shall be considered as falling at 2. There shall be annotation on the tax receipts the
the beginning of the next ensuing quarter and the taxes, words "paid under protest".
fees, or charges due shall begin to accrue therefrom. 3. The protest in writing must be filed within thirty
(IRR of LGC, Art. 276) (30) days from payment of the tax to the provincial, city
treasurer or municipal treasurer, in the case of a
--- municipality within Metropolitan Manila Area, who shall
Q: The Province of Palawan passes an ordinance decide the protest within sixty (60) days from receipt.
requiring all owners/operators of fishing vessels that fish (LGC, Sec. 252)
in waters surrounding the province to invest ten percent
(10%) of their net profits from operations therein in any NOTE: A claim for tax exemption, whether full or partial,
enterprise located in Palawan. NARCO Fishing Corp., a does not deal with the authority of local assessor to
Filipino corporation with head office in Navotas, Metro assess real property tax, but merely raises a question of
Manila, challenges the ordinance as unconstitutional. reasonableness of correctness of such assessment, which
Decide. requires compliance with Sec. 252 of the LGC. (Camp
John Hay Development Corporation v. Central Board of
A: The ordinance is invalid. The ordinance was Assessment Appeals, G.R. No. 169234, October 2, 2013)
apparently enacted pursuant to Art. X, Sec. 7 of the
Constitution, which entitles local governments to an Remedies available to the LGUs to enforce the
equitable share in the proceeds of the utilization and payment of taxes
development of the national wealth within their respective
areas. However, this should be made pursuant to law. A law 1. Imposing penalties (surcharges and penalty interest)
is needed to implement this provision and a local in case of delinquency (LGC, Sec. 168)
government cannot constitute itself unto a law. In the 2. Availing local government’s liens (LGC, Sec. 173)
absence of a law, the ordinance in question is invalid. 3. Administrative action through distraint of goods,
--- chattels, and other personal property [LGC, Sec. 174(a)]
4. Judicial action [LGC, Sec. 174(b)]
Authority to determine the legality or propriety of a
local tax ordinance or revenue measure Community tax

It is the Secretary of Justice who shall determine Community tax is a poll or capitation tax which is
imposed upon person who resides within a specified

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 POLITICAL LAW

territory. Management. (Pimentel, Jr. v. Aguirre, G.R. No.

132988, July 19, 2000)
Exempted from the payment of community tax
CLOSING AND OPENING OF ROADS
1. Diplomatic and consular representatives;
2. Transient visitors when their stay in the Philippines does LGU’s power to open or close a road
not exceed 3 months. (LGC, Sec. 159)
LGU may, pursuant to an ordinance, permanently or
temporarily close or open any local road, alley, park, or
Real property taxes square falling within its jurisdiction; Provided, however,
that in case of permanent closure, such ordinance must
These are directly imposed on privilege to use real be approved by at least two-thirds (2/3) of all the
property such as land, building, machinery, and other members of the sanggunian, and when necessary, an
improvements, unless specifically exempted. adequate substitute for the public facility that is subject
to closure is provided. [LGC, Sec. 21(a)]
---
Q: Bayantel was granted by Congress, after the effectivity of NOTE: No permanent closure of any local road, street,
LGC, a legislative franchise with tax exemption privileges alley, park, or square shall be effected unless there exists
which partly reads: “the grantee, its successors or assigns a compelling reason or sufficient justification therefor
shall be liable to such as, but not limited to, change in land use,
pay the same taxes on their real estate, buildings establishment of infrastructure facilities, projects, or
and personal property, exclusive of this such other justifiable reasons as public welfare may
franchise, as other persons or corporations are require. [IRR of LGC, Art. 44(a)]
now or hereafter may be required by law to pay.”
This provision existed in the company’s franchise Limitations of permanent and temporary closure
prior to the effectivity of the LGC. Quezon City then
enacted an ordinance imposing a real property tax on A. In case of permanent closure:
all real properties located within the city limits and 1. It must be approved by at least 2/3 of all the
withdrawing all exemptions previously granted. members of the Sanggunian and when necessary provide for
Among properties covered are those owned by the an adequate substitute for the public facility
company. Bayantel asserts that its properties are 2. Adequate provision for the public safety must be
exempt from tax under its franchise. Is Bayantel made
correct? 3. The property may be used or conveyed for any
purpose for which other real property may be lawfully used
A: YES. The properties are exempt from taxation. The grant of or conveyed. [LGC, Sec. 21(a)(b)]
taxing powers to local governments under the Constitution and
the LGC does not affect the power of Congress to grant tax
exemptions. NOTE: No freedom park shall be closed
permanently without provision for its transfer
The term "exclusive of the franchise" is interpreted to or relocation to a new site. [LGC, Sec. 21(a)(b)]
mean properties actually, directly and exclusively used in
the radio and telecommunications business. The
subsequent piece of legislation which reiterated the
phrase “exclusive of this franchise” found in the previous B. In case of temporary closure:
tax exemption grant to the company is an express and 1. It must be for actual emergency, fiesta celebration,
real intention on the part of the Congress to once again public rallies, agricultural or industrial fairs, or an
remove from the LGC’s delegated taxing power, all of the undertaking of public
company’s properties that are actually, directly and works and highways, telecommunications and
exclusively used in the pursuit of its franchise. (The City water work projects
Government of Quezon City, et al., v. Bayan 2. Duration of which shall be specified
Telecommunications, Inc., G.R. No. 162015, March 6, 2006) 3. Except for those activities not officially sponsored
or approved by the LGU concerned. [LGC, Sec. 21(c)]
---
NOTE: Any city, municipality or barangay may, by
Elements so that the President may interfere in local ordinance, temporarily close and regulate the use of a
fiscal matters local street, road, thoroughfare or any other public place
where shopping malls, Sunday, flea or night markets, or
1. An unmanaged public sector deficit of the national shopping areas may be established and where articles of
government; commerce may be sold or dispensed with to the general
2. Consultations with the presiding officers of the Senate and public. [LGC, Sec. 21(d)]
the House of Representatives and the presidents of the various
local leagues; Material factors to consider in closing a street
3. And the corresponding recommendation of the secretaries
of the Department of Finance, Interior and Local Government,
and Budget and

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2017 GOLDEN NOTES
 LOCAL GOVERNMENTS

The material factors which a municipality must consider ---

in deliberating upon the advisability of closing a street
are: LEGISLATIVE POWER
1. The topography of the property surrounding the
street in the light of ingress and egress to other Nature of local legislative powers
streets;
2. the relationship of the street in the road system It is a fundamental principle that municipal ordinances
throughout the subdivision; are inferior in status and subordinate to the laws of the
3. the problem posed by the 'dead end' of the street; the State. An ordinance in conflict with a state law of general
width of the street; character and statewide application is universally held
4. the cost of rebuilding and maintaining the street as to be invalid. The principle is frequently expressed in the
contrasted to its ultimate value to all of the property in the declaration that municipal authorities, under a general
vicinity; grant of power, cannot adopt ordinances which infringe
5. the inconvenience of those visiting the subdivision; upon the spirit of a state law or repugnant to the general
and policy of the state. In every power to pass ordinances
6. Whether the closing of the street would cut off any given to a municipality, there is an implied restriction
property owners from access to a street. (Favis v. City of that the ordinances shall be consistent with the general
Baguio, G.R. No. L-29910, April 25, 1969) law (Batangas CATV v. Court of Appeals, G.R. No. 138810,
September 29, 2004).
---
Q: The Sangguniang Barangay of BSV passed a
Resolution which directed the NSV Homeowners Association NOTE: The rule against undue delegation of legislative
to open Marshmallow and Chocolate Streets to vehicular and powers applies to LGUs. In the case of Villegas v. Tsai Pao
pedestrian traffic. The NSV Homeowners Association, Inc. Ho (G.R. No. 29646, October 10, 1978), a city ordinance
(NSVHAI), filed a petition claiming that the implementation was declared void because it constituted undue
of the resolution would cause grave injustice and irreparable delegation of legislative power to the Mayor. The
injury as the affected homeowners acquired their properties ordinance did not lay down any standard to guide the
for strictly residential purposes, and that the subdivision is a Mayor in the exercise of his discretion in the issuance or
place that the homeowners envisioned would provide them denial of an alien employment permit.
privacy and a peaceful neighborhood, free from the hassles
of public places; and that the passage of the Resolution The Sanggunian
would destroy the character of the subdivision. NSVHAI
averred that the opening of the gates of the subdivision A sanggunian is a collegial body. Legislation, which is the
would not ease the traffic congestion in the area, and that principal function of the sanggunian, requires the
there were alternative routes available. NSVHAI argued that participation of all its members so that they may not
the Sangguniang Barangay has no jurisdiction over the only represent the interests of their respective
roads and they likewise argued that a Barangay Resolution constituents but also help in the making of decisions, by
cannot validly cause the opening of the subject roads voting upon every question put upon the body (Zamora
because under the law, an ordinance is required to effect v. Caballero, G.R. No. 147767, January 14, 2004).
such an act. Should the Sangguniang Barangay pass an
ordinance instead of a resolution to open the subject roads?
NOTE: A petition for certiorari filed against a
Sangguniang Panlungsod assailing the legality of an
A: NO. LGU's have the power to close and open roads within ordinance will not lie since the Sanggunian is not a
its jurisdiction as provided for in Sec. 21 of the LGC. This tribunal, board or officer exercising judicial or quasi-
provision, which requires the passage of an ordinance by an LGU judicial functions (Liga ng mga Barangay National v. City
to effect the opening of a local road, can have no applicability to Mayor of Manila, G.R. No. 154599, January 21, 2004).
the instant case since the subdivision road lots sought to be
opened to decongest traffic in the area have already been
donated by the Subdivision to, and the titles already issued in the No power to subpoena and hold persons in contempt
name of, the City Government of Parañ aque. Having been already (1993 Bar)
donated or turned over to Parañ aque, the road lots in question
have since then taken the nature of public roads which are The contempt power and the subpoena power cannot be
withdrawn from the commerce of man, and hence placed beyond deemed implied in the delegation of certain legislative
the private rights or claims of NSVHAI. Consequently, BSV functions to local legislative bodies. These cannot be
Sangguniang Barangay's act of passing the Resolution had for its presumed to exist in favor of the latter and must be
purpose not the opening of a private road but merely a directive considered an exception to Sec. 4 of BP Blg. 337 which
or reminder to the NSVHAI to cause the opening of a public road provides for liberal rules of interpretation in favor of
which should rightfully be open for use to the general public. local autonomy. Since the existence of these powers
(New Sun Valley Homeowners’ poses a potential derogation of individual rights, the law
Association Inc. v. Sangguniang Barangay, Barangay Sun cannot be liberally construed to have impliedly granted
Valley, Parañaque City, G.R. No. 156686, July 27, 2011) such powers to local legislative bodies. The intention of
the people, through their representatives, to share these
powers with the local legislative bodies must clearly
appear in pertinent

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 POLITICAL LAW
2017 GOLDEN NOTES
legislation. (Negros Oriental II Electric Cooperative Inc., v.
Sangguiang Panlungsod ng Dumaguete, G.R. No. L-72492,
November 5, 1987)

Local legislative bodies and their presiding officers

Sangguniang Vice-governor
Province
Panlalawigan
City Sangguniang City Vice-
Panlungsod mayor
Sangguniang Municipal
Municipality
bayan Vice-mayor
Sangguniang Punong
Barangay
barangay Barangay

NOTE: The presiding officer shall vote only to break a tie.

(Sec. 49(a) LGC)

In the absence of the regular presiding officer or his

inability to preside at the sanggunian session, the members
present and constituting a quorum shall elect from among
themselves a temporary presiding officer. (LGC, Sec. 49(b);
Gamboa v. Aguirre, G.R. No. 134213, July 20, 1999)

---
Q. May an incumbent Vice-Governor, acting as
governor, continue to preside over the sessions of
the Sangguniang Panlalawigan? If not, who may
preside in the meantime?

A: NO. A Vice-Governor who is concurrently an acting governor

is actually a quasi-governor. For purposes of exercising his
legislative prerogatives and powers, he is deemed a non-member
of the SP for the time being. Being the Acting Governor, the Vice-
Governor cannot continue to simultaneously exercise the duties
of the latter office, since the nature of the duties of the provincial
Governor call for a full-time occupant to discharge them. Such is
not only consistent with but also appears to be the clear rationale
of the new Code wherein the policy of performing dual functions
in both offices has already been abandoned.

The creation of a temporary vacancy in the office of the

Governor creates a corresponding temporary vacancy in
the office of the Vice-Governor whenever the latter acts
as Governor by virtue of such temporary vacancy. The
continuity of the Acting Governor’s (Vice-Governor)
powers as presiding officer of the SP is suspended so
long as he is in such capacity.

Under Sec. 49(b), “(i)n the event of the inability of the

regular presiding officer to preside at the sanggunian
session, the members present and constituting a quorum
shall elect from among themselves a temporary
presiding officer.” (Gamboa v. Aguirre, G.R. No. 134213,
July 20, 1999)
---

UNIVERSITY OF SANTO TOMAS

 Quorum in the sanggunian

Quorum is defined as the number of members of a body

which when legally assembled in their proper places, will
enable the body to transact its proper business or that
number which makes a lawful body and gives it power to
pass upon a law, ordinance or any valid act. ‘Majority’, when
required to constitute a quorum, means the number greater
than half or more than half of any total.

The applicable rule on quorum of local legislative bodies is

found in Section 53(a) of the LGC which provides that a
majority of all members of the sanggunian who have been
elected and qualified shall constitute a quorum to transact
official business. The entire membership must be taken into
account in computing the quorum. (Zamora v. Caballero, G.R.
No. 147767, January 14, 2004)

NOTE: The determination of the existence of quorum is based

on the total number of members of the sanggunian without
regard to filing of a leave of absence. (Zamora v. Caballero,
ibid.)

Procedures to be taken by the presiding officer if there is

a question on quorum

Should there be a question of quorum raised during a session,

the presiding officer shall:
1. Immediately proceed to call the roll of the members and
2. Announce the results. [LGC, Sec. 53 (a)]

Procedures to be taken by the presiding officer if there is

no quorum

The presiding officer may:

1. Declare a recess until such time that quorum is constituted
2. Compel immediate attendance of the members who are
absent without justifiable cause
3. Declare the session adjourned for lack of quorum and no
business shall be transacted if there is still no quorum despite
enforcement of attendance. [LGC, Sec. 53 (b)(c)]

Fixing of Sessions

Regular Sessions Special Sessions

By resolution on the 1st day
of the session immediately When public interest so
following the election of its demands, special session
may be called for by the
members
chief executive or by a
majority vote members of
sanggunian.

NOTE: The minimum number of regular sessions shall be

once a week for the sangguniang panlalawigan, sangguniang
panlungsod, and sangguniang bayan, and twice a month for
the sangguniang barangay. [LGC, Sec. 52 (a)]

Guidelines in the conduct of a sanggunian session

1. It shall be open to public, unless it is a closed-

 LOCAL GOVERNMENTS

door session lawmaking body on

2. No two sessions, regular or special, may be held in a a specific matter
single day General and permanent Temporary in nature
3. Minutes of the session be recorded and each character

sanggunian shall keep a journal and record of its Third reading is GR: Third reading is not
proceedings which may be published upon necessary for an necessary in resolution
resolution of the sanggunian concerned. ordinance
4. In case of special sessions: XPN: Unless
a. Written notice to the members must be served decidedotherwise by a
personally at least 24 hours before the special majority of all the
session is held Sanggunian members.
b. Unless otherwise concurred in by 2/3 votes of (Roble Arrastre, Inc. v.
the sanggunian members present, there Villaflor, G.R. No. 128509,
being no quorum, no other matters may be August 22, 2006)

considered at a special session except those

stated in the notice. (LGC, Sec. 52) NOTE: It has been held that even where the statute or
municipal charter requires the municipality to act by an
--- ordinance, if a resolution is passed in the manner and
Q: On its first regular session, may the sanggunian with the statutory formality required in the enactment
transact business other than the matter of adopting of an ordinance, it will be binding and effective as an
or updating its existing rules or procedure? ordinance. Such resolution may operate regardless of
the name by which it is called. (Favis v. City of Baguio,
A: YES. There is nothing in the language of the LGC G.R. No. L-29910, April 25, 1969)
that restricts the matters to be taken up during the
first regular session merely to the adoption or Three readings allowed in one day
updating of the house rules. (Malonzo v. Zamora, G.R. No.
137718, July 27, 1999) There is nothing in the LGC which prohibits the three
--- readings of a proposed ordinance from being held in just
one session day. It is not the function of the courts to
Ordinance
speculate that the councilors were not given ample time
for reflection and circumspection before the passage of
As a municipal statute, it is a rule of conduct or of action, the proposed ordinance by conducting three readings in
laid down by the municipal authorities that must be just one day. (Malonzo v. Zamora, G.R. No. 137718, July
obeyed by the citizens. It is drafted, prepared, 27, 1999)
promulgated by such authorities for the information of all
concerned, under and by virtue of powers conferred upon Veto of the Local Chief Executive (1996, 2005 Bar)
them by law. (United States v. Pablo Trinidad, G.R. No. L-
3023, January 16, 1907) The Local Chief Executive may veto the ordinance only
once on the ground that the ordinance is ultra vires and
REQUISITES OF A VALID ORDINANCE prejudicial to public welfare. The veto must be
communicated to the sanggunian within:
1. Must not contravene the constitution and any a. 15 days for a province
statute b. 10 days for a city or municipality (LGC, Secs. 54
2. Must not be unfair or oppressive and 55)
3. Must not be partial or discriminatory
4. Must not prohibit, but may regulate trade NOTE: While “to veto or not to veto involves the
5. Must not be unreasonable exercise of discretion,” a mayor exceeded his/her
6. Must be general in application and Consistent authority in an arbitrary manner when he/she vetoes a
with public policy [not-CUPPUn-Gen]. (Magtajas v. resolution where there exist sufficient municipal funds
Pryce Properties Corporation, Inc., July 20, 1994) from which the salary of the officer could be paid. The
Mayor’s refusal in complying with the directive of the
NOTE: The mere fact that there is already a general Director of the Bureau of Local Government that the
statute covering an act or omission is insufficient to salary could be provided for is oppressive. (Pilar v.
negate the legislative intent to empower the Sangguniang Bayan of Dasol, Pangasinan, G.R. No. L-
municipality to enact ordinances with reference to the 63216, March 12, 1984)
same act or omission under the ‘general welfare clause’
of the Municipal Charter. (United States v. Pascual Pacis, Items that the local chief executive can veto
G.R. No. 10363, September 29, 1915)
1. Item/s of an appropriation ordinance.
Ordinance vs. Resolution
2. Ordinance/resolution adopting local development
plan and public investment program
Ordinance Resolution 3. Ordinance directing the payment of money or
Law Merely a declaration creating liability. (LGC, Sec. 55)
of the sentiment or
opinion of a NOTE: Ordinances enacted by the sangguniang

UNIVERSITY OF SANTO TOMAS

243
FACULTY OF CIVIL LAW
 POLITICAL LAW

barangay shall, upon approval by a majority of all its

members be signed by the punong barangay. The latter 244
has no veto power. UNIVERSITY OF SANTO TOMAS
2017 GOLDEN NOTES
Approval of ordinances

1. By affixing the signature of the local chief executive on each

and every page thereof if he approves the same
2. By overriding the veto of the local chief executive by 2/3
vote of all members of the sanggunian if the local chief executive
vetoed the same. (LGC, Sec. 54)

NOTE: A sanggunian may provide for a vote requirement

different (not majority vote) from that prescribed in the
LGC for certain (but not all) ordinances as in amending a
zoning ordinance. (Casino v. Court of Appeals, G.R. No.
91192, Dec. 2, 1991)

Effectivity of ordinance or resolution

GR: After 10 days from the date a copy is posted in a

bulletin board at the entrance of the capitol or city,
municipal or barangay hall and in at least 2 conspicuous
spaces. [LGC, Sec. 59 (a)]

XPN: Unless otherwise stated in the ordinance or

resolution. [LGC, Sec. 59 (a)]

Effect of the enforcement of a disapproved ordinance

or resolution

It shall be a sufficient ground for the suspension or

dismissal of the official or employee. (LGC, Sec. 58)

Ordinances requiring publication for its effectivity

1. Ordinances that carry with them penal sanctions. [LGC, Sec.

59 (c)]
2. Ordinances and resolutions passed by highly urbanized and
independent component cities. [LGC, Sec. 59 (d)]

Review of ordinances or resolutions (2009 Bar)

Component Cities
Basis and Municipal Barangay
Ordinances or Ordinances

Resolutions
Sangguniang Sangguniang
As to Who Panlalawigan Panlungsod or
Reviews Sangguniang
Bayan

As to When Within 3 days after Within 10 days

copies of approval after its
ordinance or enactment
resolutions
be
forwarded

As to Period
Within 30 days after Within 30 days
the receipt;
 2. It shall extend only to subjects or matters which are
to examine after the receipt. within the legal powers of the sanggunian to enact.
1. Examine, or 3. If at any time before the initiative is held, the
2. Transmit to the sanggunian concerned adopts in toto the proposition
provincial attorney presented and the local chief executive approves the same, the
or provincial initiative shall be canceled. However, those against such
action may, if they so desire, apply for initiative in the manner
prosecutor.
herein
If it is transmitted,
the provincial
attorney or
prosecutor must
submit his
comments or
recommendations
within 10 days from
receipt of the
document.

If no action has If no action has

As to When
been taken within been taken
declared
30 days after within 30 days
valid
submission. after submission.

If it is beyond the If inconsistent

power conferred on with the law or
the sangguniang city or municipal

panlungsod or ordinance.
As to When
sangguniang
declared pangbayan. (LGC, Effect: Barangay
invalid Sec. 56) ordinance is
(grounds) suspended until
such time as the
revision called is
effected. (LGC,
Sec. 57)

LOCAL INITIATIVE AND REFERENDUM

Local initiative vs. Referendum (2005 Bar)

Initiative Referendum
The legal process whereby The legal process whereby
the registered voters of the registered voters of the
LGU may directly propose, LGU may approve, amend
enact or amend any or reject any ordinance
ordinance. (LGC, Sec. 120) enacted by the sanggunian.
(RA. 7160, Sec. 126)

NOTE: Local initiative includes not only ordinances but also

resolutions as its appropriate subjects. (Garcia v. COMELEC,
G.R. 111230, Sept. 30, 1994)

Limitations on local initiative

1. It shall not be exercised for more than once a year.

 LOCAL GOVERNMENTS

provided. (LGC, Sec. 124)

1. To have continuous succession in its corporate
Procedure in conducting local initiative name

2. To sue and be sued

1. Number of voters who should file petition with 3. To have and use a corporate seal
the Sanggunian concerned:
a. Province and cities – not less than 1000 NOTE: Any new corporate seal or changes on such
registered voters shall be registered with the DILG.
b. Municipality – at least 100 registered voters
c. Barangay – at least 50 registered voters 4. To a acquire and convey real or personal property
5. To enter into contracts
2. The sanggunian concerned has 30 days to act on the
petition. If the sanggunian does not take any NOTE: Unless otherwise provided in this Code, no
favorable action, the proponents may invoke the contract may be entered into by the local chief
powers of initiative, giving notice to sanggunian. executive in behalf of the LGU without prior
3. Proponents will have the following number of authorization by the sanggunian concerned. A
days to collect required number of signatures legible copy of such contract shall be posted at a
a. Provinces and cities – 90 days conspicuous place in the provincial capitol or the
b. Municipalities – 60 days city, municipal or barangay hall.
c. Barangay – 30 days
6. To exercise such other powers as granted to
4. Signing of petition in a public place, before the corporations. (LGC, Sec. 22)
election registrar or his designated representatives,
in the presence of a representative of the proponent TO SUE AND BE SUED
and of the sanggunian concerned.
5. Date of initiative is set by COMELEC if the required Proper officer to represent the city in court actions
number of signatures has been obtained. (LGC, Sec.
122) GR: The city legal officer is supposed to represent the
city in all civil actions and special proceedings
Effectivity of proposition wherein the city or any of its officials is a party.

If the proposition is approved by a majority of the votes NOTE: Only the Provincial Fiscal or the Municipal
Attorney can represent a province or municipality in
cast, it will take effect 15 days after certification by the lawsuits. This is mandatory. Hence, a private attorney
COMELEC. (LGC, Sec. 123) cannot represent a province or municipality.

Rule of COMELEC over local referendum XPN: Where the position is as yet vacant, the City

Prosecutor remains the city’s legal adviser and officer for

The local referendum shall be held under the control civil cases. (ASEAN Pacific Planners v. City of Urdaneta,
and direction of the COMELEC within G.R. No. 162525, Sept. 23, 2008)
a. Provinces and cities – 60 days
b. Municipalities – 45 days NOTE: Suit is commenced by the local chief executive,
c. Barangay – 30 days upon authority of the Sanggunian, except when the City
Councilors, by themselves and as representatives of or on
The COMELEC shall certify and proclaim the results of the behalf of the City bring the action to prevent unlawful
said referendum. (LGC, Sec. 126) disbursement of City funds. (City Council of Cebu v.
Cuizon, G.R. No. L-28972, Oct. 31, 1972)
Rule on repeal, modification and amendment of an
ordinance or proposition approve through an initiative Power of LGU to sue on behalf of community it
and referendum represents

Any proposition or ordinance approved through an A municipality prejudiced by the action of another
initiative and referendum shall not be repealed, modified municipality is vested with the character of a juridical
or amended by the sanggunian within 6 months from the entity, is a corporation of public interest endowed with
date of approval thereof. the personality to acquire and hold property, contract
obligations, and bring civil and criminal actions in
It may be amended, modified or repealed within 3 years accordance with the laws governing its organization, and
thereafter by a vote of ¾ of all its members. (LGC, Sec. 125) it is entitled to file claims for the purpose of recovering
NOTE: In case of barangays, the period shall be 18 months damages, losses and injuries caused to the community it
 represents. (Municipality of Mangaldan v. Municipality of
after the approval thereof. (LGC, Sec. 125) Manaoag, G.R. No. L-11627, Aug. 10, 1918)

CORPORATE POWERS ---

Q: Teotico was about to board a jeepney in P. Burgos,
Corporate powers of LGUs Manila when he fell into an uncovered manhole. This

UNIVERSITY OF SANTO TOMAS

245
FACULTY OF CIVIL LAW
 POLITICAL LAW

caused injuries upon him. Thereafter he sued for Immunity from Suit
damages under Article 2189 of the Civil Code against the
City of Manila and its local officials. The City of Manila A municipality, as an agency of the State engaged in
assailed the decision of the CA on the ground that the governmental functions, is immune from suit (Jayme v.
charter of Manila states that it shall not be liable for Apostol, G.R. No. 163609, November 27, 2008).
damages caused by the negligence of the city officers in
enforcing the charter; that the charter is a special law GR: Municipalities are not liable for torts committed by
and shall prevail over the Civil Code which is a general them in the discharge of governmental functions.
law; and that the accident happened in national
highway. Is the City of Manila liable? XPN: They are liable only if it can be shown that they
were acting in a proprietary capacity.
A: YES. It is true that in case of conflict, a special law prevails over a
general law; that the charter of Manila is a special law and that the NOTE: In permitting such entities to be sued, the State
Civil Code is a general law. However, looking at the particular merely gives the claimant the right to show that the
provisions of each law concerned, the provision of the Manila defendant was not acting in its governmental capacity
Charter exempting it from liability caused by the negligence of its when the injury was committed or that the case comes
officers is a general law in the sense that it exempts the city from under the exceptions recognized by law. Failing this, the
negligence of its officers in general. Art. 2189 of the NCC provides claimant cannot recover. (Mun. of San Fernando, La
that provinces, cities, and municipalities liable Union v. Firme, G.R. No. L-52179, April 8, 1991).
for the damages caused to a certain person by reason of
the “…defective condition of roads, streets, bridges, public TO ACQUIRE AND SELL PROPERTY
buildings, and other-public works under their control or
supervision.” Property held in trust by LGUs as agents of the State

Even though it is a national highway, the law

contemplates that regardless of whether or not the road Properties of municipalities not acquired by its own
is national, provincial, city, or municipal, so long as it is funds in its private capacity are public property held in
under the City’s control and supervision, it shall be trust for the State. Regardless of the source or
responsible for damages by reason of the defective classification of land in the possession of a municipality,
conditions thereof (City of Manila v. Teotico, G.R. No. L- except those acquired with its own funds in its private or
23052, January 29, 1968). corporate capacity, such property is held in trust for the
--- State for the benefit of its inhabitants, whether it be for
--- government or proprietary purposes. It holds such lands
Q: May LGU funds and properties be seized under writs of subject to the paramount power of the legislature to
execution or garnishment to satisfy judgments against dispose of the same, for after all it owes its creation to it
them? as an agent for the performance of a part of it public
work, the municipality being but a subdivision or
A: NO. The universal rule that where the State gives its consent instrumentality thereof for the purposes of local
to be sued by private parties either by general or special law, it administration. (Salas v. Jarencio, G.R. No. L-29788, Aug.
may limit claimants action only up to the completion of 30, 1972)
proceedings anterior to the stage of execution and that the
power of the Courts ends when the judgment is rendered.
Government funds and properties may not be seized under writs Properties that can be alienated by LGUs
of
execution or garnishment to satisfy such judgments. This Only properties owned in its private or proprietary
is based on obvious considerations of public policy. capacity. (Province of Zamboanga del Norte v. City of
Disbursements of public funds must be covered by the Zamboanga, G.R. No. L-24440, March 28, 1968)
corresponding appropriations as required by law. The
functions and public services rendered by the State Art. 424 of the Civil Code lays down the basic principle
cannot be allowed to be paralyzed or disrupted by the that properties of public dominion devoted to public use
diversion of public funds from their legitimate and and made available to the public, in general, are outside
specific objects (Traders Royal Bank v. IAC, G.R. No. the commerce of man and cannot be disposed of or
68514, Dec. 17, 1990). leased by the LGU to private persons. (Macasiano v.
--- Diokno, G.R. No. 97764, Aug. 10, 1992)

NOTE: The rule on the immunity of public funds from

seizure or garnishment does not apply when the funds Rules on LGU’s power to acquire and convey real or
sought to be levied under execution are already personal property
allocated by law specifically for the satisfaction of the
money judgment against the government. In such a case, 1. In the absence of proof that the property was acquired
the monetary judgment may be legally enforced by through corporate or private funds, the presumption is that
judicial processes. (City of Caloocan v. Allarde, G.R. No. it came from the State upon the creation of the municipality
107271, Sept. 10, 2003) and, thus, is governmental or public property. (Salas v.

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES
Jarencio, G.R. No. L-29788, Aug. 30, 1972;
 LOCAL GOVERNMENTS

Rabuco v. Villegas, G.R. No. L-24661, Feb. 28, 1974) concerned, unless otherwise provided. [LGC, Sec.
2. Town plazas are properties of public dominion; they 22(c)]
may be occupied temporarily, but only for the duration of an
emergency. (Espiritu v. Municipal Council of Pozorrubio, 3. The contract must comply with certain substantive
Pangasinan, G.R. No. L-11014, January 21, 1958) requirements:
3. Public plazas are beyond the commerce of man, and a. Actual appropriation; and
cannot be the subject of lease or other contractual b. Certificate of availability of funds
undertaking. And, even assuming the existence of a valid
lease of the public plaza or part thereof, the municipal 4. The contract must comply with the formal
resolution effectively terminated the agreement, for it is requirements of written contracts. (e.g. Statue of Frauds)
settled that the police power cannot be surrendered or
bargained away through the medium of a NOTE: This includes the power to acquire and
contract. (Villanueva v. Castaneda, G.R. No. L- convey properties by the LGU through written
61311, Sept. 21, 1987) contracts.
4. Public streets or thoroughfares are property for
public use, outside the commerce of man, and may not be the Void contracts of LGUs do not require judicial
subject of lease or other contracts. (Dacanay v. Asistio, G.R. declaration of nullity
No. 93654, May 6, 1992)
Contracts entered into by a municipality, in violation of
existing law, do not require judicial action declaring their
Documents to support the contract of sale entered nullity. In the case of Bunye v. Sandiganbayan (G.R. No.
into by the LGU 122058, May 5, 1999), the Supreme Court held that
contracts which grant a 25-year lease of the Public Market
1. Resolution of the sanggunian authorizing the local when the law at that time BP Blg. 337, limits such leases to
chief executive to enter into a contract of sale. The resolution a maximum of five years, are void.
shall specify the terms and conditions to be embodied in the
contract. Conditions/Requisites under which a local chief
2. Ordinance appropriating the amount specified in the executive may enter into a contract in behalf of his
contract. government unit
3. Certification of the local treasurer as to availability
of funds together with a statement that such fund shall not 1. The contract must be within the power of the
be disbursed or spent for any purpose other than to pay for municipality
the purchase of the property involved. (Jesus is Lord 2. The contract must be entered into by an authorized
Christian School Foundation, Inc. v. Mun. of Pasig, G.R. No. officer (e.g. mayor with proper resolution by the
152230, Aug. 9, 2005) Sangguniang Bayan)
3. There must be appropriation and certificate of
availability of funds
Congress may transfer property to an LGU for public 4. The contract must conform with the formal
or patrimonial purposes requisites of a written contract as prescribed by law; and
5. In some cases the contract must be approved by the
A city, being a public corporation, is not covered by the President and/or provincial governor. (Revised Adm.
constitutional ban on acquisition of alienable public lands. Code, Sec. 2068 and Sec. 2196)
Congress may, by law, transfer public lands to a city, an end
user government agency, to be used for municipal purposes, Contracts validly entered into by previous chief
which may be public or patrimonial. Lands thus acquired by executive bind successor-in-office
the city for a public purpose may not be sold to private
parties. However, lands so acquired by a city for a When there is a perfected contract executed by the
patrimonial purpose may be sold to private parties, former Governor, the succeeding governor cannot
including private corporations. (Chavez v. Public Estates revoke or renounce the same without the consent of the
Authority, G.R No. 133250, Nov. 11, 2003) other party. The contract has the force of law between
the parties and they are expected to abide in good faith
TO ENTER INTO CONTRACTS by their respective contractual commitments. Just as
nobody can be forced to enter into a contract, in the
Requisites same manner, once a contract is entered into, no party
can renounce it unilaterally or without the consent of the
1. The LGU has the express, implied or inherent power other. It is a general principle of law that no one may be
to enter into particular contract permitted to change his/her mind or disavow and go
2. The contract is entered into by the proper back upon his/her own acts, or to proceed contrary
department board, committee, officer or agent. thereto, to the prejudice of the other party. (GSIS v.
Province of Tarlac, G.R. No. 157860, Dec. 1, 2003)
NOTE: No contract may be entered into by the local
chief executive on behalf of the local government
without prior authorization by the sanggunian Prior authorization by municipal council

UNIVERSITY OF SANTO TOMAS

247
FACULTY OF CIVIL LAW
 POLITICAL LAW

a. Those entered into by the improper department, board,

Under Section 22(c) of the LGC, the local chief executive officer of agent;
cannot enter into a contract in behalf of the LGU without b. Those that not comply with the formal requirements of
prior authorization from the sanggunian concerned. a written contract e.g., the Statute of Frauds. (Land Bank of
Such authorization may be in the form of an the Philippines v. Cacayuran, supra.)
appropriation ordinance passed for the year which
specifically covers the project, cost, or contract entered Contracts entered into by a local chief executive may
into by the LGU. be subject to constructive ratification

However, this rule does not apply where the LGU A loan agreement entered into by the provincial
operated on a reenacted budget. In case of a reenacted governor without prior authorization from the
budget, only the annual appropriation for salaries and Sangguniang Panlalawigan is unenforceable. The
wages of existing positions, statutory and contractual Sanggunian’s failure to impugn the contract’s validity
obligations, and essential operating expenses authorized despite knowledge of its infirmity is an implied
in the annual and supplemental budgets for the ratification that validates the contract. (Ocampo v.
preceding year shall be deemed reenacted. New People, G.R. No. 156547-51 & 156382-85, Feb. 4, 2008)
contracts entered into by the local chief executive must
therefore have prior authorization from the sanggunian. Doctrine of estoppel does not apply against a
(Quisumbing v. Garcia, G.R. No. 175527, Dec. 8, 2008) municipal corporation to validate an invalid contract

The doctrine of estoppel cannot be applied as against a

ULTRA VIRES CONTRACTS municipal corporation to validate a contract which it has
no power to make, or which it is authorized to make only
Ultra vires contracts under prescribed conditions, within prescribed
limitations, or in a prescribed mode or manner, although
Ultra vires contracts are those which: the corporation has accepted the benefits thereof and the
a. are entered into beyond the express, implied or inherent other party has fully performed its part of the agreement,
powers of the LGU; and or has expended large sums in preparation for
b. do not comply with the substantive requirements of law e.g., performance. A reason frequently assigned for this rule
when expenditure of public funds is to be made, there must be is that to apply the doctrine of estoppel against a
an actual appropriation and certificate of availability of funds. municipality in such a case would be to enable it to do
(Land Bank of the Philippines v. Cacayuran, G.R. No. 191667, April indirectly what it cannot do directly. (In Re: Pechueco
17, 2013) Sons Company v. Provincial Board of Antique, G.R. No. L-
27038, Jan. 30, 1970)
NOTE: Such are null and void and cannot be ratified or
validated. Authority to negotiate and secure grants

Estoppel cannot be applied against a municipal The local chief executive may, upon authority of the
corporation in order to validate a contract which the sanggunian, negotiate and secure financial grants or
municipal corporation has no power to make or which it donations in kind, in support of the basic services or
is authorized to make only under prescribed conditions, facilities enumerated under Sec. 17 of LGC, from local
within prescribed limitations, or in a prescribed mode or and foreign assistance agencies without necessity of
manner, although the corporation has accepted the securing clearance or approval from any department,
benefits thereof and the other party has fully performed agency, or office of the national government or from any
his part of the agreement, or has expended large sums in higher LGU; Provided, that projects financed by such
preparation for performance. (Favis v. Municipality of grants or assistance with national security implications
Sabangan, G.R. No. L-26522, Feb. 27, 1969) shall be approved by the national agency concerned.
(LGC, Sec. 23)
Instance when a defective municipal contract may
be ratified ---
Q: The City Council of Calamba issued several
Ratification of defective municipal contracts is possible resolutions authorizing Mayor Tiama to negotiate with
only when there is non-compliance with the landowners within the vicinity of Barangays Real,
requirements of authority of the officer entering into the Halang, and Uno, for a new city hall site and to purchase
contract and/or conformity with the formal requisites of several lots and to execute, sign and deliver the required
a written contract as prescribed by law. Ratification may documents. Mayor Tiama then entered into MOA, Deed
either be expressed or implied. of Sale, Deed of Mortgage, and Deed of Assignment.

NOTE: An act attended only by an irregularity, but Thereafter, Ong, a member of the City Council,
remains within the municipality’s power, is considered questioned the lack of ratification by the City Council
as an ultra vires act subject to ratification and/or of the contracts, among others. Should all the
validation. documents pertaining to the purchase of the lots
bear the ratification by the City Council of Calamba?
Examples:

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A: NO. Sec. 22(c), LGC, provides: (c) Unless otherwise LGUs and their officials are not exempt from
provided in this Code, no contract may be entered into liability arising from death or injury to persons or
by the local chief executive in behalf of the LGU without damage to property. (LGC, Sec. 24)
prior authorization by the sanggunian concerned.
Clearly, when the local chief executive enters into Liabilities of LGUs (1994, 2009 Bar)
contracts, the law speaks of prior authorization or
authority from the Sangguniang Panlungsod and not 1. LGUs shall be liable for damages for the death of, or
ratification. It cannot be denied that the City Council injuries suffered by, any person by reason of the
issued Res. 280 authorizing Mayor Tiama to purchase defective condition of roads, streets, bridges, public
the subject lots. buildings, and other public works under their
--- control or supervision. (New Civil Code, Art. 2189)

NOTE: As aptly pointed out by the Ombudsman, NOTE: LGU is liable even if the road does not belong
ratification by the City Council is not a condition sine qua to it as long as it exercises control or supervision over
non for a mayor to enter into contracts. With the the said roads.
resolution issued by the Sangguniang Panlungsod, it
cannot be said that there was evident bad faith in 2. The State is responsible in like manner when it
purchasing the subject lots. The lack of ratification alone acts through a special agent; but not when the
does not characterize the purchase of the properties as damage has been caused by the official to whom the
one that gave unwarranted benefits to Pamana or task done properly pertains. In which case, Art.
Prudential Bank or one that caused undue injury to 2176 shall be applicable. [New Capital Code, Art.
Calamba City. (Vergara v. Ombudsman, G.R. No. 174567, 2180 (6)]
March 12, 2009)
3. When a member of a city or municipal police
Competitive or Public Bidding force refuses or fails to render aid or protection to
any person in case of danger to life or property,
Refers to a method of procurement which is open to such peace officer shall be primarily liable for
participation by any interested party and which damages and the city or municipality shall be
consists of the following processes: advertisement, pre- subsidiarily responsible therefor. (New Civil Code,
bid conference, eligibility screening of prospective Art. 34)
bidders, receipt and opening of bids, evaluation of bids,
post-qualification, and award of contract. [RA 9184, Bases for municipal liabilities
IRR, Sec 5 (h)]
1. Liability arising from violation of law
Requirement of public bidding
NOTE: Liability arising from violation of law such as
In the award of government contracts, the law requires closing municipal streets without indemnifying
competitive public bidding. It is aimed to protect the persons prejudiced thereby, non-payment of wages
public interest by giving the public the best possible to its employees due to lack of funds or other causes
advantages thru open competition. It is a mechanism or its refusal to abide a temporary restraining order
that enables the government agency to avoid or preclude may result in contempt charge and fine.
anomalies in the execution of public contracts. (Garcia
v. Burgos, G.R. No. 124130, June 29, 1998) 2. Liability for contracts

Failure of bidding NOTE:

a. LGU is liable provided that the contract is
When any of the following occurs: intra vires or it is ultra vires that is only
1. There is only one offeror attended by irregularities, which does not
2. When all the offers are non-complying or preclude ratification or the application of the
unacceptable.(Bagatsing v. Committee on doctrine of estoppel.
Privatization, G.R. No. 112399, July 14, 1995)
If it is ultra vires, which are entered into beyond
LIABILITY OF LGUs the express, implied or inherent powers of the
local government unit or do not comply with the
Scope of municipal liability substantive requirements of law they are not
liable.
Municipal liabilities arise from various sources in the b. A private individual who deals with a
conduct of municipal affairs, both governmental and municipal corporation is imputed with
proprietary. CONSTRUCTIVE knowledge of the extent of
the power or authority of the municipal
NOTE: Tests of liability is the nature of task being corporation to enter into contracts.
performed.
3. Liability for tort
Rule on the liabilities of LGUs and their officials
NOTE: They may be held liable for torts arising from

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the performance of their private and proprietary appropriated an amount for the construction of 2
functions under the principle of respondeat superior. stages. One of the members of the group to perform a
They are also liable for back salaries for employees play during the fiesta was Fontanilla. Before the
illegally dismissed/separated or for its refusal to dramatic part of the play was reached, the stage
reinstate employees. collapsed and Fontanilla was pinned underneath
resulting to his death. The heirs of Fontanilla filed a
Doctrine of Implied Municipal Liability complaint against the Municipality. Is the
municipality liable?
A municipality may become obligated, upon an implied
contract, to pay the reasonable value of the benefits A: YES. The town fiesta was an exercise of a private or
accepted or appropriated by it as to which it has the proprietary function of the municipality. Holding a fiesta,
general power to contract. The doctrine of implied even if the purpose is to commemorate a religious or
municipal liability has been said to apply to all cases historical event of the town, is in essence an act for the
where money or other property of a party is received special benefit of the community and not for the general
under such circumstances that the general law, welfare of the public performed in pursuance of a policy of
independent of express contract, implies an obligation the state. No governmental or public policy of the state is
upon the municipality to do justice with respect to the involved in the celebration of a town fiesta. (Municipality of
same. (Province of Cebu v. IAC, G.R. No. 72841, January Malasiqui v. Heirs of Fontanilla, G.R. No. L-29993, Oct. 23,
29, 1987) 1978)
---
NOTE: The obligation of a municipal corporation upon
the doctrine of an implied contract does not connote an NOTE: There can be no hard and fast rule for purposes of
enforceable obligation. Some specific principle or determining the true nature of an undertaking or
situation of which equity takes cognizance must be the function of a municipality; the surrounding
foundation of the claim. The principle of liability rests circumstances of a particular case are to be considered
upon the theory that the obligation implied by law to pay and will be decisive. The basic element, however
does not originate in the unlawful contract, but arises beneficial to the public the undertaking may be, is that it
from considerations outside it. The measure of recovery is governmental in essence; otherwise the function
is the benefit received by the municipal corporation. The becomes private or proprietary in character.
province cannot set up the plea that the contract was (Municipality of Malasiqui v. Heirs of Fontanilla, ibid.)
ultra vires and still retain benefits. (Province of Cebu v.
IAC, ibid.)
---
Q: X was elected as Vice Mayor of Dasol, Pangasinan.
Tort liability of LGUs The Sangguniang Bayan adopted Resolution No. 1 which
increased the salaries of the Mayor and Municipal
1. LGU-engaged in governmental function – Not liable Treasurer to P18,636 and P16,044 per annum
2. LGU-engaged in proprietary function – Liable respectively. However, the Resolution did not provide
for an increase in salary of the Vice Mayor despite the
--- fact that such position is entitled to an annual salary of
Q: A collision between a passenger jeepney, sand and gravel P16,044. X questioned the failure of the Sangguniang
truck, and a dump truck driven by Monte and owned by the Bayan to appropriate an amount for the payment of his
Municipality of San Fernando occurred which resulted to the salary. The Sangguniang Bayan increased his salary and
death of Jessica, a passenger of the jeepney. The heirs of enacted a Resolution No. 2 appropriating an amount as
Jessica instituted an action for damages against the payment of the unpaid salaries. However, the Resolution
Municipality. Is the municipality liable for the tort was vetoed by the respondent mayor. Can X avail of
committed by its employee? damages due to the failure of the respondents to pay
him his lawful salary?
A: NO. The driver of the dump truck was performing
duties or tasks pertaining to his office – he was on his A: YES. The Mayor alone should be held liable and
way to get a load of sand and gravel for the repair of San responsible and not the whole Sanggunian Bayan.
Fernando's municipal streets. The municipality cannot Respondent Mayor vetoed the Resolution without just cause.
be held liable for the tort committed by its regular While "to veto or not to veto involves the exercise of
employee, who was then engaged in the discharge of discretion" as contended by respondents, respondent Mayor,
governmental functions. The death of the passenger –– however, exceeded his authority in an arbitrary manner
tragic and deplorable though it may be –– imposed on when he vetoed the resolution since there are sufficient
the municipality no duty to pay monetary compensation. municipal funds from which the salary of the petitioner
(Municipality of San Fernando v. Hon. Firme, G.R. No. L- could be paid.
52179, April 8, 1991)
--- Respondent Mayor’s refusal, neglect or omission in
--- complying with the directives of the Provincial Budget
Q: The Municipality of Malasiqui authorized the celebration Officer and the Director of the Bureau of Local Government
of town fiesta by way of a resolution and that the salary of X be provided for and paid the prescribed
salary rate, is reckless and oppressive,

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hence, by way of example or correction for the public (b) Contents of petition - The petition shall state the
good, respondent Mayor is liable personally to the grounds, reasons or justifications therefore.
petitioner for exemplary or corrective damages. (Pilar v. (c) Documents attached to petition - The petition shall
Sangguniang bayan ng Dasol, Pangasinan, G.R. No. be accompanied by:
63216, March 12, 1984) 1. Duly authenticated copy of the law or statute
--- creating the LGU or any other document showing proof of
creation of the LGU;
SETTLEMENT OF BOUNDARY DISPUTE 2. Provincial, city, municipal, or barangay map,
(1999, 2005, 2010 Bar) as the case may be, duly certified by the LMB.
3. Technical description of the boundaries of
Boundary Dispute the LGUs concerned;
4. Written certification of the provincial, city, or
When a portion or the whole of the territorial area of an municipal assessor, as the case may be, as to territorial
LGU is claimed by two or more LGUs. jurisdiction over the disputed area according to records in
custody;
Jurisdictional Responsibility for Settlement of 5. Written declarations or sworn statements of
Boundary Dispute the people residing in the disputed area; and
6. Such other documents or information as
Boundary disputes between and among local may be required by the sanggunian hearing the dispute.
government units shall, as much as possible, be settled (d) Answer of adverse party - Upon receipt by the
amicably. To this end: sanggunian concerned of the petition together with the
required documents, the LGU or LGUs complained
(a) Boundary disputes involving two (2) or more against shall be furnished copies thereof and shall be
barangays in the same city or municipality shall be referred given fifteen (15) working days within which to file their
for settlement to the sangguniang panlungsod or answers.
sangguniang bayan concerned. (e) Hearing - Within five (5) working days after receipt
(b) Boundary disputes involving two (2) or more of the answer of the adverse party, the sanggunian shall
municipalities within the same province shall be referred for hear the case and allow the parties concerned to present
settlement to the sangguniang panlalawigan concerned. their respective evidences.
(c) Boundary disputes involving municipalities or (f) Joint hearing - When two or more sanggunians jointly
component cities of different provinces shall be jointly hear a case, they may sit en banc or designate their
referred for settlement to the sanggunians of the provinces respective representatives. Where representatives are
concerned. designated, there shall be an equal number of
(d) Boundary disputes involving a component city or representatives from each sanggunian. They shall elect from
municipality on the one hand and a highly urbanized city on among themselves a presiding officer and a secretary. In
the other, or two (2) or more highly urbanized cities, shall be case of disagreement, selection shall be by drawing lot.
jointly referred for settlement to the respective sanggunians (g) Failure to settle - In the event the sanggunian fails to
of the parties. amicably settle the dispute within sixty (60) days from
(e) In the event the sanggunian fails to effect an the date such dispute was referred thereto, it shall issue
amicable settlement within sixty (60) days from the date the a certification to the effect and copies thereof shall be
dispute was referred thereto, it shall issue a certification to furnished the parties concerned.
that effect. Thereafter, the dispute shall be formally tried by (h) Decision - Within sixty (60) days from the date the
the sanggunian concerned which shall decide the issue certification was issued, the dispute shall be formally tried
within sixty (60) days from the date of the certification and decided by the sanggunian concerned. Copies of the
referred to above. (LGC, Sec. 118) decision shall, within fifteen (15) days from the
promulgation thereof, be furnished the parties concerned,
Procedure for Settling Boundary Disputes DILG, local assessor, COMELEC, NSO, and other NGAs
concerned.
Article 17, Rule III of the Rules and Regulations of the (i) Appeal - Within the time and manner prescribed by
LGC outlines the procedures governing boundary the Rules of Court, any party may elevate the decision of
disputes, which succinctly includes the filing of the the sanggunian concerned to the proper Regional Trial
proper petition, and in case of failure to amicably settle, Court having jurisdiction over the dispute by filing
a formal trial will be conducted and a decision will be therewith the appropriate pleading, stating among
rendered thereafter. An aggrieved party can appeal the others, the nature of the dispute, the decision of the
decision of the sanggunian to the appropriate RTC. sanggunian concerned and the reasons for appealing
therefrom. The Regional Trial Court shall decide the case
(Calanza v. PICOP, G.R. No. 146622, April 24, 2009) Said
within one (1) year from the filing thereof. Decisions on
rules and regulations state:
boundary disputes promulgated jointly by two (2) or
more sangguniang panlalawigans shall be heard by the
(a) Filing of petition - The sanggunian concerned may
Regional Trial Court of the province which first took
initiate action by filing a petition, in the form of a resolution,
cognizance of the dispute.
with the sanggunian having jurisdiction over the dispute.

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SUCCESSION OF ELECTIVE OFFICIALS councilor’s succession to the office of vice-

mayor cannot be considered a voluntary
Vacancy renunciation of his office as councilor, since it
occurred by operation of law. (Montebon v.
Absence should be reasonably construed to mean COMELEC, G.R. No. 180444, April 8, 2008)
‘effective’ absence, that is, one that renders the officer
concerned powerless, for the time being, to discharge b. Second highest ranking Sanggunian
the powers and prerogatives of his/her office. There is member
no vacancy whenever the office is occupied by a legally
qualified incumbent. A sensu contrario, there is a 4. Office of the Punong Barangay
vacancy when there is no person lawfully authorized to a. Highest ranking Sanggunian member; in
assume and exercise at present the duties of the office. case of the permanent disability of highest ranking
(Gamboa, Jr. v. Aguirre, G.R. No. 134213, July 20, 1999) Sanggunian member,
b. Second highest ranking Sanggunian
Classes of vacancies in the elective post member

NOTE: For purposes of succession, ranking in

Permanent Vacancy Temporary Vacancy the Sanggunian shall be determined on the
basis of the proportion of the votes obtained by
Arises when an elected Arises when an elected each winning candidate to the total number of
local official: official is temporarily registered voters in each district in the
1. Fills a higher vacant incapacitated to perform immediately preceding local election. [LGC, Sec.
office; or his duties due to legal or 44 (d)(3)]
2. Refuses to assume physical reason such as:
office; or 1. Physical sickness GR: The successor (by appointment) should come from
the same political party as the sanggunian member
3. Fails to qualify; or 2. Leave of absence
whose position has become vacant.
4. Dies; or 3. Travel abroad or
5. Removed from office; Suspension from office. XPN: In the case of vacancy in the Sangguniang
or (LGC, Sec. 46) barangay.
6. Voluntarily resigns; The reason for the rule is to maintain the
or party representation as willed by the
7. Permanently people in the election.
incapacitated to
B. In case automatic succession is not applicable and there
discharge the is vacancy in the membership of the sanggunian, it shall be
functions of his office. filled up by appointment in the following manner:
(LGC, Sec. 44) 1. The President, through the Executive Secretary, shall
appoint the political nominee of the local chief executive for
Filling of vacancy the sangguniang panlalawigan and panlungsod of highly
urbanized cities and independent component cities. [LGC,
1. Automatic succession Sec. 45 (a)(1)]
2. By appointment (LGC, Sec. 45) 2. The Governor shall appoint the political nominees
for the sangguniang panlungsod of
Rules of succession in case of permanent vacancies component cities and the sangguniang bayan
(1995, 1996, 2002 Bar) concerned. [LGC, Sec. 45 (a)(2)]
3. The city or municipal mayor shall appoint the
A. In case of permanent vacancy in: recommendee of the sangguniang barangay concerned.
1. Office of the Governor [LGC, Sec. 45 (a)(3)]
a. Vice-Governor; in his absence,
b. Highest ranking Sanggunian member; in case of Hold-over status
the permanent disability of highest ranking Sanggunian member,
c. Second highest ranking Sanggunian member In case of failure of elections involving barangay officials,
2. Office of the Mayor the incumbent officials shall remain in office in a hold-
a. Vice-Mayor; in his absence, over capacity pursuant to R.A. 9164. (Adap v. COMELEC,
b. Highest ranking Sanggunian member; in case of G.R. No. 161984, Feb. 21, 2007)
the permanent disability of highest ranking Sanggunian member,
c. Second highest ranking Sanggunian member The “last vacancy” in the Sanggunian

3. Office of the Vice Governor or Vice-Mayor It refers to the vacancy created by the elevation of the
a. Highest ranking Sanggunian member; in case of member formerly occupying the next higher in rank,
the permanent disability of highest ranking Sanggunian member, which in turn also had become vacant by any of the
causes enumerated.
NOTE: The highest ranking municipal

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the powers and perform the duties and functions of

--- the local chief executive concerned.
Q: In the 1997 local elections Calimlim was elected as
Mayor, Aquino as Vice-Mayor and Tamayo as the highest NOTE:
ranking member of the Sanggunian. In 1999, Mayor
Calimlim died, thus Vice-Mayor Aquino succeeded him GR: The acting Governor or Mayor cannot exercise
as Mayor. Accordingly, the highest-ranking member of the power to appoint, suspend or dismiss
the Sanggunian, Tamayo, was elevated to the position of employees.
the Vice-Mayor. Since a vacancy occurred in the
Sangguniang Bayan by the elevation of petitioner XPN: If the period of temporary incapacity exceeds
Tamayo to the office of the Vice-Mayor, Governor 30 working days.
Agbayani appointed Navarro as Member of the
Sangguniang Bayan. Navarro belonged to the same 2. If travelling within the country, outside his
political party as that of Tamayo. jurisdiction, for a period not exceeding 3 days, he may
designate in writing the officer-in-charge for the same
Respondents argue that it was the former vice-mayor office. The OIC cannot exercise the power to appoint,
Aquino who created the permanent vacancy in the suspend or dismiss employee.
Sanggunian and thus, the appointee must come from 3. If without said authorization, the Vice-Governor,
the former vice mayor’s political party. Petitioners, City or Municipal Vice-Mayor or the highest ranking
however, contend that it was the elevation of sangguniang barangay member shall assume the powers,
Tamayo to the position of vice-mayor which resulted duties and functions of the said office on the 4 th day of
in a permanent vacancy and thus, the person to be absence. (LGC, Sec. 46)
appointed to the vacated position should come from
the same political party as that of Tamayo, in this Termination of temporary incapacity
case Navarro. Are the respondents correct?
1. Upon submission to the appropriate sanggunian of a
A: NO. With the elevation of Tamayo to the position of written declaration by the local chief executive
Vice-Mayor, a vacancy occurred in the Sanggunian that concerned that he has reported back to office, if the
should be filled up with someone who should belong to the temporary incapacity was due to
political party of petitioner Tamayo. Under Sec 44 of the a. Leave of absence;
LGC, a permanent vacancy arises when an elective official b. Travel abroad; and
fills a higher vacant office, refuses to assume office, fails to c. Suspension
qualify, dies, is removed from office, voluntarily resigns, or is
otherwise permanently incapacitated to discharge the 2. Upon submission by the local chief executive of the
functions of his office. Sec necessary documents showing that the legal causes no
45 (b) of the same law provides that “only the nominee longer exist, if the temporary incapacity was due to legal
of the political party under which the Sanggunian reasons. [LGC, Sec. 46(b)]
member concerned has been elected and whose
elevation to the position next higher in rank created the
last vacancy in the Sanggunian shall be appointed in the Rules on consecutiveness of terms and/or
manner herein provided. The appointee shall come from involuntary interruption:
the political party as that of the Sanggunian member who
caused the vacancy…”The term “last vacancy” is thus 1. When a permanent vacancy occurs in an elective
used in Sec. 45(b) to differentiate it from the other position and the official merely assumed the position
vacancy previously created. The term “by no means” pursuant to the rules on succession under the LGC, then
refers to the vacancy in the No. 8 position which his service for the unexpired portion of the term of the
occurred with the elevation of 8th placer to the 7th replaced official cannot be treated as one full term as
position in the Sanggunian. Such construction will result contemplated under the subject constitutional and
in absurdity. (Navarro v. CA, G.R. No. 141307, March 28, statutory provision that service cannot be counted in the
2001) application of any term limit. If the official runs again for
--- the same position he held prior to his assumption of the
higher office, then his succession to said position is by
NOTE: In case of vacancy in the representation of the operation of law and is considered an involuntary
youth and the barangay in the Sanggunian, it shall be severance or interruption.
filled automatically by the official next in rank of the
organization concerned. [LGC, Sec. 45(d)] 2. An elective official, who has served for three
consecutive terms and who did not seek the elective
Rules on temporary vacancies (2002 Bar) position for what could be his fourth term, but later won
in a recall election, had an interruption in the continuity
1. In case of temporary vacancy of the post of the local of the official’s service. For, he had become in the
chief executive (leave of absence, travel abroad, and interim, i.e., from the end of the 3rd term up to the recall
suspension): Vice- Governor, City or Municipal Vice Mayor, election, a private citizen.
or the highest ranking sangguniang barangay shall
automatically exercise 3. The abolition of an elective local office due to the
conversion of a municipality to a city does not, by itself,

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work to interrupt the incumbent official’s continuity of conviction by final judgment must precede the filing
service. by the provincial governor of the charges and trial
by the provincial board." [Mindano v. Silvosa, et al.,
4. Preventive suspension is not a term-interrupting 97 Phil. 144-145 (1955)]
event as the elective officer’s continued stay and
entitlement to the office remain unaffected during the 4. Commission of any offense involving moral turpitude,
period of suspension, although he is barred from or an offense punishable by at least prision mayor
exercising the functions of his office during this period.
5. Abuse of authority
5. When a candidate is proclaimed as winner for an
elective position and assumes office, his term is GR: Unauthorized absence for 15 consecutive
interrupted when he loses in an election protest and is working days
ousted from office, thus disenabling him from serving
what would otherwise be the unexpired portion of his XPNs: In the case of members of the Sangguniang:
term of office had the protest been dismissed (Lonzanida
and Dizon). The break or interruption need not be for a a. Panlalawigan
full term of three years or for the major part of the 3-year b. Panlungsod
term; an interruption for any length of time, provided the c. Bayan
cause is involuntary, is sufficient to break the continuity d. Barangay
of service.
6. Application for, or acquisition of, foreign citizenship or
6. When an official is defeated in an election protest and residence or the status of an immigrant of another country
said decision becomes final after said official had served 7. Such other grounds as may be provided by the Code and
the full term for said office, then his loss in the election other laws. (LGC, Sec. 60)
contest does not constitute an interruption since he has
managed to serve the term from start to finish. His full JURISDICTION
service, despite the defeat, should be counted in the
application of term limits because the nullification of his An elective local official may be removed from office on
proclamation came after the expiration of the term. any of the grounds enumerated above only by an order
(Abundo v. COMELEC, G.R. No. 201716, Jan. 8, 2013) from the proper court. The Office of the President does
not have any power to remove elected officials, since
such power is exclusively vested in the proper courts as
expressly provided for in the last paragraph of Sec. 60 of
DISCIPLINE OF LOCAL OFFICIALS LGC. (Salalima v. Guingona, G.R. No. 117589-92, May 22,
1996)

ELECTIVE OFFICIALS PREVENTIVE SUSPENSION

Grounds Preventive suspension may be imposed:

An elective local official may be disciplined, suspended 1. After the issues are joined;
or removed from office on any of the following grounds: 2. When the evidence of guilt is strong;
3. Given the gravity of the offense, there is great
probability that the continuance in office of the respondent could
1. Disloyalty to the Republic of the Philippines influence the witnesses or pose a threat to the safety and integrity of
the records and other evidence. [LGC, Sec. 63(b)]
NOTE: An administrative, not criminal, case for
disloyalty to the Republic only requires substantial NOTE: It is immaterial that no evidence has been
evidence. (Aguinaldo v. Santos, G.R. No. 94115, adduced to prove that the official may influence
August 21, 1992) possible witnesses or may tamper with the public
records. It is sufficient that there exists such a
2. Culpable violation of the Constitution possibility. (Hagad v. Gozo-Dadole, G.R. No. 108072,
December 12, 1995)
3. Dishonesty, oppression, misconduct in office, gross
negligence, or dereliction of duty

NOTE: Acts of lasciviousness cannot be considered

misconduct in office, and may not be the basis of an
order of suspension. To constitute a ground for
disciplinary action, the mayor charged with the Persons who can impose preventive suspension
offense must be convicted in the criminal action.
(Palma v. Fortich, G.R. No. L-59679, January 29, Person Authorized to Respondent Local Official
1987)

Before the provincial governor and board may act 254

and proceed against the municipal official, a

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GOLDEN NOTES
 LOCAL GOVERNMENTS

Impose Suspension conduct administrative investigation

Elective official of a The Ombudsman and the Office of the President
province, highly have concurrent jurisdiction to conduct
President
urbanized or administrative investigations over elective officials.
independent (Hagad v. Gozo-Dadole, G.R. No. 108072, December 12,
component city 1995)
Elective official of
Signing of preventive suspension order
Governor component city or
municipality
The Ombudsman, as well as his Deputy, may sign an
order preventively suspending officials. Also, the length
Elective official of
of the period of suspension within the limits provided
Mayor barangay [LGC, Sec.
by law and the evaluation of the strength of the evidence
63(a)]
both lie in the discretion of the Ombudsman.
(Castillo-Co v. Barbers, G.R. No. 129952, June 16, 1998)
Rules on preventive suspension

Effect of an appeal on the preventive suspension

1. A single preventive suspension shall not extend
ordered by the Ombudsman
beyond 60 days. (Rios v. Sandiganbayan, G.R. No.
129913, September 26, 1997)
An appeal shall not stop the decision from being
2. In the event that there are several administrative
executory. In case the penalty is suspension or
cases filed, the elective official cannot be
removal and the respondent wins such appeal, he
preventively suspended for more than 90 days
shall be considered as having been under preventive
within a single year on the same ground or
suspension and shall be paid the salary and such
grounds existing and known at the time of his
other emoluments that he did not receive by reason of
first suspension. [LGC, Sec. 63(b)]
the suspension or removal. A decision of the Officeof the
Ombudsman in administrative cases shall be executed
Preventive suspension under RA 6770

as a matter of course. (Office of the Ombudsman v.

(Ombudsman Act of 1989) vs. Preventive

Samaniego, G.R. No. 175573, Oct. 5, 2010)

suspension under RA 7160 (LGC)

REMOVAL
Preventive Suspension Preventive Suspension
under RA 6770 under the LGC Removal
Requirements
1. The evidence of guilt 1. There is reasonable Removal imports the forcible separation of the
is strong; and ground to believe that incumbent before the expiration of his term and can be
2. That any of the the respondent has done only for causes as provided by law. (Dario v.
following committed the act or Mison, G.R. No. 81954, Aug. 8, 1989)
circumstances are acts complained of;
 present: 2. The evidence of guilt is NOTE: The unjust removal or non-compliance with the
a. The charge against strong; prescribed procedure constitutes reversible error and
the officer or 3. The gravity of the this entitles the officer or employee to reinstatement
employee involves offense so warrants with back salaries and without loss of seniority rights.
dishonesty, 4. The continuance in
oppression or office of the ---
grave misconduct respondent could Q: Does the Sangguniang Panlungsod and
or neglect in the influence the Sangguniang Bayan have the power to remove
performance of witnesses or pose a elective officials?
duty; threat to the safety and
b. The charges would integrity of the records A: NO. The pertinent legal provisions and cases
warrant removal and other evidence decided by this Court firmly establish that the
from office; or Sanggunaing Bayan is not empowered to do so. The
c. The respondent’s most extreme penalty that the Sangguniang Panlungsod
continued stay in or Sangguniang Bayan may impose on the erring elective
office may barangay official is suspension; if it deems that the
prejudice the case removal of the official from service is warranted, then it
filed against him. can resolve that the proper charges be filed in court. The
courts are exclusively vested with the power to remove
Maximum period
elective officials under Section 60 of the Local
Government Code. (Sangguniang Barangay of Don
6 months 60 days
Mariano Marcos v. Martinez, G.R. No. 170626, March 3,
(Hagad v. Gozo-Dadole, G.R. No. 108072, December 12,
2008)
1995).
---
Power of the Ombudsman under RA 6770 to

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Resignation of public elective officials removal of local officials, which suggests that
Congress may exercise removal powers. Note also
Resignation of elective officials shall be deemed effective that legally, supervision is not incompatible with
only upon acceptance by the following authorities: disciplinary action. (Ganzon v. CA, G.R. No. 93252,
Aug. 5, 1991)
1. The President – in case of Governors, Vice-Governors, and
Mayors and Vice-Mayors of highly urbanized cities and Under AO 23, the President has delegated the
independent and component cities power to investigate complaints to the Secretary of
2. The Governor – in the case of municipal Mayors and Vice- Interior and Local Government. This is valid
Mayors, city Mayors and Vice-Mayors of component cities delegation because what is delegated is only the
3. The Sanggunian concerned – in case of sanggunian members power to investigate, not the power to discipline.
4. The City or Municipal Mayor – in case of barangay officials Besides, the power of the Secretary of Interior and
(LGC, Sec. 82) Local Government is based on the “alter-ego”
principle. (Joson v. Torres, G.R. No. 131255, May 20,
NOTE: The resignation shall be deemed accepted if not 1998)
acted upon by the authority concerned within 15
working days from receipt thereof. Irrevocable 2. Sangguniang Panlalawigan – Elective officials of
resignations by sanggunian members shall be deemed municipalities;
accepted upon representation before an open session of
the sanggunian concerned and duly entered in its NOTE: Decision may be appealed to the Office of the
records, except where the sanggunian members are President
subject to recall elections or to cases where existing
laws prescribed the manner of acting upon such 3. Sangguniang Panglungsod or Bayan – Elective barangay
resignations. [LGC, Sec. 82(c)(d)] officials (LGC, Sec. 61)

ADMINISTRATIVE APPEAL NOTE: Decision shall be final and executory.

Rule on administrative appeals DOCTRINE OF CONDONATION

(Correlate discussion under Law on Public
Decisions in administrative cases may, within 30 days
from receipt thereof, be appealed to the following: Officers) Basic Postulate
1. The Sangguniang Panlalawigan, in the case of decisions of
the Sangguniang Panlungsod of component cities and the An elective official’s re-election cuts off the right to
Sangguniang Bayan; and remove him for an administrative offense committed
2. The Office of the President, in the case of decisions of the during a prior term.
Sangguniang Panlalawigan and the Sangguniang Panlungsod of
Highly Urbanized Cities and Independent Component Cities. History of the Doctrine
(LGC, Sec. 67)
It is a jurisprudential creation that originated from the
NOTE: Decisions of the Office of the President shall be 1959 case of Pascual v. Hon. Provincial Board of Nueva
final and executory. Ecija, (Pascual), which was therefore decided under the
1935 Constitution. As there was no legal precedent on
Persons authorized to file administrative complaint the issue at that time, the Supreme Court, in Pascual,
resorted to American authorities. The conclusion is at
1. Any private individual or any government officer or once problematic since the Supreme Court has now
employee by filing a verified complaint; uncovered that there is really no established weight of
2. Office of the President or any government agency duly authority in the US favoring the doctrine of condonation.
authorized by law to ensure that LGUs act within their In fact, as pointed out during the oral arguments of
prescribed powers and functions. (Rule 3, Sec.1, AO 23, Dec. 17, Ombudsman Carpio-Morales v. Binay, Jr., at least
1992) seventeen (17) states in the US have abandoned the
condonation doctrine.
A verified complaint shall be filed with the following:
Abandonment of the Doctrine

1. Office of the President – Against elective official of provinces, To begin with, the concept of public office is a public
highly urbanized cities, independent component cities, or trust and the corollary requirement of accountability to
component cities. the people at all times, as mandated under the 1987
Constitution, is plainly inconsistent with the idea that an
NOTE: It may be noted that the Constitution places elective local official’s administrative liability for a
local governments under the supervision of the misconduct committed during a prior term can be wiped
Executive. Likewise, the Constitution allows off by the fact that he was elected to a second term of
Congress to include in the LGC provisions for office, or even another elective post. Election is not a
mode of condoning an administrative offense, and there
is simply no constitutional or statutory basis in our
jurisdiction to support the notion that an official elected
UNIVERSITY OF SANTO TOMAS
2017 GOLDEN NOTES
 LOCAL GOVERNMENTS

for a different term is fully absolved of any Imposable penalties

administrative liability arising from an offense done
during a prior term. In this jurisdiction, liability arising Except as otherwise provided by law, the local chief
from administrative offenses may be condoned by the executive may impose the penalty of:
President in light of Section 19, Article VII of the 1987
Constitution which was interpreted in Llamas v. Orbos to 1. Removal from service
apply to administrative offenses. 2. Demotion in rank
3. Suspension for not more than one (1) year without
Also, it cannot be inferred from Section 60 of the LGC pay
that the grounds for discipline enumerated therein 4. Fine in an amount not exceeding six (6) months’
cannot anymore be invoked against an elective local salary
official to hold him administratively liable once he is re- 5. Reprimand and otherwise discipline subordinate
elected to office. In fact, Section 40 (b) of the LGC officials and employees under his jurisdiction
precludes condonation since in the first place, an elective
local official who is meted with the penalty of removal NOTE: If the penalty imposed is suspension without pay
could not be re-elected to an elective local position due for not more than thirty (30) days, his decision shall be
to a direct disqualification from running for such post. In final.
similar regard, Section 52 (a) of the Revised Rules on
Administrative Cases in the Civil Service imposes a If the penalty imposed is heavier than suspension of
penalty of perpetual disqualification from holding public thirty (30) days, the decision shall be appealable to the
office as an accessory to the penalty of dismissal from Civil Service Commission, which shall decide the appeal
service. within thirty (30) days from receipt thereof. (LGC, Sec.
87)
Reading the 1987 Constitution together with the above-
cited legal provisions now leads the Supreme Court to ---
the conclusion that the doctrine of condonation is Q: Salumbides and Glenda were appointed as
actually bereft of legal bases. Municipal Legal Officer/Administrator and
Municipal Budget Officer, respectively. A complaint
APPOINTIVE OFFICIALS was filed with the Office of the Ombudsman against
Salumbides and Glenda. They urge the Court to
Appointive Officials and the Civil Service Commission expand the settled doctrine of condonation to cover
coterminous appointive officials who were
The authority granted by the Civil Service Commission administratively charged along with the re-elected
(CSC) to a city government to “take final action” on all its official/appointing authority with infractions
appointments did not deprive the CSC of its authority allegedly committed during their preceding term.
and duty to review appointments. The CSC is They contend that the non-application of the
empowered to take appropriate action on all condonation doctrine to appointive officials violates
appointments and other personnel actions. Such power the right to equal protection of the law. Is the
includes the authority to recall appointments initially contention tenable?
approved in disregard of applicable provisions of the
Civil Service law and regulations. (Nazareno v. City of A. NO. In the recent case of Quinto v. COMELEC, it
Dumaguete, G.R. No. 181559, Oct. 2, 2009) discussed the material and substantive distinctions
between elective and appointive officials that could well
NOTE: The municipal mayor, being the appointing apply to the doctrine of condonation. It is the will of the
authority, is the real party in interest to challenge the populace, not the whim of one person who happens to be
CSC’s disapproval of the appointment of his/her the appointing authority, which could extinguish an
appointee. The CSC’s disapproval of an appointment is a administrative liability. Since Salumbides and Glenda
challenge to the exercise of the appointing authority’s hold appointive positions, they cannot claim the mandate
discretion. The appointing authority must have the right of the electorate. The people cannot be charged with the
to contest the disapproval. (Dagadag v. Tongnawa, G.R. presumption of full knowledge of the life and character
Nos. 161166-67, Feb. 3, 2005) of each and every probable appointee of the elective
official ahead of the latter’s actual reelection. There is
Preventive suspension of appointive local officials neither subversion of the sovereign will nor
and employees disenfranchisement of the electorate to speak of, in the
case of reappointed coterminous employees. (Salumbides
The local chief executives may preventively suspend, for v. Office of the Ombudsman, G.R. No. 180917, April 23,
a period not exceeding sixty (60) days, any subordinate 2010)
official or employee under his authority pending
investigation if the charge against such official or ---
employee involves dishonesty, oppression, or grave
misconduct or neglect in the performance of duty, or if RECALL
there is reason to believe that the respondent is guilty of (2000, 2002, 2008, 2010 Bar)
the charges which would warrant his removal from the
service. (LGC, Sec. 85) It is a mode of removal of a public officer, by the people,
before the end of his term. The people’s prerogative to

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remove a public officer is an incident of their sovereign them to bring up any charge of abuse or corruption
power, and in the absence of constitutional restraint, the against the local elective officials who are the subject of
power is implied in all governmental operations. (Garcia any recall petition.
v. COMELEC, G.R. No. 111511, Oct. 5, 1993)
Recall initiation (2002 Bar)
NOTE: All expenses incident to recall elections shall be
borne by the COMELEC. For this purpose, the annual The Recall of any elective provincial, city, municipal or
General Appropriations Act shall include a contingency barangay official shall be commenced by a petition of a
fund at the disposal of the COMELEC for the conduct of registered voter in the LGU concerned and supported by
recall elections. (LGC, Sec. 75) the registered voters in the LGU concerned during the
election in which the local official sought to be recalled
--- was elected subject to the following percentage
Q: Goh filed before the COMELEC a recall petition requirements:
against Mayor Bayron due to loss of trust and
confidence. On 1 April 2014, the COMELEC a. At least twenty-five percent (25%) in the case LGUs
promulgated Resolution No. 9864 which found the with a voting population of not more than twenty thousand
recall petition sufficient in form and substance, but (20,000);
suspended the funding of any and all recall elections b. At least twenty percent (20%) in the case of LGUs with a
until the resolution of the funding issue. Petitioner voting population of at least twenty thousand (20,000) but
submits that the same is a grave abdication and not more than seventy-five thousand (75,000): Provided,
wanton betrayal of the constitutional mandate of the That in no case shall the required petitioners be less than
COMELEC and a grievous violation of the sovereign five thousand (5,000);
power of the people. What Resolution Nos. 9864 and c. At least fifteen percent (15%) in the case of LGUs
9882 have given with one hand (the affirmation of with a voting population of at least seventy-five
the sufficiency of the Recall Petition), they have thousand (75,000) but not more than three hundred
taken away with the other (the issue of lack funding). thousand (300,000): Provided, however, That in no
The COMELEC suspended the holding of a recall case shall the required number of petitioners be less
election supposedly through lack of funding. Did the than fifteen thousand (15,000); and
COMELEC gravely abuse its discretion when it
suspended the recall election? d. At least ten percent (10%) in the case of LGUs with a
voting population of over three hundred thousand
A: YES. The COMELEC committed grave abuse of (300,000): Provided, however, that in no case shall the
discretion in issuing Resolution Nos. 9864 and 9882. The required petitioners be less than forty-five thousand
2014 GAA provides the line item appropriation to allow (45,000). (LGC, Sec. 70, as amended by RA 9244)
the COMELEC to perform its constitutional mandate of
conducting recall elections. There is no need for NOTE: By virtue of RA 9244, Secs. 70 and 71 of the LGC
supplemental legislation to authorize the COMELEC to were amended, and the Preparatory Recall Assembly has
conduct recall elections for 2014. Considering that there been eliminated as a mode of instituting recall of elective
is an existing line item appropriation for the conduct of local government officials.
recall elections in the 2014 GAA, we see no reason why
the COMELEC is unable to perform its constitutional All pending petitions for recall initiated through the
mandate to “enforce and administer all laws and Preparatory Recall Assembly shall be considered
regulations relative to the conduct of x x x recall.” Should dismissed upon the effectivity of RA 9244. (Approved
the funds appropriated in the 2014 GAA be deemed February. 19, 2004)
insufficient, then the COMELEC Chairman may exercise
his authority to augment such line item appropriation Recall process
from the COMELEC’s existing savings, as this
augmentation is expressly authorized in the 2014 GAA. 1. Petition of a registered voter in the LGU concerned,
Resolution No. 9864 is therefor partially reverse and set supported by percentage of registered voters during the
aside insofar as it directed the suspension of any and all election in which the local official sought to be recalled was
proceedings in the recall petition. (Goh v. Bayron, G.R No. elected.
212584, Nov. 25, 2014) 2. Within 15 days after filing, COMELEC must certify the
--- sufficiency of the required number of signatures.

Ground for recall NOTE: Failure to obtain required number

automatically nullifies petition.
The only ground for recall of local government officials is
loss of confidence. It is not subject to judicial inquiry. The 3. Within 3 days of certification of sufficiency, COMELEC
Court ruled that ‘loss of confidence’ as a ground for recall shall provide the official with copy of petition and shall cause
is a political question. (Garcia v. COMELEC, G.R. No. its publication for three weeks (once a week) in a national
111511, Oct. 5, 1993) newspaper and a local newspaper of general circulation.
Petition
This means that the people may petition to recall any
local elective officials without specifying any particular
ground except loss of confidence. There is no need for

258
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 NATIONAL ECONOMY AND PATRIMONY

must also be posted for 10 to 20 days at ---

conspicuous places. (LGC, Sec. 70 (b)(2), as amended ---
by RA 9244) Q. Will it be proper for the COMELEC to act on a
petition for recall signed by just one person?
NOTE: Protest should be filed at this point and
ruled with finality within 15 days after filing. A: NO. A petition for recall signed by just one person is
in violation of the statutory 25% minimum requirement
4. COMELEC verifies and authenticates the signature as to the number of signatures supporting any petition
for recall. (Angobung v. COMELEC, G.R. No. 126576,
5. COMELEC announces acceptance of candidates. March 5, 1997)
6. COMELEC sets election within 30 days after the ---
filing of the resolution or petition for recall in the case of
barangay/city/municipality, and 45 days in the case of TERM LIMITS
provincial officials. Officials sought to be recalled are
automatic candidates. (LGC, Secs. 70 & 71) Term of office of an elected local official (2006 Bar)

NOTE: The official or officials sought to be recalled

shall automatically be considered as duly registered Three (3) years starting from noon of June 30 following
candidate or candidates to the pertinent positions the election or such date as may be provided by law,
and, like other candidates, shall be entitled to be except that of elective barangay officials, for maximum of
voted upon. (LGC, Sec. 71) 3 consecutive terms in the same position. (LGC, Sec. 43)

Effectivity of Recall (2002, 2010 Bar)

The term of office of Barangay and Sangguniang
The recall of an elective local official shall be effective Kabataan elective officials, by virtue of RA 9164 and RA
only upon the election and proclamation of a successor 10742, is three (3) years.
in the person of the candidate receiving the highest
number of votes cast during the election on recall. NOTE: The objective of imposing the three-term limit
rule is to “avoid the evil of a single person accumulating
Should the official sought to be recalled receive the excess power over a particular territorial jurisdiction as
highest number of votes, confidence in him is thereby a result of a prolonged stay in the same office”.
affirmed, and he shall continue in office. (LGC, Sec. 72)
For a three term rule to apply, the local official must
Prohibition from resignation (2010 Bar) have fully served the term and been elected through
regular election.
The elective local official sought to be recalled shall not
be allowed to resign while the recall process is in ---
progress. (LGC, Sec. 73) Q: From 2004 to 2007 and 2007 to 2010, Naval had
been elected as a Board Member of the Sangguniang
Limitations on recall (2008 Bar) Panlalawigan for the Second District, Province of
Camarines Sur. On October 12, 2009, the President
1. Any elective local official may be the subject of a approved R.A. No. 9716, which reapportioned the
recall election only once during his term of office for loss of legislative districts in Camarines Sur. 8 out of 10
confidence; and towns were taken from the old Second District to
2. No recall shall take place within one (1) year from form the present Third District. The present Second
the date of the official’s assumption to office or one (1) year District is composed of the two remaining towns,
immediately preceding a regular election. (LGC, Sec. 74) Gainza and Milaor, merged with five towns from the
old First District. In the 2010 elections, Naval once
NOTE: The one-year time bar will not apply where the again won as among the members of the Sanggunian,
local official sought to be recalled is a mayor and the Third District. He served until 2013. In the 2013
approaching election is a barangay election. (Angobung elections, Naval ran anew and was re-elected as
v. COMELEC, G.R. No. 126576, March 5, 1997) Member of the Sanggunian, Third District. Nelson
Julia was likewise a Sanggunian Member candidate
--- from the Third District in the 2013 elections. He filed
Q: Sec. 74 of the LGC provides that “no recall shall before the COMELEC a Verified Petition to Deny Due
take place within one year immediately preceding a Course or to Cancel COC of Naval. Julia posited that
regular local election.” What does the term “regular Naval had fully served for three consecutive terms as
local election,” as used in this section, mean? a member of the Sanggunian, irrespective of the
district he had been elected from. Allowing Naval to
A: Referring to an election where the office held by the run as a Sanggunian member for the fourth time is
local elective official sought to be recalled is to be actually violative of the inflexible three-term limit rule. Is
contested and filled by the electorate. (Paras v. COMELEC, Julia correct?
G.R. No. 123169, Nov. 4, 1996)
A: YES. As worded, the constitutional provision fixes the
term of a local elective office and limits an elective

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 POLITICAL LAW

official’s stay in office to no more than three consecutive

terms. The “limitation” under this first branch of the NATIONAL ECONOMY AND PATRIMONY
provision is expressed in the negative—“no such official

shall serve for more than three consecutive terms.” This

formulation—no more than three consecutive terms—is a
Threefold goals of the national economy
clear command suggesting the existence of an inflexible
rule. This examination of the wording of the constitutional
1. More equitable distribution of opportunities,
provision and of the circumstances surrounding its
income and wealth
formulation impresses upon us the clear intent to make
2. Sustained increase in the amount of goods and
term limitation a high priority constitutional objective
services produced by the nation for the benefit of
whose terms must be strictly construed and which cannot
the people
be defeated by, nor sacrificed for, values of less than equal
3. Expanding productivity. (1987 Constitution, Art. XII,
constitutional worth.
Sec 1)

In Naval’s case, the words of R.A. No. 9716 plainly state

Patrimony
that the new Second District is to be created, but the Third
District is to be renamed. The rationale behind
It refers not only to natural resources but also to cultural
reapportionment is the constitutional requirement to
heritage. (Manila Prince Hotel v. GSIS, G.R. No. 122156,
achieve equality of representation among the
Feb. 3, 1997)
districts.The aim of legislative apportionment is to

equalize population and voting power among districts.

REGALIAN DOCTRINE
The basis for districting shall be the number of the
(1990, 1994, 1998, 1999, 2006 Bar)
inhabitants of a city or a province and not the number of
registered voters therein. Naval’s ineligibility to run, by
Regalian Doctrine (Jura Regalia)
reason of violation of the three-term limit rule, does not
undermine the right to equal representation of any of the
The Regalian Doctrine dictates that “all lands not
districts in Camarines Sur. With or without him, the
appearing to be clearly of private dominion presumably
renamed Third District, which he labels as a new set of
belong to the State. Unless public land is shown to have
constituents, would still be represented, albeit by another
been reclassified or alienated to a private person by the
eligible person.
State, it remains part of the inalienable public domain.
Indeed, occupation thereof in the concept of owner, no
In sum, there is no compelling reason to side with Naval.
matter how long, cannot ripen into ownership and be
To declare otherwise would be to create a dangerous
registered as a title.” (Republic v. Sps. Benigno, G.R. No.
precedent unintended by the drafters of our Constitution
205492, March 11, 2015)
and of R.A. No. 9716. Considering that the one-term gap
or rest after three consecutive elections is a result of a NOTE: All lands of the public domain, waters, minerals,
compromise among the members of the Constitutional
coal, petroleum, and other mineral oils, all forces of
Commission, no cavalier exemptions or exceptions to its
potential energy, fisheries, forests, or timber, wildlife,
application is to be allowed. Further, sustaining Naval’s
flora and fauna, and other natural resources are owned
arguments would practically allow him to hold the same
by the state. With the exception of agricultural lands, all
office for 15 years. (Naval v. COMELEC, G.R. No. 207851,
other natural resources shall not be alienated. (1987
July 8, 2014.
Constitution, Art. XII, Sec. 2)
---
Effect of the Regalian Doctrine
Term limit of Barangay officials

The burden of proof in overcoming the presumption of

The term of office of barangay officials was fixed at three
State ownership of the lands of the public domain is on
years under RA 9164 (19 March 2002). Further, Sec.43
the person applying for registration, who must prove
(b) provides that "no local elective official shall serve
that the land subject of the application is alienable or
for more than three (3) consecutive terms in the same
disposable. To overcome this presumption,
position. The Court interpreted thissection referring to
incontrovertible evidence must be presented to establish
all local elective officials without exclusions or
that the land subject of the application is alienable or
exceptions. (COMELEC v. Cruz, G.R. No. 186616, Nov. 20,
disposable. (Republic v. Lualhati, G.R. No. 183511, March
25, 2015)

2009)
XPNs to the Regalian Doctrine
NOTE: Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the
1. When there is an existence of native title to land, or
continuity of service for the full term for which the
ownership of land by Filipinos by virtue of
elective official concerned was elected. (Sec 43(b), LGC; see
possession under a claim of ownership since time
previous discussion on Abundo v. COMELEC, infra.)
immemorial and independent of any grant from the
Spanish Crown. Cariño case firmly established a
concept of private land title that existed irrespective
of any royal grant from the State and was based on

260
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 NATIONAL ECONOMY AND PATRIMONY

the strong mandate extended to the Islands via the NOTE: It would seem therefore that
Philippine Bill of 1902. (Cariño v. Insular corporations are excluded, or at least must be
Government, G.R. No. 2869, March 25, 1907) fully owned by Filipinos.

2. Any land in the possession of an occupant and of his 5. Small-scale utilization of natural resources by
predecessors-in-interest since time immemorial. Such Filipino citizens, as well as cooperative fish farming, with
possession would justify the presumption that the land had priority to subsistence fishermen and fishworkers in
never been part of the public domain or that it had been a rivers, lakes, bays, and lagoons.
private property even before the Spanish conquest. (Oh Cho
v. Director of Land, G.R. No. 48321, Aug. 31, 1946) Native Title

Limitations imposed by Sec. 2, Art II that embody the Refers to the Indigenous Cultural
Jura Regalia of the State Communities/Indigenous Peoples (ICCs/IPs)
preconquest rights to lands and domains held under a
1. Only agricultural lands of the public domain may be claim of private ownership as far back as memory
alienated. reaches. These lands are deemed never to have been
public lands and are indisputably presumed to have been
2. The exploration, development, and utilization of all held that way since before the Spanish Conquest. The
natural resources shall be under the full control and rights of ICCs/IPs to their ancestral domains (which also
supervision of the State either by directly undertaking such include ancestral lands) by virtue of native title shall be
exploration, development, and utilization or through co- recognized and respected. (Indigenous Peoples’ Rights
production, joint venture, or production-sharing agreements Act, Sec. 11; Cruz v. Sec. of DENR, G.R. No. 135385, Dec. 6,
with qualified persons or corporations. 2000)

NOTE: Two levels of controls that must be NOTE: Formal recognition, when solicited by ICCs/IPs
considered: concerned, shall be embodied in a Certificate of Ancestral
Domain Title which shall recognize the title of the
First level: control over the corporation which concerned ICCs/IPs over the territories identified and
may engage with the State in “co-production, delineated. (Indigenous Peoples’ Rights Act, Sec. 11)
joint venture, or production sharing
agreements.” If individuals, they must be Ancestral domains
Filipino citizens; if corporations, the ownership
must be 60% Filipino. All areas belonging to ICCs/IPs held under a claim of
ownership, occupied or possessed by ICCs/IPs by
Second level: control of the “co-production, joint themselves or through their ancestors, communally or
venture, or production-sharing” operation. This individually since time immemorial, continuously until
must be under the full control and supervision the present, except when interrupted by war, force
of the State. majeure or displacement by force, deceit, stealth or as a
consequence of government projects or any other
What the new rule says is that whenever voluntary dealings with government and/or private
natural resources are involved, particularly in individuals or corporations. [RA 8371, Sec. 3 (a)]
the case of inalienable natural resources, the
State must always have some control of the Ancestral lands
exploration, development, and utilization even
if the individual or corporation engaged in the Lands held by the ICCs/IPs under the same conditions as
operation is a Filipino. This rule is not ancestral domains except that these are limited to lands
retroactive. and that these lands are not merely occupied and
possessed but are also utilized by the ICCs/IPs under
3. All agreements with the qualified private sector may claims of individual or traditional group ownership. [RA
be only for a period not exceeding 25 years, renewable for 8371, Sec. 3 (b)]
another 25 years.
RA 8371 (Indigenous Peoples’ Rights Act) does not
XPN: Not applicable to “water rights for infringe upon the State’s ownership over the natural
irrigation, water supply, fisheries, or industrial resources within the ancestral domains
uses other than the development of water
power,” for which “beneficial use may be the Sec. 3(a) of RA 8371 merely defines the coverage of
measure and the limit of the grant.” ancestral domains, and describes the extent, limit and
composition of ancestral domains by setting forth the
4. The use and enjoyment of marine wealth of the standards and guidelines in determining whether a
archipelagic waters, territorial sea, and exclusive economic particular area is to be considered as part of and within
zone shall be reserved for Filipino citizens. the ancestral domains.

Sec. 5 in relation to Sec. 3(a) cannot be construed as a

source of ownership rights of indigenous peoples over
the natural resources simply because it recognizes

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ancestral domains as their “private but community GR: Filipino citizens or entities with 60%
property.” capitalization owned by Filipino citizens.

Further, Sec. 7 makes no mention of any right of XPN: For large-scale EDU of minerals, petroleum
ownership of the indigenous peoples over the natural and other mineral oils, the President may enter into
resources. In fact, Sec. 7(a) merely recognizes the “right agreements with foreign-owned corporations
to claim ownership over lands, bodies of water involving technical or financial agreements only.
traditionally and actually occupied by indigenous (1987 Constitution, Art. XII, Sec. 2)
peoples, sacred places, traditional hunting and fishing
grounds, and all improvements made by them at any State may also directly exploit its natural
time within the domains.” Neither does Sec. 7(b), which resources in either of two ways:
enumerates certain rights of the indigenous peoples over
the natural resources found within their ancestral a. State may set up its own company to engage in
domains, contain any recognition of ownership vis-à -vis the exploitation of natural resources.
the natural resources. (Separate Opinion, Kapunan, J., in b. State may enter into a financial or technical
Cruz v. Sec. of DENR, G.R. No. 135385, Dec. 6, 2000) assistance agreement (“FTAA”) with private companies who
act as contractors of the State. (La Bugal-B’laan v.
Coverage of the IPRA DENR Sec., G.R. No. 127882, Dec. 1, 2004)

1. Protection of the indigenous peoples’ rights and 2. Use and enjoyment of nation’s marine wealth within the
welfare in relation to the natural resources found within territory: Exclusively for Filipino citizens; (1987
their ancestral domains, Constitution, Art. XII, Sec. 2)
2. Preservation of the ecological balance 3. Alienable lands of the public domain:
3. Ensure that the indigenous peoples will not be a. Only Filipino citizens may acquire not more than
unduly displaced when the State-approved activities 12 hectares by purchase, homestead or grant, or lease not
involving the natural resources located therein are more than 500 hectares.
undertaken. (Separate Opinion, Kapunan, J., in Cruz v. Sec. b. Private corporations may lease not more than 1000
of DENR, ibid.) hectares for 25 years renewable for another 25 years; (1987
Constitution, Art. XII, Sec. 3)
A property granted to a state university, although 4. Certain areas of investment: reserved for Filipino
within the ancestral domains, cannot be distributed citizens or entities with 60% owned by Filipinos, although
to indigenous peoples and cultural communities. Congress may provide for higher percentage; (1987
Constitution, Art. XII, Sec. 10)
The lands by their character have become inalienable 5. In the Grant of rights, privileges and concessions
from the moment President Garcia dedicated them for covering the national economy and patrimony, State shall
the state university’s use in scientific and technological give preference to qualified Filipinos; and (1987
research in the field of agriculture. They have ceased to Constitution, Art. XII, Sec. 10)
be alienable public lands. When Congress enacted the 6. Franchise, certificate or any other form of authorization
IPRA in 1997, it provided in Sec. 56 that "property rights for the operation of a public utility; only to Filipino citizens
within the ancestral domains already existing and/or or entities with 60% owned by Filipinos. (1987 Constitution,
vested" upon its effectivity "shall be recognized and Art. XII, Sec. 11)
respected." In this case, ownership over the subject lands
had been vested in the state university as early as 1958. NOTE: Such franchise, etc., shall neither be
Consequently, transferring the lands in 2003 to the exclusive, nor, for a period longer than 50 years, and
indigenous peoples around the area is not in accord with subject to amendment, alteration or repeal by
the IPRA. (CMU v. Exec. Sec., G.R.No.184869, Sept. 21, Congress. All executive and managing officers must
2010) be Filipino citizens.

Stewardship Doctrine ---

Q: President Estrada signed into law RA 8762, also
Private property is supposed to be held by the individual known as the Retail Trade Liberalization Act of 2000. It
only as a trustee for the people in general, who are its expressly repealed R.A. 1180, which absolutely
real owners. prohibited foreign nationals from engaging in the retail
trade business. R.A. 8762 now allows them to do under
NATIONALIST AND CITIZENSHIP REQUIREMENT special categories. Several members of the House of
PROVISION Representatives, filed a petition assailing the
constitutionality of RA 8762. They mainly argue that it
Filipinized activities as provided in Art. XII of the violates the mandate of the 1987 Constitution for the
Constitution State to develop a self-reliant and independent national
economy effectively controlled by Filipinos. Is the Retail
1. Co-production, joint venture or production sharing Trade Liberalization Act of 2000 constitutional?
agreement for exploration, development and utilization
(EDU) of natural resources:

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2. Co-production, joint venture, or production sharing

A: YES. While Sec. 19, Art. II of the 1987 Constitution agreements with the State and all under the full control and
requires the development of a self-reliant and independent supervision of the State. (Miners Association v. Factoran, G.R.
national economy effectively controlled by Filipino No. 98332, Jan. 16, 1995)
entrepreneurs, it does not impose a policy of Filipino
monopoly of the economic environment. Objective: simply NOTE: However, as to marine wealth, only Filipino
to prohibit foreign powers or interests from maneuvering citizens are qualified. This is also true of natural
our economic policies and ensure that Filipinos are given resources in rivers, bays, lakes and lagoons, but with
preference in all areas of development. It does not rule out allowance for cooperatives. (1987 Constitution, Art. XII,
the entry of foreign investments, goods, and services. While Sec. 2, pars. 2 and 3)
it does not encourage their unlimited entry into the country,
it does not prohibit them either. In fact, it allows an Control Test and Grandfather Rule (2015 Bar)
exchange on the basis of equality and reciprocity, frowning
only on foreign competition that is unfair. (Espina v. Zamora, In Narra Nickel Mining and Development Corporation v.
G.R. No. 143855, Sept. 21, 2010) Redmont Consolidated Mines Corpoation, G.R. No. 195580,
--- January 28, 2015 (Resolution), these two tests were
discussed by the Supreme Court in determining whether
An alien may not acquire property by virtue of a or not Narra Nickel Mining and Development
purchase made by him and his Filipino wife (1994, Corporation Tesoro Mining and Development, Inc., and
1998, 2002, 2009 Bar) McArthur Mining, Inc. complied with the Filipino
ownership requirement, thus, entitled to Mineral
The fundamental law prohibits the sale to aliens of Production Sharing Agreements (MPSAs).
residential land. Sec. 7, Art. XII ordains that, "Save in
cases of hereditary succession, no private land shall be
transferred or conveyed except to individuals, Control Test Grandfather Rule
corporations, or associations qualified to acquire or hold
lands of the public domain." Thus, assuming that it was
his intention that the lot in question be purchased by him Also known as the “liberal The method by which the
and his wife, he acquired no right whatever over the test”; This provides that percentage of Filipino
property by virtue of that purchase; and in attempting to shares belonging to equity in a corporation is
acquire a right or interest in land, vicariously and corporations or computed, in cases where
clandestinely, he knowingly violated the Constitution; partnerships at least 60% corporate shareholders
the sale as to him was null and void.
of the capital of which is are present, by attributing
He had and has no capacity or personality to question the owned by Filipino citizens the nationality of the
subsequent sale of the same property by his wife on the shall be considered of second or even subsequent
theory that in so doing he is merely exercising the Philippine nationality. tier of ownership to
prerogative of a husband in respect of conjugal property. determine the nationality
To sustain such a theory would permit indirect This does not scrutinize of the corporate
controversion of the constitutional prohibition. If the further the ownership of shareholder.
property were to be declared conjugal, this would accord the Filipino shareholdings.
to the alien husband a not insubstantial interest and
Thus, to arrive at the
right over land, as he would then have a decisive vote as
to its transfer or disposition. This is a right that the actual Filipino ownership
Constitution does not permit him to have. (Cheeseman v. and control in a
IAC, G.R. No. 74833, Jan. 21, 1991) corporation, both the
direct and indirect
shareholdings in the
EXPLORATION, DEVELOPMENT AND UTILIZATION corporation are
OF NATURAL RESOURCES
determined.
Exploration, development and utilization of natural
resources (2015 Bar) Primary test (but it Applies only when
may be combined the 60-40 Filipino-
Only Filipino citizens and corporations or associations at
with the Grandfather foreign ownership is
least sixty percent (60%) of whose capital is owned by
Filipino citizens are qualified to take part in exploration, Rule) in doubt or where
development and utilization of natural resources. (1987 there is reason to
Constitution, Art. XII, Sec. 2) believe that there is
non-compliance with
Since natural resources, except agricultural resources the provisions of the
that cannot be alienated, they can be explored,
Constitution on the
developed, or utilized by:
1. Direct undertaking of activities by the State nationality
restriction.
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NOTE: “Doubt” - does not refer to the fact that the FRANCHISES, AUTHORITY AND CERTIFICATES FOR
apparent Filipino ownership of the corporation’s equity PUBLIC UTILITIES
falls below the 60% threshold. Rather, it refers to various
indicia that the "beneficial ownership" and "control" of Public Utility
the corporation do not in fact reside in Filipino
shareholders but in foreign stakeholders. A business or service engaged in regularly supplying the
public with some commodity or service of public
Circumstances that compelled the application of the consequence, such as electricity, gas, water,
Grandfather Rule in Narra Nickel Mining v. Redmont transportation, telephone or telegraph service. To
Consolidated Mines constitute a public utility, the facility must be necessary
for the maintenance of life and occupation of the
1. The three mining corporations had the same 100% residents. As the name indicates, “public utility” implies
Canadian owned foreign investor; public use and service to the public. (J.G. Summit v. CA
2. The similar corporate structure and shareholder G.R. No. 124293, Sept. 24, 2003)
composition of the three corporations;
3. A major Filipino shareholder within the corporate Public utilities are privately owned and operated
layering did not pay any amount with respect to its businesses whose services are essential to the general
subscription; and public. They are enterprises which specially cater to the
4. The dubious act of the foreign investor in conveying needs of the public and conduce to their comfort and
its interests in the mining corporations to another convenience. As such, public utility services are
domestic corporation. impressed with public interest and concern. (Kilusang
Mayo Uno Labor Center v. Garcia, Jr., G.R. No. 115381, Dec.
NOTE: Corporate layering is valid insofar as it does not 23, 1994)
intend to circumvent the Filipino ownership
requirement of the Constitution. (Narra Nickel Mining Operation of a public utility
and Development Corporation v. Redmont Consolidated
Mines Corpoation, G.R. No. 195580, April 21, 2014) Only Filipino citizens or corporations at least 60% of
whose capital is Filipino owned are qualified to acquire a
Validity of service contract entered into by the State franchise, certificate or any other form of authorization.
with a foreign-owned corporation (1987 Constitution, Art. XII, Sec. 11)

Subject to the strict limitations in the last two Franchise requirement before one can operate a
paragraphs of Sec. 2 Art. XII, financial and technical public utility (1994 Bar)
agreements are a form of service contract. Such service
contacts may be entered into only with respect to The Constitution, in no uncertain terms, requires a
minerals, petroleum, and other mineral oils. The grant of franchise for the operation of a public utility. However, it
such service contracts is subject to several safeguards, does not require a franchise before one can own the
among them: facilities needed to operate a public utility so long as it
does not operate them to serve the public.
1. That the service contract be crafted in
accordance with a general law setting standard of Sec. 11, Art. XII provides that, “No franchise, certificate or
uniform terms, conditions and requirements; any other form of authorization for the operation of a
Ratio: To attain certain uniformity in public utility shall be granted except to citizens of the
provisions and avoid the possible Philippines or to corporations or associations organized
insertion of terms disadvantageous to under the laws of the Philippines at least 60% of whose
the country. capital is owned by such citizens, nor shall such
2. President be the signatory for the franchise, certificate or authorization be exclusive
government; and character or for a longer period than 50 years…” (Tatad
Ratio: Before an agreement is v. Garcia, G.R. No. 114222, April 6, 1995)
presented to the President for
signature, it will have been vetted NOTE: A shipyard is not a public utility. Its nature
several times over at different levels dictates that it serves but a limited clientele whom it may
to ensure that it conforms to law and choose to serve at its discretion. It has no legal obligation
can withstand public scrutiny. to render the services sought by each and every client.
3. President reports the executed agreement to (J.G. Summit v. CA, G.R. No. 124293, Sept. 24, 2003)
Congress within 30 days.
Ratio: To give that branch of Exclusivity of a public utility franchise
government an opportunity to look
over the agreement and interpose A franchise to operate a public utility is not an exclusive
timely objections, if any. (La private property of the franchisee. Under the
BugalB’laan v. DENR, G.R. No. 127882, Constitution, no franchisee can demand or acquire
Dec. 1, 2004) exclusivity in the operation of a public utility. Thus, a
franchisee cannot complain of seizure or taking of
property because of the issuance of another franchise to

264
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 NATIONAL ECONOMY AND PATRIMONY

a competitor. (Pilipino Telephone Corp. v. NRC, G.R. No. 1. Advertising- 70% of their capital must be
138295, 2003) owned by Filipino citizens. [Art. XVI, Sec. 1(2)]
2. Mass Media- must be wholly owned by Filipino
NOTE: SC said that Congress does not have the exclusive citizens. [Art. XVI, Sec. 11(1)]
power to issue such authorization. Administrative 3. Educational institutions- 60% of their capital
bodies, e.g. LTFRB, ERB, etc., may be empowered to do must be owned by Filipino citizens. [Art. XVI, Sec. 4(2)]
so. Franchises issued by Congress are not required
before each and every public utility may operate (Albano Interpretation of the term “capital” as used in Sec. 11,
v. Reyes, G.R. No. 83551, July 11, 1989). The law has Art. XII in determining compliance with the
granted certain administrative agencies the power to ownership requirement
grant licenses for or to authorize the operation of certain
public utilities. (See EO nos. 172 and 202) Refers only to shares of stock entitled to vote in the
election of directors, and only to common shares and not
Delegation of authority to grant franchises or similar to the total outstanding capital stock comprising both
authorizations by the Congress common and non-voting preferred shares.

Under the Constitution, Congress has an explicit Considering that common shares have voting rights
authority to grant a public utility franchise. However, it which translate to control, as opposed to preferred
may validly delegate its legislative authority, under the shares which usually have no voting rights, the term
power of subordinate legislation, to issue franchises of "capital" in Sec. 11, Art. XII of the Constitution refers only
certain public utilities to some administrative agencies. to common shares. However, if the preferred shares also
(Francisco v. Toll Regulatory Board, G.R No. 183599, have the right to vote in the election of directors, then
October 19, 2010) the term "capital" shall include such preferred shares
because the right to participate in the control or
It is generally recognized that a franchise may be derived management of the corporation is exercised through the
indirectly from the state through a duly designated right to vote in the election of directors. In short, the
agency, and to this extent, the power to grant franchises term "capital" in Sec. 11, Art. XII of the Constitution
has frequently been delegated, even to agencies other refers only to shares of stock that can vote in the election
than those of a legislative nature. In pursuance of this, it of directors. (Gamboa v. Sec. of Finance, G.R. No. 176579,
has been held that privileges conferred by grant by local June 28, 2011)
authorities as agents for the state constitute as much a
legislative franchise as though the grant had been made NOTE: The Constitution expressly declares as State
by an act of the Legislature. It is thus clear that Congress policy the development of an economy “effectively
does not have the sole authority to grant franchises for controlled” by Filipinos. Consistent with such State
the operation of public utilities. (Hontiveros-Baraquel v. policy, the Constitution explicitly reserves the ownership
Toll Regulatory Board, G.R. No. 181293, Feb. 23, 2015) and operation of public utilities to Philippine nationals,
who are defined in the Foreign Investments Act of 1991
The government can modify a radio or television as Filipino citizens, or corporations or associations at
franchise to grant free airtime to COMELEC. least 60% of whose capital with voting rights belongs to
Filipinos. (Gamboa v. Sec. of Finance, ibid.)
All broadcasting, whether by radio or television stations,
is licensed by the Government. Radio and television Temporary Take-over of the state of a business
companies do not own the airwaves and frequencies; affected with public interest
they are merely given temporary privilege of using them.
A franchise is a privilege subject to amendment, and the The State may take over or direct the operation of any
provision of BP 881 granting free airtime to the privately owned public utility or business affected with
COMELEC is an amendment of the franchise of radio and public interest. (1987 Constitution, Art. XII, Sec. 17)
television stations. (TELEBAP v. COMELEC, G.R. No.
132922, April 21, 1998) Requisites for the State to temporarily take over a
business affected with public interest (2006 Bar)
Foreigners who own substantial stockholdings in a
corporation, engaged in the advertising industry, 1. There is national emergency;
cannot sit as a treasurer of said corporation. 2. The public interest so requires; and
3. Under reasonable terms prescribed by it. (1987
A treasurer is an executive or a managing officer. Sec. Constitution, Art. XII, Sec. 17)
11(2), Art. XVI provides that the participation of the
foreign investors in the governing bodies of entities shall
be limited to their proportionate share in the capital ACQUISITION, OWNERSHIP AND TRANSFER OF
thereof, and all the officers of such entities must be PUBLIC PRIVATE LANDS
citizens of the Philippines. (Bar examination in Political
Law, 1989) Imperium vs. Dominium

Ownership requirement Imperium Dominium

UNIVERSITY OF SANTO TOMAS

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Government authority The capacity of the State

possessed by the State to own and acquire
which is appropriately property. It refers to Disposition of private lands
embraced in sovereignty. lands held by the
government in GR: No private land shall be transferred or conveyed
proprietary character. except to individuals, corporations or associations
qualified to acquire or hold lands of the public land.
(1987 Constitution, Art. XII, Sec. 7)
Classification of lands of public domain
(1990, 1992, 1997, 1998, 2001, 2003, 2004 Bar) XPNs:
1. Foreigners who inherit through intestate succession;
1. Agricultural 2. Former natural-born citizen may be a transferee of
2. Forest or timber private lands subject to limitations provided by law. (1987
3. Mineral lands Constitution, Art. XII, Sec 8)
4. National parks. (1987 Constitution, Art. XII, Sec. 3) 3. Ownership in condominium units; and
4. Parity right agreement, under the 1935 Constitution.
Private lands

Any land of private ownership. This includes both lands A natural born citizen of the Philippines who has lost
owned by private individuals and lands which are his Philippine citizenship may be a transferee of
patrimonial property of the State or municipal private lands (1995, 1998, 2000, 2009 Bar)
corporations. (Bernas, 1995).
Subject to the limitations imposed by law. Thus, even if
Conversion: private respondents were already Canadians when they
applied for registration of the properties in question,
1. Public domain to private land- when it is acquired there could be no legal impediment for the registration
from the government either by purchase or by grant (Oh thereof, considering that it is undisputed that they were
Cho v. Director of Lands, G.R. No. 48321, Aug. 31, 1946). formerly natural-born citizens. (Republic v. CA, G.R. No.
108998, Aug. 24, 1984)
Requirement: There must be a positive act from
the government; mere issuance of title is not A religious corporation is qualified to have lands in
enough. (Sunbeam v. CA, G.R. No. 50464, Jan. 29, the Philippines on which it may build its church and
1990) make other improvements

2. Public land to private land thru prescription- The Constitution makes no exception in favor of religious
Such open, continuous, exclusive and notorious occupation associations. The mere fact that a corporation is religious
of the disputed properties for more than 30 years must be does not entitle it to own public land. Land tenure is not
conclusively established. Purpose of quantum of proof: indispensable to the free exercise and enjoyment of
to avoid erroneous validation of actually fictitious claims religious profession of worship. The religious
or possession over the property in dispute. Effect: creates corporation can own private land only if it is at least 60%
the legal fiction whereby the land, upon completion of the owned by Filipino citizens. (Register of Deeds v. Ung Siu
requisite period ipso-jure and without the need of judicial Si Temple, G.R No. L-6776, May 21, 1955)
or other sanction, ceases to be public land and becomes
private property. (San Miguel Corp. v. CA, GR No. 57667, Qualification of corporation sole to purchase or own
May 28, 1990) lands in the Philippines

3. Alienable public land to private land- Alienable Sec. 113, BP Blg. 68 states that any corporation sole may
public land held by a possessor, personally or through his purchase and hold real estate and personal property for
predecessors-in-interest, openly, continuously and its church, charitable, benevolent or educational
exclusively for 30 years (under The Public Land Act, as purposes, and may receive bequests or gifts for such
amended) is converted to private property by the mere purposes. There is no doubt that a corporation sole by
lapse or completion of said period, ipso jure. The land ipso the nature of its Incorporation is vested with the right to
jure ceases to be of the public domain and becomes private purchase and hold real estate and personal property. It
property. (Dir. of Lands v. IAC, G.R. No. 73002, Dec. 29, need not therefore be treated as an ordinary private
1986) corporation because whether or not it be so treated as
such, the Constitutional provision involved will,
What is required by law is open, continuous, exclusive, nevertheless, be not applicable. (Rep. v. IAC., G.R. No.
and notorious possession and occupation under a bona 75042, November 29, 1988)
fide claim of ownership:
Lease of private lands by religious corporations
1. For 10 years, if the possession is in good faith
2. For 30 years if it is in bad faith. (Republic v. Under Sec. 1 of PD 471, corporations and associations
Enciso, G.R. No. 160145, Nov. 11, 2005) owned by aliens are allowed to lease private lands up to
25 years, renewable for a period of 25 years upon the

266
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 NATIONAL ECONOMY AND PATRIMONY

agreement of the lessor and the lessee. Hence, even if the must be made upon reaching the age of majority.
religious corporation is owned by aliens, it may still lease Ching validly elect Philippine citizenship fourteen
private lands. (14) years after he has reached the age of majority.
Can Ching be admitted to the Philippine bar?
PRACTICE OF PROFESSION
A: NO. Ching, despite the special circumstances, failed to
State policy on professionals and skilled workers elect Philippine citizenship within a reasonable time. The
reasonable time means that the election should be made
The sustained development of a reservoir of national within 3 years from "upon reaching the age of majority",
talents consisting of Filipino scientists, entrepreneurs, which is 21 years old. Instead, he elected Philippine
professionals, managers, high-level technical manpower citizenship 14 years after reaching the age of majority
and skilled workers and craftsmen in all fields shall be which the court considered not within the reasonable
promoted by the State. [1987 Constitution, Art. XII, Sec. time. Philippine citizenship can never be treated like a
14(1)] commodity that can be claimed when needed and
suppressed when convenient. The Court resolves to deny
Practice of profession in the Philippines Ching's application for admission to the Philippine Bar.
(Re: Application for admission to the Philippine Bar v.
GR: The practice of all professions in the Philippines Ching, B.M. No. 914, Oct. 1, 1999)
shall be limited to Filipino citizens. ---
XPN: In cases provided by law. [1987 Constitution, Art. ---
XII, Sec. 14(2)] Q: After the PRC released the names of successful
examinees in the Medical Licensure Examination, the
Regulation of profession or occupation Board of Medicine observed that the grades of the 79
successfully examinees of Fatima College of Medicine
The power to regulate the exercise of a profession or were unusually and exceptionally high in the two (2)
pursuit of an occupation cannot be exercised by the State most difficult subjects of the exam, i.e., Biochemistry
or its agents in an arbitrary, despotic or oppressive and Obstetrics and Gynecology. The NBI
manner. (Board of Med. v. Yasuyuki Ota, GR No. 166097, Investigation found that the Fatima examinees
July 14, 2008) gained early access to the test questions. The
issuance of license to practice was not automatically
NOTE: Since Filipino citizenship is a requirement for granted to the successful examinees. Respondents
admission to the bar, loss thereof terminates counter that having passed the 1993 licensure
membership in the Philippine bar and, consequently, the examinations for physicians, the PRC has the
privilege to engage in the practice of law. The practice of obligation to administer to them the oath of
law is a privilege denied to foreigners. physicians and to issue their certificates of
registration as physicians. Are the respondents
XPN: when Filipino citizenship is lost by reason of correct?
naturalization as a citizen of another country but
subsequently reacquired pursuant to RA 9225. A: NO. It is long established rule that a license to practice
medicine is a privilege or franchise granted by the
Reason: all Philippine citizens who become citizens of government. It must be stressed, nevertheless, that the
another country shall be deemed not to have lost their power to regulate the exercise of a profession or pursuit
Philippine citizenship under the conditions of RA 9225. of an occupation cannot be exercised by the State or its
agents in an arbitrary, despotic, or oppressive manner. A
Thus, a Filipino lawyer who becomes a citizen of another political body that regulates the exercise of a particular
country is deemed never to have lost his Filipino privilege has the authority to both forbid and grant such
citizenship if he reacquires it in accordance with RA privilege in accordance with certain conditions. Such
9225. Although he is also deemed never to have conditions may not, however, require giving up ones
terminated his membership in the Philippine bar, no constitutional rights as a condition to acquiring the
automatic right to resume law practice accrues. (Petition license. Verily, to be granted the privilege to practice
for leave to resume practice of law, Dacanay, B.M. No. medicine, the applicant must show that he possesses all
1678, Dec. 17, 2007) the qualifications and none of the disqualifications. (PRC
v. De Guzman, G.R. No. 144681, June 21, 2004)
--- ---
Q: Ching a legitimate child born under the 1935
Constitution of a Filipino mother and an alien father, ORGANIZATION AND REGULATION OF
was one of the successful Bar examinees. The oath CORPORATIONS, PRIVATE AND PUBLIC
taking of the successful Bar examinees was scheduled on
5 May 1999. However, because of the questionable Organization and Regulation of Corporations
status of Ching's citizenship, he was not allowed to take
his oath. OSG clarifies that 2 conditions must concur in Its purpose is to prevent the pressure of special interests
order that the election of Philippine citizenship may be upon the lawmaking body in the creation of corporations
effective, namely: (a) the mother of the person making or in the regulation of the same. To permit the
the election must be a citizen of the Philippines; and (b) lawmaking body by special law to provide for the
said election organization, formation or regulation of private

267 UNIVERSITY OF SANTO TOMAS

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 POLITICAL LAW

corporations would be in effect to offer to it the Essence of the provision

temptation in many cases to favor certain groups to the
prejudice of others or to the prejudice of the interests of Sec. 19 is anti-trust in history and spirit. Only
the country. (Philippine Society for the Prevention of competition which is fair can release the creative forces
Cruelty to Animals v. COA, G.R No. 169752, Sept. 25, 2007) of the market. Competition is thus the underlying
principle of Section 19, Article XII.
Creation of GOCC by Congress
The objective of anti-trust law is ‘to assure a competitive
GOCC may be created or established by special charters economy based upon the belief that through competition,
in the interest of the common good and subject to the producers will strive to satisfy consumer wants at the
test of economic viability. (1987 Constitution, Art. XII, Sec lowest price with the sacrifice of the fewest resources.
16) Additionally, there is reliance upon “the operation of the
‘market’ system (free enterprise) to decide what shall be
NOTE: Congress, however, may not create a corporation produced, how resources shall be allocated in the
whose purpose is to compete with a private corporation. production process, and to whom various products will
be distributed. The market system relies on the
In the interest of the public good and subject to the consumer to decide what and how much shall be
test of economic viability’ meaning produced, and on competition, among producers who
will manufacture it. (Energy Regulatory Board v. CA G.R.
GOCC must show capacity to function efficiently in No. 113079, April 20, 2001)
business and that they should not go into activities which
the private sector can do better. Moreover, economic Regulation of monopolies
viability is more than financial viability but also included
capability to make profit and generate benefits not Monopolies are not per se prohibited by the Constitution.
quantifiable in financial terms. It may be permitted to exist to aid the government in
carrying on an enterprise or to aid in the interest of the
NOTE: See discussion of GOCC under Public Corporations. public. However, because monopolies are subject to
abuses that can inflict severe prejudice to the public, they
are subjected to a higher level of State regulation than an
MONOPOLIES, RESTRAINT OF TRADE AND UNFAIR ordinary business undertaking. (Agan, Jr. v. PIATCO, G.R.
COMPETITION No. 155001, May 5, 2003)

Monopoly Allowance of contracts requiring exclusivity

A privilege or peculiar advantage vested in one or more Contracts requiring exclusivity are not per se void. Each
persons or companies, consisting in the exclusive right contract must be viewed vis-à-vis all the circumstances
(or power) to carry on a particular business or trade, surrounding such agreement in deciding whether a
manufacture a particular article, or control the sale of a restrictive practice should be prohibited as imposing an
particular commodity. (Agan, Jr. v. PIATCO, G.R. No. unreasonable restraint on competition. (Avon v. Luna,
155001, May 5, 2003) G.R. No. 153674, Dec. 20, 2006)

State policy regarding monopolies Free enterprise clause vs. Police Power of the State

The State shall regulate or prohibit monopolies when the Although the Constitution enshrines free enterprise as a
public interest so requires. No combination in restraint policy, it nevertheless reserves to the Government the
of trade or unfair competition shall be allowed. (1987 power to intervene whenever necessary for the
Constitution, Art. XII, Sec. 16) promotion of the general welfare, as reflected in Secs. 6
and 19 of Art. XII. (Assoc. of Phil. Coconut Desiccators v.
Test on whether there is unlawful machination or Phil. Coconut Authority, G.R. No. 110526, Feb. 10, 1998)
combination in restraint of trade
PHILIPPINE COMPETITION ACT (R.A. 10667)
Whether under the particular circumstances of the case
and the nature of the particular contract involved, such The law seeks to provide a national competition policy
contract is, or is not, against public policy. (Avon v. Luna, that will promote free and fair competition in economic
G.R. No. 153674, Dec. 20, 2006) activities and protect the consumers.

NOTE: The phrase “unfair foreign competition and trade Philippine Competition Commission (PCC)
practices” is not to be understood in a limited legal and
technical sense, but in the sense of anything that is The Commission is a newly constituted independent
harmful to Philippine enterprises. At the same time, quasi-judicial body mandated to implement the national
however, the intention is not to protect local inefficiency. competition policy, and enforce the Philippine
Nor is the intention to protect local industries from Competition Act.
foreign competition at the expense of the consuming
public.

268
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 SOCIAL JUSTICE AND HUMAN RIGHTS

Role of the PCC

SOCIAL JUSTICE AND HUMAN RIGHTS

The Commission shall prohibit anti-competitive

agreements, abuses of dominant position, and anti-

competitive mergers and acquisitions. Sound market
Goals of social justice under the Constitution
regulation will help foster business innovation, increase
global competitiveness, and expand consumer choices to
1. Equitable diffusion of wealth and political power for
improve public welfare. (PCC, Mission Statement)
common good;
2. Regulation of acquisition, ownership, use and
Composition of the PCC
disposition of property and its increments; and
3. Creation of economic opportunities based on
The Commission is composed of 1 cabinet secretary-level
freedom of initiative and self-reliance. (1987
Chairman, and 4 Commissioners who will serve for a
Constitution, Art. XIII, Sec. 1 and 2)
term of 7 years, without reappointment and shall enjoy

security of tenure.
CONCEPT OF SOCIAL JUSTICE
Powers and Functions of the PCC
Social justice
1. Conduct inquiry, investigate and hear and decide
It is “neither communism, nor despotism, nor atomism,
case motu proprio or upon verified complaint or
nor anarchy,” but the humanization of laws and the
upon referral of a concerned regulatory agency
equalization of social and economic force by the State so
2. Review proposed mergers and acquisition;
that justice in its rational and objectively secular
3. Monitor compliance;
conception may at least be approximated. Social justice
4. Stop, redress, apply remedies based on findings;
means the promotion of the welfare of all the people, the
5. Issue subpoenas ;
adoption by the Government of measures calculated to
6. Conduct administrative proceedings, impose
insure economic stability of all competent elements of
sanctions, fines or penalties;
society, through the maintenance of a proper economic
7. Issue adjustment or divestiture orders;
and social equilibrium in the interrelations of the
8. Undertake inspection of business premises, under
members of the community, constitutionally, through the
order of court;
adoption of measures legally justifiable, or extra-
9. Deputize enforcement agencies; and
constitutionally, the exercise of powers
10. Issue advisory opinions on competition matters. through
underlying the existence of all governments on the time-
(R.A. 10667, Philippine Competition Act, Sec. 12)
honored principle of salus populi est supreme lex.
(Calalang v. Williams, G.R. No. 47800, Dec. 2, 1940)
Prohibition on the Issuance of Temporary
Two principal activities, which the State is
Restraining Orders, Preliminary Injunctions and
commanded to attend to in order to achieve the goals
Preliminary Mandatory Injunctions
of social justice

Only the Court of Appeals and the Supreme Court may

1. The creation of more economic opportunities and
issue a temporary restraining order, preliminary
more wealth; and
injunction or preliminary mandatory injunction against
2. Closer regulation of the acquisition, ownership, use,
the Commission in the exercise of its duties or functions.
and disposition of property in order to achieve a
(R.A. 10667, Philippine Competition Act, Sec. 47)
more equitable distribution of wealth and power.
---
Aspects of human life covered by Art. XIII
Q: The World Trade Organization (WTO) requires
the Philippines to place nationals and products of
1. Social justice and human rights
member-countries on the same footing as Filipinos
2. Labor
and local products. Does the WTO agreement violate
3. Agrarian and natural resources reform
Art. II Sec. 19 of the Constitution?
4. Urban land reform and housing
5. Health
A: NO. The WTO agreement does not violate Art. II Sec.
6. Women
19, nor Secs. 19 and 12 of Art. XII, because these sections
7. Role and rights of people’s organization
should be read and understood in relation to Secs. 1 and
8. Human rights
13 of Art. XII, which require the pursuit of trade policy
that “serves the general welfare and utilizes all forms
Factors which must be weighed in regulating the
and arrangements of exchange on the basis of equality
relations between workers and employers
and reciprocity”. (Tañada v. Angara, G.R. No. 118295, May
2, 1997)
1. The right of labor to its just share in the fruits of
---
production
2. The right of enterprises to reasonable returns of
investments, and to expansion and growth. [1987
Constitution, Art XIII, Sec. 3, par. (4)]

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COMMISSION ON HUMAN RIGHTS (CHR)

NOTE: It must be remembered, however, that the (1991, 1992, 1997, 2001, 2005, 2007 Bar)
command to promote social justice itself might make it
necessary to tilt the balance in favor of underprivileged Constitutional mandate
workers.
Art. XIII of the 1987 Constitution mandates the Congress
Provisions of the Constitution on women to give highest priority to the enactment of measures
that protect and enhance the right of all people to human
1. The State shall equally protect the life of the mother and the dignity, reduce social, economic, and political
life of the unborn from conception. (1987 Constitution, Art. II, inequalities and remove cultural inequities by equitably
Sec. 12) diffusing wealth and political power for the common
2. The State recognizes the role of women in nation-building, good.
and shall ensure the fundamental equality before the law of
women and men. (1987 Constitution, Art. II, Sec. 14) Purpose of CHR
3. The State shall protect working women by providing safe
and healthful working conditions, taking into account their As an independent national human rights institution, the
maternal functions, and such faculties and opportunities that will Commission on Human Rights is committed to ensure
enhance their welfare and enable them to realize their full the primacy of all human rights to their protection,
potential in the service of the nation. (1987 Constitution, Art. XIII, promotion and fulfillment, on the basis of equality and
Sec. 14) (1994, 2000 Bar) non-discrimination, in particular for those who are
marginalized and vulnerable. (CHR Mission)
Consultation requirement before urban and rural
dwellers can be relocated Nature of the CHR

The urban and rural dwellers and the communities From the 1987 Constitution and the Administrative
where they are to be relocated must be consulted. Code, it is abundantly clear that the CHR is not among the
Otherwise, there shall be no resettlement. [1987 class of Constitutional Commissions. (CHR Employees’
Constitution, Art. XIII, Sec. 10 (20)] Assoc. v. CHR, G.R. No. 155336, Nov. 25, 2004)

Absence of fiscal autonomy

People’s organizations
The CHR, although admittedly a constitutional creation
Bona fide associations of citizens with demonstrated is, nonetheless, not included in the genus of offices
capacity to promote the public interest and with accorded fiscal autonomy by either constitutional or
identifiable leadership, membership and structure. [1987 legislative fiat. (Ibid.)
Constitution, Art. XIII, Sec. 15 (2)]
Power to investigate
Agrarian Reform
The CHR has the power to investigate all forms of human
Refers to the redistribution of lands, regardless of crops rights violations involving civil and political rights and
or fruits produced, to farmers and regular farmworkers monitor the compliance by the government with
who are landless, irrespective of tenurial arrangement, international treaty obligations on human rights. (1987
to include the totality of factors and support services Constitution, Art. XIII, Sec. 18)
designed to lift the economic status of the beneficiaries
and all other arrangements alternative to the physical NOTE: In essence, the Commission’s power is only
redistribution of lands, such as production or profit- investigative. It has no prosecutorial power. For
sharing, labor administration, and the distribution of prosecution, it must rely on the executive department.
shares of stocks, which will allow beneficiaries to receive
a just share of the fruits of the lands they work. [R.A. The Constitution clearly and categorically grants to the
6657, Comprehensive Agrarian Reform Law of 1988, Sec. Commission the power to investigate all forms of human
3(a)] rights violations involving civil and political rights. To
investigate is not to adjudicate or adjudge. The legal
Right of Retention under Agrarian Reform meaning of “investigate” is essentially to follow up step
by step by patient inquiry or observation, to trace or
The right of retention is a constitutionally guaranteed track; to search into; to examine and inquire into with
right, which is subject to qualification by the legislature. care and accuracy; to find out by careful inquisition;
It serves to mitigate the effects of compulsory land examination; the taking of evidence; a legal inquiry. In
acquisition by balancing the rights of the landowner and the legal sense, “adjudicate” means to settle in the
the tenant and by implementing the doctrine that social exercise of judicial authority, to determine finally and
justice was not meant to perpetrate an injustice against “adjudge” means to pass on judicially, to decide, settle or
the landowner. (Delfino v. Anasao, G.R. No. 197486, decree, or to sentence or condemn. (Cariño v. CHR, G.R.
Sept.10, 2014) No. 96681, Dec. 2, 1991)

---
Q: Informal settlers and vendors have put up
UNIVERSITY OF SANTO TOMAS
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 EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS

structures in an area intended for a People's Park, of Power, they have the right to access to justice. Is
which are impeding the flow of traffic in the Mrs. Laude’s contentions correct?
adjoining highway. Mayor Cruz gave notice for the
structures to be removed, and the area vacated A: NO. Failure to meet the 3-day notice rule for filing
within a month, or else, face demolition and motions and to obtain the concurrence of the Public
ejectment. The occupants filed a case with the Prosecutor to move for an interlocutory relief in a
Commission on Human Rights (CHR) to stop the criminal prosecution cannot be excused by general
Mayor's move. The CHR then issued an order to exhortations of human rights. (Laude v. Hon. Ginez-
desist against Mayor Cruz with warning that he Jabalde, G.R. No. 217456, Nov. 24, 2015) ---
would be held in contempt should he fail to comply
with the desistance order. When the allotted time
lapsed, Mayor Cruz caused the demolition and
removal of the structures. Accordingly, the CHR cited
him for contempt. Is the CHR empowered to declare
Mayor Cruz in contempt? Does it have contempt
powers at all?

A: NO. CHR does not possess adjudicative functions and

therefore, on its own, is not empowered to declare
mayor in contempt for issuing the “order to desist”.
However, under the 1987 Constitution, the CHR is
constitutionally authorized, in the exercise of its
investigative functions, to "adopt its operational
guidelines and rules of procedure, and cite for contempt
for violations thereof in accordance with the Rules of
Court." Accordingly, the CHR, in the course of an
investigation, may only cite or hold any person in
contempt and impose the appropriate penalties in
accordance with the procedure and sanctions provided
for in the Rules of Court. (Cariño v. CHR, ibid.)
---

Absence of compulsory powers

It may not issue writs of injunction or restraining orders

against supposed violators of human rights to compel
them to cease and desist from continuing their acts
complained of. (Export Processing Zone Authority v. CHR,
GR No. 101476, April 14, 1992)

Regarding its contempt powers, the CHR is

constitutionally authorized to "adopt its operational
guidelines and rules of procedure, and cite for contempt
for violations thereof in accordance with the Rules of
Court." That power to cite for contempt, however, should
be understood to apply only to violations of its adopted
operational guidelines and rules of procedure essential
to carry out its investigatorial powers. (Simon, Jr. v. CHR,
G.R. No.100150, Jan. 5, 1994)

---
Q: The mother of the late Jennifer Laude filed an Urgent Motion to Compel the Armed Forces of the Philippines to
Surrender Custody of Accused to the Olongapo City Jail and a Motion to Allow Media Coverage. However, for failure to
comply with the 3-day notice rule and due to the absence of the concurrence of the Public Prosecutor thereto, the trial
judge denied said motions. Mrs. Laude now imputes grave abuse of discretion on the part of the trial judge. She argues
that her procedural blunders should be excused on the ground that under the International Covenant on Civil and
Political Rights and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse

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engaging in their chosen careers. This regulation

EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, assumes particular pertinence in the field of medicine, in
CULTURE, AND SPORTS order to protect the public from the potentially deadly
effects of incompetence and ignorance. (Professional
Regulation Commission v. De Guzman, GR No. 144681,
(1992, 1993, 1994, 1999, 2003, 2007, 2009, 2010
June 21, 2004)
Bar)
Aspects of education that are Filipinized
Educational institution
1. Ownership:
Under the Education Act of 1982, such term refers to
schools. The school system is synonymous with formal a. Filipino Citizens; or
education, which "refers to the hierarchically structured b. Corporations or associations where at least 60% of
and chronologically graded learnings organized and the capital is owned by Filipino citizens XPN: Those
provided by the formal school system and for which established by religious
certification is required in order for the learner to groups and mission boards;
progress through the grades or move to the higher 2. Control and administration; and
levels". (Commissioner of Internal Revenue v. CA, G.R. No. 3. Student population. [1987 Constitution, Art. XIV, Sec. 4
124043, Oct. 14, 1998) (2)]

NOTE: It is settled that the term "educational NOTE: The Congress may increase Filipino equity
institution," when used in laws granting tax exemptions, participation in all educational institutions.
refers to a "school seminary, college or educational
establishment". (Commissioner of Internal Revenue v. CA, Official medium of communication and instruction
ibid) (2007 Bar)

Principal characteristics of education which the State The official languages are Filipino and, until otherwise
must promote and protect provided by law, English. The regional languages are the
auxiliary official languages in the regions and shall serve
1. Quality education; as auxiliary media of instruction therein. Spanish and
2. Affordable education (1987 Constitution, Art. XIV, Sec. 1) Arabic shall be promoted on a voluntary and optional
basis. (1987 Constitution, Art. XIV, Sec. 7)
3. Education that is relevant to the needs of the people [1987
Constitution, Art. XIV, Sec. 2 (1)]
ACADEMIC FREEDOM
Parens Patriae (2007, 2013 Bar)

The State has the authority and duty to step in where Aspects of Academic Freedom
parents fail to or are unable to cope with their duties to
their children. 1. From the standpoint of the educational institution-To
provide that atmosphere which is most conducive to
Basis for the requirement that a school or speculation, experimentation and creation;
educational institution must first obtain government
authorization before operating 2. From the standpoint of the faculty –
a. Freedom in research and in the publication of the
Such requirement is based on the State policy that results, subject to the adequate performance of his other
educational programs and/or operations shall be of good academic duties
quality and, therefore, shall at least satisfy minimum b. Freedom in the classroom in discussing his subject
standards with respect to curricula, teaching staff, less controversial matters which bear no relation to the
physical plant and facilities and administrative and subject
management viability. (Philippine Merchant Marine c. Freedom from institutional censorship or
School Inc. v. CA, G.R. No. 112844, June 2, 1995) discipline, limited by his special position in the community
3. From the standpoint of the student – Right to enjoy in
State can regulate the right of a citizen to select a school the guarantee of the Bill of Rights. (Non v. Dames, G.R.
profession or course of study (1994, 2000, 2008 Bar) No. 89317, May 20, 1990)

While it is true that the Court has upheld the Freedoms afforded to educational institutions
constitutional right of every citizen to select a profession relating to its right to determine for itself on
or course of study subject to fair, reasonable and academic grounds
equitable admission and academic requirements, the
exercise of this right may be regulated pursuant to the 1. Who may teach
police power of the State to safeguard health, morals, 2. What may be taught
peace, education, order, safety and general welfare. Thus, 3. How shall it be taught
persons who desire to engage in the learned professions 4. Who may be admitted to study. (Miriam College
requiring scientific or technical knowledge may be Foundation v. CA, G.R. No. 127930, Dec. 15, 2000)
required to take an examination as a prerequisite to

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 EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS

Limitations on academic freedom UP professors. They expressed dissatisfaction over

Justice Del Castillo’s explanation on how he cited the
1. Police power of the State primary sources of the quoted portions and yet
2. Social Interest of the community arrived at a contrary conclusion to those of the
authors of the articles supposedly plagiarized.
NOTE: Academic freedom of institutions of higher Beyond this, however, the statement bore certain
learning is a freedom granted to “institutions of higher remarks which raise concern for the Court. It reads:
learning” which is thus given a “wide sphere of authority “An extraordinary act of injustice has again been
certainly extending to the choice of students.” If such committed against the brave Filipinas who had
institution of higher learning can decide who can and suffered abuse during a time of war.”
who cannot study in it, it certainly can also determine on
whom it can confer the honor and distinction of being its Thus, the Court, in a Show Cause Resolution, directed
graduates. Thus, a university can validly revoke a degree Dean Leonen, and several other lawyers from UP
or honor it has conferred to a student after graduation Law to show cause, why they should not be
after finding that such degree or honor was obtained disciplined as members of the Bar for violation of
through fraud. (Garcia v. Faculty Admission Committee, Canons 1, 11 and 13 and Rules 1.02 and 11.05 of the
Loyola School of Theology, G.R. No. L-40779, Nov. 28, Code of Professional Responsibility.
1975)
1. Does the Show Cause Resolution deny
This freedom of a university does not terminate upon the respondents their freedom of
“graduation” of a student, for it is precisely the expression?
“graduation” of such a student that is in question. An 2. Does the Show Cause Resolution violate
institution of higher learning cannot be powerless if it respondents’ academic freedom as law
discovers that an academic degree it has conferred is not professors?
rightfully deserved. The pursuit of academic excellence A:
is the university’s concern. It should be empowered, as 1. NO. A reading of the Show Cause Resolution will
an act of self-defense, to take measures to protect itself plainly show that it was neither the fact that
from serious threats to its integrity. (UP Board of Regents respondents had criticized a decision of the Court
v. CA, G.R. No. 134625, Aug. 31, 1999) nor that they had charged one of its members of
plagiarism that motivated the said Resolution. It
--- was the manner of the criticism and the
Q: Juan delos Santos, et al., students of De La Salle contumacious language by which respondents, who
University (DLSU) and College of Saint Benilde are are neither parties nor counsels in the Vinuya case,
members of the “Domingo Lux Fraternity”. They have expressed their opinion in favor of the
lodged a complaint with the Discipline Board of petitioners in the said pending case for the "proper
DLSU charging Alvin Aguilar, et al. of Tau Gamma Phi disposition" and consideration of the Court that
Fraternity with “direct assault” because of their gave rise to said Resolution. The Show Cause
involvement in an offensive action causing injuries Resolution painstakingly enumerated the
to the complainants, which were the result of a statements that the Court considered excessive and
fraternity war. The DLSU-CSB Joint Discipline Board uncalled for under the circumstances surrounding
found Aguilar et al. guilty and were meted the the issuance, publication, and later submission to
penalty of automatic expulsion. Was DLSU within its this Court of the UP Law faculty’s Restoring
rights in expelling the students? Integrity Statement.

A: NO. It is true that schools have the power to instill 2. No. It is not contested that respondents (UP Law
discipline in their students as subsumed in their professors) are, by law and jurisprudence,
academic freedom This power does not give them the guaranteed academic freedom and undisputably,
untrammeled discretion to impose a penalty which is not they are free to determine what they will teach their
commensurate with the gravity of the misdeed. If the students and how they will teach. As pointed out,
concept of proportionality between the offense there is nothing in the Show Cause Resolution that
committed and the sanction imposed is not followed, an dictates upon respondents the subject matter they
element of arbitrariness intrudes. Thus, the penalty of can teach and the manner of their instruction.
expulsion imposed by DLSU on Aguilar, et al. is Moreover, it is not inconsistent with the principle of
disproportionate to their deeds. (DLSU v. CA, G.R. No. academic freedom for this Court to subject lawyers
127980, Dec. 19, 2007) who teach law to disciplinary action for
--- contumacious conduct and speech, coupled with
--- undue intervention in favor of a party in a pending
Q: The counsel of the losing party in the case of case, without observing proper procedure, even if
Vinuya, et al. v. Exec. Sec filed a Supplemental Motion purportedly done in their capacity as teachers. (RE:
for Reconsideration, in the said Decision, they Letter of the UP Law Faculty, A.M. No. 10-10-4-SC,
posited their charge of plagiarism as one of the March 8, 2011)
grounds for reconsideration of the decision. A ---
statement by the faculty of UP Law on the allegations
of plagiarism and misrepresentation in the SC
entitled “Restoring Integrity” was submitted by the

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Regulatory power of the Education Secretary as to 1. Priority to research and development, invention,
teaching and non-teaching personnel of private innovation, and their utilization; and to science and
schools technology education, training, and services;
2. Support indigenous, appropriate, and self-reliant
The qualifications of teaching and non-teaching scientific and technological capabilities, and their application
personnel of private schools, as well as the causes for the to the country’s productive systems and national life. (1987
termination of their employment, are an integral aspect Constitution, Art. XIV, Sec. 10)
of the educational system of private schools. It is thus 3. Regulate the transfer and promote the adaptation of
within the authority of the Secretary of Education to technology from all sources for the national benefit. (1987
issue a rule, which provides for the dismissal of teaching Constitution, Art. XIV, Sec. 12)
and non-teaching personnel of private schools based on 4. Encourage the widest participation of private groups,
their incompetence, inefficiency, or some other local governments, and community-based organizations in
disqualification. (Leus v. St. Scholastica’s College the generation and utilization of science and technology.
Westgrove, G.R. No. 187226, Jan. 28, 2015) (1987 Constitution, Art. XIV, Sec. 12)
5. Protect and secure the exclusive rights of scientists,
Philippine Military Academy’s(PMA) authority to inventors, artists, and other gifted citizens to their
impose disciplinary measures intellectual property and creations, particularly when
beneficial to the people, for such period as may be provided
PMA may impose disciplinary measures and punishment, by law. (1987 Constitution, Art. XIV, Sec. 13)
as it deems fit and consistent with the peculiar needs of
the Academy. Even without express provision of a law, NOTE: The Congress may provide for incentives,
the PMA has regulatory authority to administratively including tax deductions, to encourage private
dismiss erring cadets. As an academic institution, the participation in programs of basic and applied scientific
PMA has the inherent right to promulgate reasonable research. Scholarships, grants-in-aid, or other forms of
norms, rules and regulations that it may deem necessary incentives shall be provided to deserving science
for the maintenance of school discipline, which is students, researchers, scientists, inventors, technologists,
specifically mandated by Sec. 3 (2), Article XIV of the and specially gifted citizens. (1987 Constitution, Art. XIV,
1987 Constitution. The PMA has the freedom on who to Sec. 11)
admit (and, conversely, to expel) given the high degree of
discipline and honor expected from its students who are ARTS AND CULTURE
to form part of the AFP. The schools’ power to instill
discipline in their students is subsumed in their All the country’s artistic and historic wealth constitutes
academic freedom and that “the establishment of rules the cultural treasure of the nation and shall be under the
governing university-student relations, particularly protection of the State which may regulate its
those pertaining to student discipline, may be regarded disposition. (1987 Constitution, Art. XIV, Sec. 16)
as vital, not merely to the smooth and efficient operation
of the institution, but to its very survival. The dismissal Principal characteristics of arts and culture which
of Cudia from the PMA due to being 2 minutes late for a the State must promote and protect
class was affirmed. (Cudia v. PMA, G.R. No. 211362,
February 24, 2015) 1. Foster the preservation, enrichment, and dynamic
evolution of a Filipino national culture. (1987 Constitution,
It must be borne in mind that schools are established, not Art. XIV, Sec. 14)
merely to develop the intellect and skills of the
studentry, but to inculcate lofty values, ideals and NOTE: It must be based on the principle of unity in
attitudes of the total man. Under the rubric of "right to diversity in a climate of free artistic and intellectual
education," students have a concomitant duty to learn expression.
under the rules laid down by the school. Hence, as the
primary training and educational institution of the AFP, 2. The State shall conserve, promote, and popularize the
the PMA certainly has the right to invoke academic nation’s historical and cultural heritage and resources, as
freedom in the enforcement of its internal rules and well as artistic creations. (1987 Constitution , Art. XIV, Sec.
regulations, which are the Honor Code and the Honor 15)
System. The Honor Code is a set of basic and
fundamental ethical and moral principle. It is the NOTE: Arts and letters shall enjoy the patronage of
minimum standard for cadet behavior and serves as the the State.
guiding spirit behind each cadet's action. Throughout a
cadet's stay in the PMA, he or she is absolutely bound ---
thereto. (Cudia v. PMA, ibid.) Q: DMCI Project Developers, Inc. (DMCI-PDI) acquired
a 7,716.60-square meter lot in the City of Manila for the
SCIENCE AND TECHNOLOGY construction of the Torre de Manila condominium
(1992, 1994 Bar) project, a 49-storey building looming at the back of the
Rizal Monument in Luneta Park. The Knights of Rizal
Principal characteristics of science and technology (KoR) filed a Petition for Injunction against the
which the State must promote and protect construction, arguing that it

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 PUBLIC INTERNATIONAL LAW

will cause the desecration of the Rizal Monument,

which, as a National Treasure, is entitled to full PUBLIC INTERNATIONAL LAW
protection of the law. Are the KoR correct?

A: NO. There is no law prohibiting the construction of

Torre de Manila. Section 15, Article XIV of the Constitution is FUNDAMENTAL CONCEPTS
not self-executory, Congress passed laws dealing with the
preservation and conservation of our cultural heritage, such
as Republic Act No. 10066, or the National Cultural Heritage Public International Law (PIL)
Act of 2009, which empowers the National Commission for
Culture and the Arts and other cultural agencies to issue a It is a body of legal principles, norms and processes
cease and desist order "when the physical integrity of the which regulates the relations of States and other
national cultural treasures or important cultural properties international persons and governs their conduct
[is] found to be in danger of destruction or significant affecting the interest of the international community as a
alteration from its original state." This law declares that the whole (Magallona, 2005).
State should protect the "physical integrity" of the heritage
property or building if there is "danger of destruction or Private International Law (PRIL) or Conflicts of Laws
significant alteration from its original state." Physical
integrity refers to the structure itself – how strong and It is that part of law which comes into play when the
sound the structure is. The same law does not mention that issue before the court affects some fact, event or
another project, building, or property, not itself a heritage transaction that is so clearly connected with a foreign
property or building, may be the subject of a cease and desist system of law as to necessitate recourse to that system
order when it adversely affects the background view, vista, (Sempio-Diy, Conflict of Laws, 2004 ed., p. 1, citing
or sightline of a heritage property or building. Thus, Cheshire, Private International Law, 1947 ed., p. 6).
Republic Act No. 10066 cannot apply to the Torre de Manila
condominium project. (Knights of Rizal v. DMCI Homes, G.R. OBLIGATIONS ERGA OMNES
No. 213948, Apr. 25, 2017)
--- An obligation of every State towards the international
community as a whole. All states have a legal interest in
3. Recognize, respect, and protect the rights of its compliance, and thus all States are entitled to invoke
indigenous cultural communities to preserve and develop responsibility for breach of such an obligation (Case
their cultures, traditions, and institutions. (1987 Concerning The Barcelona Traction, ICJ 1970).
Constitution, Art. XIV, Sec. 17)
NOTE: Such obligations derive, for example, in
NOTE: It shall consider these rights in the contemporary international law, from the outlawing of
formulation of national plans and policies. acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the
4. Ensure equal access to cultural opportunities human person, including protection from slavery and
through the educational system, public or private cultural racial discrimination. Some of the corresponding rights
entities, scholarships, grants and other incentives, and of protection have entered into the body of general
community cultural centers, and other public venues. [1987 international law others are conferred by international
Constitution, Art. XIV, Sec. 18(1)] instruments of universal or quasi-universal character
(Romulo v. Vinuya, G.R. No. 162230, April 29, 2010).
NOTE: The State shall encourage and support
researches and studies on the arts and culture. Examples of obligations erga omnes

SPORTS 1. Outlawing of acts of aggression

2. Outlawing of genocide
The State shall promote physical education and 3. Basic human rights
encourage sports programs, league competitions, and 4. Protection from slavery and racial discrimination
amateur sports, including training for international
competitions, to foster self-discipline, teamwork, and JUS COGENS
excellence for the development of a healthy and alert (1991, 2007, 2008 Bar)
citizenry. [1987 Constitution, Art. XIV, Sec. 19(1)]
Also referred to as ‘peremptory norm of general
NOTE: All educational institutions shall undertake international law’
regular sports activities throughout the country in
cooperation with athletic clubs and other sectors. [1987 Literally means “compelling law”. A norm accepted and
Constitution, Art. XIV, Sec.19(2) recognized by the international community of States as a
whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of
general international law having the same character
(Vienna Convention on the Law of Treaties, Art. 53).

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Elements of Jus Cogens

Under Art. 38(2) of the Statute of the ICJ, means that a
1. A norm accepted and recognized by international decision may be made ex aequo et bono, i.e. the court
community of states as a whole should decide the case not on legal considerations but
2. No derogation is permitted solely on what is fair and reasonable in the
3. Which can only be modified by a subsequent norm circumstances of the case (equity contra legem).
having the same character However, the parties must expressly authorize the court
to decide a case ex auquo et bono.
Norms Considered as jus cogens in Character
Art. 33 of the United Nations Commission on
1. Laws on genocide International Trade Law’s Arbitration Rules (1976)
2. Principle of self-determination provides that the arbitrators shall consider only the
3. Principle of racial non-discrimination applicable law, unless the arbitral agreement allows the
4. Crimes against humanity arbitrators to consider ex aequo et bono, or amiable
5. Prohibition against slavery and slave trade compositeur.
6. Piracy

Jus Cogens and Rules Creating Erga Omnes INTERNATIONAL AND NATIONAL LAW
Obligations

Jus cogens rules represent the highest source in the Grand divisions of PIL
(informal) hierarchy of sources of international law. The
main difference between a rule of jus cogens and a rule 1. Laws of Peace – Govern normal relations between States
that creates an obligation erga omnes is that all jus in the absence of war.
cogens rules create erga omnes obligations while only 2. Laws of War – Govern relations between hostile or
some rules creating erga omnes obligations are rules of belligerent states during wartime.
jus cogens. 3. Laws of Neutrality – Govern relations between a non-
participant State and a participant State during wartime or among
Further, with regard to jus cogens obligations the non-participating States.
emphasis is on their recognition by the international
community ‘as a whole’, whilst with regard to obligations Monism
erga omnes the emphasis is on their nature. The latter
mentioned embody moral values which are of universal Both international law and domestic law are part of a
validity. They are binding because they express moral single legal order; international law is automatically
absolutes from which no State can claim an exemption incorporated into each nation’s legal system and that
whatever its political, economic and social organization. international law is supreme over domestic law.

The legal consequences of violations or rules creating Dualism

erga omnes obligations differ from those of breach of the
rules of jus cogens in that in addition to the consequences Affirms that the international law and municipal law are
deriving from a breach of erga omnes obligations further distinct and separate; each is supreme in its own sphere
consequences, specified in Article 53 of the Vienna and level of operation.
Convention on the Law of Treaties (VCLT), follow from
violations of the rules of jus cogens. International law vs. Municipal law

NOTE: According to Article 53 of the VCLT, a treaty is

void if, at the time of its conclusion, it conflicts with a BASIS INTERNATIONAL MUNICIPAL LAW
peremptory norm of general international law. For the
LAW
purposes of the present Convention, a peremptory norm
of general international law is a norm accepted and Adopted by states as Issued by a
recognized by the international community of States as a Enacting
whole as a norm from which no derogation is permitted a common rule of political superior
and which can be modified only by a subsequent norm of Authority
general international law having the same character. action for observance
EX AEQUO ET BONO Regulates relation of Regulates relations
state and other of individuals
The concept of ex aequo et bono literally means Purpose international among themselves
“according to the right and good” or “from equity and persons or with their own
conscience”. states
Derived principally Consists mainly of
A judgment based on considerations of fairness, not on
considerations of existing law, that is, to simply decide from treaties, enactments from
the case based upon a balancing of the equities Source(s) international the lawmaking
(Brownlie, 2003). customs and general authority of each
principles of law state
UNIVERSITY OF SANTO TOMAS 2017 Resolved thru state- Redressed thru
GOLDEN NOTES Remedy in to-state transactions local
case of
 administrative and
violation
judicial processes

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 PUBLIC INTERNATIONAL LAW

Scope of Collective Breach of which lawmaking body and so transformed into municipal law.
Responsibi
l responsibility entails individual
ity because it attaches responsibility Types of Transformation Theories
directly to the state
and not to its 1. Hard Transformation Theory – Only legislation can
nationals transform International Law into domestic law.
Subject to judicial Not subject to Courts may apply International Law only when
notice before judicial notice authorized by legislation.
international before 2. Soft Transformation Theory – Either a judicial or
tribunals international legislative act of a state can transform International
tribunals (Vienna Law into domestic law.
Role in th
Internatio Convention on e
n
Law of Treaties, Pacta Sunt Servanda (2000 Bar)
al
Art. 27; Permanent
Tribunals
Court of International agreements must be performed in good
International faith. A treaty engagement is not a mere moral obligation
Justice, 1931, Polish but creates a legally binding obligation on the parties. A
Nationals in Danzig state which has contracted a valid international
Case) agreement is bound to make in its legislation such
modification as may be necessary to ensure fulfillment of
Doctrine of Incorporation the obligation undertaken.

Principle of Auto-Limitation
It means that the rules of international law form part of (2006 Bar)
the law of the land and no further legislative action is
needed to make such rules applicable in the domestic Any State may by its consent, express or implied, submit
sphere. to a restriction of its sovereign rights. There may thus
be a curtailment of what otherwise is a plenary power
The fact that international law has been made part of the (Reagan v. CIR, G.R. No. L-26379, Dec. 27, 1969).
law of the land does not by any means imply the primacy
of international law over national law in the municipal NOTE: While sovereignty has traditionally been deemed
sphere. Under the doctrine of incorporation as applied in absolute and all-encompassing on the domestic level, it is
most countries, rules of international law are given a however subject to restrictions and limitations
standing equal, not superior, to national legislative voluntarily agreed to by the Philippines, expressly or
enactments (Salonga and Yap, Public International Law, impliedly, as a member of the family of nations. By the
Fourth ed., 1974, p. 16) doctrine of incorporation, the country is bound by
generally accepted principles of international law, which
NOTE: Under this doctrine, as accepted by the majority are considered to be automatically part of our own laws.
of states, such principles are deemed incorporated in the
law of every civilized state as a condition and The sovereignty of a state therefore cannot in fact and
consequence of its membership in the society of nations. in reality be considered absolute. Certain restrictions
Upon its admission to such society, the state is enter into the picture: (1) limitations imposed by the
automatically obligated to comply with these principles very nature of membership in the family of nations and
(2) limitations imposed by treaty stipulations (Tanada
in its relations with other states. [United States of v. Angara, 272 SCRA 18).
America v. Judge Guinto 261 Phil. 777 (1990)]
Correlation of Reciprocity and the Principle of Auto-
Limitation
Examples of “generally accepted principles of
International Law” When the Philippines enters into treaties, necessarily,
these international agreements may contain limitations
1. Pacta sunt servanda on Philippine sovereignty. The consideration in this
2. Rebus sic stantibus (agreement is valid only if the same partial surrender of sovereignty is the reciprocal
conditions prevailing at time of contracting continue to commitment of other contracting States in granting the
exist at the time of performance) same privilege and immunities to the Philippines.
3. Par in parem non habet imperium (State Immunity NOTE: For example, this kind of reciprocity in relation
from Suit) (1991, 1994, 1996, 2005, 2006, 2007 Bar)
4. Right of states to self-defense to the principle of auto-limitation characterizes the
5. Right to self-determination of people
Philippine commitments under WTO-GATT (Ibid.).
Doctrine of Transformation

It provides that the generally accepted rules of SOURCES OF PUBLIC INTERNATIONAL LAW
international law are not per se binding upon the state
but must first be embodied in legislation enacted by the

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Article 38 of the Statute of International Court of Justice XPN: Treaties may be considered a direct source of
(SICJ) provides that the Court, whose function is to international law when concluded by a sizable number of
decide in accordance with international law such States, and is reflective of the will of the family of nations.
disputes as are submitted to it, shall apply:

Primary Sources (2012 Bar) INTERNATIONAL CUSTOM OR CUSTOMARY

INTERNATIONAL LAW (CIL)
1. International conventions, whether general or particular,
establishing rules expressly recognized by the contesting state A rule of CIL is one that, whether it has been codified in a
2. International custom, as evidence of a general practice treaty, has binding force of law because the community
accepted as law; and of states treats it and views it as a rule of law. In contrast
3. The general principles of law recognized by civilized nations to treaty law, a rule of CIL is binding upon a state
whether or not It has affirmatively assented to that rule.
Subsidiary Sources
A customary rule requires the presence of two
1. Decisions of international tribunals; and elements:
2. Teachings of the most highly qualified publicists of various
nations. 1. An objective element (general practice) consisting of a
relatively uniform and constant State practice; and
NOTE: This category is described as a “subsidiary
means of finding law.” Judicial decisions and scholarly 2. A psychological element consisting of subjective
writings are, in essence, research aids for the Court, used conviction of a State that it is legally bound to behave in a
for example to support or refute the existence of a particular way in respect of a particular type of situation.
customary norm, to clarify the bounds of general This element is usually referred to as the opinion juries sive
principles of customary rule, or to demonstrate practice necessitates.
under a treaty.
The Objective Element – general practice
INTERNATIONAL CONVENTIONS OR TREATIES
This is normally constituted by the repetition of certain
(See discussions under the heading Treaties, and the behavior on the part of a State for a certain length of time
Vienna Convention on the Law of Treaties) which manifests a certain attitude, without ambiguity,
regarding a particular matter. Evidence of state practice
Types of Treaties or International Conventions may include a codifying treaty, if a sufficient number of
states sign, ratify, or accede.
1. Contract treaties (Traite contract)
2. Law making treaty (Traiteloi) However, as no particular duration is required for
practice to become law, on some occasions instant
Contract treaties customs comes into existence. For that reason, a few
repetitions over a short period of time may suffice or
Bilateral arrangements concerning matters of particular many over a long period of time or even no repetition at
or special interest to the contracting parties. all in so far as an instant custom is concerned. However,
the shorter the time, the more extensive the practice
They are sources of particular international law but may would have to be to become law. A practice must be
become primary sources of public international law constant and uniform, in particular with regard to the
when different contract treaties are of the same nature, affected States, but complete uniformity is not
containing practically uniform provisions, and are required.
concluded by a substantial number of States.
A practice must be constant and uniform, in particular
Law-making treaties with regard to the affected States, but complete
uniformity is not required. It would suffice that
Treaties which are concluded by a large number of States conduct is generally consistent with the rule and that
for purposes of: instances of practice inconsistent with the rule are
1. Declaring, confirming, or defining their understanding of treated as breaches of that practice is concerned, this will
what the law is on a particular subject; usually mean widespread but not necessarily universal
2. Stipulating or laying down new general rules for future adherence to the rule.
international conduct; and
3. Creating new international institutions. Indeed, custom may be either general or regional.
General customs apply to the international community as
NOTE: a whole. Local or regional customs apply to a group of
GR: Only the parties are bound by treaties and States or just two States in their relations inter se.
international conventions.

The Subjective Element – opinion juris sive

necessitates
UNIVERSITY OF SANTO TOMAS
2017 GOLDEN NOTES
 PUBLIC INTERNATIONAL LAW

including Dissenting States

To assume the status of CIL the rule in question must be
regarded by States as being binding in law, i.e. that they XPN: Dissenting States are not bound by international
are under a legal obligation to obey it. The main customs if they had consistently objected to it while the
purpose of the opinion juris sive necessitates is to project was merely in the process of formation
distinguish between customary rule and mere usage (Persistent Objector Rule).
followed out of courtesy or habit.
Dissent, however protects only the dissenter and does
Put another way, opinion juris, is the conviction of a State not apply to other States. A State joining the
that it is following a certain practice as a matter of law international law system for the first time after a practice
and that, were it to depart from the practice, some form has become customary law is bound by such practice.
of sanction would, or ought to, fall on it.
Persistent Objector Rule
NOTE: CIL is shown by reference to treaties, decisions of
national and international courts, national legislation, If during the formative stage of a rule of customary
diplomatic correspondence, opinions of international international law a State persistently objects to that
organizations. Each of these may be employed as developing rule it will not be bound by it. Once a
evidence of state practice, opinio juris, or both. In the customary rule has come into existence, it will apply to
North Sea Continental Shelf Cases, the ICJ stated that the all States except any persistent objectors. However, an
party asserting a rule of customary international law objecting State, in order to rely on the persistent objector
rule, must:
bears the burden of proving it meets both requirements.  Raise its objection at the formative stage of the
rule in question;
Elements of international custom  Be consistent in maintaining its objection;
 Inform other States of its objection. This is
1. General practice, characterized by uniformity and particularly important with regard to a rule which has
consistency; been almost universally accepted. If a State remains
2. Opinio juris, or recognition of that practice as a legal silent, its silence will be interpreted as acquiescence to
norm and therefore obligatory; and the new rule.
3. Duration
NOTE: The burden of proof is on the objecting State. The
NOTE: Repetition of practice or action of states is persistent objector rule does not apply if the CIL has
necessary. already evolved into a jus cogens rule.

Opinio Juris Sive Necessitates/ Opinio Juris (2008, Example of International Custom
2012 Bar)
The Universal Declaration of Human Rights (UDHR),
As an element in the formation of customary norm in while not a treaty, has evolved as an international
international law, it is required that States in their custom, a primary source of international law, and is
conduct amounting to general practice, must act out of a binding upon the members of the international
sense of legal duty and not only by the motivation of community.
courtesy, convenience or tradition. According to the
International Court of Justice in the North Sea NOTE: In a strict sense, the UDHR is not a treaty but it
Continental Shelf Cases and quoted in Mijares v. Ranada has been considered as a constitutive document for the
(455 SCRA 397 [2005]), “Not only must the acts amount purpose of defining “fundamental freedoms and human
to a settled practice, but they must also be such, or be rights.”
carried out in such a way, as to be evidence of a belief
that this practice is rendered obligatory by the existence
of a rule of law requiring it.” The Relationship between Treaties and International
Custom

Period of time in the formation of customary norms They co-exist, develop each other and, sometimes, clash.
If there is a clash between a customary rule and a
No particular length of time is required for the formation provision of a treaty then, because they are of equal
of customary norms. What is required is that within the authority (except when the customary rule involved is of
period in question, short though it may be, State practice, a jus cogens nature whereupon being superior it will
including that of States whose interest are specially prevail, the one which is identified as being the lex
affected, should have extensive and virtually uniform and specialis will prevail. The lex specialis will be determined
in such a way as to show a general recognition that a rule contextually.
of law or legal obligation is involved.
GENERAL PRINCIPLES OF LAW

Binding effect of international customs Reference to such principles is to both those which are
inferred from municipal laws and those which have no
GR: All States are bound by international customs counterparts in municipal law and are have no

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counterparts in municipal law and are inferred from the that every single published article constitutes an Article
nature of the international community. If there is no 38(1)(d) “teaching”. However, the provision is expressly
treaty relevant to a dispute, or if there is no rule of limited to teachings of “the most highly qualified
customary international la that can be applied to it, the publicists.”
ICJ is directed, under Article 38 of its Statute, to apply
general principles of international law. Such works are resorted to by judicial tribunals not for
the speculation of their authors concerning what the
Simply stated, such principles are gap-filler provisions, law ought to be, but for trustworthy evidence of what
utilized by the ICJ in reference to rules typically found in the law really is (Mr. Justice Gray in Paquete Habana
domestic courts and domestic legal systems in order to case, 175 U.S. 677).
address procedural and other issues.
Requisites to be a most highly qualified publicist:
The main objective of inserting the third source in Article
38 is to fill in gaps in treaty and customary law and to 1. His writings must be fair and impartial representation
meet the possibility of a non liquet. of law;
2. An acknowledged authority in the field.
Non liquet means the possibility that a court or tribunal
could not decide a case because of a ‘gap’ in law. Examples: Grotius, Lauterpacht, Oppenheim, Crawford,
Aust, Shaw, and Brownlie. Authoritative sources within
Examples: Burden of proof, admissibility of evidence, this list include the writings of former Judges, the
waiver, estoppel, unclean hands, necessity, and force secondary opinions of Judges who are not in the majority
majeure. of their cases, and documents created by the
International Law Commission. Within the context of a
DECISIONS OF INTERNATIONAL TRIBUNALS specific field, there are additional scholars who would be
regarded as “highly qualified publicists.”
As there is no binding authority of precedent in
international law, international court and tribunal cases Burdens of Proof
do not make law. Judicial decisions are, therefore, strictly
speaking not a formal source of law. However, they In the Corfu Channel Case (U.K. v. Albania, 1949), the ICJ
clarify the existing law on the topic and may, in some set out the burdens of proof applicable to cases before it.
circumstances, ceate a new principle in international law. The Applicant normally carries the burden of proof with
They can also be considered evidence of State practice. respect to factual allegations contained in its claim by a
preponderance of the evidence. The burden falls on the
Judicial decisions, whether from international tribunals Respondent with respect to factual allegations contained
or from domestic courts, are useful to the extent they in a cross-claim. However, the Court may draw an
address international law directly or demonstrate a adverse inference if evidence is solely in the control of
general principle. one party that refuses to produce it.

Ariticle 59 of the Statute of the ICJ, provides that: Formal sources vs. Material sources

“decisions of the courts have no binding force, except for

the parties and in respect of the case concerned.” BASIS FORMAL MATERIAL
SOURCES SOURCES
This provision shows that:

1. Decision of the ICJ has no binding authority. refer to the refer to the
various substance and the
2. ICJ does not make law. processes by content of the
Definition
which rules obligation
NOTE: In practice, the ICJ will follow the previous
come into
decisions so as to have judicial consistency, or if it does
not follow, the court will distinguish its previous existence
decisions from the case actually being heard. (case:
Interpretation of Peace Treaties. 1950) gives the force supplies the
Effect and nature of substance of the
TEACHING OF AUTHORITATIVE PUBLICISTS – law rule
INCLUDING LEARNED WRITERS

This source generally only constitutes evidence of

customary law. However, learned writings can also play Hard law (2009 Bar)
a subsidiary role in developing new rules of law.
Means binding laws; to constitute law, a rule, instrument
“Teachings” refers simply to the writings of learned or decision must be authoritative and prescriptive. In
scholars. Many students make the mistake of believing international law, hard law includes treaties or
international agreements, as well as customary laws.
These instruments result in legally enforceable
UNIVERSITY OF SANTO TOMAS 2017 commitments for countries (states) and other
GOLDEN NOTES
international subjects.
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 PUBLIC INTERNATIONAL LAW

NOTE: An entity is a subject of international law if it has

Soft law (2009 Bar) “international legal personality”. In other words, subjects
must have rights, powers and duties under international
These are non-binding rules of international law. Soft law and they should be able to exercise those rights,
law is of relevance and importance to the development of powers and duties.
international law because it:
 has the potential of law-making, i.e. it may be a The subjects of international law:
starting point for later ‘hardening’ of non-binding provisions
(e.g. UNGA resolutions may be translated into binding 1. Direct subjects
treaties); a. States;
 may provide evidence of an existing customary b. Colonies and dependencies;
rule; c. mandates and trust territories (2003 Bar);
 may be formative of the opinio juris or of State belligerent communities;
practice that creates a new customary rule;
 may be helpful as a means of a purposive d. The Vatican;
interpretation of international law; e. The United Nations; international administrative
 may be incorporated within binding treaties bodies; and
but in provisions which the parties do not intend to be f. To a certain extent, individuals.
binding; 2. Indirect subjects
 may in other ways assist in the development a. International organizations;
and application of general international law. b. Individuals; and
c. Corporations.
NOTE: The importance of soft law is emphasized by the 3. Incomplete subjects
fact that not only States but also non-State actors a. Protectorates;
participate in the international law-making process b. Federal states;
through the creation of soft law. Nevertheless, soft law is c. Mandated and trust territories.
made up of rules lacking binding force, and the general
view is that it should not be considered as an Object
independent, formal source of international law despite
the fact that it may produce significant legal effects. A person or thing in respect of which rights are held and
obligations assumed by the subject.
Example: Yogyakarta Principles
Subject vs. Object of International Law
At this time, the Court is not prepared to declare that
these Yogyakarta Principles contain norms that are
obligatory on the Philippines. Using even the most liberal BASIS SUBJECT OBJECT
of lenses, these Yogyakarta Principles, consisting of a
Entity that has Person or thing in
declaration formulated by various international law
professors, are – at best – de lege ferenda – and do not rights and respect of which
constitute binding obligations on the Philippines. Indeed, responsibilities rights are held
so much of contemporary international law is Definition
characterized by the “soft law” nomenclature, i.e., under that law and obligations
international law is full of principles that promote assumed by the
international cooperation, harmony, and respect for subject
human rights, most of which amount to no more than
well-meaning desires, without the support of either State Has international Not directly
practice or opinio juris (Ang Ladlad v. COMELEC, G.R. No. personality that it governed by the
190582, April 8, 2010). can directly assert rules of
Applicable
rights and can be international law
SUBJECTS OF INTERNATIONAL LAW law
held responsible
under the law of
Subject
nations
An entity with the capacity of possessing international It can be a proper Its rights are
rights and duties and of bringing international claims party in received and its
(Magallona, 2005). transactions responsibilities
Capacity to involving the imposed
The status of the State as subject of law or an
enter into application of the indirectly through
international person is conferred by customary or
general international law. It possesses erga omnes or transaction law of nations the
objective personality not merely by virtue of recognition among members instrumentality of
on the part of particular states. of international an intermediate
communities agency

NOTE: Under the traditional concept, only states are

considered subjects of international law. However, under
the contemporary concept, individuals and
international organizations are also subjects because they
have rights and duties under international law.

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--- 4. Capacity to enter into relations with other states

Q: Malaya Lolas have approached the Executive (independence/sovereignty) – The power of a state to
Department through the DOJ, DFA, and OSG, requesting manage its external affairs without direction or interference
assistance in filing a claim against the Japanese officials and from another state (Montevideo Convention on the Rights and
military officers who ordered the establishment of the Duties of States, Art. 1).
“comfort women” stations in the Philippines. But officials of
the Executive Department declined to assist the petitioners, Recognition not an element
and took the position that the individual claims of the
comfort women for compensation had already been fully The political existence of the state is independent of
satisfied by Japan’s compliance with the Peace Treaty recognition by the other states. Even before recognition,
between the Philippines and Japan. May we force the the state has the right to defend its integrity and
government to pursue the claims of comfort women under independence to provide for its conservation and
the doctrine of jus cogens? prosperity, and consequently to organize itself as it sees
fit, to legislate upon its interests, administer its services,
A: NO, the Philippines is not under any international obligation and to define the jurisdiction and competence of its
to espouse petitioners’ claims. courts. The exercise of these rights has no other
limitation than the exercise of the rights of other states
A State may exercise diplomatic protection by whatever according to international law (Montevideo Convention
means and to whatever extent it thinks fit, for it is its on the Rights and Duties of States, Art. 3).
own right that the State is asserting. Should the natural
or legal person on whose behalf it is acting consider that Nation vs. State
their rights are not adequately protected, they have no
remedy in international law. All they can do is resort to Nation is defined as a body of people more or less of the
national law, if means are available, with a view to same race, language, religion and historical traditions
furthering their cause or obtaining redress. (Fenwick 104; Sarmiento, 2007).

The State, therefore, is the sole judge to decide whether Doctrine of Equality of States
its protection will be granted, to what extent it is
granted, and when will it cease. It retains, in this respect, All states are equal in international law despite of their
a discretionary power the exercise of which may be obvious factual inequalities as to size, population, wealth,
determined by considerations of a political or other strength, or degree of civilization (Sarmiento, 2007).
nature, unrelated to the particular case. (Vinuya v.
Romulo, G.R. No. 162230, April 28, 2010) Principle of State Continuity
---
From the moment of its creation, the state continues as a
International Community juristic being notwithstanding changes in its
circumstances provided only that they do not result in
It is the body of juridical entities which are governed by loss of any of its essential elements (Sapphire Case, 11
the law of nations. Wall. 164 in Cruz, 2003).

NOTE: Under the modern concept, it is composed not ---

only of States but also of such other international Q: If State sovereignty is said to be absolute, how is it
persons such as the UN, the Vatican City, colonies and related to the independence of other States and to their
dependencies, mandates and trust territories, equality on the international plane?
international administrative bodies, belligerent
communities and even individuals. A: From the standpoint of the national legal order, State
sovereignty is the supreme legal authority in relation to
STATE subjects within its territorial domain. This is the traditional
context in referring to sovereignty as absolute. However, in
It is a community of persons, more or less numerous, international sphere, sovereignty realizes itself in the
permanently occupying a definite portion of territory, existence of a large number of sovereignties, such that there
independent of external control, and possessing an prevails in fact co-existence of sovereignties under
organized government to which the great body of conditions of independence and equality.
inhabitants render habitual obedience. ---

Elements of a State State sovereignty as defined in international law

1. Permanent population (people) – An aggregate of It is the right to exercise in a definite portion of the globe
individuals of both sexes, who live together as a community the functions of a State to the exclusion of another State.
despite racial or cultural differences; Sovereignty in the relations between States signifies
2. Defined territory – Fixed portion of the earth’s surface independence. Independence in regard to a portion of
which the inhabitants occupy; the globe is the right to exercise therein to the exclusion
3. Government – The agency through which the will of the of any other State, the functions of a State (Island of
state is formulated, expressed and realized; and Palmas case: USA v. the Netherlands).

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international agreements of the successor State

Fundamental rights of a State come into force there.

1. Existence and self-preservation NOTE: “Moving Treaty or Moving Boundaries”

2. Sovereignty and independence Rule – 3rd State may seek relief from the treaty
3. Equality on ground of rebus sic stantibus
4. Property and jurisdiction
5. Diplomatic intercourse When a State is absorbed by another State, the
international agreements of the absorbed State
Extinguishment of a State are terminated and the international
agreements of the absorbing State become
The radical impairment of actual loss of one or more of applicable to the territory of the absorbed
the essential elements of the state will result in its State.
extinction (Cruz, 2003).
NOTE: “Moving Treaty or Moving Boundaries”
Succession Rule may apply.

State succession takes place when one state assumes the b. When a part of a State becomes a new State, the
rights and some of the obligations of another because of new State does not succeed to the international
certain changes in the condition of the latter. This holds agreements to which the predecessor State was a party,
true in the event that a state is extinguished or is created unless, expressly or by implication, it accepts such
(Cruz, 2000). agreements and the other party or parties thereto agree
or acquiesce.
Rules: c. Pre-existing boundary and other territorial
agreements continue to be binding notwithstanding
1. As to territory – The capacities, rights and duties of (Utipossidetis rule).
the predecessor State with respect to that territory
terminate and are assumed by the successor State. Effects of a change of sovereignty on municipal laws
2. As to State property – The agreement between the
predecessor and the successor State govern; otherwise: 1. Laws partaking of a political complexion are
a. Where a part of the territory of a State becomes abrogated automatically
part of the territory of another State, property of the 2. Laws regulating private and domestic rights
predecessor State located in that territory passes to the continue in force until changed or abrogated
successor State.
b. Where a State is absorbed by another State, Effect of change of sovereignty when Spain ceded the
property of the absorbed State, wherever located, passes to Philippines to the US
the absorbing State.
c. Where a part of a State becomes a separate The political laws of the former sovereign are not merely
State, property of the predecessor State located in the suspended but abrogated. As they regulate the relations
territory of the new State passes to the new State. between the ruler and the ruled, these laws fall to the
3. As to public debts – Agreement between predecessor ground ipso facto unless they are retained or re-enacted
and successor State govern; otherwise: by positive act of the new sovereign.
a. Where a part of the territory of a State becomes
part of the territory of another State, local public debt and Non-political laws, by contrast, continue in operation, for
the rights and obligations of the predecessor State under the reason also that they regulate private relations only,
contracts relating to that territory are transferred to the unless they are changed by the new sovereign or are
successor State. contrary to its institutions. (Public International Law,
b. Where a State is absorbed by another State, 2014, by Isagani Cruz)
public debt and the rights and obligations under contracts of
the absorbed State pass to the absorbing State. Effect of Japanese occupation to the sovereignty of
c. Where a part of a State becomes a separate the US over the Philippines
State, local public debt and the rights and obligations of the
predecessor State under contracts relating to that territory Sovereignty is not deemed suspended although acts of
are transferred to the successor State. sovereignty cannot be exercised by the legitimate
4. As to treaties authority. Thus, sovereignty over the Philippines
a. When part of the territory of a State becomes remained with the US although the Americans could not
the territory of another State, the international agreements exercise any control over the occupied territory at the
of the predecessor State cease to have effect in respect of the time. What the belligerent occupant took over was
territory and merely the exercise of acts of sovereignty. (Anastacio
Laurel vs. Eriberto Misa, G.R. No. L-409, January 30, 1947)

Status of allegiance during Japanese occupation

There was no case of suspended allegiance during the

Japanese occupation. Adoption of the theory of

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suspended allegiance would lead to disastrous entitled to exercise belligerent rights

consequences for small and weak nations or states, and (Hackworth, 166)
would be repugnant to the laws of humanity and
requirements of public conscience, for it would allow Kinds of Recognition
invaders to legally recruit or enlist the quisling
inhabitants of the occupied territory to fight against their 1. Express recognition- may be verbal or in writing. It may
own government without the latter incurring the risk of be extended though:
being prosecuted for treason. To allow suspension is to  formal proclamation or announcement
commit political suicide. (Anastacio Laurel vs. Eriberto  stipulation in a treaty
Misa, ibid)  letter or telegram
 official call or conference
NOTE: An inhabitant of a conquered State may be convicted
of treason against the legitimate sovereign committed 2. Implied recognition- it is when the recognizing state
during the existence of belligerency. Although the penal enters into official intercourse with the new member by:
code is a non-political law, it is applicable to treason  exchanging diplomatic representatives with it
committed against the national security of the legitimate
 bipartite treaty
government, because the inhabitants of the occupied
 acknowledging its flag
territory were still bound by their allegiance to the latter
during the enemy occupation. Since the preservation of the  entering into formal relations with it
allegiance or the obligation of fidelity and obedience of a
citizen or subject to his government or sovereign does not Theories of recognition of a State (2004 Bar) (Con-
demand from him a positive action, but only passive attitude Dec)
or forbearance from adhering to the enemy by giving the
latter aid and comfort, the occupant has no power, as a 1. Constitutive theory – Recognition is the last
corollary of the preceding consideration, to repeal or indispensable element that converts the state being
suspend the operation of the law of treason. (Anastacio recognized into an international person.
Laurel vs. Eriberto Misa, ibid) 2. Declaratory theory – Recognition is merely an
acknowledgment of the pre-existing fact that the state being
Succession of government recognized is an international person (Cruz, 2003).

There is succession of government where one Authority to recognize

government replaces another either peacefully or by
violent methods. The integrity of the state is not affected; It is to be determined according to the municipal law of
the state continues as the same international person each State.
except only that its lawful representative is changed
(Cruz, 2000). In Philippine setting: It is the President who
determines the question of recognition and his decisions
Effects of a change of government on this matter are considered acts of state which are,
therefore, not subject to judicial review.
1. If the change is peaceful, the new government assumes the
rights and responsibilities of the old government. Basis of Authority of the President (TRiMP)
2. If the change was effected thru violence, a distinction must
be made. a. Treaty-making power
a. Acts of political complexion may be denounced b. Right in general to act as the foreign policy spokesman
b. Routinary acts of mere governmental administration of the nation.
continue to be effective. c. Military power
d. Power to send and receive diplomatic representatives
Recognition
NOTE: Being essentially discretionary, the exercise of
It is the acknowledgment extended by a State to: these powers may not be compelled.
 Another State
Doctrine of Association (2010 Bar)
 Government, or a
 Belligerent community
It is formed when two states of unequal power
voluntarily establish durable links. In the basic model,
NOTE: The acknowledgment by a State is coupled
one state, the associate, delegates certain responsibilities
with an indication of its willingness to deal with the
to the other, the principal, while maintaining its
entity as such under international law.
international status as a state. Free association
represents a middle ground between integration and
 To treat the new State as such independence.
 To accept the new government as having authority to
represent the State it purports to govern and maintain NOTE: Republic of the Marshall Islands and the
diplomatic relations with it
 To recognize in case of insurgents that they are

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Federated States of Micronesia formerly part of the U.S. obligations of

Administered Trust Territory of the Pacific Islands. international
law. It does not carry
The associated state arrangement has usually been used with it the
as a transitional device of former colonies on their way to It carries with it recognition of State
full independence. the recognition
of government
Example: Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Reason: The
Lucia, St. Vincent and Grenada. State recognized
has all the
--- essential
Q: Formal peace talks between the Philippine requisites of a
Government and MILF resulted to the crafting of the State at the time
GRP-MILF Tripoli Agreement on Peace (Tripoli recognition is
Agreement 2001) which consists of three (3) aspects: extended
a.) security aspect; b.) rehabilitation aspect; and c.) Irrevocable Revocable (if

ancestral domain aspect. brought about by

As to its
violent or
revocability
Various negotiations were held which led to the unconstitutional
finalization of the Memorandum of Agreement on the means)
Ancestral Domain (MOA-AD). In its body, it grants
“the authority and jurisdiction over the Ancestral Requirements for recognition of government
Domain and Ancestral Lands of the Bangsamoro” to
the Bangsamoro Juridical Entity (BJE). The latter, in 1. The government is stable and effective, with no
addition, has the freedom to enter into any economic substantial resistance to its authority
cooperation and trade relation with foreign 2. The government must show willingness and ability
countries. to discharge its international obligations
3. The government must enjoy popular consent or
The MOA-AD further provides for the extent of the approval of the people
territory of the Bangsamoro. With regard to
governance, on the other hand, a shared Tests/Criteria in Recognizing a New Government
responsibility and authority between the Central
Government and BJE was provided. The relationship 1. Objective test- the government must be able to
was described as “associative”. Does the MOA-AD maintain order within the state and repel external
violate the Constitution and the laws? aggression.
2. Subjective tests- government is willing to comply
A: The concept of association is not recognized under the with its international obligations
present Constitution. Indeed, the concept implies powers
that go beyond anything ever granted by the Constitution Tobar or Wilson Doctrine (2004 Bar)
to any local or regional government. It also implies the
recognition of the associated entity as a state. The It precludes recognition to any government coming into
Constitution, however, does not contemplate any state in existence by revolutionary means so long as the freely
this jurisdiction other than the Philippine State, much elected representatives of the people thereof have not
less does it provide for a transitory status that aims to constitutionally reorganized the country.
prepare any part of Philippine territory for
independence. Stimson Doctrine

The provisions of the MOA indicate that the parties No recognition of a government established through
aimed to vest in the BJE the status of an associated state external aggression (Nachura, 2009).
or, at any rate, a status closely approximating it (Prov. of
North Cotabato v. GRP, G.R. No. 183591, Oct. 14, 2008). Estrada Doctrine (2004 Bar)

---
It involves a policy of never issuing any declaration
Recognition of State vs. Recognition of Government
giving recognition to governments and of accepting
whatever government is in effective control without
 BASIS STATE GOVERNMENT raising the issue of recognition. An inquiry into
On a definite Person or a group legitimacy would be an intervention in the internal
territory of of persons capable affairs of another State.
human society of binding the state
politically they claim to
As to extent organized, represent
independent
and capable of
observing the

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UNIVERSITY OF SANTO TOMAS 2017 GOLDEN
NOTES
De jure recognition vs. De facto recognition (1998
Bar)

BASIS RECOGNITION RECOGNITION

DE JURE DE FACTO
Relatively Provisional (e.g.:
Duration permanent duration of armed
struggle)
Vests title to Does not vest title
Entitlement to properties of to properties of
properties government government
abroad abroad
Scope of Brings about full Limited to certain
Diplomatic diplomatic juridical relations
Power relations

Effects of Recognition (FIPA)

1. Full diplomatic relations are established.

EXP: Where the government recognized is de facto
2. Immunity from jurisdiction of courts of law of
recognizing State.
3. Right to Possession of the properties of its
predecessor in the territory of the recognizing State

NOTE: This is not applicable as to Recognition of

State.

4. All Acts of the recognized stated or government are

validated retroactively, preventing the recognizing state
from passing upon their legality in its own courts

Belligerency

It exists when the inhabitants of a State rise up in arms

for the purpose of overthrowing the legitimate
government or; when there is a state of war between two
states.

Requisites in recognizing belligerency (OSSO)

1. There must be an Organized civil government

directing the rebel forces.
2. The rebels must occupy a Substantial portion of the
territory of the state.
3. The conflict between the legitimate government and
the rebels must be Serious, making the outcome certain.
4. The rebels must be willing and able to Observe the
laws of war.

Legal Consequences of Belligerency

PERIOD EFFECT
Before It is the legitimate government that is
Recognition of responsible for the acts of the rebels
the parent affecting foreign nationals and their
state properties.
1. The belligerent community is
After considered a separate state for
recognition of the purposes of the conflict it is
the parent waging against the legitimate
state government.
 2. 286
Their relations for the duration of
hostilities be governed by the
laws of
war
3. Troops of other belligerent when
captured, shall be treated as
prisoners of war
4. Parent state shall no longer be
liable for any damage that may be
caused to third parties by rebel
government
5. Both belligerents may exercise
the right to visit and search
upon neutral merchant vessels
6. Both the rebel and the legitimate
government shall be entitled to
full war status
They are under obligation to observe
As to third strict neutrality and abide by
States consequences arising from
position.

Insurgency vs. Belligerency

BASIS INSURGENCY BELLIGERENCY

A mere initial More serious
stage of war. It widespread
involves a rebel presupposes
movement, and existence of
As to nature is usually not between 2 or more
recognized. states (1st sense)
or actual civil war
within a single
state (2nd sense).
Sanctions to Belligerency
insurgency are governed by
governed by rules
As to the municipal law – international
applicable law Revised Penal as the belligerents
Code, i.e. may be given
rebellion. international
personality.

Recognition and Belligerency

Recognition of belligerency is the formal

acknowledgment by a third party of the
existence of a state of war between the central
government and a portion of that state.
Belligerency exists when a sizable portion of the
territory of a state is under the effective control
of an insurgent community which is seeking to
establish a separate government and the
insurgents are in de facto control of a portion of
the territory and population, have a political
organization, and are able to maintain such
control and conduct themselves according to the
laws of war. For example, Great Britain
recognized a state of belligerency in the United
States during the Civil War.

INTERNATIONAL ORGANIZATIONS

Bodies created by sovereign states and whose

functioning is regulated by international law,
not the law of any given country. They have
functional personality which is limited to what
is necessary to carry out their functions as found
in the instruments of the organization.
 PUBLIC INTERNATIONAL LAW

It is set up by treaty among two or more states. It enjoys self-determination

immunity which is based on the need for effective NOTE: arises only in the
exercise of its functions and is derived from the treaty most extreme cases and,
creating it (Bernas, 2009). even then, under carefully
defined circumstances
Q: What does the term “auxiliary status” of some
international organizations entails?
Exceptional cases in which the right to external self-
A: The term “auxiliary status” of some international determination can arise, namely:
organizations, such as the Red Cross Society, means that it is 1. where a people is under colonial rule,
at one and the same time a private institution and a public 2. subject to foreign domination or exploitation
service organization because the very nature of its work outside a colonial context, and
implies cooperation with the state. The PNRC, as a National 3. blocked from the meaningful exercise of its right to
Society of the International Red Cross and Red Crescent internal self-determination (Prov. of North Cotabato
Movement, can neither be “classified as an instrumentality of
the state, so as not to lose its character of neutrality” as well v. GRP, G.R. No. 183591, Oct. 14, 2008)
as its independence, nor strictly as a private corporation
since it is regulated by international humanitarian law and is NOTE: The people’s right to self-determination does not
treated as an auxiliary of the state (Liban v. Gordon, G.R. No. extend to a unilateral right of secession.
175352, Jan. 18, 2011).
Right to Internal Self-Determination of Indigenous
INDIVIDUALS Peoples

The modern trend in public international law is the Indigenous peoples situated within States do not have a
primacy placed on the worth of the individual person general right to independence or secession from those
and the sanctity of human rights. Slowly, the recognition states under international law, but they do have the right
that the individual person may properly be a subject of amounting to the right to internal self-determination.
international law is now taking root. The vulnerable Such right is recognized by the UN General Assembly by
doctrine that the subjects of international law are limited adopting the United Nations Declaration on the rights of
only to states was dramatically eroded towards the Indigenous Peoples (UNDRIP) (Prov. of North Cotabato v.
second half of the past century. For one, the Nuremberg GRP, ibid)
and Tokyo trials after World War II resulted in the
unprecedented spectacle of individual defendants for NOTE: The UN DRIP, while upholding the right of
acts characterized as violations of the laws of war, crimes indigenous peoples to autonomy, does not obligate States
against peace, and crimes against humanity. Recently, to grant indigenous peoples the near independent status
under the Nuremberg principle, Serbian leaders have of an associated state. There is no requirement that
been persecuted for war crimes and crimes against States now guarantee indigenous peoples their own
humanity committed in the former Yugoslavia. These police and internal security force, nor is there an
significant events show that the individual person is now acknowledgment of the right of indigenous peoples to
a valid subject of international law (Gov’t of Hong Kong the aerial domain and atmospheric space. But what it
Special Administrative Region v. Hon. Olalia, G.R. No. upholds is the right of indigenous peoples to the lands,
153675, April 19, 2007). territories and resources, which they have traditionally
owned, occupied or otherwise used or acquired (Prov. of
Internal Self-Determination vs. External Self- North Cotabato v. GRP, ibid.).
Determination
---
Internal Self- External Self- Q: In 1947, the UN made the border between Israel
Determination Determnation and Palestine known as the Green Line. Following the
Palestinian Arab violence in 2002, Israel began the
construction of the barrier that would separate West
People’s pursuit of its Establishment of a Bank from Israel. Palestinians insisted that the fence
political, economic, social sovereign and is an “Apartheid fence” designed to de facto annex the
and cultural development independent State, the West Bank of Israel. The case was submitted to the
within the framework of free association or ICJ for an advisory opinion by the General Assembly
an existing State. integration with an of the United Nations under resolution ES-10/14. Did
independent State or the Israel undermine the right of self-determination of
emergence into any other the people of Palestine when it created the wall?
political status freely
NOTE: Recognized determined by a people A: Yes. Construction of the wall severely impedes the
sources of international which constitute modes of exercise by the Palestinian people of its right to self-
law establish that the right implementing the right of determination.
to self-determination of a self-determination by that
people is normally fulfilled people. The existence of a “Palestinian people” is no longer in
through internal issue. Such existence has moreover been recognized by

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Israel in the exchange of letters. The Court considers that highest rank or, in Catholic countries, the papal nuncio.
those rights include the right to self-determination, as
the General Assembly has recognized on a number of Functions of a diplomatic mission (Re-P-Pro-N-A-R)
occasions. The route chosen for the wall gives expression
in loco to the illegal measures taken by Israel with regard 1. Represent sending State in receiving State
to Jerusalem and the settlements. Also, there were 2. Protect in receiving State interests of sending State and
further alterations to the demographic composition of its nationals
the Occupied Palestinian Territory resulting from the 3. Negotiate with government of receiving State
construction of the wall as it is contributing to the 4. Promote friendly relations between sending and
departure of Palestinian population from certain areas. receiving States and developing their economic, cultural, and
That construction, along with measures taken previously, scientific relations
has been said to severely impede the exercise by the 5. Ascertain by all lawful means conditions and
Palestinian people of its right to self-determination, and developments in receiving State and reporting thereon to
is therefore a breach of Israel’s obligation to respect that government of sending State
right (ICJ Advisory Opinion on Legal Consequences of the 6. In some cases, Represent friendly governments at their
Construction of a Wall in the Occupied Palestinian request.
Territory, July 9, 2004).
--- Classes of heads of a diplomatic mission

1. Ambassadors or nuncios- accredited to Heads of State

DIPLOMATIC AND CONSULAR LAW and other heads of missions of equivalent rank.
2. Envoys ministers and internuncios- accredited to heads
of State.
Right of legation/ Right of Diplomatic Intercourse 3. Charge d’ affaires- accredited to ministers of foreign
affairs.
It is the right of the state to send and receive diplomatic
missions, which enables states to carry on friendly NOTE: The appointment of diplomats is not merely a
intercourse. It is governed by the Vienna Convention on matter of municipal law because the receiving State is
Diplomatic Relations (1961). not obliged to accept a representative who is a persona
non grata to it. Indeed, there have been cases when duly
The exercise of this right is one of the most effective accredited diplomatic representatives have been
ways of facilitating and promoting intercourse among rejected, resulting in strained relations between the
nations. Through the active right of sending diplomatic sending and receiving State.
representatives and the passive right of receiving them,
States are able to deal more directly and closely with Persona non Grata
each other in the improvement of their mutual
intercourse. In international law and diplomatic usage means a
person not acceptable (for reasons peculiar to himself) to
NOTE: As the right of legation is purely consensual, the the court or government to, which it is proposed to
State is not obliged to maintain diplomatic relations with accredit him in the character of an ambassador or
other States. minister.

If it wants to, a State may shut itself from the rest of the Agreation
world, as Japan did until the close of the 19 th century.
It is a practice of the States before appointing a particular
Disadvantage: A policy of isolation would hinder the individual to be the chief of their diplomatic mission in
progress of a State since it would be denying itself of the order to avoid possible embarrassment.
many benefits available from the international
community. It consists of two acts:
1. The inquiry, usually informal, addressed by the sending
Agents of diplomatic intercourse State to the receiving State regarding the acceptability of an
individual to be its chief of mission; and
1. Head of State 2. The agreement, also informal, by which the receiving
2. Foreign secretary or minister State indicates to the sending State that such person, would
3. Members of diplomatic service be acceptable.
4. Special diplomatic agents appointed by head of the State
5. Envoys ceremonial Letter of Credence

Diplomatic Corps It is the document by which the envoy is accredited by

the sending State to the foreign State to which he is being
It is a body consisting of the different diplomatic sent. It designates his rank and the general object of his
representatives who have been accredited to the same mission, and asks that he be received favorably and that
local or receiving State. It is headed by a doyun de corps, full credence be given to what he says on behalf of his
who, by tradition, is the oldest member within the

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State. 1. Any real action relating to private immovables

situated in the territory of the receiving State unless the
Letter Patent envoy holds the property in behalf of the sending State.
2. Actions relating to succession where diplomatic
The appointment of a consul is usually evidenced by a agent is involved as executor, administrator, heirs or
commission, known sometimes as letter patent or legatee as a private person and not on behalf of the
letred’provision, issued by the appointing authority of the sending State
sending State and transmitted to the receiving State 3. An action relating to any professional or
through diplomatic channels. commercial activity exercised by the diplomatic agent
in the receiving State outside his official functions
DIPLOMATIC IMMUNITY
(2001, 2005 Bar) Modes of waiving diplomatic immunity and
privileges
Nature
1. Expressly by the sending State;
Diplomatic immunity is essentially a political question 2. Impliedly, as when the person entitled to the
and the courts should refuse to look beyond the immunity from jurisdiction commences litigation in the
determination by the executive branch. local courts and thereby opens himself to any
counterclaim directly connected with the principal claim.
Q: Besides the head of the mission, who can enjoy
diplomatic immunities and privileges? NOTE: Waiver of immunity from jurisdiction with regard
to civil and administrative proceedings shall not be held
A: Diplomatic suite or retinue which consist of: to mean implied waiver of the immunity with respect to
the execution of judgment, for which a separate waiver
1. Official staff- it is made up of the administrative and shall be necessary.
technical personnel of the mission, including those
performing clerical work, and the member of their ---
respective families Q: The U.S. Ambassador from the Philippines and the
American Consul General also in the Philippines
2. Non-official staff- composed of the household help, quarreled in the lobby of Manila Hotel and shot each
such as the domestic servants, butlers, and cooks and other. May Philippine courts take jurisdiction over
chauffeurs employed by the mission them for trial and punishment for the crime they
may have committed?
NOTE: As a rule, however, domestic servants enjoy
immunities and privileges only to the extent admitted by A: The Ambassador is immune from prosecution for all
the receiving State and insofar as they are connected crimes committed by him whether officially or in his
with the performance of their duties. private capacity. The consul is immune from criminal
prosecution only for acts committed by him in
Privileges and immunities of diplomatic mission connection with his official functions. The Philippine
courts can take jurisdiction over the Consul but not over
1. Personal inviolability – Members of diplomatic the Ambassador
mission shall not be liable for any form of arrest or ---
imprisonment ---
2. Inviolability of premises – Premises, furnishings Q: The Ambassador of State X to the Philippines
and means of transport shall be immune from search, bought, in the name of his government, two houses
seizure, attachment or execution. and lots at Forbes Park, Makati. One house is used as
3. Archives or documents shall be inviolable the chancery and residence of the ambassador, and
4. Diplomatic agents are immune from criminal, civil the other as quarters for nationals of State X who are
or administrative liability. studying in the University of Santo Tomas. The
5. Receiving State shall protect official Registrar of Deeds refused to register the sale and to
communication and official correspondence of diplomatic issue Transfer Certificates of Title in the name of
mission. State X on the ground of the prohibition of the
Constitution against the alienation of lands in favor
6. Receiving State shall ensure all members of of aliens. Is his refusal justified?
diplomatic mission freedom of movement and travel.
7. A diplomatic agent is exempted to give evidence as a A: The prohibition in the Constitution against alienation
witness. of lands in favor of aliens does not apply to alienation of
8. Exemption from general duties and taxes including the same in favor of foreign governments to be used as
custom duties with certain exceptions. chancery and residence of its diplomatic representatives.
9. Use of flag and emblem of sending State on premises The receiving State is under obligation to facilitate the
of receiving State. acquisition on its territory, in accordance with its laws,
by the sending State of premises necessary for its
XPNs to the privileges and immunities of diplomatic
representatives
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mission, or to assist the latter in obtaining Sources of Authority of Consuls

accommodation in some other way. Therefore, the
refusal of the Register of Deeds to register the sale and 1. Letter patent or letter ‘de provision – Which is the
the issuance of TCT in the name of State X is unjustified. commission issued by the sending State, and
2. Exequatur – Which is the permission given them by the
However, in so far as the house and lot to be used as receiving State to perform their functions therein.
quarters of the nationals of State X who are studying in
the University of Santo Tomas are concerned, the Immunity of Consuls
Register of Deeds correctly refused registration. Here,
the prohibition in the constitution against the transfer of Consuls enjoy their own immunities and privileges but
properties to parties other than the Filipino citizens or not to the same extent as those enjoyed by the diplomats.
corporation 60% of the capital of which is owned by such Like diplomats, consuls are entitled to:
citizens should be followed. 1. Inviolability of their correspondence, archives and
--- other documents
2. Freedom of movement and travel
Exequatur (1991 Bar) 3. Immunity from jurisdiction for acts performed in
their official capacity; and
An authorization from the receiving State admitting the
4. Exemption from certain taxes and customs duties
head of a consular post to the exercise of his functions.
Thus, an appointee cannot start performing his function
Liabilities of Consuls
unless the receiving State issues an exequatur to him.
1. Arrest and punishment for grave offenses; and
Diplomats vs. Consuls
2. May be required to give testimony, subject to certain
exceptions.

NOTE: Members of a consular post are under no

Are concerned with political relations obligation to give evidence on the following situations:
Diplomats a. Concerning matters connected with the
of States. exercise of their functions
b. To produce official correspondence and
They are not concerned with political documents
matters and attend rather to c. To give evidence as expert witness with regard to
Consuls administrative and economic issues. the law of the sending State

Immunity of consular offices

Kinds of Consuls Extent: With respect to that part where the consular
work is being performed;
1. Consules missi – Professional or career consuls who are
nationals of the sending State and are required to devote their full Q: May consular offices be subject to expropriation by
time to the discharge of their duties the receiving State?
2. Consules electi – May or may not be nationals of the sending
State and perform their consular functions only in addition to A: YES, for purposes of national defense or public utility.
their regular callings
NOTE: With respect to expropriation by the
NOTE: Examples of regular callings include acting as receiving State, steps shall be taken to avoid
notary, civil registrar and similar administrative impeding the performance of consular functions,
capacities and protecting and assisting the nationals of and prompt, adequate and effective compensation
the sending State. shall be paid by the sending State. (Article 31 of the
Vienna Convention on Consular Relations and
Duties of Consuls (P-Ob- Prom-Is-Su) Optional Protocols)

1. Protection of the interests of the sending State and its Diplomatic Immunity vs. Consular Immunity
nationals in the receiving State.
2. Promotion of the commercial, economic, cultural, and
scientific relations of the sending and receiving States.
3. Observation of the conditions and developments in the
receiving State and report the same to the sending State.
4. Issuance of passports and other travel documents to
nationals of the sending State and visas or appropriate documents
to persons wishing to travel to the sending State.
5. Supervision and inspection of vessels and aircraft of the
sending State.

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 Premises of the Consular premises
mission includes includes the
the building or buildings or parts
Scope as to
parts of building of buildings and
buildings
and the land the land
and premises
irrespective of the irrespective of
ownership used ownership used
for the purpose of exclusively for the
 PUBLIC INTERNATIONAL LAW
or legatee as private person and not on behalf of the
sending State;
the mission purposes of c. An action relating to any professional or
including the consular posts commercial activity exercised by the diplomatic agent in
the
residence of the
head of mission

GR: The agents of GR: The agents of

the receiving state the receiving state
may not enter the may not enter the
premises of the consular premises
mission
On entry of XPN: Consent of
agents of the XPN: Consent of the head of the
receiving the head of the consular post.
state mission Consent is
assumed in case of
fire or other
disasters requiring
prompt protective
action
Personal baggage Consular bag shall
of a diplomatic not be opened. It
agent shall not be may be requested
opened that the bag be
opened in their
presence by an
authorized
representative of
As to
the receiving state
inviolability
if they have
of baggage
serious reason to
believe that the
bag contains
objects of other
articles,
documents,
correspondence or
articles
Not obliged to May be called
give evidence as a upon to attend as
As a witness witness a witness; if
before the declined, no
court coercive measure
or penalty may be
applied

Differences in the privileges or immunities of

diplomatic envoys and consular officers from the
civil and criminal jurisdiction of the receiving State

1. A diplomatic agent shall enjoy immunity from the

criminal jurisdiction of the receiving State. He shall also enjoy
immunity from its civil and administrative jurisdiction

XPNs:
a. A real action relating to private immovable property
situated in the territory of the receiving State, unless he holds
it on behalf of the sending State for the purpose of the
mission;
b. An action relating to succession in which the
diplomatic agent is involved as executor, administrator, heir
 Grounds for termination of diplomatic relations
receiving State outside of his official functions (Vienna under municipal law (RADAR)
Convention of Diplomatic Relations, Art. 31).
1. Resignation
2. A consular officer does not enjoy immunity from the 2. Accomplishment of the purpose
criminal jurisdiction of the receiving State and are not 3. Death
amenable to the jurisdiction of the judicial or administrative 4. Abolition of the office
authorities of the receiving State in respect of acts performed 5. Removal
in the exercise of consular functions.

However, this does not apply in respect of a civil action either: Grounds for termination of diplomatic relation
1. Arising out of a contract concluded by a consular officer under international law
in which he did not enter expressly or impliedly
2. By a third party for damages arising from an accident in 1. War – Outbreak between the sending and the
the receiving State caused by a vehicle, vessel or aircraft receiving State.
(Vienna Convention on the Consular Relations, Arts. 41 and 43). 2. Extinction of either the sending State or the
receiving State.
Grounds for Termination of Consular Office 3. Recall – Demanded by the receiving State when the
(2D-2W-RN) foreign diplomat becomes persona non grata

1. Death of consular officer Termination of diplomatic relations does not

2. Recall terminate consular relations between the sending
3. Dismissal and receiving States
4. Notification by the receiving State to the sending State
that it has ceased to consider as member of the consular staff Consuls belong to a class of State agents distinct from
5. Withdrawal of his exequatur by the receiving State. that of diplomatic officers. They are not clothed with
6. War – outbreak of war between his home State and the diplomatic character and are not accredited to the
receiving State. government of the country where they exercised their
consular functions; they deal directly with local
DIPLOMATIC RELATIONS authorities

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for purposes of:

They do not represent their State in its relations with
foreign States and are not intermediaries through whom 1. Declaring, confirming, or defining there understanding of
matters of State are discussed between governments. what the law is on a particular subject.
Consuls look mainly after the commercial interest of
their own State in the territory of a foreign State. 2. Stipulating or laying down new general rules for future
international conduct; and

TREATIES 3. Creating new international institutions.

It lays down rules of general or universal application and

Treaty (2003 Bar) are intended for future and continuing observance.

A treaty is generally defined as agreements between and Treaty Contracts

among States, by which parties obligate themselves to
act, or refrain from acting, according to the terms of the Resemble contracts in that they are concluded to
treaty. perform contractual rather than normative functions. It
usually concerns the regulation of a narrow area of
However, under the Vienna Convention on the Law of practice between two States (e.g. trade agreements).
Treaties (VCLT), a treaty has been defined as “an Such treaties may lead to the formation of general
international agreement concluded between States in international law through the operation of the principles
written form and governed by international law, whether governing the development of customary rules in the
embodied in a single instrument or in two or more following ways:
related instruments and whatever its particular
designation.” 1. A series of treaties each of which lay down
similar rule may produce a rule of customary international
Essential Characteristics of Treaties law to the same effect.

1. It becomes binding on the parties to it by virtue of their 2. A rule contained in a treaty originally concluded
consent. between a limited number of parties may subsequently be
accepted or imitated as a general rule.
2. While treaties will, in most cases, be written instruments
concluded between States, the term applies equally to unwritten 3. A treaty may have evidential value as to the
agreements and to agreements between States and international existence of a rule which has crystallized into law by an
organizations and between international organizations. independent process of development.

Many treaties, particularly those of a multilateral nature

designed to establish general rules of common VIENNA CONVENTION ON THE LAW OF TREATIES
application, exhibit a mixture of ‘legislative’
characteristics. A provision of a treaty may; Vienna Convention on the Law of Treaties (VCLT)
(2012 Bar)
 Purport to codify existing rules of customary law, e.g.
Art. 55 of the 1982 Convention on the Law of the Sea which The law of treaties is the body of rules which govern
provides for the recognition of the EEZ; what is a treaty, how it is made and brought into force,
 Crystallize a developing rule of law, firmly establishing amended, terminated, and generally operates. Apart
a legal footing a situation which has previously been part of the from issues of jus cogens, it is not concerned with the
practice of a limited number of States; substance of a treaty (the rights and obligations created
 Generate rules of law independently of the previous by it), which is known as treaty law. Although the VCLT
practice of State, e.g. prohibition on the threat or use of force in does not occupy the whole ground of the law of treaties,
international relations. it covers the most important areas and is the
indispensable starting point for any description of the
Two kinds of a treaty law. For good reason, the VCLt has been called the treaty
on treaties.

1. Law-making treaties (normative treaties) It was adopted on 22 May 1969 and opened for signature
2. Treaty contracts on 23 May 1969. The Convention entered into force on
27 January 1980.
Law-making treaties or Normative Treaties
Scope
Treaties which are concluded by a large number of States
1. The VCLT sets out the law and procedure for the making,
operation, and termination of a treaty.
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2. It does not apply to all treaties, only those between

States (Art. 1 VCLT). Nor is it concerned with the substance Usual steps in the treaty-making
of a treaty as such. That is a matter for the negotiating States. process (NeS-RA-ER)

3. The VCLT as a treaty does not apply retroactively to 1. Negotiation – Conducted by the parties to reach an
treaties concluded before its entry into force. Only rules agreement on its terms.
2. Signature – The signing of the text of the instrument
in the VCLT that codify or reflect rules of CIL apply. agreed upon by the parties.
3. Ratification – The act by which the provisions of a
4. Because the VCLT resulted from a codification project, treaty are formally confirmed and approved by the State.
many of its rules are consistent with otherwise applicable 4. Accession – A State can accede to a treaty only if
rule of CIL. invited or permitted to do so by the contracting parties.
Such invitation or permission is usually given in the
FUNDAMENTAL PRINCIPLES OF THE LAW OF accession clause of the treaty itself.
TREATIES 5. Exchange of instruments of ratification;
6. Registration with the United Nations.
1. The principle of free consent – A state cannot be
bound by treaty to which it has not consented. Free consent
is vital for initial adoption and subsequent development of a Traditional Methods of Expressing Consent to a
particular treaty as it ensures that a State remains in control Treaty
of the commitments it has made under the relevant treaty.
1. Signature – The legal effects of signature are as
2. The principle of pacta sunt servanda – Literally follows:
means agreements must be kept. Embodied in Art. 26
VCLT, which states that; ‘Every treaty in force is binding a.) The signing of a treaty may represent simply
upon the parties to it and must be performed by them in an authentication of its text. Where signature is
good faith. Therefore, a contracting party will be held subject to ratification, acceptance or approval,
responsible for breach of a treaty.’ Applies only to signature does not establish consent to be
treaties which are in force, not to invalid, suspended or bound.
terminated treaties.
NOTE: The act of signing a treaty creates an
3. The principle of good faith – Recognized as the obligation of good faith on the part of the
foundation of international legal order. States and non-State signatory: to refrain from acts calculated to
actors are required to comply with binding obligations frustrate the objects of the treaty and to submit
imposed upon them by international law, irrespective of the treaty to the appropriate constitutional
whether such obligations derive from treaties, customary machinery for approval. Signature does not,
rules, or any other source of international law. It is all however, create an obligation to ratify.
encompassing as it even imposes obligations on a State in
the pre-ratification stage. b.) In the case of a treaty which is only to
become binding upon ratification, acceptance
It applies though out the life of a treaty, form its or approval, that treaty, unless declaratory of
negotiation, through its performance to its termination. customary law, will not be enforceable against a
party until one of those steps is taken.
Each time a State is in reach of the principle of pacta sunt
servanda it also vilates the principle of good faith. c.) Where a treaty is not subject of ratification,
acceptance or approval, but a State’s signature
Essential Requisites of a Valid Treaty will signify consent to be bound. The consent of
a State to be bound by a treaty is expressed by
1. It must be a written instrument or instruments the signature of its representatives when:
between two or more parties;
2. The parties must be States within the meaning of  the treaty provides that signature
international law (IL); shall have that effect;
3. It must be governed by IL; and
4. It must be intended to create legal obligations.  it is otherwise established that the
negotiating states were agreed that signature should
Exclusions have that effect; or

1. Those concluded between states and other subjects of  the intention of the State to give effect
IL. to the signature appears from the full powers of the
2. Agreements not in writing. representative or was expressed during the negotiations.
3. Those which are governed by the national law system
chosen by the parties.

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2. Ratification – A formal act whereby one State declares its

acceptance of the terms of the treaty and undertakes to observe Under the Constitution the power to ratify is vested in
them. Ratification is used to describe two distinct procedural the President subject to the concurrence of the Senate. The
acts: President has the discretion even after the signing of the
treaty by the Philippine representative whether or not to
a. Ratification in municipal law – is the formal act of ratify a treaty. The signature of the representative does
the appropriate organ of the State effected in not signify final consent, it is ratification that binds the
accord with national constitutional law. state to the provisions of the treaty and renders it
effective.
b. Ratification in international law – Ratification is a
procedure which brings a treaty into force for The role of the Senate is limited only to giving or
the State concerned by establishing its definitive withholding its consent, concurrence to the ratification.
consent to be bound by the particular treaty. It is within the President to refuse to submit a treaty to
International law is not concerned with the the Senate or having secured its consent for its
requirements of its constitutional law. ratification, refuse to ratify it. Such decision is within the
competence of the President alone, which cannot be
NOTE: Despite the fact that a treaty may be ratified by encroached by this Court via writ of mandamus
nothing more than the signature of the relevant State’s (Pimentel v. Executive Secretary, G.R. No. 158088, July 6,
representative, in many case States insist upon a 2005).
ratification procedure consisting of more formal steps.
The House of Representatives (HoR) cannot take active
Ratification is so required when under Art. 14 (1) of part in the conduct of foreign relations, particularly in
the VCLT: entering into treaties and international agreements. As
held in US v. Curtiss Wright Export Corporation (299 US
1. A treaty provides for such consent to be expressed by means 304), it is the President alone who can act as
of ratification; representative of the nation in the conduct of foreign
affairs. Although the Senate has the power to concur in
2. It is otherwise established that the negotiating States were treaties, the President alone can negotiate treaties and
agreed that ratification should be required; Congress is powerless to intrude into this.

3. The representative of the State has signed the treaty subject to NOTE: However, if the matter involves a treaty or an
ratification; or executive agreement, the HoR may pass a resolution
expressing its views on the matter.
4. The intention of the State to sign the treaty subject to ---
ratification appears from the full powers of its representative or
was expressed during the negotiation. Doctrine of Unequal Treaties

3. Accession or adherence or adhesion - occurs when a State, The doctrine posits that treaties which have been
which did not participate in the negotiating and singing of the imposed through coercion or duress by a State of
relevant treaty, formally accepts its provisions. It may occur unequal character are void.
before or after a treaty has entered into force. It is only possible
if it is provided for in the treaty, or if all the parties to the treaty Protocol de Clôture
agree that the acceding State should be allowed to accede.
It is a final act and an instrument which records the
--- winding up of the proceedings of a diplomatic conference
Q: A petition for mandamus was filed in the SC to compel the and usually includes a reproduction of the texts of
Office of the Executive Secretary and the Department of treaties, conventions, recommendations and other acts
Foreign Affairs to transmit (even without the signature of agreed upon and signed by the plenipotentiaries
the President) the signed copy of the Rome Statute of the attending the conference.
International Criminal Court (ICC) to the Senate of the
Philippines for its concurrence or ratification – in Instances when a third State who is a non-signatory
accordance with Sec. 21, Art. VII of the 1987 Constitution. may be bound by a treaty

Petitioners contend that ratification of a treaty, 1. When a treaty is a mere formal expression of customary
under both domestic law and international law, is a international law, which, as such is enforceable on all
function of the Senate. That under treaty law and civilized states because of their membership in the family of
customary international law, Philippines has a nations.
ministerial duty to ratify the Rome Statute. 2. Under Art. 2 of its charter, the UN shall ensure that non-
Respondents on the other hand, argued that member States act in accordance with the principles of the
executive department has no duty to transmit the Charter so far as may be necessary for the maintenance of
Rome Statute to the Senate for concurrence. Decide. international peace and security. Under Art. 103, obligations
of member-states shall prevail in case of conflict with any
A: The power to ratify treaties does not belong to the Senate. other international agreement including those concluded
with non-members.

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3. The treaty itself may expressly extend its benefits to of judicial review over the constitutionality of any treaty,
non-signatory States. international or executive agreement and must hear such
4. Parties to apparently unrelated treaties may also be case en banc.
linked by the most-favored nation clause.
Rules in case of Conflict Between a Treaty and a
Effectivity Date of a Treaty Custom

1. In such manner and upon such date as it may 1. If the treaty comes after a particular custom- treaty
provide or as the negotiating States may agree. prevails, as between the parties to the treaty
2. Failing any such provision or agreement, a treaty 2. If the custom develops after the treaty- custom
enters into force as soon as consent to be bound by the prevails it being an expression of a later will.
treaty has been established for all the negotiating States.
A treaty or conventional rule may not qualify as a
NOTE: norm of jus cogens character
GR: A State may not invoke the fact that its consent to the
treaty was obtained in violation of its internal law. Treaty rule binds only States that are parties to it and
even in the event that all States are parties to a treaty,
XPN: If the violation was manifest and concerned a rule they are entitled to terminate or withdraw from the
of its internal law of fundamental importance. treaty.

A violation is manifest if it would be objectively evident NOTE: If a treaty at the time of its conclusion, conflicts
to any State conducting itself in the matter in accordance with jus cogens, it is void. (2008 Bar)
with normal practice and in good faith.
Treaty vs. Executive Agreement (2015 Bar)
Reservation

It is a unilateral statement, however phrased or named, EXECUTIVE

made by a State, when signing, ratifying, accepting,
TREATY
approving, or acceding to a treaty, whereby it purports to
exclude or modify the legal effect of certain provisions of BASIS AGREEMENT
the treaty in their application to that State. It involves basic These are
political issues adjustments of
Reservation is NOT applicable when: and changes in details in carrying
As to nature
1. The treaty itself provides that no reservation shall national policy out well
be admissible,
established
2. The treaty allows only specified reservations which
do not include the reservation in question, national policies
3. The reservation is incompatible with the object and Permanent Merely temporary
purpose of the treaty. As to
international arrangements.
Effects of Reservation and of Objections to permanence
Reservations
agreements.
1. Modifies, for the reserving State in its relations with It needs the It needs no
that other party, the provisions of the treaty to which the Concurrence
reservation relates to the extent of the reservation; concurrence of concurrence from
2. Modifies those provisions to the same extent for that of Senate
other party in its relations with the reserving State. the Senate the Senate
3. The reservation does not modify the provisions of ---
the treaty for the other parties to the treaty inter se. Q: Enhanced Defense Cooperation Agreement (EDCA)
4. When a State objecting to a reservation has not authorizes the U.S. military forces to have access to and
opposed the entry into force of the treaty between itself and conduct activities within certain "Agreed Locations" in
the reserving State, the provisions to which the reservation the country. It was not transmitted to the Senate on the
relates do not apply as between the two States to the extent Executive's understanding that to do so was no longer
of the reservation. necessary. Accordingly, in June 2014, the DFA and the
U.S. Embassy exchanged diplomatic notes confirming
the completion of all necessary internal requirements
Judicial Review of Treaties for the agreement to enter into force in the two
countries. Is the Executive branch of government
Even after ratification, the Supreme Court has the power correct?

A: YES. The EDCA need not be submitted to the Senate for

concurrence because it is in the form of a mere
executive agreement, not a treaty. Under the
Constitution, the President is empowered to enter into
executive agreements on foreign military bases, troops,
or facilities if (1) such agreement is not the instrument
that allows the entry of such and (2) if it merely aims to EDCA is in the form of an executive agreement since it
implement an existing law or treaty. merely involves “adjustments in detail” in the

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implementation of the Mutual Defense Treaty and the 7. Lack of Representative’s Authority
Visiting Forces Agreement. These are existing treaties 8. Violation of jus cogens norm
between the Philippines and the U.S. that have already
been concurred in by the Philippine Senate and have Grounds for termination of a treaty (SCREW-STEM-
thereby met the requirements of the Constitution under DV)
Art XVIII, Sec 25. Because of the status of these prior
agreements, EDCA need not be transmitted to the Senate 1. Severance of diplomatic or consular relations
(Saguisag v. Executive Secretary, G.R. No. 212426, Jan. 12, 2. Conclusion of a subsequent treaty inconsistent between
2016) the same parties
--- 3. Doctrine of Rebus sic stantibus
4. The Emergence of new peremptory norm of general
international law renders void and terminates any existing
Applicable rules when there is conflict between a treaty in conflict with such norm
treaty and a statute 5. Outbreak of War between the parties to the treaty
6. Supervening impossibility of performance
The rule will depend on which court is deciding. 7. Termination of the treaty or withdrawal of a party in
accordance with the terms of the treaty
1. If it is an international court- it will uphold the treaty 8. Extinction of one of the parties to the treaty
obligation. A treaty, even if contrary to a later statute, is binding 9. Mutual agreement of all the parties to terminate the
in international law. treaty
2. If it is a domestic court- it will uphold local laws. 10. Denunciation of the treaty by one of the parties
3. When a treaty and domestic statute relate to the same 11. Violation of the treaty by one of the parties
subject- the court will try to give effect to both.
4. If they are inconsistent- the later in date will control, Doctrine of rebus sic stantibus
provided that the treaty stipulation is self-executing.
It states that a fundamental change of circumstances
Conflict between a treaty and a statute in the which determined the parties to accept a treaty, if it has
Philippine setting resulted in a radical transformation of the extent of the
obligations imposed by it, may under certain conditions,
In case of conflict between a treaty and a statute, the afford the party affected a ground to invoke the
following shall be followed: termination of the treaty.
1. The courts should harmonize both laws first.
2. If there exists an unavoidable contradiction between them, The change must have increased the burden of the
the principle of lex posterior derogat priori obligations to be executed to the extent of rendering
- a treaty may repeal a statute and a statute may performance essentially different from the original
repeal a treaty - will apply. The later one prevails. intention.

NOTE: In our jurisdiction, treaties entered into by the Requisites of rebus sic stantibus (Not-IR, Must-URIS)
executive are concurred by the Senate and takes the form
of a statute. 1. The change must not have been caused by the party
Invoking the doctrine
VFA as a treaty and as an executive agreement 2. The doctrine cannot operate Retroactively, i.e., it must
not adversely affect provisions which have already been
In the case of Bayan v. Zamora (G.R. No. 138570, Oct. 10, complied with prior to the vital change in the situation
2000), VFA was considered a treaty because the Senate 3. The change must have been Unforeseen or
concurred via 2/3 votes of all its members. However, in unforeseeable at the time of the perfection of the treaty
the point of view of the US Government, it is merely an 4. The doctrine must be invoked within a Reasonable time
executive agreement. 5. The duration of the treaty must be Indefinite
6. The change must be so Substantial that the foundation
Modification of a treaty of the treaty must have altogether disappeared

GR: A treaty may not be modified without the consent of Limitation on the application of the principle of
all the parties. rebus sic stantibus
XPN: If allowed by the treaty itself, two states may
modify a provision only insofar as their countries are The principle of rebus sic stantibus cannot be invoked as
concerned. a ground for terminating or withdrawing from a treaty if:
1. The treaty establishes a boundary; or
Grounds for invalidating a treaty (3C-FUEL-V) 2. The fundamental change is the result of a breach by the
party invoking it of an obligation under the treaty or of any
1. Corruption of a representative of a State other obligation owed to any other party to the treaty.
2. Coercion of a representative of a State
3. Coercion of a State by threat or use of force
4. Fraud
5. Unconstitutionality Rule
6. Error

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1. De jure stateless person – stripped of his nationality

“Clean Slate” Rule by their former government and without having an
opportunity to acquire another
When one State ceases to exist and is succeeded by 2. De facto stateless person – one who possesses a
another on the same territory, the newly independent nationality whose country does not give him protection
State is not bound to maintain in force, or to become a outside his own country and who is commonly referred
party to, any treaty by reason only of the fact that at the to as refugee (Frivaldo v. COMELEC, G.R. No. 123755, June
date of the succession of States the treaty was in force in 28, 1996).
respect of the territory to which the succession of States
relates. Consequences of Statelessness (1995 Bar)

XPNs to the “Clean Slate” rule 1. No State can intervene or complain in behalf of the
Stateless person for an international delinquency
1. When the new State agrees to be bound by the committed by another State in inflicting injury upon him.
treaties made by its predecessor; 2. He cannot be expelled by the State if he is lawfully in
2. Treaties affecting boundary regime (utipossidetis) its territory except on grounds of national security or
3. Customary International Law public order. (1994 Bar)
3. He cannot avail himself of the protection and
Most Favored Nation Clause (1997 Bar) benefits of citizenship like securing for himself a
passport or visa and personal documents.
It is a pledge by a contracting party to a treaty to grant to
the other party treatment not less favorable than that Rights of Stateless Persons
which has been or may be granted to the “most favored”
among other countries. A Stateless person is not entirely without right,
protection or recourse under the Law of Nations. Under
The most favored nation clause is intended to establish the Convention in Relation to the Status of Stateless
the principle of equality of international treatment by Persons, the contracting States agree to accord the
providing that the citizens or subjects of the contracting stateless persons within their territories treatment at
nations may enjoy the privileges accorded by either least as favorable as that accorded their nationals with
party to those of the most favored nation (CIR v. S.C. respect to:
Johnson and Son, Inc., 309 SCRA 87, 107-108). 1. Freedom of religion
2. Access to the courts
It embodies the principle of non-discrimination. The 3. Rationing of products in short supply
clause has been commonly included in treaties of 4. Elementary education
commercial nature. The principle means that any special 5. Public relief and assistance
treatment given to a product from one trading partner 6. Labor legislation
must be made available for like products originating 7. Social Security
from or destined for other contracting partners. In
practice, this generally refers to tariff concessions. NOTE: They also agree to accord them treatment not less
favorable than that accorded to aliens generally in the
same circumstances. The Convention also provides for
NATIONALITY AND STATELESSNESS the issuance of identity papers and travel documents to
the Stateless persons.

Nationality Status of foundlings under Philippine laws

It is membership in a political community with all its As a matter of law, foundlings are as a class, natural-born
concomitant rights and obligations. It is the tie that binds citizens. While the 1935 Constitution's enumeration is
the individual to his State, from which he can claim silent as to foundlings, there is no restrictive language
protection and whose laws he is obliged to obey. which would definitely exclude foundlings either. The
NOTE: Citizenship has a more exclusive meaning in that deliberations of the 1934 Constitutional Convention
it applies only to certain members of the State accorded show that the framers intended foundlings to be covered
more privileges than the rest of the people who owe it by the enumeration, pursuant to the amendment
allegiance. Its significance is municipal, not international. proposed by Sr. Rafols. Though the Rafol’s amendment
was not carried out, it was not because there was any
Multiple Nationality objection to the notion that persons of "unknown
parentage" are not citizens but only because their
It is the possession by an individual of more than one number was not enough to merit specific mention.
nationality. It is acquired as the result of the concurrent Foundlings are likewise citizens under international law.
application to him of the conflicting municipal laws of The common thread of the Universal Declaration of
two or more States claiming him as their national. Human Rights, United Nations Convention on the Rights
of the Child and the International Covenant on Civil and
Statelessness (1995 Bar) Political Rights obligates the Philippines to grant
nationality from birth and ensure that no child is
It is the condition or status of an individual who is either:
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stateless. This grant of nationality must be at the time of

birth, and it cannot be accomplished by the application of NOTE: No government can be held responsible for the
our present naturalization laws. act of rebellious bodies of men committed in violation of
Furthermore, the principles stated in Article 14 of the its authority, where it is itself guilty of no breach of good
1930 Hague Convention on Certain Questions Relating to faith, or of no negligence in suppressing insurrection.
the Conflict of Nationality Laws under which a foundling
is presumed to have the nationality of the country of Elements of State Responsibility
birth. While the Philippines is not a party to the Hague
Convention, it is a signatory to the Universal Declaration 1. An act or omission in violation of International Law
on Human Rights, which effectively affirms Article 14 of 2. Attributable to the State
the 1930 Hague Convention. (Poe v. Comelec, G.R. No. 3. Causing damage to a third State either directly or
221697, March 8, 2016) indirectly to a national of the third State.

Doctrine of Indelible Allegiance Kinds of State Responsibility

It states that an individual may be compelled to retain his 1. Direct State responsibility – Where the international
original nationality notwithstanding that he has already delinquency was committed by superior government
renounced it under the law of another State whose officials or organs like the chief of State or the national
nationality he has acquired. legislature, liability will attach immediately as their acts may
not be effectively prevented or reversed under the
Doctrine of Effective Nationality constitution or laws of the State.
2. Indirect State responsibility – Where the offense is
A person having more than one nationality shall be committed by inferior government officials or by private
treated as if he had only one – either the nationality of individuals. The State will be held liable only if, by reason of
the country in which he is habitually and principally its indifference in preventing or punishing it, it can be
resident or the nationality of the country with which in considered to have connived in effecting its commission.
the circumstances he appears to be in fact most closely
connected. Requisites for the enforcement of the doctrine of
State Responsibility (NER)
NOTE: Also known as Nottebohm principle
(International Court of Justice, Liechtenstein v. Guatemala, 1. Nationality of the Claimant/The Doctrine of Effective
1955) or the Genuine Link Doctrine Nationality/The Genuine Link Doctrine
2. The injured alien must first Exhaust all local remedies;
Doctrine of Genuine Link and
3. He must be Represented in the international claim for
It states that the bond of nationality must be real and damages by his own State
effective in order that a State may claim a person as its
national for the purpose of affording him diplomatic Calvo Clause
protection.
A stipulation by which an alien waives or restricts his
Measures states have taken to prevent Statelessness right to appeal to his own state in connection with any
claim arising from the contract and agrees to limit
In the Convention on the Conflict of Nationality Laws of himself to the remedies available under the laws of the
1930, the Contracting States agree to accord nationality local state.
to persons born in their territory who would otherwise
be stateless. The Convention on the Reduction of NOTE: This cannot be interpreted to deprive the alien’s
Statelessness of 1961 provides that if the law of the state of the right to protect or vindicate his interests in
contracting States results in the loss of nationality, as a case they are injured in another state, as such waiver can
consequence of marriage or termination of marriage, legally be made not by the alien but by his own state.
such loss must be conditional upon possession or
acquisition of another nationality. Elements of an Internationally Wrongful Act (AB)

1. Act or omission is Attributable to the State under

STATE RESPONSIBILITY international law; and
2. Constitutes a Breach of an international obligation of
the State
Doctrine of State Responsibility (2010 Bar)
NOTE: Every internationally wrongful act of a State
A State may be held responsible for an international entails the international responsibility of that State.
delinquency, directly or indirectly, imputable to it which
causes injury to the national of another State. Liability Acts or situations attributable to the State
will attach to the State where its treatment of the alien
falls below the international standard of justice or where
it is remiss in according him the protection or redress
that is warranted by the circumstances.

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1. Acts of the State organs – Acts of State organs in 3. Restitution – Involves wiping out all the
their capacity provided by law or under instructions of consequences of the breach and re-establishing the
superiors situation which would probably have existed had the act not
2. Acts of other persons – If the group of persons was in been committed.
fact exercising elements of the governmental authority in the
absence or default of the official authorities and NOTE: It can either be in the form of legal restitution
circumstances such as to call for the exercise of those or specific restitution.
elements of authority. a. Legal Restitution is declaration that an offending
3. Acts of revolutionaries – Conduct of an insurrectional treaty, law, executive act, or agreement, is invalid.
movement which becomes the new government of a State or b. Specific Restitution is a restitution in kind or
part of a State. payment of a sum corresponding to the value of the
restitution, and the award for losses sustained which would
Theory of Objective or Strict Liability not be covered by the first two.

With respect to state responsibility, the theory provides 4. Compensation – Payment of money as a valuation of
the wrong done.
that fault is unnecessary for State responsibility to be
incurred. Its requisites are: NOTE: The compensation must correspond to the
1. Agency value which restitution in kind would bear; the
2. Casual connection between the breach and the act award of damages for loss sustained which would
or omission imputable to the State. not be covered by restitution in kind or payment in
place of it.
Culpa (fault) is relevant when:
Pecuniary satisfaction vs. Compensation
1. The breach results from acts of individuals not
employed by the state or from the activities of licenses or
trespassers on its territory;
2. A state engages in lawful activities, in which case
BASIS PECUNIARY
responsibility may result from culpa in executing these
lawful activities; COMPENSATION
3. Determining the amount of damages; SATISFACTION
4. Due diligence or liability for culpa is stipulated in a A token of regret To make up for or
treaty.
and repair the damage
Motive (intent) is relevant when: As to
acknowledgment of done
1. The existence of a deliberate intent to injure may
have an effect on the remoteness of the damage and may nature
help to establish the breach of duty. wrongdoing
2. Motive and intent may be a specific element in (“monetary sorry”)
defining permitted conduct. State’s exercise of diplomatic
protection
Relief available where a State is liable for an
internationally wrongful act When a State admits into its territory foreign
investments or foreign nationals, whether natural or
1. Declaratory relief – Declaration by a court that as to juristic persons, it is bound to extend to them the
the illegality of an act constitutes a measure of satisfaction or protection of the law and assumes obligations
reparation in the broad sense. concerning the treatment to be afforded to them.

NOTE: Available when this is, or the parties deem These obligations, however, are neither absolute nor
this, the proper way to deal with a dispute or when unqualified. An essential distinction should be drawn
the object is not to give satisfaction for the wrong between:
received but only to recognize the liability.
1. Obligations of the State towards the international
2. Satisfaction – A measure other than restitution or community as a whole- concern of all States. All States can
compensation which an offending State is bound to take. be held to have a legal interest in their protection; they are
obligations erga omnes.
NOTE: Its object is often either: 2. Obligations the performance of which is the subject of
a. An apology and other acknowledgment of diplomatic protection- cannot be held, when one such
wrongdoing obligation in particular is in question, in a specific case, that
b. Punishment of individuals concerned all States have a legal interest in its observance (Case
c. Taking of measures to prevent a recurrence Concerning Barcelona Traction, Light and Power Company,
Limited, Feb. 5, 1970).

JURISDICTION OF STATES
In Public International Law, it is the right of a State to
exercise authority over persons and things within its

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boundaries subject to certain exceptions. and crimes against the Jewish people. He was
convicted of all 15 counts and sentenced to death.
TERRITORIALITY PRINCIPLE
Does the District Court of Jerusalem have jurisdiction
A state has absolute, but not necessarily exclusive, power to try the case in light of the fact that Eichmann is a
to prescribe, adjudicate and enforce rules of conduct that foreign national and crimes were committed on
occurs within its territory. (2005, 2009 Bar) foreign territory?

NOTE: An aspect of this principle is the “Effects A: The principle of territorial sovereignty merely requires
Doctrine” – which provides that a state has jurisdiction that the State exercises its power to punish within its own
over acts occurring outside its territory but having borders, not outside them; that subject to this restriction
effects within it. every State may exercise a wide discretion as to the
application of its laws and the jurisdiction of its courts in
Extra-territoriality respect of acts committed outside the State; and that only in
so far as it is possible to point to a specific rule prohibiting
The exemption of foreign persons from the jurisdiction the exercise of this discretion. That view was based on the
of the State of residence and it arises from treaty following two grounds: (1) It is precisely the conception of
provisions. State sovereignty which demands the preclusion of any
presumption that there is a restriction on its independence;
NATIONALITY PRINCIPLE AND STATELESSNESS and (2) Even if it is true that the principle of the territorial
character of criminal law is firmly established in various
Nationality Doctrine States, it is no less true that in almost of such States criminal
jurisdiction has been extended so as to embrace offenses
A State may exercise jurisdiction over its nationals, with committed outside its territory.
respect to their conduct, whether within or outside its
territory. However, it is the universal character of the crimes in
question which vests in every State the power to try
(For more extensive discussion on Nationality and those who participated in the preparation of such crimes,
Statelessness, please refer to the previous discussion and to punish them therefor. It follows that the State
devoted solely on that matter) which prosecutes and punishes a person for that offense
acts solely as the organ and agent of the international
PROTECTIVE PRINCIPLE community, and metes out punishment to the offender
for his breach of the prohibition imposed by the law of
Any State has the right to punish acts even if committed nations (Attorney-General of the Government of Israel v.
outside its territory, when such acts constitute attacks Eichmann, Israel Sup. Ct. 1962)
against its security, as long as that conduct is generally ---
recognized as criminal by states in the international
community. (2009 Bar) PASSIVE PERSONALITY PRINCIPLE

Examples are plots to overthrow the government, forging It authorizes states to assert jurisdiction over offenses
its currency, and plot to break its immigration committed against their citizens abroad. It recognizes
regulations. that each state has a legitimate interest in protecting the
safety of its citizens when they journey outside national
UNIVERSALITY PRINCIPLE boundaries.

Certain offenses are so heinous and so widely Act of State Doctrine

condemned that any state that captures an offender may
prosecute and punish that person on behalf of the A State should not inquire into the legal validity of the
international community regardless of the nationality of public acts of another State done within the territory of
the offender or victim or where the crime was the latter (Nachura, 2009).
committed. (2005 Bar)
CONFLICTS OF JURISDICTION
---
Q: Prior to the outbreak of WWII, Adolf Eichmann Modes of addressing conflicts of jurisdiction
was an Austrian by birth who volunteered to work
for the Security Service in Berlin. He rose through 1. Balancing Test – It is a judicial doctrine whereby a court
the ranks and eventually occupied the position of measures competing interest–as between
Referant for Jewish Affairs. He oversaw the transport
and deportation of Jewish persons and explored the individual rights and governmental powers, or
possibility of setting up a slave Jewish state in between state authority and federal supremacy –
Madagascar. and decides which interest should prevail. (Black’s
Law Dictionary)
He was captured by Israeli Security Forces in
Argentina and handed over to the District Court of
Jerusalem to stand for war crimes against humanity

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The court employed a tripartite analysis to In international law, it is the competence of every State
determine whether to assume jurisdiction or not. inferred from its territorial supremacy to allow a
First, was there an actual or intended effect on prosecuted alien to enter and to remain on its territory
American foreign commerce. Second, is the effect under its protection and thereby grant asylum to him.
sufficiently large to present a cognizable injury to
the plaintiffs and, therefore, a civil violation of the Refugee
anti-trust laws. Third, are the interests of, and link
to, the United States including effects on American Any person who is outside the country of his nationality
foreign commerce sufficiently strong, vis-a -vis those or the country of his former habitual residence because
of other nations, to justify an assertion of he has or had well-founded fear of persecution by reason
extraordinary authority (Timberlane Lumber Co. v. of his race, religion, nationality, membership of a political
Bank of America, 549 F2d 597). group or political opinion and is unable or, because of
such fear, is unwilling to avail himself of the protection of
2. International Comity – Even when a state has basis the government of the country of his nationality, or, if he
for exercising jurisdiction, it will refrain from doing has no nationality, to return to the country of his former
so if its exercise will be unreasonable. habitual residence.
Unreasonableness is determined by evaluating
various factors: (L2C2E) Elements before one may be considered as a refugee
a. Link of the activity to the territory of the (ONPer)
regulating state
b. the Connection, such as nationality, residence, 1. The person is Outside the country of his nationality,
or economic activity, between the regulating or in the case of Stateless persons, outside the
state and the person principally responsible for country of habitual residence;
the activity to be regulated 2. The person lacks National protection;
c. the Character of the activity to be regulated 3. The person fears Persecution in his own country.
d. the existence of justified Expectations that
might be protected or hurt by the regulation NOTE: The second element makes a refugee a Stateless
e. the Likelihood of conflict with regulation by person. Only a person who is granted asylum by another
another state. State can apply for refugee status; thus the refugee
3. Forum non conveniens – If in the whole treaties imply the principle of asylum.
circumstances of the case it be discovered that there
is a real unfairness to one of the suitors in Refugees v. Internally displaced persons
permitting the choice of a forum which is not the
natural or proper forum, either on the ground of Refugees are people who, owing to well founded fear of
convenience of trial or the residence or domicile of being persecuted for reasons of race, religion, nationality,
parties or of its being the locus contractus, or locus membership of a particular social group or political
solutionis, then the doctrine of forum non opinion, are outside the country of his nationality, are
conveniens is properly applied. unable or owing to such fear, are unwilling to avail
themselves of the protection of that country, or who not
NOTE: It is the discretionary power that allows having a nationality and being outside the country of
courts to dismiss a case where another court, or their former habitual residence as a result of such events,
forum, is much better suited to hear the case (Piper are unable or, owing to such fear are unwilling to return
Aircraft v. Reyno). to it. (Sec. A par. 2, United Nations Convention Relating to
the Status of Refugees, 1951)

TREATMENT OF ALIENS While internally displaced persons are those who have
been forced to flee their homes, suddenly or
unexpectedly in large numbers as a result of armed
Standards to be used by States in treating aliens conflict, internal strife, systematic violation of human
within their territory rights, or natural or man-made disaster, and, who are
within their territory of their country (Analytical Report
1. National treatment/equality of treatment – Aliens of the United Nations’ Secretary-General on Internally
are treated in the same manner as nationals of the Displaced Persons, February 14, 1992)
State where they reside.
2. Minimum international standard – However harsh Principle of Non-Refoulment
the municipal laws might be, against a State’s own
citizens, aliens should be protected by certain Posits that a State may not deport or expel refugees to
minimum standards of humane protection. the frontiers of territories where their life or freedom
would be put in danger or at risk (Magallona, 2005).
NOTE: States protect aliens within their jurisdiction in
the expectation that their own nationals will be properly EXTRADITION
treated when residing or sojourning abroad. (1996 BAR)

Right of asylum The right of a foreign power, created by treaty, to demand

the surrender of one accused or convicted of a crime

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within its territorial jurisdiction, and the correlative duty b. they show compliance with the Extradition Treaty
of the other State to surrender and Law; and
c. the person sought is extraditable.
Basis of extradition At his discretion, the judge may require the
submission of further documentation or may
The extradition of a person is required only if there is a personally examine the affiants and witnesses of the
treaty between the State of refuge and the State of origin. petitioner. If, in spite of this study and examination,
As a gesture of comity, however, a State may extradite no prima facie finding is possible, the petition may
anyone. Furthermore, even with a treaty, crimes which be dismissed at the discretion of the judge.
are political in character are exempted. 5. On the other hand, if the presence of a prima facie case
is determined, then the magistrate must immediately issue a
FUNDAMENTAL PRINCIPLES warrant for the arrest of the extraditee, who is at the same time
summoned to answer the petition and to appear at scheduled
1. Based on the consent of the State expressed in a summary hearings.
treaty 6. Hearing (provide counsel de officio if necessary);
2. Principle of specialty – A fugitive who is extradited 7. Appeal to CA within ten days whose decision shall be
may be tried only for the crime specified in the request final and executory;
for extradition and included in the list of offenses in the 8. Decision forwarded to DFA through the DOJ;
extradition treaty, unless the requested State does not 9. Individual placed at the disposal of the authorities of
object to the trial of such person for the unlisted offense requesting State – costs and expenses to be shouldered by
(1993 Bar) requesting State.
3. Any person may be extradited, whether he is a
national of the requesting State, of the State of refuge or DISTINGUISHED FROM DEPORTATION
of another State. He need not be a citizen of the
requesting State. Extradition vs. Deportation (1993 Bar)
4. Political or religious offenders are generally not
subject to extradition. (2002 Bar)
BASIS EXTRADITION DEPORTATION
NOTE: Attentat clause is a provision in an
extradition treaty which states that the murder or Effected at the Unilateral act of
assassination of the head of a state or any member As to
of his family will not be considered as a political request of the the local State
offense and therefore extraditable. authority
5. The offense must have been committed within the State of origin
territory of the requesting State or against its interest
Based on offenses Based on causes
6. Double criminality rule – The act for which the
extradition is sought must be punishable in both the As to cause committed in the arising in the local
requesting and requested States (1991, 2007 Bar) State of origin State
Calls of the return Undesirable alien
Common bars to extradition of the fugitive to may be deported
As to effect the State of origin to a State other
1. Failure to fulfill dual criminality
than his own or
2. Political nature of the alleged crime
the State of origin.
3. Possibility of certain forms of punishment
4. Jurisdiction Due process in extradition proceeding
5. Citizenship of the person in question

PROCEDURE
Q: Is a respondent in an extradition proceeding not
1. File/issue request through diplomatic entitled to notice and hearing before the issuance of a warrant
representative with: of arrest?
a. Criminal charge and warrant of arrest
A: NO.
b. Recital of facts
1. On the Basis of the Extradition Law
c. Text of applicable law designating the offense
d. Pertinent papers
It is significant to note that Section 6 of PD 1069, our
e. Decision of conviction
2. DFA forwards request to DOJ Extradition Law, uses the word “immediate” to qualify
the arrest of the accused. Hearing entails sending notices
3. DOJ files petition for extradition with RTC
4. Upon receipt of a petition for extradition and its to the opposing parties, receiving facts and arguments
supporting documents, the judge must study them and from them, and giving them time to prepare and present
make, as soon as possible, a prima facie finding whether: such facts and arguments. Arrest subsequent to a hearing
a. they are sufficient in form and substance; can no longer be considered “immediate.” The law could
not have intended the word as a mere superfluity but, on
the whole, as a means of imparting a sense of urgency
and swiftness in the determination of whether a warrant
UNIVERSITY OF SANTO TOMAS 2017 of arrest should be issued.
GOLDEN NOTES

By using the phrase “if it appears,” the law further

conveys that accuracy is not as important as speed at
 such early stage. The trial court is not
expected to make

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an exhaustive determination to ferret out the true and circumstances.

actual situation, immediately upon the filing of the
petition. From the knowledge and the material then Rights of a person arrested and detained in another
available to it, the court is expected merely to get a good State
first impression -- a prima facie finding -- sufficient to
make a speedy initial determination as regards the arrest 1. Right to have his request complied with by the
and detention of the accused. receiving State to so inform the consular post of his
condition
2. On the Basis of the Constitution 2. Right to have his communication addressed to the
consular post forwarded by the receiving State
Even Section 2 of Article III of our Constitution, which is accordingly
invoked by Jimenez, does not require a notice or a 3. Right to be informed by the competent authorities of
hearing before the issuance of a warrant of arrest. To the receiving State without delay his rights as mentioned
determine probable cause for the issuance of arrest above
warrants, the Constitution itself requires only the
examination -- under oath or affirmation -- Retroactive application of extradition
of complainants and the witnesses they may produce.
There is no requirement to notify and hear the accused In Wright v. Court of Appeals (G.R. No.113213, August
before the issuance of warrants of arrest (U.S. v. 15,1994), it was held that the retroactive application of
Purganan, G.R. No. 148571, Sept. 24, 2002). the Treaty of Extradition does not violate the prohibition
--- against ex post facto laws, because the Extradition Treaty
--- is neither a piece of criminal legislation nor a criminal
Q: Does an Extraditee’s have a right of access to the procedural statute. It merely provided for the extradition
evidence against him? of persons wanted for offenses already committed at the
time the treaty was ratified.
A: It depends. During the executive phase of an
extradition proceeding, an extraditee does not have the right
of access to evidence in the hands of the government. But
during the judicial phase he has (Secretary v. Judge Lantion, INTERNATIONAL HUMAN RIGHTS LAW
GR. No. 139465, Oct. 17, 2000)
---
Human Rights
Nature of Extradition Proceeding
Those liberties, immunities and benefits, which all
Extradition is not a criminal proceeding, thus, an human beings should be able to claim ‘as of right’ of the
extradition proceeding does not call into operation all society in which they live – Louis Henkin, “Human
the rights of an accused provided in the bill of rights. Rights”
(1996, 2005 Bar)
International Human Rights Law
Validity of a petition for bail in extradition cases
The law which deals with the protection of individuals
Sec. 11, Art. II of our Constitution which provides: “The and groups against violations by governments of their
State values the dignity of every human person and internationally guaranteed rights, and with the
guaranteed full respect for human rights.” The promotion of these rights (Buergenthal).
Philippines, therefore, has the responsibility of
protecting and promoting the right of every person to NOTE: International human rights are divided into 3
liberty and due process, ensuring that those detained or generations, namely:
arrested can participate in the proceedings before a 1. First generation: civil and political rights
court, to enable it to decide without delay on the legality 2. Second generation: economic, social and cultural
of the detention and order their release if justified. rights
3. Third generation: right to development, right to
The Philippine authorities are under obligation to make peace and right to environment
available to every person under detention such remedies
which safeguards their fundamental right to liberty. Classification of Human Rights
These remedies include the right to be admitted to bail
(Gov’t of Hong Kong Special Administrative Region v. 1. Individual rights
Olalia, Jr., G.R. No. 153675, April 19, 2007). 2. Collective rights (right to self-determination of
people; the permanent sovereignty over natural
Requisites for granting bail in extradition cases resources)

The possible extraditee must show upon a clear and Main instruments of human rights
convincing evidence that:
1. He will not be a flight risk or a danger to the 1. Universal Declaration of Human Rights
community, 2. The International Covenant on Economic, Social and
2. There exist special, humanitarian and compelling Cultural Rights

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3. International Covenant on Civil and Political Rights and its nationality or religion; entitled to equal rights to
two Optional Protocols marriage, during marriage and dissolution; the
family is the natural and fundamental group of
NOTE: The Philippines is a signatory to the International society and is entitled to protection by society and
Convention on the Protection of the Rights of All Migrant State.
Workers and Members of Their Families. This instrument 17. Right to own property alone as well as in association
is a multilateral treaty governing the protection of with others; right against arbitrary deprivation of such
migrant workers and families. Concluded on December property
18, 1990, it entered into force on July 1, 2003 after the 18. Right to freedom of thought, conscience and religion
threshold of 20 ratifying states was reached in March 19. Right to freedom of opinion and expression
2003. The Committee on Migrant Workers (CMW) 20. Right to freedom of peaceful assembly and association;
monitors implementation of the Convention, and is one no one may be compelled to belong to an association
of the seven UN-linked human rights treaty bodies. 21. Right to suffrage; right to take part in the government of
one’s country, directly or through representatives; right of
UNIVERSAL DECLARATION OF HUMAN RIGHTS equal public service in one’s country
(UDHR) 22. Right to social security
23. Right to work/labor, free choice of employment, just
The basic international statement of the inalienable and favorable conditions of work; right to equal pay for
rights of human beings. It is the first comprehensive equal work; right to form and join trade unions
international human rights instrument. It covers Civil 24. Right to rest and leisure, including reasonable working
and Political rights and economic, social and cultural hours and periodic holidays with pay
rights. 25. Right to a standard of living adequate for the health and
being of one’s self and his family; motherhood and childhood
NOTE: Rights covered by UDHR are customary are entitled to special care and assistance.
international law, hence, even during the times when the 26. Right to education
bill of rights under the Constitution are inoperative, 27. Right to freely participate in the cultural life of the
rights under UDHR remained in effect (Republic v. community, enjoy the arts and share in scientific
Sandiganbayan, G.R. No. 104768, July 21, 2003). advancement

Basic Rights Guaranteed by the UDHR Under the Declaration, everyone is entitled to a social
and international order in which the rights and freedoms
1. All human beings are born free and equal in dignity and in this Declaration can be fully realized. The exercise of
rights. these rights and freedoms are subject only to such
2. Everyone is entitled to all the rights and freedoms in this limitations as are determined by law, for the purpose of
Declaration, without distinction of any kind such as race, color, recognition and respect of rights of others, for public
sex, religion, property, or birth. No distinction shall also be made order and general welfare.
on the basis of the political or international status of a country or
territory to which a person belongs. INTERNATIONAL COVENANT ON CIVIL AND
3. Right to life, liberty and security of person. POLITICAL RIGHTS
4. Right against slavery or servitude.
5. Right against torture or to cruel, inhuman and degrading International Covenant on Civil and Political Rights
treatment or punishment
6. Right to be recognized everywhere as a person before the This is a multilateral treaty adopted by the United
law. Nations General Assembly on 16 December 1966, and in
7. Right to equal protection of the law force from 23 March 1976. It commits its parties to
8. Right to an effective remedy before courts for acts violating respect the civil and political rights of individuals. As of
fundamental rights April 2014, the Covenant has 74 signatories and 168
9. Right against arbitrary arrest, detention or exile. parties.
10. Right to a fair and public hearing by an independent and
impartial tribunal Rights guaranteed in the International Covenant on
11. Right to be presumed innocent until proven guilty Civil and Political rights
12. Right to privacy, family, home or correspondence
13. Right to freedom of movement and residence; right to leave 1. Right to self-determination
any country, including one’s own and to return to one’s own 2. Right to an effective remedy
country 3. Equal right of men and women to the enjoyment of all
14. Right to seek and enjoy in another country asylum from the civil and political rights
persecution; however, this may not be invoked in the case of 4. Right to life
prosecutions genuinely arising from non-political crimes or acts 5. Not to be subjected to torture or to cruel, inhuman or
contrary to the principles of the United Nations degrading treatment or punishment. In particular, freedom
15. Right to a nationality and right against arbitrary deprivation from medical or scientific experimentation except with his
of such right consent (1992, 2010 Bar)
16. Right to marry, entered into freely and with full
consent, without any limitation due to race,

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6. Freedom from slavery and servitude Other Cruel, Inhuman or Degrading Treatment or
7. Right to liberty and security of person Punishment [UNCTO] Effective June 26, 1987).
8. Right to be treated with humanity and with respect
for the inherent dignity of the human person NOTE: It does not include pain or suffering arising only
9. No imprisonment on the ground of inability to fulfill from, inherent in or incidental to lawful sanctions.
a contractual obligation
10. Right to liberty of movement and freedom to choose Obligations of the State Parties in the UNCTO
his residence
11. Right to a fair and public hearing by a competent, 1. No exceptional circumstances whatsoever, whether
independent and impartial tribunal established by law a state of war or a threat or war, internal political
12. No one shall be held guilty of an criminal offense on instability or any other public emergency or any order
account of any act or omission which did not constitute a from a superior officer or a public authority may be
criminal office, under national or international law, at the invoked as a justification of torture.
time when it was committed 2. No State party shall expel, return (“refouler”) or
13. Right to recognition everywhere as a person before extradite a person to another State where there are
the law substantial grounds for believing that he would be in
14. Right to privacy danger of being subjected to torture.
15. Right to freedom of thought, conscience and religion 3. All acts of torture are offenses under a State Party’s
16. Right to freedom of expressions criminal law.
17. Right of peaceful assembly 4. State Parties shall afford the greatest measure of
18. Right of freedom of association assistance in connection with civil proceedings brought
19. Right to marry and to found a family in respect of any of the offences
20. Right to such measures of protection as are required 5. To ensure that education and information regarding
by his status as a minor, name and nationality the prohibition against torture are fully included on
21. Right to participation, suffrage and access to public persons involved in the custody, interrogation or
service treatment of any individual subject to any form of arrest,
22. Right to equal protection of the law detention, or imprisonment.
23. Right of minorities to enjoy their own culture, to 6. To keep under systematic review interrogation
profess and practice their religion and to use their own rules, instructions, methods and practices as well as
language. arrangements for the custody and treatment of persons
subjected to any form of arrest, detention or
NOTE: imprisonment in any territory under its jurisdiction, with
GR: In times of public emergency which threatens the life a view to preventing any case of torture.
of the nation and the existence of which is officially 7. To ensure a prompt and impartial investigation
proclaimed, parties may take measures to derogate from wherever there is reasonable ground to believe that an
their obligations to the extent strictly required by the act of torture has been committed
exigencies of the situation. 8. To ensure that an individual subjected to torture has
the right complain and have his case promptly and
XPNs: There can be no derogation from the following: impartially examined by competent authorities
1. Right to life 9. To ensure that the victim obtains redress and has an
2. Freedom from torture or cruel, inhuman or enforceable right to fair and adequate compensation
degrading punishment 10. To ensure that any statement established to have
3. Freedom from slavery been made as a result of torture shall not be invoked as
4. Freedom from imprisonment for failure to fulfill a evidence in any proceedings, except against a person
contractual obligation accused of torture as evidence that the statement was
5. Freedom from ex post facto laws made.
6. Right to recognition everywhere as a person before 11. To prevent in any territory under its jurisdiction
the law other acts of cruel, inhuman or degrading treatment or
7. Freedom of thought, conscience and religion punishment which do not amount to torture when such
acts are committed by or at the instigation of or with the
Torture consent of acquiescence of a public official or other
person acting in an official capacity.
Any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person Instances when a state party may establish its
for such purposes as obtaining from him or a third jurisdiction over offenses regarding torture
person, information or a confession, punishing him for
an act he or a third person has committed or is suspected 1. When the offenses are committed in any territory
of having committed, or intimidating or coercing him or a under its jurisdiction or on board a ship or aircraft
third person, or for any reason based on discrimination registered in the State;
of any kind, when such pain or suffering is inflicted by or 2. When the alleged offender is a national of that State;
at the instigation of or with the consent or acquiescence 3. When the victim was a national of that State if that
of a public official or other person acting in an official State considers it appropriate;
capacity (United Nations Convention against Torture and

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4. Where the alleged offender is present in any territory under 1. Parties to armed conflict are prohibited from employing
its jurisdiction and it does not extradite him. weapons or means of warfare that cause unnecessary
damage or excessive suffering (Principle of prohibition of use
NOTE: Nos. 1 to 3 are considered as extraditable of weapons of a nature to cause superfluous injury or
offences. In the absence of an extradition treaty, the unnecessary suffering)
UNCTO may be considered as the legal basis for 2. Parties to armed conflict shall distinguish between
extradition. Such offenses shall be treated, for the civilian populace from combatants and spare the former
purpose of extradition, as if they have been committed from military attacks (Principle of distinction between
not only in the place in which they occurred but also in civilians and combatants)
the territories of the State required to establish their 3. Persons hors de combat and those who do not take part
jurisdiction. in hostilities are entitled to respect for their lives and their
moral and physical integrity. They shall be protected and
INTERNATIONAL COVENANT ON ECONOMIC, treated humanely without any adverse distinction.
SOCIAL, AND CULTURAL RIGHTS 4. It is prohibited to kill or injure an enemy who
surrenders or who is a hors de combat.
International Covenant on Economic, Social and 5. The wounded and the sick shall be protected and cared
Cultural Rights for by the party who is in custody of them. Protection shall
cover medical personnel, establishments, transports and
It is a multilateral treaty adopted by the United Nations equipment. The emblem of Red Cross or the Red Crescent is
General Assembly on 16 December 1966, and in force a sign of such protection and must be respected.
from 3 January 1976. It commits its parties to work 6. Parties who captured civilians and combatants shall
toward the granting of economic, social, and cultural respect the latter’s rights to life, dignity, and other personal
rights. As of 2015, the Covenant has 164 parties. rights.

Rights guaranteed thereunder Essential rules of IHL

1. Right of Self Determination 1. The parties to a conflict must at all times distinguish
2. Right to work and accompanying rights thereto between the civilian population and combatants.
3. Right to Social Security and other social rights 2. Neither the civilian population as a whole nor individual
4. Adequate standard of living which includes: civilians may be attacked
a. Right to adequate housing 3. Attacks may be made sole against military objectives.
b. Right to adequate food 4. People who do not or can no longer take part in the
c. Right to adequate clothing hostilities are entitled to respect for their lives and for their
5. Right to health physical and mental integrity and must be treated with
6. Right to education humanity, without any unfavorable distinction whatever.
7. Cultural Rights 5. It is forbidden to kill or wound an adversary who
surrenders or who can no longer take part in the fighting.
6. Neither the parties to the conflict nor members of their
armed forces have an unlimited right to choose methods and
means of warfare.
INTERNATIONAL HUMANITARIAN LAW (IHL) 7. It is forbidden to use weapons or methods of warfare
AND NEUTRALITY that are likely to cause unnecessary losses and excessive
suffering.
8. The wounded and sick must be collected and cared for
International Humanitarian Law (IHL) by the party to the conflict which has them in its power.
9. Medical personnel and medical establishments,
A set of rules which seek, for humanitarian reasons, to transports and equipment must be spared. The red cross or
limit the effects of armed conflict. It protects persons red crescent is the distinctive sign indicating that such
who are not or are no longer participating in the persons and objects must be respected.
hostilities and restricts the means and methods of 10. Captured combatants and civilians who find themselves
warfare. International humanitarian law is also known as under the authority of the adverse party are entitled to
the law of war or the law of armed conflict. respect for their lives, their dignity, their personal rights and
their political, religious and other convictions and must be
Importance of IHL protected against all acts of violence or reprisals; entitled to
exchange of news with their families and receive aid and
enjoy basic judicial guarantees.
It is one of the most powerful tools the international
community has at its disposal to ensure the safety and
dignity of people in times of war. It seeks to preserve a
measure of humanity, with the guiding principle that
even in war there are limits.

Fundamental principles of IHL

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Application of IHL a. Distinguish between combatants and civilians,

and to refrain from attacking civilians;
IHL concerns two situations: b. Care for the wounded and sick and protect
1. International armed conflicts, which involve at least medical personnel;
two countries; c. Ensure that the dignity of prisoners of war and
2. Armed conflicts that take place in one country (such civilian internees is preserved by allowing visits by
as those between a government and rebel forces). International Committee of the Red Cross delegates.

NOTE: IHL applies to all parties to a conflict regardless of International Humanitarian Law (IHL) vs. Human
who started it. Rights Law

“New” conflicts covered by the IHL

INTERNATIONAL
1. Anarchic conflicts – It is a situation where HUMAN RIGHTS LAW
armed groups take advantage of the weakening or
HUMANITARIAN LAW
breakdown of the State structures in an attempt to grab
power. Application
2. Those in which group identity becomes a focal Situations of armed conflict Applicable at all times in
point – These groups exclude the adversary through only. war and peace alike.
“ethnic cleansing” which consists in forcibly displacing or Permissibility of derogation
even exterminating populations. This strengthens group No derogations are Some human rights treaties
feeling to the detriment of the existing national identity, permitted under IHL permit governments to
ruling out any possibility of coexistence with other because it was conceived derogate from certain
groups. for emergency situations rights, in situations of
namely armed conflict. public emergency.
Branches of IHL Purpose
Aims to protect people who Tailored primarily for
1. Law of Geneva – Designed to safeguard military
do not or are no longer peacetime, and applies to
personnel who are no longer taking part in the fighting and
people not actively participating in the war. taking part in hostilities. everyone. Their principal
The rules embodied in IHL goal is to protect
NOTE: It includes the: impose duties on all parties individuals from arbitrary
a. Wounded and Sick in the Field; of a conflict. behavior by their own
b. Wounded, Sick and Shipwrecked at Sea; governments.
c. Prisoners of War; and Consequence to states
d. Civilians. Obliges states to take States are bound by human
practical and legal rights law to accord
2. Law of the Hague – Establishes the rights and measures, such as enacting national law with
obligations of belligerents in the conduct of military penal legislation and international obligations.
operations, and limits the means of harming the enemy. disseminating IHL.
Applicable mechanisms
NOTE: Belligerents are inhabitants of a State who
Provides for several Implementing mechanisms
rise up in arms for the purpose of overthrowing the
mechanisms that help its are complex and, contrary
legitimate government.
implementation. Notably, to IHL include regional
Persons protected under IHL states are required to systems. Supervisory
ensure respect also by bodies, e.g. the UN
IHL protects those who are not, or no longer, other states. Provision is Commission on Human
participating in hostilities, such as: also made for inquiry Rights (UNCHR), are either
1. Civilians; procedure, a Protecting based on the UN Charte or
2. Medical and religious military personnel; Power mechanism, and the provided for in specific
3. Wounded, shipwrecked and sick combatants; International Fact-Finding treaties.
4. Prisoners of war. Commission. In addition,
the International The UNCHR have developed
NOTE: Recognizing their specific needs, IHL grants Committee of the Red Cross a mechanism of special
women and children additional protection. (ICRC) is given a key role in rapporteurs and working
ensuring respect for the groups, whose task is to
Protection under IHL humanitarian rules. monitor and report on
human rights situations
1. IHL prohibits the use of weapons which are either by country or by
particularly cruel or which do not distinguish between topic. Its role is to enhance
combatants and civilians. the effectiveness of the UN
2. The parties to a conflict are required to:
human rights machinery
and to build up national,
regional and international
capacity to promote and
protect human rights and to
disseminate human rights
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texts and information. NOTE: An army of occupation can only take

Human rights also provide possession of the cash, funds, and property liable to
for the establishment of requisition belonging strictly to the State, depots of
committees of independent arms, means of transport, stores and supplies, and,
experts charged with generally, all movable property of the State which
monitoring their may be used for military operations. Railway plant,
implementation. Certain land telegraphs, telephones, steamers, and other
regional treaties (European ships, apart from cases governed by maritime law,
and American) also as well as depots of arms and, generally, all kinds of
establish human rights war material, even though belonging to companies
courts. or to private persons, are likewise material which
may serve for military operations, but they must be
NOTE: IHL and International human rights law restored at the conclusion of peace, and indemnities
(hereafter referred to as human rights) are paid for them (Laws and Customs of War on Land
complementary. Both strive to protect the lives, health (Hague II)[ July 29, 1899], Art. 53).
and dignity of individuals, albeit from a different angle.
Reprisal (1991 Bar)
War
A retaliatory action against an enemy in wartime. It is an
Contention between two States, through their armed otherwise illegal act done in response to a prior illegal
forces, for the purpose of overpowering the other and act by an enemy, proportionate to the original wrong and
imposing such conditions of peace as the victor pleases. designed to compel the enemy to desist from his illegal
acts on the battlefield. Under such circumstances the law
Instances when force is allowed of armed conflicts recognizes the otherwise illegal acts as
legal. (The Naulilaa Case, involving Portugal and
Under the UN Charter, the use of force is allowed only in Germany)
two instances, to wit:
1. In the exercise of the inherent right of self-defense; and Retorsion (1991, 2010 Bar)
(1998, 2002, 2009 Bar) It is an unfriendly act which may be taken by one state
2. In pursuance of the so-called enforcement action that may against another. It may be in response to an
be decreed by the Security Council. internationally wrongful conduct or an unfriendly act but
which is nonetheless lawful.
Steps in the Commencement of a war
Elements:
1. Declaration of war 1. it is unfriendly;
2. Rejection of an ultimatum 2. it is lawful; and
3. Commission of an act of force regarded by at least one of the 3. it is remedial in character
parties as an act of war.
Because the act is legitimate, no responsibility is engaged
Declaration of War in international law, and the state taking the retorsion
has a wide discretion as to what unfriendly actions it
A communication by one State to another informing the may implement, and to what extent. (The Settlement of
latter that the condition of peace between them has come International Disputes: The Contribution of Australia and
to an end and a condition of war has taken place. New Zealand
By Nii Lante Wallace-Bruce)
Ultimatum
Tests in determining the enemy character of
A written communication by one State to another which individuals
formulates, finally and categorically, the demands to be
fulfilled if forcible measures are to be averted. 1. Nationality test – If they are nationals of the other
belligerent, wherever they may be.
Effects of the outbreak of war 2. Domiciliary test – If they are domiciled aliens in the
territory of the other belligerent, on the assumption that
1. Laws of peace are superseded by the laws of war. they contribute to its economic resources.
2. Diplomatic and consular relations between the belligerents 3. Activities test – If, being foreigners, they nevertheless
are terminated. participate in the hostilities in favor of the other belligerent.
3. Treaties of political nature are automatically cancelled, but 4. Territorial or Commercial Domicile Test – In matters
those which are precisely intended to operate during war such referring to economic warfare
as one regulating the conduct of hostilities, are activated. 5. Controlling Interest Test – This test is applied to
4. Enemy public property found in the territory of other corporation in addition to the place of incorporation test. A
belligerent at the outbreak of the hostilities is with certain corporation is considered as enemy if it:
exceptions, subject to confiscation. a. is incorporated in an enemy territory;
b. is controlled by individuals bearing enemy
character.

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The suspension of hostilities within a certain area or in

Principle of Distinction the entire region of the war, agreed upon by the
belligerents, usually for the purpose of arranging the
Parties to an armed conflict must at all times distinguish terms of the peace.
between civilian and military targets and that all military
operations should only be directed at military targets. Armistice vs. Suspension of arms

Participants in war
SUSPENSION OF
1. Combatants – those who engage directly in the
BASIS ARMISTICE
hostilities, and
2. Non-combatants – those who do not, such as women ARMS
and children. As to Political Military
purpose
Combatants Usually in May be oral
As to form
Those individuals who are legally entitled to take part in
writing
hostilities. These include:
1. Regular Forces (RF) – members of the armed forces Only by the May be concluded
except those not actively engaged in combat. These are the As to who
army, navy, and air force. Non-combatant members of the commanders- by the local
armed forces include: chaplains, army services and medical may
personnel. in-chief commanders
2. Irregular Forces (IF) – also known as franctireurs
conclude
consist of militia and voluntary corps. These are members of
organized resistance groups, such as the guerrillas. They are of the
treated as lawful combatants provided that they are: belligerent
a. Being commanded by a person responsible for governments
his subordinates;
b. Wearing a fixed distinctive sign or some type of Ceasefire
uniform;
c. Carrying arms openly; and An unconditional stoppage of all hostilities usually
d. Obeying the laws and customs of war. ordered by an international body like the United Nations
3. Non-privileged Combatants (NPC) – individuals who Security Council for the purpose of settling the
take up arms or commit hostile acts against the enemy differences between the belligerents.
without belonging to the armed forces or forming part of the
irregular forces. If captured, they are not entitled to the Truce
status of prisoners of war.
4. Citizens who rise in a “levee en masse” – The A conditional ceasefire for political purposes.
inhabitants of unoccupied territory who, on approach of the
enemy, spontaneously take arms to resist the invading Capitulation
troops without having time to organize themselves, provided
only that they: The surrender of military forces, places or districts, in
a. Carry arms openly; and accordance with the rules of military honor.
b. Observe the laws and customs of war.
5. The officers and crew members of merchant vessels Basic principles that underlie the rules of warfare
who forcibly resist attack.
1. The Principle of Military Necessity – The belligerent
Civilian may employ any amount of force to compel the complete
submission of the enemy with the least possible loss of
Any person who does not belong to the armed forces and lives, time and money.
who is not a combatant.
NOTE: Under RA 9851, it is the necessity of
NOTE: In case of doubt whether a person is a civilian or employing measures which is indispensable to
not, that person shall be considered as a civilian. achieve a legitimate aim of the conflict and not
prohibited by IHL.
Suspension of arms
2. The Principle of Humanity – Prohibits the use of any
A temporary cessation of hostilities by agreement of the measure that is not absolutely necessary for the purpose
local commanders for such purposes as the gathering of of the war, such as the poisoning of wells, destruction of
the wounded and the burial of the dead. works of art and property devoted to religious or
humanitarian purposes.
Armistice
3. The Principle of Chivalry – Prohibits the belligerents
from the employment of treacherous methods in the
conduct of hostilities, such as the illegal use of Red Cross
emblems.

4. The Principle of Proportionality – The legal use of

force whereby belligerents must make sure that harm
caused to civilians or civilian property is not excessive in
relation to the concrete and direct military advantage from
an anticipated attack or by

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an attack on military objective. State Policies under RA 9851

War may be terminated by 1. The renunciation of war and adherence to a policy

of peace, equality, justice, freedom, cooperation and
1. Simple cessation of hostilities, without the amity with all nations;
conclusion of a formal treaty 2. Values the dignity of every human person and
2. Treaty of peace guarantees full respect of human rights;
3. Unilateral declaration 3. Promotion of Children as zones of peace
4. The complete submission and subjugation of one of 4. Adoption of the generally accepted principles of
the belligerents, followed by a dictated treaty of international law;
peace or annexation of conquered territory 5. Punishment of the most serious crimes of concern to
the international community; and
Postliminium 6. To ensure persons accused of committing grave
crimes under international law all rights for a fair
It imports the reinstatement of the old laws and and strict trial in accordance with national and
sovereignty of territory which has been under international law as well as accessible and gender-
belligerent occupation once control of the belligerent sensitive avenues of redress for victims of armed
occupant is lost over the territory affected. conflicts.

Application of the Principle of Postliminium (1979 NOTE: The application of the provisions of this Act shall
Bar) not affect the legal status of the parties to a conflict, nor

Where the territory of one belligerent State is occupied give an implied recognition of the status of belligerency.
by the enemy during war, the legitimate government is
ousted from authority. When the belligerent occupation Genocide
ceases to be effective, the authority of the legitimate
government is automatically restored, together with all 1. Any of the following acts with intent to destroy, in
its laws, by virtue of the jus postliminium. whole or in part, a national, ethnic, racial, religious,
social or any other similar stable and permanent
Principle of Uti Possidetis group such as:
a. Killing of members of the group
Allows retention of property or territory in the b. Causing serious bodily or mental harm to
belligerent’s actual possession at the time of the members of the group
cessation of hostilities. c. Deliberately inflicting on the group conditions
of life calculated to bring about its physical
Jus ad bellum (Law on the use of force) destruction in whole or in part
d. Imposing measure intended to prevent births
It seeks to limit resort to force between States. States within the group
must refrain from the threat or use of force against the e. Forcibly transferring children of the group to
territorial integrity or political independence of another another group
state (UN Charter, Art. 2, par. 4). 2. Directly and publicly inciting others to commit
genocide (RA 9851)
XPNs:
1. Self-defense; or NOTE: Genocide may be committed eitherduring war or
2. Following a decision adopted by the UN Security armed conflict or in times of peace.
Council under Chapter VII of the UN Charter.
War crimes
Status Quo Ante Bellum
1. In case of an international armed conflict, grave
Each of the belligerents is entitled to the territory and breaches of the Geneva Conventions of August 12,
property which it had possession of at the 1949, namely any of the following acts against
commencement of the war. persons or property protected:
a. Willful killing;
REPUBLIC ACT 9851 (PHILIPPINE ACT ON CRIMES b. Torture or inhuman treatment, including
AGAINST INTERNATIONAL HUMANITARIAN LAW, biological experiments;
GENOCIDE, AND OTHER CRIMES AGAINST c. Willfully causing great suffering, or serious
HUMANITY) injury to body or health;
d. Extensive destruction and appropriation of
Effect/relevance of the passage of RA 9851 property not justified by military necessity and
carried out unlawfully and wantonly;
RA 9851 mandates both the State and non-state armed e. Willfully depriving a prisoner of war or other
groups to observe international humanitarian law protected person of the rights of fair and
standards and gives the victims of war-crimes, genocide regular trial;
and crimes against humanity legal recourse. f. Arbitrary deportation or forcible transfer of
population or unlawful confinement;

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g. Taking hostages; objectives, or making non-defended localities

h. Compelling a prisoner of war or other or demilitarized zones the object of attack;
protected person to serve in the forces of a h. Killing or wounding a person in the knowledge
hostile power; and that he/she is hors de combat, including a
i. Unjustifiable delay in the repatriation of combatant who, having laid down his/her arms
prisoners of war or other protected persons. no longer having means of defense, has
2. In case of non-international armed conflict, serious surrendered at discretion;
violation of common Art. 3 to the four Geneva i. Making improper use of a flag of truce, of the
Conventions of 12 August 1949, namely any of the flag or the military insignia and uniform of the
following acts committed against persons taking no enemy or of the United Nations, as well as of
active part in the hostilities, including members of the distinctive emblems of the Geneva
the armed forces who have laid down their arms Conventions or other protective signs under
and those placed hors de combat by sickness, the International Humanitarian Law, resulting
wounds, detention or any other cause: in death, serious personal injury or capture;
a. Violence to life and person, in particular, willful j. Intentionally directing attacks against buildings
killings, mutilation, cruel treatment and dedicated to religion, education, art, science, or
torture; charitable purposes, historic monuments,
b. Committing outrages upon personal dignity, in hospitals and places where the sick and
particular humiliating and degrading wounded are collected, provided that they are
treatment; not military objectives.
c. Taking of hostages; and k. Subjecting persons who are in the power of an
d. The passing of sentences and the carrying out adverse party to physical mutilation or to
of executions without previous judgment medical or scientific experiments of any kind,
pronounced by a regularly constituted court, or to removal of tissue or organs for
affording all judicial guarantees which are transplantation, which are neither justified by
generally recognized as indispensable. the medical, dental or hospital treatment of the
3. Other serious violations of the laws and customs person concerned not carried out in his/her
applicable in the armed conflict within the interest, and which cause death to or seriously
established framework of international law, namely: endanger the health of such person or persons;
a. Intentionally directing attacks against the l. Killing wounding or capturing an adversary by
civilian population as such or against individual resort to perfidy
civilians not taking direct part in hostilities;
b. Intentionally directing attacks against civilian NOTE: Perfidy – A combatant’s conduct that
objects, that is, objects which are not military creates the impression that an adversary is
objectives; entitled to, or is obliged to accord protection
c. Intentionally directing attacks against under international law when in fact the
buildings, material, medical units and conduct is use to gain an advantage (Black’s
transport, and personnel using the distinctive Law Dictionary).
emblems of Additional Protocol II in conformity
with international law; m. Declaring that no quarter will be given;
d. Intentionally directing attacks against n. Destroying or seizing the enemy’s property
personnel, installations, material, units or unless such destruction or seizure is
vehicles involved in a humanitarian assistance imperatively demanded by the necessities of
or peacekeeping mission in accordance with war;
the Charter of the United Nations as long as o. Pillaging a town or place, even when taken by
they are entitled to the protection given to assault;
civilians or civilian objects under the p. Ordering the displacement of the civilian
international law of armed conflict; population for reasons related to the conflict,
e. Launching an attack in the knowledge that such unless the security of the civilians involved or
attack will cause incidental loss of life or injury imperative military reasons so demand;
to civilians or damage to civilian objects or q. Transferring, directly or indirectly, by
widespread long-term and severe damage to occupying power of parts of its own civilian
the natural environment which would be population into the territory it occupies, or the
excessive in relation to the concrete and direct deportation or transfer of all or parts of the
military advantage anticipated; population of the occupied territory within or
f. Launching an attack against works or outside this territory;
installations containing dangerous forces in the r. Committing outrages upon personal dignity, in
knowledge that such attack will cause excessive particular, humiliating and degrading
loss of life, injury to civilians or damage to treatment;
civilian objects, and causing death or serious s. Committing rape, sexual slavery, enforced
injury to body or health; prostitution, forced pregnancy, enforced
g. Attacking or bombarding, by whatever means, sterilization, or any other form of sexual
towns, villages, dwellings or buildings which violence;
are undefended and which are not military t. Utilizing the presence of a civilian or other
protected person to render certain points,

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areas or military forces immune from military cultural, religious, gender, sexual orientation other
operations; grounds that are universally recognized as
u. Intentionally using starvation of civilians as a method impermissible under international law
of warfare by depriving them of objects indispensable to their 9. Enforced or involuntary disappearance of persons
survival, including willfully impending relief supplies; 10. Apartheid
v. In an international armed conflict, compelling the 11. Other inhumane acts of similar character intentionally
nationals of the hostile party to take part in the operations of causing great suffering, or serious injury to body or to
war directed against their own country, even if they were in the mental or physical health (RA 9851).
belligerent’s service before the commencement of the war;
w. In an international armed conflict, declaring abolished,
suspended or inadmissible in a court of law the rights and CATEGORIES OF ARMED CONFLICTS
actions of the nationals of the hostile party;
x. Committing any of the following acts:
i. Conscripting, enlisting or recruiting children under Kinds/types of conflict as contemplated in RA 9851
the age of 15 years into the national armed forces;
ii. Conscripting, enlisting, or recruiting children 1. International Armed Conflict – between two or more
under the age of 18 years into an armed force or group other States including belligerent occupation.
than the national armed forces; and 2. Non-International Armed Conflict – between
iii. Using children under the age of 18 years to governmental authorities and organized armed groups or
participate actively in hostilities; between such groups within a State.
y. Employing means of warfare which are prohibited
under international law, such as: NOTE: It does not cover internal disturbances or
i. Poison or poisoned weapons tensions such as riots, isolated and sporadic acts of
ii. Asphyxiating, poisonous or other gases, and all violence or other acts of a similar nature (RA 9851).
analogous liquids, materials or devices;
iii. Bullets which expand or flatten easily in the 3. War of National Liberation – an armed struggle waged
human body, such as bullets with hard envelopes which do not by a people through its liberation movement against the
entirely cover the core or are pierced with incisions established government to reach self-determination.
iv. Weapons, projectiles and material and methods of
warfare which are of the nature to cause superfluous injury or It is also used to denote conflicts in which peoples
unnecessary suffering or which are are fighting against colonial domination and alien
inherently indiscriminate in violation of occupation and against racist regimes in the
the international law of armed conflict (RA exercise of their right of self-determination, as
9851). enshrined in the U.N. Charter and the Declaration of
Principles of International Law (Protocol I, Art. 1(4)).
“Other crimes against humanity” aside from war
crimes and genocide under RA 9851
INTERNATIONAL ARMED CONFLICTS
Any of the following acts when committed as part of a
widespread or systematic attack directed against any Armed conflict under IHL and RA 9851
civilian population, with knowledge of the attack:
1. “All cases of declared war or any other armed conflict
1. Willful killing which may arise between two or more of the Highest
2. Extermination contracting parties, even if the State of war is not recognized
3. Enslavement by one of them” (Geneva Convention of 1949, Art. 2). It also
4. Arbitrary deportation or forcible transfer of population applies to armed conflict between the government and a
5. Imprisonment or other severe deprivation of physical rebel or insurgent movement (Geneva Convention of 1949,
liberty in violation of fundamental rules of international law. Art. 3).
6. Torture 2. Under RA 9851, it is any use of force or armed violence
7. Rape, sexual slavery, enforced prostitution, forced between States or a protracted armed violence between
pregnancy, enforced sterilization or any other form of sexual governmental authorities and organized groups or between
violence of comparable gravity such groups within a State provided that it gives rise or may
8. Persecution against any identifiable group or give rise to a situation to which the Geneva Conventions of
collectivity on political, racial, national, ethnic, 12 August 1949 including their common Art. 3 apply.

Instances not covered by an armed conflict

UNIVERSITY OF SANTO TOMAS It does not include internal disturbances or tensions such
2017 GOLDEN NOTES as:
1. Riots
2. Isolated and sporadic acts of violence
 PUBLIC INTERNATIONAL LAW

3. Other acts of a similar nature

IHL is intended for the armed forces, whether regular or
Hors de combat not, taking part in the conflict, and protects every
individual or category of individuals not or no longer
Any person who: actively involved in the hostilities. E.g.: wounded or sick
1. Is in the power of an adverse party fighters; people deprived of their freedom as a result of
2. Has clearly expressed an intention to surrender the conflict; civilian population; medical and religious
3. Has been rendered unconscious or otherwise personnel.
incapacitated by wounds or sickness and therefore is
incapable of defending himself (RA 9851) Applicable rules in non-international armed conflict

NOTE: In these cases the person abstains from any 1. Persons taking no active part in the hostilities,
hostile act and does not attempt to escape. Under these including armed forces who have laid down their arms
circumstances, the said person shall not be made object and those placed hors de combat be treated humanely,
of attack. Only combatants can be persons hors de without any adverse distinction founded on race, color,
combat. religion or faith, sex, birth or wealth, or any other similar
criteria. To these end, the following acts are and shall
Protected persons in an armed conflict remain prohibited at any time and any place whatsoever
with respect to the abovementioned persons:
1. A person wounded, sick or shipwrecked, whether a. Violence to life and person, in particular
civilian or military; murder of all kinds, mutilation, cruel treatment and
2. A prisoner of war or any person deprived of liberty torture;
for reasons related to an armed conflict b. Taking of hostages;
3. A civilian or any person not taking a direct part or c. Outrages against personal dignity, in particular
having ceased to take part in the hostilities in the power of humiliating and degrading treatment;
the adverse party; d. The passing of sentences and the carrying out
4. A person who, before the beginning of hostilities, of executions without previous judgment pronounced by
was considered a stateless person or refugee under the a regularly constituted court, affording all the judicial
relevant international instrument accepted by the parties to guarantees which are recognized as indispensable by
the conflict concerned or under the national legislation of civilized peoples.
the state of refuge or state of residence; 2. The wounded and sick shall be collected and cared
5. A member of the medical personnel assigned for.
exclusively to medical purposes or to the administration of
medical units or to the operation of an administration of NOTE: An impartial humanitarian body, such as the
medical transports; or International Committee of the Red Cross, may offer its
6. A member of the religious personnel who is services to the parties to the conflict.
exclusively engaged in the work of their ministry and
attached to the armed forces of a party to the conflict, its WAR OF NATIONAL LIBERATION
medical units or medical transports or non-denominational,
non-combatant military personnel carrying out functions Wars of national liberation
similar to religious personnel.
Armed conflicts in which people are fighting against
NOTE: In such situations, the Geneva Conventions and colonial domination and alien occupation and against
Additional Protocol I, which calls for the protection of racist regimes in the exercise of their right to self-
wounded and sick soldiers, medical personnel, facilities determination (Protocol I, Art. 1(4)). These are
and equipment, wounded and sick civilian support sometimes called insurgencies, rebellions or wars of
personnel accompanying the armed forces, military independence.
chaplains and civilians who spontaneously take up arms
to repel an invasion, apply. Basis

INTERNAL OR Protocol Additional to the Geneva Conventions of 12

NON-INTERNATIONAL ARMED CONFLICT August 1949 and relating to the Protection of Victims of
International Armed Conflicts (Protocol I [8 June 1977]).
Inapplicability of IHL in internal disturbance
Categories of wars of national liberation
Internal disturbances and other situations of internal
violence are governed by the provisions of human rights 1. Colonial domination;
law and such measures of domestic legislation as may be 2. Alien occupation; and
invoked. IHL does not apply to situations of violence not 3. Racist regimes when the peoples oppressed by these
amounting in intensity to an armed conflict. regimes are fighting for self-determination.

Applicability of IHL in non-international armed NOTE: The above listed enumeration is EXCLUSIVE.
conflicts

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Effect of the Protocol Principle of Humanity or Martens clause

Armed conflicts that fall under the categories will now be In cases not covered by other international agreements,
regarded as international armed conflicts and thus fall civilians and combatants remain under the protection
under the International Humanitarian Law. and authority of the principles of International Law
derived from established custom, from the Principles of
CORE INTERNATIONAL OBLIGATIONS OF STATES IN Humanity and from the dictates of public conscience.
IHL
The extensive codification of IHL and the extent of the
1. The protection of persons who are not, or are no longer, accession to the resultant treaties, as well as the fact that
participating in hostilities; the denunciation clauses that existed in the codification
instruments have never been used, have provided the
Soldiers who surrender or who are hors de combat international community with a corpus of treaty rules
are entitled to respect for their lives and their moral the great majority of which had already become
and physical integrity. It is forbidden to kill or injure customary and which reflected the most universally
them. recognized humanitarian principles. These rules indicate
the normal conduct and behavior expected of States.
The wounded and sick must be collected and cared
for by the party to the conflict which has them in its PRISONERS OF WAR
power. Protection also covers medical personnel,
establishments, transports and equipment. The Prisoners of War
emblem of the red cross, red crescent or red crystal
is the sign of such protection and must be respected. Those lawful combatants who have fallen into the power
of the enemy.
Captured combatants are entitled to respect for
their lives, dignity, personal rights and convictions. Rights and Privileges of Prisoners of War
They must be protected against all acts of violence
and reprisals. They must have the right to 1. To be treated humanely
correspond with their families and to receive relief. 2. Not to be subject to torture
3. To be allowed to communicate with their families
Civilians under the authority of a party to the 4. To receive food, clothing, religious articles, and
conflict or an occupying power of which they are not medicine
nationals are entitled to respect for their lives, 5. To bare minimum of information
dignity, personal rights and convictions. 6. To keep personal belongings
7. To proper burial
Everyone must be entitled to benefit from 8. To be grouped according to nationality
fundamental judicial guarantees. No one must be 9. To the establishment of an informed bureau
sentenced without previous judgment pronounced 10. To repatriation for sick and wounded (1949 Geneva
by a regularly constituted court. No one must be Convention)
held responsible for an act he has not committed. No
one must be subjected to physical or mental torture, Members of Militias or Volunteer Groups as
corporal punishment or cruel or degrading Prisoners-Of-War
treatment.
Members of militias or volunteer groups are entitled to
2. The right of parties to an armed conflict to choose methods prisoner-of-war status when captured by the enemy,
and means of warfare is not unlimited. provided that:
1. They form part of such armed forces of the state; or
Parties to a conflict and members of their armed 2. They fulfill the following conditions:
forces do not have an unlimited choice of methods a. They are being commanded by a person
and means of warfare. It is prohibited to employ responsible as superior;
weapons or methods of warfare of a nature to cause b. They have a fixed distinctive sign recognizable at a
unnecessary losses or excessive suffering. distance;
c. They carry arms openly; and
Parties to a conflict must at all times distinguish d. They conduct their operations in accordance with
between the civilian population and combatants in the laws and customs of war.
order to spare civilian population and property.
Adequate precautions shall be taken in this regard Captured Guerilla as Prisoner of War
before launching an attack.
A captured guerilla or other members of organized
resistance movements may demand treatment afforded
PRINCIPLES OF IHL to a prisoner of war under the 1949 Geneva Convention,
provided that:
1. They are being commanded by a person responsible as
TREATMENT OF CIVILIANS superior;

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2. They have a fixed distinctive sign recognizable at a NOTE: Examples of these states are Switzerland,
distance; Sweden, The Vatican City, and Costa Rica.
3. They carry arms openly; and
4. They conduct their operations in accordance with Non-alignment (Neutralism)
the laws and customs of war.
This refers to peacetime foreign policies of nations
NOTE: Persons such as civilian members of military desiring to remain detached from conflicting interests of
aircraft crews, and war correspondents, shall be so other nations or power groups.
entitled to prisoner-of-war status when they fall under
the hands of the enemy. Neutralist policy

Status of Journalists Who are Engaged In Dangerous It is the policy of the state to remain neutral in future
Professional Missions In Areas Of Armed Conflicts wars.

They shall be treated as civilians, provided that they take

no action adversely affecting their status as civilians, and Neutrality vs. Non-alignment
their prisoners-of-war status to the armed forces when
they fall to the enemy hands.
BASIS NEUTRALITY NON-
Treatment of Spies When Captured
ALIGNMENT
As spy is a soldier employing false pretenses or acts
through clandestine means to gather information from Presupposes Exists during
the enemy. As to
the existence of peace time
When captured, may be proceeded against under the applicability
municipal law of the other belligerent, although under
war or conflict
the Hague Convention, may not be executed without trial.
But if captured after he has succeeded in rejoining his Avoids Rejects
army, must be treated as a prisoner of war (Nachura
Political Law Outline 2014). involvement in imperialism and
Purpose
A soldier not wearing uniform during hostilities runs the a war colonialism by the
risk of being treated as a spy and not entitled to prisoner
world powers
of war status. When caught, they are not to be regarded
as prisoners of war. Pre- Evaluates the
determined world political
NOTE: Military Scouts are not spies. As to nature position events based on
case-to-case
Spies are not entitled to prisoner-of-war status when merits
captured by the enemy. Any member of the armed forces
of a party to the conflict who falls into the power of an A State Considered as a Neutralized State
adverse party while engaging in espionage shall not have
the right to the status of prisoner of war and may be When its independence and integrity are guaranteed by
treated as a spy. an international convention on the condition that such
State obligates itself to never take up arms against any
However, the following acts of gathering or attempting to other State, except for self-defense, or enter into such
gather information shall not be considered as acts of international obligations as would indirectly involve a
espionage: war.
1. When made by a member of the armed forces who is
in uniform; Rights and Duties of a Neutral State
2. When made by a member of the armed forces who is
a resident of the territory occupied by an adverse party who 1. Duty of abstention – Abstain from taking part in the
does so but not through an act of false pretenses or in a hostilities and from giving assistance to either belligerent
deliberately clandestine manner. 2. Duty of prevention – Prevent its territory and other
resources from being used in the conduct of hostilities
LAW OF NEUTRALITY 3. Duty of acquiescence – Acquiesce in certain
restrictions and limitations the belligerents may find
Neutrality necessary to impose
4. Right of diplomatic communication – To continue
It is non-participation, directly or indirectly, in a war diplomatic relations with other neutral states and with the
between contending belligerents. This exists only during belligerents
war time and is governed by the law of nations.
Obligations of Belligerents

1. Respect the status of the neutral State;

2. Avoid any act that will directly or indirectly involve it
in their conflict and to submit to any lawful measure it may
take to maintain or protect its neutrality.
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Some Restraints on Neutral States Doctrine of Free Ships Make Free Goods

1. Blockade A ship’s nationality determines the status of its cargo.

2. Contraband of war Thus, enemy goods on a neutral ship, excepting
3. Free ships make free goods contraband, would not be subject to capture on the high
seas.
Blockade
Visit and Search
It is a hostile operation by means of which vessels and
aircraft of one belligerent prevent all other vessels, Belligerent warships and aircraft have the right to visit
including those of neutral States, from entering or and search neutral merchant vessels on the high seas to
leaving the ports or coasts of the other belligerent, the determine whether they are in any way connected with
purpose being to shut off the place from international the hostilities.
commerce and communications with other States.
Unneutral service
Elements of a valid blockade
It consists of acts, of a more hostile character than
1. Binding and duly communicated to neutral states; carriage of contraband or breach of blockade, which are
2. Effective and maintained by adequate sources; undertaken by merchant vessels of a neutral State in aid
3. Established by a competent authority of belligerent of any of the belligerents.
government;
4. Limited only to the territory of the enemy; and Right of Angary
5. Impartially applied to all states.
The right of a belligerent state to seize, use or destroy, in
Contraband case of urgent necessity for purposes of offenses or
defense, neutral property found in enemy territory, or on
It refers to goods which, although neutral property, may the high seas, upon payment of just compensation.
be seized by a belligerent because they are useful for war
and are bound for a hostile destination. Requisites for the Exercise of Right of Angary

Kinds of Contraband 1. That the property is in the territory under the control or
jurisdiction of the belligerent;
1. Absolute – those which are useful for war under all 2. That there is urgent necessity for the taking; and
circumstances (example: guns and ammunitions); 3. That just compensation is paid to the owner.
2. Conditional – those which have both civilian and military
utility (example: food and clothing); or Termination of Neutrality
3. Under the free list – those which are exempt from the law on
contraband for humanitarian reasons (example: medicines) Neutrality is terminated when the neutral State itself
joins the war or upon the conclusion of peace.
Doctrine of Continuous Voyage or Continuous
Transport
LAW OF THE SEA
Goods immediately reloaded at an intermediate port on
the same vessel, or reloaded on another vessel or other
forms of transportation may also be seized on the basis International Law of the Sea (ILS)
of doctrine of ultimate consumption.
A body of treaty rules amid customary norms governing
Doctrine of Ultimate Consumption the uses of the sea, the exploitation of its resources, and
the exercise of jurisdiction over maritime regimes. It is a
Goods intended for civilian use which may ultimately branch of public international law, regulating the
find their way to and be consumed by belligerent forces relations of states with respect to the uses of the oceans
may be seized on the way. (Arigo v. Swift, G.R. No. 206510, Sept. 16, 2014).

Doctrine of Infection United Nations Convention on the Law of the Sea

(UNCLOS)
Innocent goods shipped with contraband may also be
seized. A treaty that defines the rights and obligations of nations
in their use of the world’s oceans, establishing rules for
Doctrine of Ultimate Destination business, the environment and the management of
marine natural resources.
The liability of the contraband from being captured is
determined not by their ostensible but by their real The UNCLOS is a multilateral treaty which was opened
destination. for signature on December 10, 1982 at Montego Bay,
Jamaica. It was ratified by the Philippines in 1984 but
came into force on November 16, 1994 upon the

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submission of the 60th ratification. The UNCLOS gives to 2. Bays – Where the distance between the low-water
the coastal State sovereign rights in varying degrees over marks of the natural entrance points:
the different zones of the sea which are: 1) internal a. Does not exceed 24 nautical miles – a closing line
waters, 2) territorial sea, 3) contiguous zone, 4) may be drawn between these two low-water marks, and
exclusive economic zone, and 5) the high seas. It also the waters enclosed thereby shall be considered as
gives coastal States more or less jurisdiction over foreign internal waters (UNCLOS, Art. 10 [4])
vessels depending on where the vessel is located. Insofar b. Exceeds 24 nautical miles – a straight baseline of
as the internal waters and territorial sea is concerned, 24 nautical miles shall be drawn within the bay in such a
the Coastal State exercises sovereignty, subject to the manner as to enclose the maximum area of water that is
UNCLOS and other rules of international law. Such possible with a line of that length (UNCLOS, Art. 10 [5]).
sovereignty extends to the air space over the territorial
sea as well as to its bed and subsoil (Arigo v. Swift, NOTE: This relates only to bays the coasts of which
supra.). belong to a single State and does not apply to “historic”
bays (UNCLOS, Art. 10 (1)).
Mare Liberum Principle or Free Sea or Freedom of Bay
the Sea
It is a well-marked indentation whose penetration is in
It means international waters are free to all nations and such proportion to the width of its mouth as to contain
belongs to none of them. land-locked waters and constitute more than a mere
curvature of the coast (UNCLOS, Art. 10 (2)).
BASELINES
NOTE: The indentation shall not be regarded as a bay
Baseline unless its area is as large as, or larger than, that of the
semi-circle whose diameter is a line drawn across the
It is a line from which the breadth of the territorial sea, mouth of that indentation (Ibid).
the contiguous zone and the exclusive economic zone is
measured in order to determine the maritime boundary
of the coastal State. ARCHIPELAGIC STATES

Archipelago

It means a group of islands, including parts of islands,

interconnecting waters and other natural features which
are so closely interrelated that such islands, waters and
other natural features form an intrinsic geographical,
economic and political entity, or which historically have
been regarded as such (UNCLOS, Art. 46).

Archipelagic State

A state constituted wholly by one or more archipelagos

and may include other islands (UNCLOS, Art. 46).

Archipelagic Doctrine (2016 Bar)

Art. I, Sec. 1 of the 1987 Constitution adopts the

archipelagic doctrine. It provides that the national
territory of the Philippines includes the Philippine
archipelago, with all the islands and waters embraced
therein; and the waters around, between and connecting
the islands of the archipelago, regardless of their breadth
and dimensions form part of the internal waters of the
Philippines.
Normal Baseline
It emphasizes the unity of land and waters by defining an
It is the low-water line along the coast as marked on archipelago either as a group of islands surrounded by
large-scale charts officially recognized by the coastal waters or a body of water studded with islands.
state (UNCLOS, Art. 5).
STRAIGHT ARCHIPELAGIC BASELINES
Formation of Baseline
Straight Archipelagic Baselines vis-à-vis Archipelagic
1. Mouths of Rivers – If a river flows directly into the State (2016 Bar)
sea, the baseline shall be a straight line across the mouth of
the river between points on the low-water line of its banks
(UNCLOS, Art. 9).
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An archipelagic State may draw straight archipelagic and their air space, bed and subsoil and the resources
baselines by joining the outermost points of the contained therein (UNCLOS, Art. 49[4]).
outermost islands and drying reefs of the archipelago
provided that within such baselines are included the ARCHIPELAGIC WATERS
main islands and an area in which the ration of the water
to the area of the land, including atolls, is between 1 to 1 Archipelagic waters
and 9 to 1 (UNCLOS, Art. 47).
These are waters enclosed by the archipelagic baselines,
Guidelines in Drawing Archipelagic Baselines regardless of their depth or distance from the coast
(UNCLOS, Art. 49[1]).
1. The length of such baselines shall not exceed 100 nautical
miles, except that up to 3 per cent of the total number of Rights by which archipelagic waters are subject to:
baselines enclosing any archipelago may exceed that length, up
to a maximum length of 125 nautical miles (UNCLOS, Art. 47 [2]). 1. Rights under existing agreement on the part of the third
2. The drawing of such baselines shall not depart to any states should be respected (UNCLOS, Art. 51[1]);
appreciable extent from the general configuration of the 2. The traditional fishing rights and other legitimate
archipelago (UNCLOS, Art. 47[3]). activities of the immediately adjacent neighboring States
3. Such baselines shall not be drawn to and from low tide (Ibid);
elevations (UNCLOS, Art. 47[4]). 3. Existing submarine cables laid by other States and
“passing through its waters without making a
NOTE: Unless lighthouses or similar installations windfall” as well as the maintenance and
which are permanently above sea level have been replacement of such cables upon being notified of
built on them or where a low-tide elevation is their location and the intention to repair or replace
situated wholly or partly at distances not exceeding them (UNCLOS, Art. 51[2]).
the breadth of the territorial sea from the nearest
island (Ibid). Applicability of the Right of Innocent Passage in
Archipelagic Waters
4. It shall not be applied in such a manner as to cut off from the
high seas or the exclusive economic zone the territorial sea of GR: As a rule, ships of all States enjoy the right of
another State (UNCLOS, Art. 47[5]). innocent passage through archipelagic waters (UNCLOS,
5. If a part of the archipelagic water of an archipelagic State Art. 52[1]).
lies between two parts of an immediately adjacent neighboring
State, existing rights and all other legitimate interests which the XPN: Right of Innocent Passage may be suspended in
latter State has traditionally exercised in such waters and all some areas of its archipelagic waters. But such
rights stipulated by agreement between those States shall suspension must be:
continue and be respected (UNCLOS, Art. 47[6]). 1. Without discrimination in form or in fact among foreign
ships;
NOTE: The breadth of the territorial sea, the contiguous 2. Essential for the protection of its security; and
zone, the exclusive economic zone and the continental 3. Shall take effect only after having been duly published
shelf are measured from the archipelagic baselines (UNCLOS, Art. 52[2]).
drawn in accordance with article 47 (UNCLOS, Art. 48).
---
Sovereignty of the Archipelagic States Q: Does RA 9522 (Philippine Archipelagic Baseline Law)
converting internal waters into archipelagic waters,
It extends to the waters enclosed by the archipelagic violate the Constitution in subjecting these waters to the
baselines (archipelagic waters), regardless of their depth right of innocent and sea lanes passage including
or distance from the coast, to the air space over the overflight? (2004, 2015 Bar)
archipelagic waters, as well as to their bed and subsoil
and the resources contained therein. A: Whether referred to as Philippine “internal waters”
under Art. I of the Constitution or as “archipelagic
The sovereignty extends to the archipelagic waters but is waters” under UNCLOS III (Art. 49 [1]), the Philippines
subject to the right of innocent passage which is the exercises sovereignty over the body of water lying
same nature as the right of innocent passage in the landward of the baselines, including the air space over it
territorial sea (UNCLOS, Art. 49[1] in relation to Art. and the submarine areas underneath.
52[1]).
The fact of sovereignty, however, does not preclude the
NOTE: The regime of archipelagic sea lanes passage shall operation of municipal and international law norms
not in other respects affect the status of the archipelagic subjecting the territorial sea or archipelagic waters to
waters, including the sea lanes, or the exercise by the necessary, if not marginal, burdens in the interest of
archipelagic State of its sovereignty over such waters maintaining unimpeded, expeditious international
navigation, consistent with the international law
principle of freedom of navigation.

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Thus, domestically, the political branches of the NOTE: The right of archipelagic sea lanes passage may
Philippine government, in the competent discharge of be exercised through the routes normally used for
their constitutional powers, may pass legislation international navigation (UNCLOS, Art. 53[12]).
designating routes within the archipelagic waters to
regulate innocent and sea lanes passage (Magallona v. Sea Lanes and Air Routes
Ermita, G.R. No. 187167, Aug. 16, 2011).
--- It shall traverse the archipelagic waters and the adjacent
territorial sea and shall include all normal passage
NOTE: In the absence of municipal legislation, routes used as routes for international navigation or
international law norms, now codified in UNCLOS III, overflight through or over archipelagic waters and,
operate to grant innocent passage rights over the within such routes, so far as ships are concerned, all
territorial sea or archipelagic waters, subject to the navigational channels, provided that duplication of
treaty’s limitations and conditions for their exercise. routes of similar convenience between the same entry
Significantly, the right of innocent passage is a customary and exit points shall not be necessary (UNCLOS, Art.
international law, thus automatically incorporated in the 53[4]).
corpus of Philippine law. No modern State can validly
invoke its sovereignty to absolutely forbid innocent Designation or Substitution of Sea Lanes
passage that is exercised in accordance with customary
international law without risking retaliatory measures The archipelagic State shall refer proposals to the
from the international community. competent international organization (International
Maritime Organization). The IMO may adopt only such
The imposition of these passage rights through sea lanes as may be agreed with the archipelagic State,
archipelagic waters under UNCLOS III was a concession after which the archipelagic State may designate,
by archipelagic States, in exchange for their right to prescribe or substitute them (UNCLOS, Art. 53[9]).
claim all the waters landward of their baselines,
regardless of their depth or distance from the coast, as REGIME OF ISLANDS
archipelagic waters subject to their territorial
sovereignty. More importantly, the recognition of Regime of Islands
archipelagic States’ archipelago and the waters enclosed
by their baselines as one cohesive entity prevents the 1. An island is a naturally formed area of land,
treatment of their islands as separate islands under surrounded by water, which is above water at
UNCLOS III. Separate islands generate their own high tide.
maritime zones, placing the waters between islands 2. Except as provided for in paragraph 3, the
separated by more than 24 nautical miles beyond the territorial sea, the contiguous zone and the
States’ territorial sovereignty, subjecting these waters to continental shelf of an island are determined in
the rights of other States under UNCLOS III (Magallona v. accordance with the provisions of the
Ermita, ibid.). Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation
ARCHIPELAGIC SEA LANES PASSAGE or economic life of their own shall have no
exclusive economic zone or continental shelf.
Right of Archipelagic Sea Lanes Passage (UNCLOS, Article 121)

It is the right of foreign ships and aircraft to have NOTE: Islands can be very important because of the
continuous, expeditious and unobstructed passage in sea possibility of exploiting oil and gas resources around
lanes and air routes through or over the archipelagic them. This explains the controversy over Spratleys. It is
waters and the adjacent territorial sea of the archipelagic noteworthy that islands can have their own territorial
state, “in transit between one part of the high seas or an sea, exclusive economic zone and continental shelf.
exclusive economic zone.” All ships and aircraft are However, rocks “which cannot sustain human habitation
entitled to the right of archipelagic sea lanes passage or economic life” only have a territorial sea. But there is
(UNCLOS, Art. 53[1] in relation with Art. 53[3]). no clear international law definition of “economic life”
referred to in n. 3. (Bernas, Introduction to Public
All ships are entitled to the right of archipelagic sea lanes International Law 2009, p. 129)
passage. Submarines are not required to surface in the
course of its passage unlike the exercise of right of Artificial islands or installations are not “islands” in the
innocent passage in the territorial sea (UNCLOS, Art. 20 sense of Article 121 of the UNCLOS. However, coastal
in relation to Art. 53[3]). states may establish safety zones around artificial islands
and prescribe safety measures around them. [ibid, citing
The right is the same as Transit Passage. Both define the UNCLOS, Article 60(4) and (5)]
rights of navigation and overflight in the normal mode
solely for the purpose of “continuous, expeditious and Regime of Islands under Philippine Laws
unobstructed transit.” In both cases, the archipelagic
state cannot suspend passage (UNCLOS, Arts. 44 and 54). The baseline in the following areas over which the
Philippines likewise exercises sovereignty and
jurisdiction shall be determined as "Regime of Islands"
under the Republic of the Philippines consistent with

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Article 121 of the United Nations Convention on the Law It is the line every point of which is at a distance from the
of the Sea (UNCLOS): nearest point of the baseline equal to the breadth of the
territorial sea (UNCLOS, Art. 4).
a) The Kalayaan Island Group as constituted
under Presidential Decree No. 1596; and Territorial sea vs. Internal waters of the Philippines
b) Bajo de Masinloc, also known as Scarborough
Shoal.
(Republic Act No. 9522, Sect. 2) TERRITORIAL SEA INTERNAL WATERS
INTERNAL WATERS
defined by historic right or defined by the
Internal waters treaty limits
archipelago doctrine
These are waters of lakes, rivers and bays landward of
the baseline of the territorial sea. Waters on the
landward side of the baseline of the territorial sea also as defined in the outermost points of
form part of the internal waters of the coastal state. Convention on the our archipelago
However, in the case of archipelagic states, waters Law of the Sea, has a which are connected
landward of the baseline other than those of rivers, bays,
uniform breadth of with baselines and
and lakes, are archipelagic waters (UNCLOS, Art. 8 [1]).
12 miles measured all waters comprised
Delimitation of internal waters from the lower water therein
mark of the coast
Within the archipelagic waters, the archipelagic state
may draw closing lines for the delimitation of internal
waters (UNCLOS, Art. 50 in relation with Arts. 9, 10, 11). Methods used in defining territorial sea

NOTE: A coastal state has sovereignty over its internal 1. Normal baseline method – The territorial sea is simply
waters as if internal waters were part of its land territory drawn from the low-water mark of the coast, to the breadth claimed,
(UNCLOS, Art. 50). following its sinuousness and curvatures but excluding the internal
waters in the bays and gulfs (UNCLOS, Art. 5).
Right of Innocent Passage (1991 Bar) 2. Straight baseline method – Where the coastline is deeply
indented and cut into, or if there is a fringe of islands along the coast
It means navigation through the territorial sea of a State in its immediate vicinity, the method of straight baselines joining
for the purpose of traversing the sea without entering appropriate points may be employed in drawing the baseline from
internal waters, or of proceeding to internal waters, or which the breadth of the territorial sea is measure (UNCLOS, Art. 7).
making for the high seas from internal waters, as long as
it is not prejudicial to the peace, good order or security of NOTE: The Philippines uses this method in drawing
the coastal State (UNCLOS, Arts. 18 [1][2], 19[1]). baselines.

Applicability of the Right of Innocent Passage in Sovereignty over the territorial sea (2015 Bar)
Internal Waters
Coastal states exercise sovereignty over Territorial sea
GR: There is no Right of Innocent Passage through the and it extends to the airspace over the territorial sea and
internal water because it only applies to territorial sea to its seabed and subsoil.
and the archipelagic waters.
Note: The sovereignty over the territorial sea is subject
XPN: A coastal state may extend its internal waters by to the right of innocent passage on the part of ships of all
applying the straight baseline method in such a way as to states (Magallona, 2005).
enclose as its internal waters areas which are previously
part of the territorial sea. It also applies to straits used Applicability of the right of innocent passage in the
for international navigation converted into internal internal waters and territorial sea
waters by applying the straight baselines method. Thus,
the right of innocent passage continues to exist in the In the territorial sea, a foreign State can claim for its
“extended” internal waters (UNCLOS, Art. 8[2]). ships the right of innocent passage, whereas in the
internal waters of a State no such right exists.
TERRITORIAL SEA
However, in Saudi Arabia v. Aramco (Arbitration 1963),
Breadth of The Territorial Sea (2004, 2015 Bar) the arbitrator said that according to international law —
Every State has the right to establish the breadth of the ports of every state must be open to foreign vessels and
territorial sea up to a limit not exceeding 12 nautical can only be closed when vital interests of the state so
miles, measured from baselines (UNCLOS, Art. 3). requires. But according to the Nicaragua v. US case, a
coastal state may regulate access to its ports.
Outer Limit of The Territorial Sea
Instances when the right of innocent passage is
considered prejudicial
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1. Submarines and other underwater vehicles – They

Right of innocent passage is considered prejudicial if the are required to navigate on the surface and to show their
foreign ship engages in the following activities: flag (UNCLOS, Art. 20).
1. Any threat or use of force against the sovereignty, 2. Foreign nuclear-powered ships and ships carrying
territorial integrity or political independence of the coastal nuclear or other inherently dangerous or noxious
State, or in any other manner in violation of the principles of substances – They must carry documents and observe
international law embodied in the Charter of the United special precautionary measures established for such
Nations; ships by international agreements. They may be required
2. Any exercise or practice with weapons of any kind; to confine their passage on sea lanes prescribed by the
3. Any act aimed at collecting information to the coastal State (UNCLOS, Art. 23).
prejudice of the defense or security of the coastal State; 3. Warships –
4. Any act aimed at collecting information to the a. Coastal State may require that it leave the
prejudice of the defense or security of the coastal State; territorial sea immediately when it does not comply with
5. Any act of propaganda aimed at affecting the the laws and regulations of the coastal State and
defense or security of the coastal State; disregards compliance (UNCLOS, Art. 30)
6. The launching, landing or taking on board of any b. Flag State shall bear international
aircraft; responsibility for any loss or damage to the coastal State
7. The launching, landing or taking on board of any resulting from non-compliance with the laws and
military device; regulations of the coastal State concerning passage
8. The loading or unloading of any commodity, (UNCLOS, Art. 31).
currency or person contrary to the customs, fiscal, c. Submarines in innocent passage are required to
immigration or sanitary laws and regulations of the coastal navigate on the surface and to show their flag (UNCLOS,
State; Art. 20).
9. Any act of willful and serious pollution contrary the
Convention; NOTE: This will not affect the immunities of
10. Any fishing activities; warships and other government ships operated for
11. The carrying out of research or survey activities; non-commercial purpose (UNCLOS, Art. 32).
12. Any act aimed at interfering with any systems of
communication or any other facilities or installations of the Warship
coastal State;
13. Any other activity not having a direct bearing on It is a ship belonging to the armed forces of a State
passage (UNCLOS, Art. 19 [2]). bearing the external marks distinguishing such ships of
its nationality, under the command of an officer duly
Laws and regulations of the coastal State relating to commissioned by the government of the State and whose
innocent passage name appears in the appropriate service list or its
equivalent, and manned by a crew which is under regular
The coastal state may adopt laws and regulations in armed forces discipline (UNCLOS, Art. 29).
respect of all or any of the following:
1. Safety of navigation and the regulation of maritime NOTE: The right of innocent passage pertains to all ships,
traffic; including warships.
2. Protection of navigational aids and facilities and
other facilities or installations; Duties of the coastal State with regard to innocent
3. Protection of cables and pipelines; passage of foreign ships
4. Conservation of the living resources of the sea;
5. Prevention of infringement of the fisheries laws and The coastal State shall:
regulations of the coastal State; 1. Not hamper the innocent passage of the foreign
6. Preservation of the environment of the coastal State ships through its territorial sea;
and the prevention, reduction and control of pollution 2. Not impose requirements on foreign ships which
thereof; have the practical effect of denying or impairing the right
7. Marine Scientific research and hydrographic of innocent passage;
surveys; 3. Not discriminate in form or in fact against the ships
8. Prevention of infringement of the customs, fiscal, of any State or against ships carrying cargoes to, from or
immigration or sanitary laws and regulations of the coastal on behalf of any State; and
State (UNCLOS, Art. 21[1]). 4. Give appropriate publicity to any danger to
navigation, of which it has knowledge, within its
NOTE: It shall not however, apply to the design, territorial sea (UNCLOS, Art. 24).
construction, manning or equipment of foreign ships
unless they are giving effect to generally accepted Rights of the coastal state relating to innocent
international rules or standards (UNCLOS, Art. 21[2]). passage through the territorial sea:

Rules when traversing the territorial sea through the The coastal State may:
right of innocent passage

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1. Take the necessary steps in its territorial sea to prevent The coastal state may exercise civil jurisdiction, subject
passage which is not innocent (UNCLOS, Art. 25[1]); to the following exceptions:
2. Take the necessary steps to prevent any breach of the 1. It should not stop or divert a foreign ship passing
conditions to which admission of ships to internal waters or such through the territorial sea for the purpose of exercising civil
a call is subject (UNCLOS, Art. 25[2]); jurisdiction in relation to a person on board the ship
3. Without discrimination in form or in fact among foreign (UNCLOS, Art. 28[1])
ships, suspend temporarily in specified areas of its territorial sea 2. It may not levy execution against or arrest the ship for
the innocent passage of foreign ships if such suspension is the purpose of any civil proceedings, save only in respect of
essential for the protection of its security, including weapon obligations or liabilities assumed or incurred by the ship
exercises (UNCLOS, Art. 25[3]). itself in the course or for the purpose of its voyage through
the waters of the coastal State (UNCLOS, Art. 28[2]).
NOTE: No charge may be levied upon foreign ships by
reason only of their passage through the territorial sea NOTE: It is without prejudice to the right of the
(UNCLOS, Art. 26[1]). coastal State, in accordance with its laws, to levy
execution against or to arrest, for the purpose of any
Charges may be levied only as payment for specific civil proceedings, a foreign ship lying in the
services rendered to the ship which shall be levied territorial sea, or passing through the territorial sea
without discrimination (UNCLOS, Art. 26[2]). after leaving internal waters (UNCLOS, Art. 28[3]).

Right of the coastal state to suspend innocent CONTIGUOUS ZONE

passage in specified areas (2004, 2015 Bar)

The coastal state may, without discrimination in form or It is the zone adjacent to the territorial sea, which the
in fact among foreign ships, suspend temporarily in coastal State may exercise such control as is necessary
specified areas of its territorial sea the innocent passage to:
of foreign ships if such suspension is essential for the 1. Prevent infringement of its customs, fiscal, immigration,
protection of its security, including weapons exercises. or sanitary laws within its territory or its territorial sea or
Such suspension shall take effect only after having been 2. Punish such infringement.
duly published (UNCLOS, Art. 25(3), Part II Territorial
Sea and Contiguous Zone). The contiguous zone may not extend more than 24
nautical miles beyond the baseline from which the
Exercise of criminal jurisdiction of the coastal state breadth of the territorial sea is measured 12nautical
miles from the territorial sea (UNCLOS, Art. 33).
GR: Criminal jurisdiction of the coastal state should not
be exercised on board a foreign ship passing through the NOTE: The coastal state does not have sovereignty over
territorial sea to arrest any person or to conduct any the contiguous zone because the contiguous zone is a
investigation in connection with any crime committed on zone of jurisdiction for a particular purpose, not of
board the ship during its passage. sovereignty.

XPNs: Contiguous zone does not automatically belong to

1. Consequence of the crime extend to the coastal state; the territory of the coastal state
2. Crime is of a kind to disturb the peace of the country or the
good order of the territorial sea The coastal state must make a claim to its Contiguous
3. Assistance of local authorities has been requested by the Zone for pertinent rights to exist. Article 33 of the
master of the ship or by a diplomatic agent or consular officer of UNCLOS speaks in permissive terms, i.e, “the coastal
the flag State; or state may exercise the control necessary” for definite
4. Measures are necessary for the suppression of illicit traffic purposes (Magallona, 2005).
in narcotic drugs or psychotropic substances (UNCLOS, Art.
27[1]). Extent of the Contiguous Zone

NOTE: Such does not affect the right of the coastal state The coastal State may not extend its Contiguous Zone
to take any steps authorized by its laws for the purpose beyond the 24 nautical miles from the baseline (from
of an arrest or investigation on board a foreign ship which the breadth of the territorial sea is measured)
passing through the territorial sea after leaving internal (UNCLOS, Art. 33 [2]).
waters (UNCLOS, Art. 27[2]).
Right of Transit passage
Exercise of civil jurisdiction over foreign ships
passing through the territorial sea of the coastal It is the right to exercise freedom of navigation and
state overflight solely for the purpose of continuous and
expeditious transit through the straits used for
international navigation, i.e., between two areas of the
high seas or between two exclusive economic zones.

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(2000, 2004, 2005, 2015 Bar)

The requirement of continuous and expeditious transit It gives the coastal State sovereign rights overall
does not preclude passage through the strait for the economic resources of the sea, sea-bed and subsoil
purpose of entering, leaving or returning from a State in an area extending not more than 200 nautical
bordering the strait, subject to the conditions of entry to miles beyond the baseline from which the
that State (UNCLOS, Art. 38[2]). territorial sea is measured (UNCLOS, Arts. 55 & 57).

NOTE: The right of transit passage is not applicable if Rights of the coastal state in the EEZ (2004,
there exists seaward of the island a route through the 2005 Bar)
high seas or through an exclusive economic zone of
similar convenience with respect to navigational and
hydrographical characteristics (UNCLOS, Art. 38[1]).

Vessels entitled to right of transit passage

All ships and aircraft enjoy the right of transit passage.

Right of innocent passage vs. Transit passage

INNOCENT TRANSIT
BASIS
PASSAGE PASSAGE
Pertains only to Includes right of
As to scope navigation of overflight
ships
Requires No requirement
submarine and specially

other underwater applicable to

As to
vehicles to submarines
submarines
navigate on the
surface and to
show their flag
As to Can be suspended Cannot be
suspension suspended
In the designation Designation of sea
of sea lanes and lanes and traffic
traffic separation separation
schemes, the schemes is subject
coastal State shall to a proposal and

only take into agreement

As to
account the between States
designation
recommendations bordering the
of sea lanes
of a competent straits and its
international subsequent
organization. adoption by a
competent
international
organization.

Thalweg Doctrine

It provides that for boundary rivers, in the absence of an

agreement between the riparian States, the boundary
line is laid in the middle of the main navigable channel.

EXCLUSIVE ECONOMIC ZONE

 In the absence of agreement to the contrary by the States
1. Sovereign rights concerned, UNCLOS does not allow imprisonment or any
a. For the purpose of exploring and exploiting, other form of corporal punishment. However, in cases of
conserving and managing the living and non-living resources arrest and detention of foreign vessels, it shall promptly
in the super adjacent waters of the sea-bed and the resources notify the flag state of the action taken.
of the sea-bed and subsoil;
b. With respect to the other activities for the economic Primary obligations of coastal states over the EEZ
exploitation and exploration of the EEZ, such as production of
energy from water, currents and winds; 1. Proper conservation and management measures
2. Jurisdictional rights that the living resources of the EEZ are not subjected to
a. With respect to establishment and use of artificial over-exploitation;
islands;
b. As to protection and preservation of the marine NOTE: The UNCLOS does not set a limit, except by
environment; and the duty of the coastal state not to overexploit
c. Over marine scientific research (Magallona, 2005).
3. Other rights and duties provided for in the Law of the Sea
Convention (Law of the Sea Convention, Art. 56). 2. Promote the objective of “optimum utilization” of
the living resources, and to this end, to determine the
NOTE: The coastal State has no sovereignty over the EEZ. maximum allowable catch of such resources in relation
What the coastal State only has are sovereign rights, to its capacity to harvest the allowable catch (UNCLOS,
jurisdictional rights, and other rights under the Law of the Sea Art. 61[2], 62[1]).
Convention.
Objectives of conservation of living resources in the
The coastal state may inspect and arrest ship’s crew in its EEZ
EEZ
1. The determination of the allowable catch of the living
The coastal State may board, and inspect a ship, arrest a ship resources;
and its crew and institute judicial proceedings against them. 2. The maintenance of the living resources in such a way
Arrested vessels and their crews may be required to post that they are not endangered by over-exploitation;
reasonable bond or any other form of security. However, they
must be promptly released upon posting of bond.

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3. The maintenance or restoration of population of infringement its natural resources

harvested species at levels which can produce the
maximum sustainable yield; and (UNCLOS, Art. 61) CONTINENTAL SHELF
4. The maintenance of associated or dependent species (1991, 2015 Bar)
above levels at which their reproduction may become
seriously threatened (UNCLOS, Art. 61) Otherwise known as archipelagic or insular shelf for
archipelagos, refers to a) the seabed and subsoil of
Note: The coastal state must determine its capacity to the submarine areas adjacent to the meters or,
harvest the living resources of the EEZ. If it does not have beyond that limit, to where the depth allows
capacity to harvest the allowable catch, it shall give other exploitation, and b) the seabed and subsoil of areas
states access to the surplus of the allowable catch by adjacent to islands.
means of agreements or arrangements consistent with Categories of Continental shelf
the UNCLOS. For this purpose the coastal state may
establish terms and conditions by laws and regulations 1. Continental shelf
(UNCLOS, Art. 62) a. Geological continental shelf
b. Juridical/Legal Continental Shelf
If the coastal state sets the allowable catch at the same 2. Extended Continental Shelf
level as its harvesting capacity, then no surplus is left.
The result is that the access by other states to surplus
stocks may prove to be illusory (Magallona, 2005).

Matters that the coastal state may regulate in regard

to fishing by the nationals of other states in the EEZ

1. licensing of fishermen, fishing vessels and equipment,

and the payment of fishing;
2. determining the species which may be caught and fixing
the quotas to catch;
3. regulation of seasons and areas of fishing, the types,
sizes and amount of gear and fishing vessels that may be
used;
4. fixing the age and size of fish that may be caught;
5. information required of fishing vessels, including catch
and effort statistics and vessel position reports;
6. the conduct of fisheries research programs
7. the placing of observers and trainees by the coastal
state on board foreign vessels;
8. the landing of the catch by foreign vessels in the ports of
the coastal state;
9. the terms and conditions of joint ventures or Geological continental shelf
cooperative arrangements;
10. training of personnel and transfer of fisheries It comprises the entire prolongation of the coastal state’s
technology; and land mass and extends up to the outer edge of the
11. enforcement procedures continental margin.

NOTE: The nationals of other states granted access to the It starts from the baseline from which the territorial sea
EEZ must comply with conservation measures and other is measured and has its outer limit at the outer edge of
conditions provided in these laws and regulations the continental margin which may extend beyond the
(UNCLOS, Art. 62). 200 nautical miles from the baseline, or may fall short of
that distance.
Contiguous zone vs. EEZ (2004 Bar)
Continental shelf (Juridical/Legal Continental Shelf)
CONTIGUOUS ZONE EEZ
Known as the protective Ends at the 200th It comprises the sea-bed and subsoil of the submarine
jurisdiction and starts from nautical mile from the areas that extend beyond its territorial sea throughout
the 12th nautical mile from baseline the natural prolongation of its land territory to the outer
edge of the continental margin or to a distance of 200
low water from the baseline
nautical miles beyond the baselines from which the
breadth of the territorial sea is measured if the edge of
Coastal state may exercise No state really has the the continental margin does not extend up to that
the control necessary to (1) exclusive ownership of distance (UNCLOS, Art. 76[1]).
prevent infringement of its it, but the state which
customs, fiscal, immigration, has a valid claim on it NOTE: The rights of the coastal state over the continental
or sanitary laws within its according to the shelf do not depend on occupation, effective or notional,
territory or its territorial UNCLOS has the right or on any express proclamation (UNCLOS, Art. 77[3]).
sea or (2) punish such to explore and exploit

324
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express consent of the coastal State (UNCLOS, Art.

The UNCLOS unifies the continental and the extended 77[2]). Natural resources include mineral and other
continental shelves into one by providing that the non-living resources of the seabed and subsoil
continental shelf extends to the breadth of either shelf, together with living organisms belonging to
whichever is the farthest (UNCLOS, Art. 76[1][4]). sedentary species (UNCLOS, Art. 77[4]).

Continental margin Rule on payment for exploitation of non-living

resources
It is the submerged prolongations of the land mass of the
coastal state, consisting of the continental shelf proper, GR: Exploitation of the non-living resources of the
the continental slope and the continental rise. It does not continental shelf beyond 200 nautical miles would
include the deep ocean floor with its ocean ridges or the entail the coastal State to make payments or
subsoil (UNCLOS, Art. 76[3]). contributions in kind which shall be made annually
with respect to all production at site after the first
NOTE: The coastal State shall establish the outer edge of five years of production and 1% of the value or
the continental margin wherever the margin extends volume of production at the site at the sixth year. It
beyond the 200 nautical miles from the baselines. In shall increase by 1% for each subsequent year until
establishing the Continental Margin it shall either use: the 12th year where it shall remain at 7%.
1. A line drawn by reference to points no more than 60
nautical miles from the foot of the continental slope; or The payments or contributions shall be made
2. A line drawn by reference to points at which the through the International Seabed Authority, which
thickness of sediments is less than one percent of the shall distribute them to States Parties to this
distance to the base of the continental slope (UNCLOS, Art. Convention, on the basis of equitable sharing
76[4]). criteria, taking into account the interests and needs
of developing States, particularly the least
Permissible breadth of the continental shelf developed and the land-locked among them
(UNCLOS, Art. 82[1][2][4]).
Under the said UN Convention, it extends to a distance
not extending 200 nautical miles from the baselines. XPN: A developing State which is a net importer of a
However, if the coastal State succeeds in its application mineral resource produced from its continental
for an extended continental shelf, it may extend to not shelf is exempt from making such payments or
more than 350 nautical miles (UNCLOS, Art. 76[1][5]). contributions in respect of that mineral resource
(UNCLOS, Art. 82[3]).
NOTE: Under Presidential Proclamation 370, the
continental shelf has no such legal limit. It extends 2. To lay submarine cables and pipelines on the
outside the area of the territorial sea “to where the depth continental shelf (UNCLOS, Art. 79[1]);
of the superjacent waters admits of the exploitation of
such natural resources.” In this case, exploitation of NOTE: State may make reasonable measures for the
resources may go beyond the 200 nautical miles. prevention, reduction and control of pollution from
pipelines. The laying of cables is limited by the right
EXTENDED CONTINENTAL SHELF of the coastal state to take measures in exploring its
continental shelf, exploiting the natural resources,
It is that portion of the continental shelf that lies beyond and the protection of the marine environment from
the 200 nautical miles limit in the juridical/legal pollution (UNCLOS, Art. 79).
continental Shelf (Ibid).
3. Artificial islands, installations and structures on the
Benham Plateau continental shelf (UNCLOS, Art. 80);

It is also known as the Benham Rise. The Philippines NOTE: Exclusive right to construct, to authorize the
lodged its claim on the area with the United Nations construction, operation and use of artificial islands
Commission on the Limits of the Continental Shelf on and installations. Jurisdiction is also exclusive
April 8, 2009. The UNCLOS approved the claim of the (UNCLOS, Art. 80).
Philippines that the Benham Plateau is part of Philippine
Territory on April 12, 2012. 4. Marine scientific research (UNCLOS, Art. 246[1])

Sovereign rights of a coastal State over the NOTE: May be conducted only with consent. Beyond
continental shelf the 200 nautical mile, the coastal State cannot
withhold consent to allow research on the ground
1. Right to explore and exploit its natural resources that the proposed research project has direct
(UNCLOS, Art. 77[1]); significance to exploration or exploitation of natural
resources (UNCLOS, Art. 246[2][6]).
NOTE: This right is exclusive. Should the coastal
State not explore or exploit the natural resources, no 5. Right to authorize and regulate drilling on the
one may undertake these activities without the continental shelf for all purposes (UNCLOS, Art. 81)

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NOTE: This right is exclusive. being lost, or to rescue persons in distress. It shall
require the master to assist the other ship after a
Limitation on the rights of coastal state over the collision or its crew and passengers (UNCLOS, Art. 98).
continental shelf
Applicable laws to vessels sailing on the high seas
Rights of the coastal State over the continental shelf do
not affect the legal status of the superjacent waters or of GR: Vessels sailing on the high seas are subject only to
the air space above those waters and such exercise of international law and to the laws of the flag State.
right must not infringe or result in unjustifiable
interference with navigation and other rights and XPN: However, the arrest or boarding of a vessel sailing
freedoms of other States (UNCLOS, Art. 78[1][2]). in the high seas may be made by a State, other than the
flag-State of such vessel, in the following instances:
Island 1. A foreign merchant ship by the coastal State in its
internal waters, the territorial sea and the contiguous zones
It is a naturally formed area of land, surrounded by for any violation of its laws.
water, which is above water at high tide. 2. A foreign merchant ship for piracy.
3. Any ship engaged in the slave trade.
NOTE: The continental shelf of an island is recognized. 4. Any ship engaged in unauthorized broadcasting.
However, rocks which cannot sustain human habitation 5. A ship without nationality, or flying a false flag or
or economic life shall have no continental shelf or EEZ. refusing to show its flag.

High or Open seas Flag of Convenience (2004 Bar)

The waters, which do not constitute the internal waters, It is a national flag flown by a ship not because the ship
archipelagic waters, territorial sea and exclusive or its crew has an affiliation with the nation, but because
economic zone of a state. They are beyond the the lax controls and modest fees and taxes imposed by
jurisdiction and sovereign rights of states (UNCLOS, Art. that nation have attracted the owner to register it there.
86).
Jurisdiction over Crimes committed on board a
It is treated as res communes or res nullius, and thus, are foreign private vessel anchored in a coastal state
not part of the territory of a particular State (UNCLOS,
Art. 89). Under both the English and French rules, a crime will be
tried by a local state, if serious enough as to compromise
Freedoms on the high seas the peace of its port; otherwise by the flag state, if it
involves only the members of the crew and is of such a
These are the freedom of: (NOLAFS) petty nature as not to disturb the peace of the local state.
1. Navigation
2. Overflight In the French rule, it recognizes the jurisdiction of the
3. To lay submarine cables and pipelines flag state over crimes committed on board the vessel
4. To construct artificial islands and other installations except if the crime disturbs the peace, order and security
permitted under international law of the host country. In English rule, the host country has
5. Fishing jurisdiction over the crimes committed on board the
6. Scientific research (UNCLOS, Art. 87[1] in relation to Art. 90) vessel unless they involve the internal management of
the vessel.
NOTE: This is open to all States and shall be exercised
with due regard for the interests of other States in their Instances when a State may exercise jurisdiction on
exercise of the freedom of the high seas (UNCLOS, Art. open seas
87[2]).
1. Slave trade
Flag State 2. Hot pursuit
3. Right of approach
It refers to the State whose nationality the ship 4. Piracy
possesses; for it is nationality which gives the right to fly
a country’s flag. In the high seas, a state has exclusive Duty of every state in the transportation of slaves
jurisdiction over ships sailing under its flag. It is required
however, that there exists a genuine link between the Every state shall take effective measures to prevent and
State and the ship (UNCLOS, Arts. 91[1], 92[2]). punish the transport of slaves in ships authorized to fly
its flag and to prevent the unlawful use of the flag for that
Duty of the flag state purpose. Any slave taking refuge on board any ship,
whatever its flag, shall ipso facto be free (UNCLOS, Art.
A flag state has the duty to render assistance in distress 99).
in the sense that it shall require the master of the ship,
without serious danger to the ship, crew or passengers, Doctrine of Hot Pursuit
to render assistance to any person at sea in danger of

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It provides that the pursuit of a vessel maybe undertaken Philippines for trial. Do the courts of Manila have
by the coastal State which has “good reason to believe jurisdiction over the case?
that the ship has violated the laws and regulations of that
State”. A: Hijacking is actually piracy, as defined in People v. Lol-
lo (G.R. No. 17958, Feb. 27, 1922), as robbery or forcible
Elements of the Doctrine Of Hot Pursuit depredation in the high seas without lawful authority
and done animo furandi and in the spirit and intention of
1. The pursuit must be commenced when the ship is universal hostility. Piracy is a crime against all mankind.
within the internal waters, territorial sea or the contiguous Accordingly, it may be punished in the competent
zone of the pursuing State, and may only be continued tribunal in any country where the offender may be found
outside if the pursuit has not been interrupted or into which he may be carried. The jurisdiction on
2. It is continuous and unabated piracy unlike all other crimes has no territorial limits. As
3. Pursuit conducted by a warship, military aircraft, or it is against all, all so may punish it. Nor does it matter
government ships authorized to that effect. (UNCLOS, Art. that the crime was committed within the jurisdictional 3-
111) mile limit of a foreign State for those limits, though
neutral to war, are not neutral to crimes.
Arrival Under Stress ---

It refers to involuntary entrance of a foreign vessel on Land-locked states

another state’s territory which may be due to lack of
provisions, unseaworthiness of the vessel, inclement These are states which do not border the seas and do not
weather, or other case of force majeure, such as pursuit have EEZ.
of pirates.
Geographically disadvantaged states
Piracy under the UNCLOS
1. Coastal states which can claim no EEZ of their own;
Piracy consists of any of the following acts: and
1. Illegal acts of violence or detention, or any act of 2. Coastal states, including states bordering closed or
depredation, committed for private ends by the crew or the semi-closed states, whose geographical situations make
passengers of a private ship or a private aircraft and them dependent on the exploitation of the living
directed: resources of the EEZ of other coastal states in the region
a. On the high seas, against another ship or (UNCLOS, Art. 70[2]).
aircraft, or against persons or property on board such ship
or aircraft Rights of land-locked states and geographically
b. Against a ship, aircraft, persons or property in a disadvantaged states
place outside the jurisdiction of any State
2. Act of voluntary participation in the operation of a 1. Land-locked States shall have the right to
ship or of an aircraft with knowledge of facts making it a participate, on an equitable basis, the exploitation of an
pirate ship or aircraft; appropriate part of the surplus of the living resources of
3. Act of inciting or of intentionally facilitating an act the exclusive economic zones of coastal States of the
described above (UNCLOS, Art. 101). same sub region or region, taking into account the
relevant economic and geographical circumstances of all
NOTE: If committed by a warship, government ship or States concerned (UNCLOS, Art. 69[1]).
governmental aircraft whose crew mutinied and taken 2. Developed land-locked States shall be entitled to
control of the ship or aircraft, it is assimilated to acts participate in the exploitation of living resources only in
committed by a private ship or aircraft (UNCLOS, Art. the exclusive economic zones of developed coastal States
102). of the same sub region or region having regard to the
extent to which the coastal State, in giving access to other
A ship or aircraft retains its nationality although it States to the living resources of its exclusive economic
has become a pirate (UNCLOS, Art. 104). zone, has taken into account the need to minimize
detrimental effects on fishing communities and economic
Warships on the high seas enjoy immunity from dislocation in States whose nationals have habitually
jurisdiction of other states. They enjoy complete fished in the zone (UNCLOS, Art. 70[1]).
immunity. The jurisdiction of their flag state is exclusive
(UNCLOS, Art. 95). NOTE: This is without prejudice to arrangements agreed
upon in sub region or regions where the coastal State
--- may grant to land-locked States of the same sub region
Q: A Filipino owned construction company with or region equal or preferential rights for the exploitation
principal office in Manila leased an aircraft registered in of the living resources in the EEZ (UNCLOS, Art. 70[6]).
England to ferry construction workers to the Middle
East. While on a flight to Saudi Arabia with Filipino crew This however shall not apply in case of a coastal State
provided by the lessee, the aircraft was highjacked by whose economy is overwhelmingly dependent on the
drug traffickers. The hijackers were captured in
Damascus and sent to the
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exploitation of the living resources of its EEZ (UNCLOS,
Art. 71).

328
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EXTENT and DEFINITION RIGHTS and POWERS OF STATES

1. Rights under existing agreement on the part of the
third states should be respected.

2. The traditional fishing rights and other legitimate

activities of the immediately adjacent neighboring
Internal Waters States.
These are waters enclosed by the
archipelagic baselines, regardless of 3. Existing submarine cables laid by other States and
their depth or distance from the “passing through its waters without making a
coast. windfall” as well as the maintenance and
replacement of such cables upon being notified of
their location and the intention to repair or replace
them.

Territorial Seas are defined by

historic right or treaty limits.
Territorial Sea Coastal states exercise sovereignty over Territorial sea and
As defined in the Convention on the it extends to the airspace over the territorial sea and to its
Law of the Sea, it has a uniform seabed and subsoil.
breadth of 12 miles measured
from the lower water mark of the
coast.

It is the zone adjacent to the The coastal state does not have sovereignty over the
Contiguous territorial sea. The contiguous zone contiguous zone because the contiguous zone is a zone of
Zone may not extend more than 24 jurisdiction for a particular purpose, not of sovereignty.
nautical miles beyond the
baseline from which the breadth State may exercise control as is necessary to:
of the territorial sea is measured
12 nautical miles from the 1. Prevent infringement of its customs, fiscal,
territorial sea immigration, or sanitary laws within its territory
or its territorial sea or

2. Punish such infringement.

It gives the coastal State sovereign States may exercise;

rights overall economic resources of 1. Sovereign rights
Exclusive the sea, sea-bed and subsoil in an 2. Jurisdictional rights
Economic Zone area extending not more than 200 3. Other rights and duties provided for in the Law of
nautical miles beyond the the Sea Convention
baseline from which the territorial
sea is measured (Please see discussion on rights of the coastal state in the
EEZ, p. 50)

The waters, which do not constitute They are beyond the jurisdiction and sovereign rights of
High Seas the internal waters, archipelagic state.
waters, territorial sea and exclusive
economic zone of a state. It is treated as res communes or res nullius, and thus, are
not part of the territory of a particular State.
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INTERNATIONAL TRIBUNAL the parties, or as a member of a national or

FOR THE LAW OF THE SEA international court or tribunal, or in any other
capacity (UNCLOS, Annex VI, Statute of ITLoS, Art.
International Tribunal for the Law of the Sea (ITLoS) 8[1]).
6. If for some special reason a member of the Tribunal
It is an independent judicial body established by the should not sit in a particular case:
Third United Nations Convention on the Law of the Sea a. Member should inform the President of the
that adjudicates disputes arising out of the interpretation Tribunal (UNCLOS, Annex VI, Statute of ITLoS, Art. 8[2]); or
and application of the Convention. It was established b. President should give the member notice
after Ambassador Arvido Pardo Malta addressed the accordingly (UNCLOS, Annex VI, Statute of ITLoS, Art. 8[3]).
General Assembly of the United Nations and called for
“an effective international regime over the seabed and NOTE: Any doubt shall be resolved by decision of the
ocean floor beyond a clearly defined national majority of other members of the Tribunal present
jurisdiction”. Its seat is in Hamburg, Germany. (UNCLOS Annex VII, Arbitration, Art. 7, 8).

Part XV of the 1982 UN Convention on the Law of the Sea Members enjoy diplomatic privileges and immunities
requires States to settle peacefully any dispute (UNCLOS Annex VII, Arbitration, Art. 10).
concerning the Convention. Failing a bilateral settlement,
it provides that any dispute shall be submitted for Jurisdiction of the Seabed Dispute Chamber
compulsory settlement to one of the tribunals having
The categories of its jurisdiction are the following:
jurisdiction (UNCLOS, Art. 286). These include the ITLos,
the International Court of Justice (ICJ), and arbitral or 1. Disputes between State Parties concerning the
special arbitral tribunals constituted under the UNCLOS. interpretation or application of treaty or convention may, in
accordance with such agreement, be submitted to the
The ITLoS is composed of twenty-one (21) independent Tribunal.
members elected by the States partied to the UNCLOS 2. Disputes between a State Party and the Authority
from among persons with recognized competence in the concerning:
field of the law of the sea and representing the principal a. Acts or omissions of the Authority or of a State
legal systems of the world. Party alleged to be violations of the convention;
b. Acts of the Authority alleged to be in excess of
Jurisdiction of the Tribunal jurisdiction of a misuse of power
3. Disputes between parties to a contract, being State
Its jurisdiction comprises all disputes and all Parties, the Authority or the Enterprise, state enterprises
applications submitted to it and all matters specifically and natural or juridical persons concerning:
provided for in any other agreement which confers a. Interpretation or application of a relevant contract
jurisdiction to the Tribunal. or a plan of work;
b. Acts or omissions of a party to the contract relating
Rules with regard to membership in the Tribunal to activities in the Area and directed to the other party or
directly affecting its legitimate interest.
1. No two members of the Tribunal may be nationals of the 4. Disputes between the Authority and a prospective
same State (UNCLOS, Annex VI, Statute of ITLoS, Art. 3[1]). contractor who has been sponsored by a State
5. Disputes between the Authority and a State Party, a
NOTE: The person shall be deemed to be a national state enterprise or a natural or juridical person sponsored
of the one in which he ordinarily exercises civil and by a State Party
political rights (Ibid). 6. Any other disputes for which the jurisdiction of the
Chamber is specifically provided for in the Convention.
2. There should be no fewer than three members from each
geographical group to be established by the UN General Alternative means for the settlement of disputes
Assembly (UNCLOS, Annex VI, Statute of ITLoS, Art. 3[2]). established by the Convention
3. No member of the Tribunal may exercise any political or
administrative function, or associate actively with or be Aside from the ITLOS, it also established the
financially interested in any of the operations of any enterprise International Court of Justice, an arbitral tribunal
concerned with the exploration for or exploitation of the constituted in accordance with Annex VII to the
resources of the sea or the seabed or other commercial use of the Convention and a special arbitral tribunal constituted in
sea or the seabed (UNCLOS, Annex VI, Statute of ITLoS, Art. 7[1]). accordance with Annex VIII of the Convention.
4. No member of the Tribunal may act as agent, counsel or
advocate in any case (UNCLOS, Annex VI, THE WEST PHILIPPINE SEA CASE
Statute of ITLoS, Art. 7[2]).
5. No member of the Tribunal may participate in the decision Arguments of the Republic of the Philippines (RP):
of any case in which he has previously taken part as agent,
counsel or advocate for one of

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1. Declarations that the Philippines’ and China’s will generate, if at all, will not overlap with the
respective rights and obligations in regard to the waters, Philippines’ own maritime entitlements.
seabed, and maritime features of the South china Sea are
governed by the UNCLOS; and that The above reasoning will also determine whether China
China’s claims based on “historic rights” acted unlawfully with respect to the enjoyment of the
encompassed within its so-called “Nine-dash Line” Philippines of its rights, and the obligation to protect and
are inconsistent with the UNCLOS and therefore preserve the marine environment, within the disputed
invalid; areas. The Tribunal also acknowledged that other
2. Determinations as to whether, under the UNCLOS, findings on the merits may preclude its jurisdiction,
certain maritime features claimed by both states are where fishing and fisheries related law enforcement, and
properly characterized as islands, rocks, low tide elevations, military activities, may be in issue. With respect to the
or submerged banks. The Philippines claims in particular Scarborough Shoal, however, the Tribunal found that the
that Scarborough Shoal and eight of such features in the exceptions under Article 297 and 298 cannot oust it of
Spratlys are low-tide elevations or submerged banks that jurisdiction, given that the activities complained of
merely generate a territorial sea (TS), not an exclusive involve traditional fishing rights and other events
economic zone (EEZ) or continental shelf (CS); occurring in the territorial sea, a maritime area over
3. Declarations that China has violated the UNCLOS by which the said provisions have no application.
interfering with the Philippines’ sovereign rights and
freedoms, through construction and fishing activities that Finally, the Tribunal asked the Philippines to clarify the
have harmed the marine environment. content and narrow the scope of its last submission,
requesting a declaration that “China shall desist from
Arguments of the People’s Republic of China (PRC): further unlawful claims and activities.”

China contested the Tribunal’s jurisdiction on the Tribunal’s Decision on the Merits of the Philippines’
following grounds: Claim
1. That the essence of the subject-matter of the
arbitration is the territorial sovereignty over several 1. The ‘nine-dash line’ and China’s claim to historic rights
maritime features in the South China Sea (SCS), which is in the maritime areas of the South China Sea
beyond the scope of the Convention, and does not concern
the interpretation or application of the Convention; Whether China has historic rights to resources in the
2. That the two countries have agreed, through South China Sea beyond the limits of the maritime zones
bilateral instruments and the Declaration on the Conduct of that it is entitled to pursuant to the Convention
Parties in the SCS, to settle their relevant disputes through
negotiations. Thus, the Philippines’ resort to arbitration is a • Based on the history of the Convention and its
breach of its obligations under international law; provisions concerning maritime zones, the Convention
3. Even assuming, arguendo, that the subject-matter of was intended to comprehensively allocate the rights of
the arbitration were concerned with the interpretation or States to maritime areas
application of the Convention, that subject-matter would • The question of pre-existing rights to resources was
constitute an integral part of maritime delimitation, which is considered during the negotiations on the creation of
covered by China’s exclusive economic zone and a number of States wished
2006 declaration excluding maritime delimitation to preserve historic fishing rights in the new zone: this
from its acceptance of compulsory dispute position was rejected; the final text of the Convention
settlement procedures under the UNCLOS gives other States only a limited right of access to
fisheries in the exclusive economic zone and no rights to
Award on Jurisdiction and Admissibility petroleum or mineral resources
• China’s claim to historic rights to resources was
The Tribunal found that the submissions of the incompatible with the detailed allocation of rights and
Philippines did not per se involve disputes concerning maritime zones in the Convention: that China had
sovereignty or maritime boundary delimitation, which historic rights to resources in South China Sea waters,
are among the issues that may be excluded by States such rights were extinguished when the Convention
from the subject-matter jurisdiction of compulsory entered into force to the extent that they were
dispute settlement procedures entailing binding incompatible with the Convention’s system of maritime
decisions under the UNCLOS. However, this exclusion of zones
the issue of sovereignty or maritime boundary
delimitation is premised on the Philippines’ position that Whether China actually had historic rights to resources in
the features claimed by China belong to the Philippines; the South China Sea prior to the entry into force of the
are low-tide elevations or rocks only that do not Convention
generate either a Territorial Sea (TS), EEZ, or a
Continental Shelf (CS), or EEZ or a CS only; and that as • Prior to the Convention, the waters of the South China
such, in the case that any/some/all of these features are Sea beyond the territorial sea were legally considered
found to belong to China, the maritime entitlements they part of the high seas where vessels from any State can
fish and navigate
• Historical navigation and fishing by China in the waters
of the South China Sea were an exercise of high sea
freedoms rather than a historic right; there is no

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evidence that China had historically exercised exclusive Islands and Japanese fishing and guano mining
control over the waters of the South China Sea or enterprises) did not amount to inhabitation by a stable
prevented other States from exploiting their resources community and that all historical economic activity had
• Between the Philippines and China, there was no legal basis for been extractive in nature
China to claim historic rights to resources, in excess of the rights • All high-tide features in the Spratly Islands are legally
provided by the Convention, within the sea areas falling within “rocks” that do not generate an exclusive economic zone or
the ‘nine-dash line’ continental shelf
• The Convention does not provide for a group of islands
2. The status of features in the South China Sea (such as the Spratly Islands) to generate maritime zones
collectively as a unit
Whether certain coral reefs claimed by China are or are
not above water at high tide 3. Chinese activities in the South China Sea Lawfulness of
various Chinese actions in the South China Sea under the
• Articles 13 and 121: features that are above water at high tide Convention
generate an entitlement to at least a 12-nautical mile territorial
sea; features that are submerged at high tide generate no • Because Mischief Reef, Second Thomas Shoal and Reed
entitlement to maritime zones Bank are submerged at high tide and are not overlapped
• Many of the reefs in the South China Sea have been heavily by any possible entitlement of China, they from part of
modified by recent land reclamation and construction; the the exclusive economic zone and continental shelf of the
Convention classifies features on the basis of their natural Philippines; the Convention is clear in allocating
condition sovereign rights to the Philippines with respect to sea
• Evaluation of features based on the assistance of an expert areas in its exclusive economic zone
hydrographer and archival materials and historical hydrographic • China had violated the Philippines’ sovereign rights with
surveys respect to its exclusive economic zone and continental shelf:
-Scarborough Shoal, Johnson Reef, Cuarteron Reef, China had a) interfered with Philippine petroleum
and Fiery Cross Reef are high-tide features, and exploration at Reed Bank, b) purported to prohibit fishing by
-Subi Reef, Hughes Reef, Mischief Reef, and Second Philippine vessels within the
Thomas Shoal were submerged at high tide in their Philippines’ exclusive economic zone, c) protected and
natural condition failed to prevent Chinese fishermen from fishing within
-But Gaven Reef (North) and McKennan Reef are the Philippines’ exclusive economic zone at Mischief Reef
high-tide features and Second Thomas Shoal, and d) constructed
installations and artificial islands as Mischief Reef
Whether any of the features claimed by China could without the authorization of the Philippines
generate an entitlement to maritime zones beyond 12
nautical miles Traditional fishing at Scarborough Shoal

• Article 121 of the Convention: islands generate an entitlement • Fishermen from both China and the Philippines and from
to an exclusive economic zone of 200 nautical miles and to a other countries had long fished at the Scarborough Shoal and
continental shelf, but rocks which cannot sustain human had traditional fishing rights in the area
habitation or economic life of their own shall have no exclusive • Scarborough Shoal is above water at high tide so it
economic zone or continental shelf — closely linked to the generates an entitlement to a territorial sea, its surrounding
expansion of coastal State jurisdiction and intended to prevent waters do not form part of the exclusive economic zone, and
insignificant features from generating large entitlements to traditional fishing rights were not extinguished by the
maritime zones that would infringe on entitlements of inhabited Convention
territory or on high seas and the area of the seabed reserved for • China had violated its duty to respect the traditional
the common heritage of mankind fishing rights of Philippine fishermen by halting access to the
• Entitlements of a feature depend on the a) objective capacity of Shoal after May 2012
a feature, b) its natural conditions to sustain either c) a stable
community of people or d) economic activity that is neither Effect of China’s actions on the marine environment
dependent on outside resources nor purely extractive in nature
• Even if many of the features are currently controlled by one or • China’s large scale land reclamation and construction of
other of the littoral States, which have constructed installations artificial islands at seven features in the Spratly Islands has
and maintained personnel there and have been modified to caused severe harm to the coral reef environment
improve their habitability (by land reclamation and construction • China violated its obligations under Articles 192 and
of infrastructure), the current presence of official personnel on 194 of the Convention to preserve and protect the
many of the features does not establish their capacity, in their marine environment with respect to fragile ecosystems
natural condition, to sustain a stable community of people and and the habitat of depleted, threatened, or endangered
considered that historical evidence of habitation or economic life species
was more relevant to the objective capacity of the features • Chinese fishermen were engaged in the harvesting of
• Temporary of use of features (as in by small groups of endangered sea turtles, corals and giant clams on a
Chinese fishermen and from other states in the Spratly substantial scale in the South China Sea using methods that
inflicted severe damage on the coral reef environment;
Chinese authorities were aware of these
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 PUBLIC INTERNATIONAL LAW

and failed to fulfill their due diligence obligation under Madrid Protocol
the Convention to stop them
It is the Protocol relating to the Madrid Agreement which
Lawfulness of conduct of Chinese law enforcement vessels governs the system of international registration of
at Scarborough Shoal in April and May 2012 (Chinese marks. The system makes it possible to protect a mark in
vessels sought to physically obstruct Philippine vessels a large number of countries by obtaining an international
from approaching or gaining entrance to the Shoal) registration which has effect in each of the Contracting
Parties that has been designated.
• Assisted by an independent expert on navigational
safety and expert evidence on navigational safety provided Process for securing protection of marks through
by the Philippines international registration
• Chinese law enforcement vessels had repeatedly
approached the Philippine vessels at high speed and to cross NOTE: Any reference to an “office” shall be construed as
ahead of them at close distances, creating serious risk of a reference to the office that is in charge, on behalf of a
collision and danger to Philippine ships and personnel Contracting Party, of the registration of marks, and any
• China breached its obligations under the Convention on reference to “marks” shall be construed to pertain to
the International Regulations for Preventing Collisions at Sea trademarks and service marks.
(1972), and Article 94 of the Convention concerning
maritime safety 1. Where an application for the registration of a mark
has been filed with the Office of a Contracting Party or
4. Aggravation of the dispute between the parties registered in the register of the of the Office of a
Contracting party, the person in whose name that
Whether China’s recent large-scale land reclamation and application (basic application) or that registration (basic
construction of artificial islands at seven features in the registration) stands may, subject to the provisions of the
Spratly Islands since the commencement of the arbitration Madrid Protocol, secure protection for his mark in the
had aggravated the dispute between the Parties territory of the Contracting Parties, by obtaining the
registration of that mark in the register of the
• Parties engaged in a dispute settlement procedure have International Bureau of the World Intellectual Property
a duty to refrain from aggravating or extending the dispute Organization, provided that: where the basic application
or disputes at issue during the pendency of the settlement has been filed with the Office of a Contracting State or
process Organization or where the basic registration has been
• China has a) build a large artificial island on Mischief made by such an Office, the person in whose name that
Reef which is within the exclusive economic zone of the application or registration stands is a national of that
Philippines, b) caused permanent harm to the coral reef Contracting State or of a State member of the Contracting
ecosystem, and c) permanently destroyed evidence of Organization, or is domiciled, or has a real and effective
the natural condition of the features in question industrial or commercial establishment, in the said
• China violated its obligations to refrain from Contracting State or State member.
aggravating or extending the Parties’ disputes during the 2. The application for international registration
pendency of the settlement process (international application) shall be filed with the
International Bureau through the intermediary of the
5. Future conduct of the parties Office with which the basic application was filed or by
which the basic registration was made, as the case may
Philippines request for declaration that China shall be.
respect the rights and freedoms of the Philippines and
comply with its duties under the Convention Territory of a Contracting Party

• Both the Philippines and China have accepted the Where the Contracting Party is a State, the territory of
Convention and general obligations of good faith define that State, and where the Contracting Party is an
and regulate their conduct intergovernmental organization, the territory in which
• The root of the disputes at issue in this arbitration lies the constituting treaty of that intergovernmental
not in any intention of any Party to infringe on the legal organization applies (Madrid Protocol, Art. 2).
rights of the other but in the fundamentally different
understandings of their respective rights under the The following may use the system:
Convention in the waters of the South China Sea
1. A natural person; or
(The Republic of the Philippines v. The People’s Republic of 2. Legal entity having a connection, through
China, Case No. 2013-19 in the Permanent Court of establishment, domicile or nationality, with a Contracting
Arbitration Before the Arbitral Tribunal constituted under Party to the Madrid Protocol or Agreement (Madrid
UNCLOS Annex VII, July 12, 2016, case brief provided by Protocol, Art. 2).
UP Law Institute for Maritime Affairs and Law of the Sea)
Effects on an international registration
MADRID PROTOCOL AND THE PARIS CONVENTION
FOR THE PROTECTION OF INDUSTRIAL PROPERTY

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The effects of an international registration in each all manufactured or natural products, for example, wines,
designated Contracting Party are, as from the date of the grain, tobacco leaf, fruit, cattle, minerals, mineral waters,
international registration, the same as if the mark had beer, flowers and flour, (Paris Convention, Art. 1).
been deposited directly with the Office of that
Contracting Party (Madrid Protocol, Art. 4).
INTERNATIONAL ENVIRONMENTAL LAW
Advantages of the Madrid system

Instead of filing many national applications in all It is the branch of public international law comprising
countries of interest, in several different languages, in "those substantive, procedural and institutional rules
accordance with different national procedural rules and which have as their primary objective the protection of
regulations and paying several different fees, an the environment," the term environment being
international application may be obtained by simply understood as encompassing "both the features and the
filing one application with the International Bureau products of the natural world and those of human
(through the Office of the home country), in one language civilization.
(either English or French) and paying only one set of
fees. Environmental concerns, related to Human Rights

Also, renewal entails simple payment of the necessary The protection of the environment is a vital part of
fees, every 10 years, to the International Bureau. contemporary human rights doctrine, for it is a sine qua
non for numerous human rights such as the right to
Likewise, if the international organization is assigned to health, and the right to life itself (Danube Dam Case, ICJ
a third party or any other change, such as a change in Rep 1997).
name and/or address, has occurred, this may be
recorded with effect for all designated Contracting PRINCIPLE 21 OF THE STOCKHOLM DECLARATION
Parties by means of a single procedural step.
Stockholm Declaration
Period of validity of international registration under
the Madrid Protocol The Stockholm Declaration, or the Declaration of the
United Nations Conference on the Human Environment,
10 years, with possibility of renewal under the was adopted on June 16, 1972 in Stockholm, Sweden. It
conditions set forth in Art. 7 thereof (Madrid Protocol, contains 26 principles and 109 recommendations
Art. 6). regarding the preservation and enhancement of the right
to a healthy environment.
Requirements for renewal of international
registration Principle 21 of the Stockholm

1. Renewal for a period of only 10 years from the expiry of the Declaration This declares that States have:
preceding period 1. The sovereign right to exploit their own resources
2. Payment of the basic fee pursuant to their own environmental policies, and
3. It must not bring about any change in the international 2. The responsibility to ensure that activities within their
registration in its latest form (Madrid Protocol, Art. 7). jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of
NOTE: The International Bureau shall, by sending an national jurisdiction or otherwise known as the Good
unofficial notice, remind the holder of the international Neighborliness Principle (Sarmiento, 2007).
registration and its exact date of expiry six months
before the expiry of the term of protection. Principle 21 of the Stockholm Declaration is a part of
customary law
Moreover, a period of grace of 6 months shall be allowed
for such renewal (Madrid Protocol, Art. 7, pars. 3 & 4). The Court recognizes that the environment is daily under
threat and that the use of nuclear weapons could
Paris Convention on protection of industrial constitute a catastrophe for the environment. The court
property also recognizes that the environment is not an
abstraction but represents the living space, the quality of
It applies to industrial properties in the widest sense. It life and the very human beings, including generations
includes patents, marks, industrial designs, utility unborn. The existence of the general obligation of States
models, trade names, geographical indications and the to ensure that activities within their jurisdiction and
repression of unfair competition. control respect the environment of other States or of
areas beyond national control is now part of the corpus
Industrial property of international law relating to the environment (ICJ
Advisory Opinion on the Legality of the Threat or Use of
Shall be understood in the broadest sense, and shall Nuclear Weapons, July 8, 1996).
apply not only to industry or commerce proper, but
likewise to agricultural and extractive industries and to

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Principle of Common but Differentiated NAPOCOR. This was granted by the trial court. The
Responsibility Court of Appeals reversed the order, holding that the
proscription on injunctions against infrastructure
This principle requires the protection of specified projects of the government is clearly mandated by
environmental resource or area as common Sec. 1 of PD 1818. Is the issuance of a Writ of
responsibility but takes into account the differing Preliminary Injunction justified, despite the mandate
circumstances of certain States in the discharge of such of PD 1818?
responsibilities (Framework Convention on Climate
Change, Art. 3[1]). A: Whether there is a violation of petitioners’
constitutionally protected right to health is a question of
It is also embodied in the Rio Declaration which states: law that invested the trial court with jurisdiction to issue
“…In view of the different contributions to global a TRO and subsequently, a preliminary injunction. This
environmental degradation, States have common but question of law divests the case from the protective
differentiated responsibilities. The developed countries mantle of Presidential Decree No. 1818.
acknowledge the responsibility that they bear in the
international pursuit to sustainable development in view There is adequate evidence on record to justify the
of the pressures their societies place on the global conclusion that the project of NAPOCOR probably
environment and of the technologies and financial imperils the health and safety of the petitioners so as to
resources they command.” (Rio Declaration, Principle 7) justify the issuance by the trial court of a writ of
preliminary injunction. The health concerns are at the
PRECAUTIONARY PRINCIPLE very least, far from imaginary.

Principle 15 of the Rio Declaration, commonly known as In hindsight, if, after trial, it turns out that the health-
the Precautionary Principle states: related fears that petitioners cleave on to have adequate
confirmation in fact and in law, the questioned project of
In order to protect the environment, the precautionary NAPOCOR then suffers from a paucity of purpose, no
approach shall be widely applied by States according to matter how noble the purpose may be. For what use will
their capabilities. Where there are threats of serious modernization serve if it proves to be a scourge on an
damage, lack of full scientific certainly shall not be used individual’s fundamental right, not just to health and
as a reason for postponing cost-effective measures to safety, but, ostensibly, to life preservation itself, in all of
prevent environmental degradation. its desired quality (Hernandez v. NAPOCOR, G.R. No.
145328, March 23, 2006)?
NOTE: This principle advocates that the potential harm ---
should be addressed even with minimal predictability at
hand. The Precautionary Principle requires a high degree Polluter Pays Principle
of prudence on the part of the stakeholders. Decision
makers are not only mandated to account for scientific It means that the party responsible for producing the
uncertainty but can also take positive action, e.g., restrict pollutants must bear responsibility for shouldering the
a product or activity even when there is scientific costs of the damage done to the environment. It is
uncertainty. expressly stated in Principle 16 of the Rio Declaration on
Environment and Development: “National authorities
Under Rule 20 of the Rules of Procedure for should endeavor to promote the internalization of
Environmental Cases, the Precautionary Principle is environment costs and the use of economic instruments,
adopted as a rule of evidence. The Supreme Court’s taking into account the approach that the polluter
adoption of the Precautionary Principle in the newly should, in principle, bear the cost of pollution, with due
promulgated Rules of Procedure for Environmental regard to the public interest and without distorting
Cases affords plaintiffs a better chance of proving their international trade and investment” (Rio Declaration,
cases where the risks of environmental harm are not Principle 16).
easy to prove.
Other principles of International Environmental Law
--- set forth in the Rio Declaration
Q: NAPOCOR began constructing steel towers to
support overhead high tension cables in connection 1. States have the sovereign right to exploit their own
with its Sucat-Araneta-Balintawak Power Transmission resources pursuant to their own environmental policies,
Project. Residents of Dasmariñas Village were alarmed and the responsibility to ensure that activities within
by the sight of the towering steel towers and scoured the their jurisdiction or control do not cause damage to the
internet on the possible adverse health effects of such environment of other states or of areas beyond the limits
structures. They got hold of published articles and of national jurisdiction (Principle 2);
studies linking the incidence of a fecund of illnesses to 2. Right to development must be fulfilled so as to
exposure to electromagnetic fields. The illnesses range equitably meet development needs of present and future
from cancer to leukemia. generations (Principle 3); and
3. In order to achieve sustainable development,
Petitioners filed a complaint for the Issuance of a environmental protection shall constitute an
TRO and/or a Writ of Preliminary Injunction against

UNIVERSITY OF SANTO TOMAS

335
FACULTY OF CIVIL LAW
 POLITICAL LAW

integral part of the development process and cannot deliberate manipulation of natural processes the
be considered in isolation from it (Principle 4). dynamics, composition or structure of the earth
including its biota lithosphere, hydrosphere and
Long-Range Transboundary Air Pollution atmosphere or outer space (ENMOD, Art. II).

It means air pollution whose physical origin is situated 2. Prohibition of the employment of methods or means of
wholly or in part within the area under the national warfare which are intended, or may be expected, to cause
jurisdiction of one State and which has adverse effects in widespread, long-term and severe damage to the natural
the area under the jurisdiction of another State at such a environment (Protocol I Additional to the Geneva Convention
distance that is not generally possible to distinguish the of 1949, Art. 35(3)).
contribution of individual emission sources or groups of
sources (1979 Convention on Long-Range Transboundary Pollution
Air Pollution, Art. 1).
It means any introduction by man, directly or
Two Fundamental Principles of liability for indirectly, of substance or energy into the
transboundary pollution under international law environment resulting in deleterious effects of
such nature as to endanger human health, harm
a) First, a state must show material damage and causation to living resources, ecosystem, and material
be entitled to legal relief; and property and impair amenities or interfere with
b) Second, a state has a duty to prevent, and may be held other legitimate uses of the environment
responsible for pollution by private parties within its jurisdiction (Magallona, citing ILA Reports, Vol. 60, 1982).
if such pollution results in demonstrable injury to another state
(Trail Smelter Case, US v. Canada, 1941).

Sustainable Development

It is a development that meets the needs of the present

without compromising the ability of future generations
to meet their own needs.

Principles that embody sustainable development

1. Principle of intergenerational equity – The need to preserve

natural resources for the benefit of future generations.
2. Principle of sustainable use – The aim of exploiting natural
resources in a manner which is "sustainable," or "prudent," or
"rational," or "wise," or "appropriate."
3. Principle of equitable use or intragenerational equity
– The equitable use of natural resources, which
implies that use by one state, must take into account
the needs of other states.
4. Principle of integration – The need to ensure that
environmental considerations are integrated into economic and
other developmental plans, programs and projects, and that
development needs are taken into account in applying
environmental objectives.

Rules for the protection of the environment in armed

conflict

1. Each State Party undertakes not to engage in military or

other hostile use of environmental modification techniques
having widespread, long-lasting or severe effects as the means of
destruction, damage or injury to any other Party State
(Convention on the Prohibition of Military or other Hostile Use of
Environmental Modification Techniques or the Environmental
Modification Convention [ENMOD], Art. 1).

NOTE: Environmental Modification Techniques

refers to any technique for the changing through the

UNIVERSITY OF SANTO TOMAS

2017 GOLDEN NOTES