Up 2012 Political Law Bar Reviewer

UP
L
AW
BAR REVIEWER
2012
POLITICAL
Constitutional Law 1
Law on Public Officers
Administrative Law
Election Law
Local Governments
Public International Law
LAW
Dean Danilo L. Concepcion
Dean, UP College of Law
Prof. Concepcion L. Jardeleza

Associate Dean, UP College of Law
Prof. Ma. Gisella D. Reyes
Secretary, UP College of Law
Prof. Florin T. Hilbay
Faculty Adviser, UP Law Bar Operations
Commission 2012
Ramon Carlo F. Marcaida
Commissioner
Eleanor Balaquiao
Mark Xavier Oyales
Academics Committee Heads
Rogelio Benjamin Redoble
Moises Ronette Colobong
Political Law Subject Heads
Graciello Timothy Reyes
Layout
UP LAW BAR OPERATIONS COMMISSION
UP
L
AW
BAR REVIEWER
2012
POLITICAL
BAR OPERATIONS COMMISSION 2012
EXECUTIVE COMMITTEE
Ramon Carlo Marcaida |Commissioner
Raymond Velasco Mara Kriska Chen |Deputy Commissioners
Barbie Kaye Perez |Secretary
Carmen Cecilia Veneracion |Treasurer
Hazel Angeline Abenoja|Auditor
COMMITTEE HEADS
Eleanor Balaquiao Mark Xavier Oyales | Acads
Monique Morales Katleya Kate Belderol Kathleen Mae
Tuason (D) Rachel Miranda (D) |Special Lectures
Patricia Madarang Marinella Felizmenio |Secretariat
Victoria Caranay |Publicity and Promotions
Loraine Saguinsin Ma. Luz Baldueza |Marketing
Benjamin Joseph Geronimo Jose Lacas |Logistics
Angelo Bernard Ngo Annalee Toda|HR
Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise
Graciello Timothy Reyes |Layout
Charmaine Sto. Domingo Katrina Maniquis |Mock Bar
Krizel Malabanan Karren de Chavez |Bar Candidates Welfare
Karina Kirstie Paola Ayco Ma. Ara Garcia |Events
LAW
POLITICAL LAW TEAM 2012

Faculty Editor | Prof. Florin T. Hilbay
Subject Heads |Rogelio Benjamin Redoble
Moises Ronette Colobong
Contributors| Alferri Bayalan Cielo Gono
Noel Luciano
LAYOUT TEAM 2012
Layout Artists | Alyanna Apacible Noel
Luciano RM Meneses Jenin Velasquez
Mara Villegas Naomi Quimpo Leslie
Octaviano Yas Refran Cris Bernardino
Layout Head| Graciello Timothy Reyes
OPERATIONS HEADS
Charles Icasiano Katrina Rivera |Hotel Operations
Marijo Alcala Marian Salanguit |Day-Operations
Jauhari Azis |Night-Operations
Vivienne Villanueva Charlaine Latorre |Food
Kris Francisco Rimban Elvin Salindo |Transpo
Paula Plaza |Linkages
POLITICAL
2012 UP Law Bar Reviewer
Copyright and all other relevant rights over this

material are owned jointly by the University of the
Philippines College of Law and the Student Editorial
Team.
The ownership of the work belongs to the University of
the Philippines College of Law. No part of this book
shall be reproduced or distributed without the consent
of the University of the Philippines College of Law.
All Rights reserved.
LAW
POLITICAL
LAW
A. The Constitution ........................ 11
I. Definition, Nature and Concepts ..... 11
II. Parts ..................................... 12
III. Amendments and Revisions ......... 12
IV. Self-Executing and Non-SelfExecuting Provisions ...................... 16
V. General Provisions..................... 16
B. General Considerations ................ 16
I. National Territory ...................... 16
II. State Immunity ........................ 17
III. Principles and Policies ............... 19
IV. Separation of Powers ................ 20
V. Forms of Government ................. 21
C. Legislative Department ................ 22
I. Who May Exercise Legislative Power 22
II. Houses of Congress .................... 22
III. Legislative Privileges, Inhibitions and
Disqualifications .......................... 24
IV. Quorum and Voting Majorities ...... 25
V. Discipline of Members ................ 26
VI. Electoral Tribunals and the
Commission on Appointments ........... 26
VII. Powers of Congress .................. 28
D. Executive Department ................. 32
I. Privileges, Inhibitions and
Disqualifications .......................... 32
II. Powers .................................. 36
D. Judicial Department .................... 48
I. Concepts ................................. 48
II. Constitutional Safeguards of the
Supreme Court ............................ 50
III. Judicial Restraint ..................... 51
IV. Appointments to the Judiciary ..... 51
F. Constitutional Commissions ........... 54
I. Institutional Independence Safeguards
.............................................. 54
II. Powers and Functions ................. 54
III. Judicial Review ....................... 57
G. Citizenship ............................... 57
1. Natural-Born Citizens and Public
Office ....................................... 58
2. Naturalization and Denaturalization 58
3. Loss of Citizenship ..................... 59

4. Repatriation ............................ 60
H. National Economy & Patrimony ...... 60
1. Regalian Doctrine ...................... 60
2. Nationalist and Citizenship
Requirement Provisions .................. 60
3. Exploration, Development and
Utilization of Natural Resources ........ 61
4. Franchises, Authority and Certificates
for Public Utilities ........................ 62
5. Acquisition, Ownership and Transfer
of Public and Private Lands ............. 63
6. Practice of Professions ................ 63
7. Organization and Regulation of
Corporations, Private and Public ....... 63
8. Monopolies, Restraint of Trade and
Unfair Competition ....................... 63
I. Social Justice & Human Rights ......... 64
1. Concept of Social Justice ............. 64
2. Commission on Human Rights ........ 64
J. Education, Science, Technology, Arts,
Culture and Sports .......................... 65
1. Academic Freedom .................... 65
A. Fundamental Powers of the State.... 67
1. Concept and Application .............. 67
2. Requisites for Valid Exercise ......... 70
3. Similarities and Differences .......... 71
4. Delegation .............................. 72
B. Private Acts & the Bill of Rights ...... 73
1. In General ............................... 73
2. Bases and Purpose ..................... 73
3. Accountability .......................... 74
C. Due Process .............................. 74
1. Relativity of Due Process ............. 75
2. Procedural and Substantive Due
Process ..................................... 75
3. Constitutional and Statutory Due
Process ..................................... 76
4. Hierarchy of Rights .................... 76
5. Judicial Standards of Review ........ 77
D. Equal Protection......................... 77
POLITICAL
1. Concept ................................. 77
2. Requisites for Valid Classification ... 77
E. Searches and Seizures.................. 79
1. Concept ................................. 79
2. Warrant Requirement ................. 79
3. Warrantless Searches ................. 80
4. Warrantless Arrests.................... 83
5. Administrative Arrests ................ 85
6. Drug, Alcohol and Blood Tests ....... 85
F. Privacy of Communications and
Correspondence ............................ 85
1. Private and Public Communications 85
Intrusion, When Allowed ................. 85
2. Writ of Habeas Data ................... 86
1. Concept and Scope .................... 86
2. Content-Based and Content-Neutral
Regulations ................................ 87
Content-Neutral Restrictions............ 89
3. Facial Challenges and the
Overbreadth Doctrine .................... 90
4. Tests ..................................... 91
5. State Regulation of Different Types of
Mass Media ................................. 91
6. Commercial Speech ................... 93
7. Private v. Government Speech ...... 93
8. Hecklers Veto ......................... 93
H. Freedom of Religion .................... 93
1. Non-Establishment Clause ........... 93
2. Free Exercise Clause .................. 94
I. Liberty of Abode and Freedom of
Movement .................................... 95
1. Limitations ............................. 95
Right to Travel ............................ 95
2. Return to Ones Country .............. 95
LAW
L. Eminent Domain ......................... 98

1. Concept ................................. 98
2. Expansive Concept of Public Use . 99
3. Just Compensation ...................100
4. Abandonment of Intended Use and
Right of Repurchase .....................101
5. Miscellaneous Application ...........101
M. Contracts Clause ...................... 102

1. Application of the Contract Clause 102
2. Contemporary Application of the
Contract Clause ..........................102
3. Limitations .............................103
N. Legal Assistance and Free Access to
Courts ....................................... 103
O. Rights of Suspects ..................... 103
1. Availability .............................104
2. Requisites ..............................105
3. Waiver ..................................106
P. Rights of the Accused................. 106
1. Criminal Due Process .................107
2. Bail ......................................107
3. Presumption of Innocence ...........109
4. Right to be Heard .....................109
5. Assistance of Counsel ................109
6. Right to be Informed .................109
7. Right to Speedy, Impartial and Public
Trial ........................................109
8. Right of Confrontation ...............110
9. Compulsory Process ..................110
10. Trials In Absentia ....................110
Q. Writ of Habeas Corpus ............... 111
R. Writ of Amparo ........................ 112
J. Right to Information .................... 95

1. Limitations ............................. 96
2. Publication of Laws and Regulations 96
3. Access to Court Records .............. 96
4. Right to Information Relative to .... 97
K. Right to Association..................... 97
1. Labor Unionism ........................ 98
2. Communist and Similar Organizations
.............................................. 98
3. Integrated Bar of the Philippines.... 98
S. Self-Incrimination Clause ............ 114

1. Scope and Coverage ..................114
2. Application.............................115
3. Immunity Statutes ....................115
T. Involuntary Servitude and Political
Prisoners ................................... 115
U. Excessive Fines and Cruel and
Inhuman Punishments ................... 116
POLITICAL
W. Double Jeopardy ..................... 117
1. Requisites .............................. 117
2. Motions for Reconsideration and
Appeals .................................... 118
3. Dismissal with Consent of Accused. 118
X. Ex Post Facto and Bills of Attainder 118

A. General Principles .................... 121
I. Concept and Application ............. 121
II. Public Officer ......................... 123
III. Classification of Public Offices and
Public Officers ........................... 124
B. Modes of Acquiring Title to Public
Office ....................................... 124
I. Classification of Appointments ...... 125
II. Steps in Appointment Process ...... 125
III. Presidential Appointees............. 125
IV. Discretion of Appointing Official .. 126
V. Effectivity of Appointment.......... 127
VI. Effects of a Complete, Final and
Irrevocable Appointment ............... 127
D. Eligibility and Qualification
Requirements ............................. 127
I. Definition ............................... 127
II. Power to Prescribe Qualifications.. 127
III. Time of Possession of Qualifications
............................................. 128
IV. Eligibility is Presumed .............. 128
V. Qualifications Prescribed By
Constitution .............................. 128
VI. Religious Test or Qualification is not
Required .................................. 129
VII. Qualification Standards and
Requirements under the Civil Service
Law ........................................ 129
E. Disabilities and Inhibitions of Public
Officers ..................................... 130
F. Powers and Duties of Public Officers
............................................... 132
I. Classification of Powers and Duties 132
II. Source of Powers and Authority .... 132
III. Duties of Public Officers ............ 133
LAW
G. Rights of Public Officers ............. 133

I. In General ..............................133
II. Right to Compensation ..............134
III. Other Rights ..........................134
H. Liabilities of Public Officers......... 135
I. Preventive Suspension and Back
Salaries ....................................136
II. Illegal Dismissal, Reinstatement and
Back Salaries ..............................137
I. Immunity of Public Officers .......... 137
J. De Facto Officers ...................... 137
I. De Facto Doctrine .....................137
II. De Facto Officer Defined ............138
III. Elements of a De Facto Officership
.............................................139
IV. Office created under an
unconstitutional statute ................139
V. Legal Effect of Acts of De Facto
Officers ....................................139
VII. Right to Compensation of De Facto
Officer .....................................140
K. Termination of Official Relation .... 140
I. Expiration of the term or tenure of
office ......................................140
II. Reaching the age limit (retirement)
.............................................140
III. Death or permanent disability .....140
IV. Resignation ...........................140
V. Acceptance of an incompatible office
.............................................141
VI. Abandonment of office..............141
VII. Prescription of right to office .....141
IX. Impeachment .........................141
X. Abolition of office ....................141
XI. Conviction of a crime ...............141
XII. Recall .................................142
L. The Civil Service ....................... 142
I. Scope ....................................142
Civil Service Commissions (CSCs)
Jurisdiction ...............................142
II. Appointments to the Civil Service ..142
III. Personnel Actions ....................142
M. Accountability of Public Officers... 143
POLITICAL
LAW
I. Impeachment .......................... 143

II. Ombudsman ........................... 144
III. Sandiganbayan ....................... 144
IV. Ill-Gotten Wealth .................... 145
VIII. Reactivation of Registration ......158

IX. Certified List of Voters ..............159
X. Annulment of Book of Voters .......159
XI. Overseas Absentee Voter ...........159
N. Term Limits ............................ 146
D. Inclusion and Exclusion Proceedings

............................................... 159
Administrative Law
A. General Principles .................... 148
I. Definitions .............................. 148
II. Historical Considerations ............ 148
B. Administrative Agencies ............. 148
I. Modes of Creation of Administrative
Agencies................................... 148
II. When is an agency administrative? 148
III. Types of Administrative Agencies . 148
C. Powers of Administrative Agencies 148
I. Quasi-Legislative (Rule Making) Power
............................................. 148
III. Fact-Finding, Investigative, Licensing
and Rate-Fixing Powers ................. 152
II. Doctrine of Exhaustion of
Administrative Remedies ............... 153
III. Doctrine of Finality of Administrative
Action ..................................... 154
Election Law
_Toc324721036
A. Suffrage ................................. 156

I. Scope.................................... 156
II. Election Period........................ 156
B. Qualification and Disqualification of
Voters ....................................... 156
I. Qualifications .......................... 156
II. Overseas Absentee Voter ............ 157
C. Registration of Voters ................ 157
I. Definition .............................. 157
II. System of Continuing Registration of
Voters ..................................... 157
III. Illiterate or disabled voters ........ 158
IV. Election Registration Board ...... 158
V. Change of residence or address .... 158
VI. Challenges to right to register ..... 158
VII. Deactivation of Registration ...... 158
E. Political Parties ........................ 160

I.
Party System ........................160
III. Purpose ..............................160
IV. Procedure for Registration .........160
V. Who May Not be Registered ......160
VI. Grounds for refusal and/or
cancellation of registration.............160
VII.
Parameters in Allocation of Seats
for Party-List Representatives .........161
VIII. Effect of Change of Affiliation ...161
IX. Nomination of Party-List
Representative ...........................161
F. Candidacy ............................... 162
I. Qualifications of Candidates .........162
II. Filing of Certificates of Candidacy .163
G. Campaign ............................... 165
I. Premature Campaigning ..............165
II. Prohibited Contributions ............167
H. Board of Canvassers .................. 168
I. Composition of Board of Canvassers 168
II. Prohibitions on BOC ..................169
III. Canvass by the BOC ..................169
IV. Certificate of Canvass and Statement
of Votes ...................................169
V. Proclamation ..........................169
I. Remedies and Jurisdiction in Election
Law .......................................... 170
I. Petition Not to Give Due Course to
Certificate of Candidacy ................170
II. Petition to Declare Failure of
Elections...................................170
III. Pre-Proclamation Controversy .....171
IV. Election Protest ......................172
V. Quo Warranto .........................173
J. Prosecution of Election Offenses ... 173
I. Jurisdiction over Election Offenses .173
POLITICAL
II. Preferential Disposition of Election
Offenses ................................... 173
III. Election Offenses .................... 173
IV. Arrests in Connection with Election
Campaign ................................. 175
V. Prescription ........................... 175
VI. Prohibited Acts Under R.A. 9369 .. 175
Local Governments
A. Public Corporations ................... 178
1. Concept ................................ 178
2. Classifications ......................... 178
B. Municipal Corporations .............. 178
1. Elements ............................... 178
2. Nature and Functions ................ 179
3. Requisites for Creation, Conversion,
Division, Merger or Dissolution ......... 179
C. Principles of Local Autonomy ....... 183
1. State Policy, Principles of
Decentralization ......................... 183
2. Local Autonomy ....................... 183
3. Decentralization ...................... 183
4. Devolution (asked in 1999) .......... 184
D. Powers of Local Government Units
(LGUs)....................................... 184
1. Police Power (General Welfare Clause)
............................................. 184
2. Eminent Domain [Sec. 19, LGC] .... 186
3. Taxing Power [Sec. 18, LGC] ........ 187
4. Closure and Opening of Roads [Sec.
21, LGC] ................................... 188
5. Legislative Power [Secs. 48-59, LGC]
............................................. 189
6. Corporate Powers..................... 194
7. Liability of LGUs ...................... 194
Liability for Torts, Violation of the Law
and Contracts ............................ 195
8. Settlement of Boundary Disputes .. 196
9. Succession of Elective Officials ..... 196
Rules on Succession ..................... 197
10. Discipline of Local Officials ........ 199
11. Recall ................................. 203
12. Term Limits .......................... 204
LAW
A. Concepts ................................ 210

1. Obligations Erga Omnes ..............210
2. Jus Cogens .............................210
3. Concept of Aequo Et Bono ...........210
B. International and National Law ..... 210
Relationship between PIL and Municipal
Law.........................................210
C. Sources .................................. 211
1. Treaty as Source of Law .............211
2. Customary International Law .......211
3. General Principles of Law ...........213
4. Subsidiary Source: Judicial Decisions
.............................................213
5. Subsidiary Source: Publicists ........214
D. Subjects ................................. 214
1. States ...................................214
2. International Organizations .........216
3. Individuals .............................217
E. Diplomatic and Consular Law ....... 217
1. Agents of Diplomatic Intercourse...217
Functions and Duties ....................217
2. Diplomatic Immunities and Privileges
.............................................218
3. Consular Relations ....................220
F. Treaties ................................. 221
1. Definition ..............................221
2. Requisites for Validity................222
3. The Treaty-Making Process ..........222
4. Invalid Treaties .......................223
5. Grounds for Termination ............223
G. Nationality and Statelessness ....... 223
1. Nationality .............................223
2. Statelessness ..........................224
Definition of Human Rights .............226
2. International Covenant on Civil and
Political Rights (ICCPR)..................226
3. International Covenant on Economic,
Social and Cultural Rights (ICESCR) ...227
J. International Humanitarian Law (IHL)
and Neutrality ............................. 227
2. Core International Obligations of
States in IHL ..............................228
POLITICAL
3. Principles of IHL ...................... 228
4. Law on Neutrality .................... 230
K. Law of the Sea ......................... 230
1. Baselines ............................... 230
2. Archipelagic States ................... 230
3. Internal Waters ....................... 231
4. Territorial Sea......................... 231
5. Exclusive Economic Zone ............ 232
6. Continental Shelf ..................... 232
7. Tribunal of the Law of the Sea ..... 233
L. International Environment Law .... 234
LAW
UP
L
AW
BAR REVIEWER
2012
POLITICAL
EXECUTIVE COMMITTEE
COMMITTEE HEADS
Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel
Miranda (D) |Special Lectures
OPERATIONS HEADS
LAW
Faculty Editor | Florin T. Hilbay
Subject Heads| Rogelio
Benjamin Redoble Moises
Ronette Colobong
Contributors| Alferri Bayalan
Cielo Gono Noel Luciano
LAYOUT TEAM 2012
Layout Artists | Alyanna
Apacible Noel Luciano RM
Meneses Jenin Velasquez
Mara Villegas Naomi Quimpo
Leslie Octaviano Yas Refran
Cris Bernardino
Layout Head| Graciello Timothy
Reyes
POLITICAL LAW REVIEWER
CONSTITUTIONAL LAW 1
unwritten constitution, and the power of

judicial review by the courts. Thus, the courts
cannot invalidate the acts of the parliament as
being
unconstitutional
because
of
"parliamentary supremacy."
Administrative Law
Election Law
Local Governments
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
POLITICAL LAW
The Constitution
General Considerations
Legislative Department
Executive Department
Judicial Department
Constitutional Commissions
Citizenship
National Economy and Patrimony
Social Justice and Human Rights
Education, Science, Technology,
Arts, Culture and Sports
A. The Constitution
I. Definition, Nature and Concepts
II. Parts
III. Amendments and Revisions
IV. Self-Executing and Non-Self Executing
Provisions
V. General Provisions
I. Definition, Nature and Concepts

Political law branch of public law which deals with
the organization and operations of the governmental
organs of the State and defines the relations of the
State with the inhabitants of its territory. [People v.
Perfecto, 43 Phil 88, 1922]
Scope of Political Law - The entire field of political
law may be subdivided into:
(1) the law of public administration;
(2) constitutional law,
(3) administrative law, and
(4) the law of public corporations.
These four subdivisions may be briefly described for
the time being, as follows: The first deals with the
organization and management of the different
branches of the government; the second, with the
guaranties of the constitution to individual rights and
the limitations on governmental action; the third,
with the exercise of executive power in the making
of rules and the decision of questions affecting
private rights; and the last, with governmental
agencies for local government or for other special
purposes. [Sinco 1]
Constitutional Law designates the law embodied in
the Constitution and the legal principles growing out
of the interpretation and application of its provisions
by the courts in specific cases. It is the study of the
maintenance of the proper balance between the
authority as represented by the three inherent
powers of the State and liberty as guaranteed by the
Bill of Rights.
Types of Constitutional Law. In general, there are
three (3) different types of constitutional law,
namely,
(1) The English type - characterized by the absence
of a written constitution
(Sinco 67). An
(2) The European continental type - where there

is a written constitution w/c gives the courts no
power to declare ineffective statutes contrary
to it [Sinco 67]. A written constitution but no
power of judicial review by the courts. The socalled Constitutional Courts of France do not
exercise real judicial review but only render
advisory opinions on constitutional questions
upon the request of the government, not of
parties in actual litigation.
(3) The American type - where the legal provisions
of the written constitution are given effect
through the power of the courts to declare
ineffective or void ordinary statutes repugnant
to it. [Sinco 67].
Constitution defined
(1) It is the document which serves as the
fundamental law of the state; that written
instrument enacted by the direct action of the
people by which the fundamental powers of the
government are established, limited and
defined, and by which those powers are
distributed among the several departments for
their safe and useful exercise, for the benefit
of
the
body
politic
[Malcolm,
Phil.
Constitutional Law].
(2) "A law for the government, safeguarding
individual rights, set down in writing."
[Hamilton]
(3) According to Schwartz, "a constitution is seen
as an organic instrument, under which
governmental powers are both conferred and
circumscribed. Such stress upon both grant and
limitation of authority is fundamental in
American theory. 'The office and purpose of
the constitution is to shape and fix the limits of
governmental activity.'"
[Fernando, The
Constitution of the Philippines, 20-21, 2nd ed.,
1977]
Classification of Constitutions
1. Written v. unwritten. A written constitution is
one whose precepts are embodied in one
document or set of documents; while an
unwritten constitution consist of rules which
have not been integrated into a single, concrete
form but are scattered in various sources, such
as statutes of fundamental character, judicial
decisions, commentaries of publicists, customs
and traditions. [Cruz, Constituional Law, pp. 45; Nachura, Outline Reviewer in Political Law,
p. 2]
2.
Enacted
(conventional)
v.
evolved
(cumulative). A conventional constitution is
enacted, formally struck off at a definite time
and place following a conscious or deliberate
effort taken by a constitutent body or ruler;
while a cumulative body is the result of political
11
evolution, not inaugurated at any specific time
but changing by accretion rather than by any
systematic method. [Cruz, ibid, p.5].
3.
Rigid v. flexible - A constitution is classified as

rigid when it may not be amended except
through a special process distinct from and more
involved than the method of changing ordinary
laws. It is supposed that by such a special
procedure, the constitution is rendered difficult
to change and thereby acquires a greater degree
of stability. A constitution is classified as
flexible when it may be changed in the same
manner and through the same body that enacts
ordinary legislation. The British Constitution is
flexible.
Note: A constitution's stability depends upon other

factors than the mere rigidity or flexibility of the
amending process, such as (1) the general
temperament of the people and their leaders and (2)
the degree of a nation's political maturity and social
homogenity. [Sinco 68-70]
The Philippine Constitution is written, enacted and
rigid.
The 1987 Constitution took effect on February 2,
1987, the date of its ratification in the plebiscite
held on the same date, and not on the date its
ratification was proclaimed [De Leon v. Esguerra,
No.L-78059, August 31, 1987]
State a community of persons, more or less
numerous, permanently occupying a definite portion
of territory, independent of external control, and
possessing a government to which a great body of
the inhabitants render habitual obedience; a
politically
organized
sovereign
community
independent of outside control bound by ties of
nationhood, legally supreme within its territory,
acting through a government functioning under a
regime of law. [Collector of Internal Revenue v.
Campos Rueda, No.L-13250, October 29, 1971]
II. Parts
Parts of the Constitution
(1) Constitution of Government establishes the
structure of government, its branches and their
operation.
(2) Constitution of Sovereignty provides how the
Constitution may be changed.
(3) Constitution of Liberty states the fundamental
rights of the people.
[Lambino v. Comelec. G.R. No.174153. October 25,
2006]
III. Amendments and Revisions

Article XVII Amendments or Revisions
Amendment refers to an addition or change within
the lines of the original constitution as will effect an
improvement, or better carry out the purpose for
which it was framed. It refers to a change that adds,

reduces or deletes without altering the basic
principles involved. It affects only the specific
provision being amended. (Lambino v. Comelec. G.R.
No.174153. October 25, 2006).
Revision broadly implies a change that alters a
basic principle in the constitution, like altering the
principle of separation of powers or the system of
checks-and-balances. There is also revision if the
change alters the substantial entirety of the
constitution, as when the change affects substantial
provisions of the constitution (Lambino v. Comelec.
G.R. No.174153. October 25, 2006).
Difference between amendment and revision
Courts have long recognized the distinction between
an amendment and a revision of a constitution. xxx
Revision broadly implies a change that alters a basic
principle in the constitution, like altering the
principle of separation of powers or the system of
checks-and-balances. There is also revision if the
change alters the substantial entirety of the
constitution, as when the change affects substantial
provisions of the constitution. On the other hand,
amendment broadly refers to a change that adds,
reduces, or deletes without altering the basic
principle involved. Revision generally affects several
provisions of the constitution, while amendment
generally affects only the specific provision being
amended [Lambino v. Comelec. G.R. No.174153.
October 25, 2006]. This distinction is significant
because the 1987 Constitution allows peoples
initiative only for the purpose of amending, not
revising, the Constitution. (See tables below)
Legal Test: The Court in Lambino considered the
two-part test: the quantitative test and the
qualitative test.
(1) The 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. The
court examines only the number of provisions
affected and does not consider the degree of
the change.
(2) The qualitative test inquires into the qualitative
effects of the proposed change in the
constitution. The main inquiry is whether the
change will accomplish such far reaching
changes in the nature of our basic governmental
plan as to amount to a revision. Whether there
is an alteration in the structure of government is
a proper subject of inquiry. Thus, a change in
the nature of [the] basic governmental plan
includes change in its fundamental framework
or the fundamental powers of its Branches. A
change in the nature of the basic governmental
plan also includes changes that jeopardize the
traditional form of government and the system
of check and balances. [See Lambino Case]
Steps in the Amendatory Process
12
(1) Proposal The adoption of the suggested
change in the Constitution.
a. By Congress (as a constituent
assembly) a vote of of ALL its
members.
b. Constitutional Convention which
may be called into existence by
2/3 of all the members of
Congress. The Congress, upon a
majority vote of all its members
may submit the question of
whether to call a constitutional
convention to be resolved by the
people in a plebiscite. [Sec. 3, Art.
XVII].
3 Theories on the Constitutional
Position of Conventions
i. A Convention as a body of
very
limited
powers,
purely delegated by the
people directly or by the
regularly
constituted
legislature.
ii. Theory of conventional
sovereignty
the
convention
as
the
supreme organ of the
people, a representative
body.
iii. Constitutional convention
as one of the coordinate
departments
of
the
existing
government.
[Sinco, p. 55-56].
c.
People, through the power of

initiative A petition of an at least
12% of the total number of
registered voters of which every
legislative
district
must
be
represented by at least 3% of the
registered voters therein.
i. Limitation:
No
amendment
in
this
manner
shall
be
authorized within 5 years
following the ratification
of this Constitution nor
more often than once
every 5 years thereafter.
(2) Ratification the proposed amendment
shall be submitted to the people and shall
be deemed ratified by the majority of the
votes cast in the plebiscite, held not earlier
than 60 days nor later than 90 days:
a. After approval of the proposal by
Congress or Concon;
b. After certification by the COMELEC
of sufficiency of petition of the
people.
Doctrine of Proper Submission plebiscite
may be held on the same day as regular
election [Gonzales v. COMELEC, 21 SCRA
774]. The use of the word election in the
singular meant that the entire Constitution
must be submitted for ratification at one
plebiscite only; furthermore, the people
must have a proper frame of reference.
[Tolentino v. Comelec, 41 SCRA 702].
Judicial Review of Amendments The question in
now regarded as subject to judicial review, because
invariably, the issue will boil down to whether or not
the constitutional provisions had been followed.
Amendments or Revisions
(Three Stages)
Proposal
Both amendments and revisions

a. Congress, upon a vote of of all its members
b. Constitutional Convention
1. Congress may, by a vote of 2/3 of all its Members,
call a ConCon
2. By a majority vote of all its Members, submit to the
electorate the question of calling such a
convention (Sec.3)
Amendments only
c. People,
1.through initiative
2.upon a petition of at least 12% of the total number
of registered voters, of which every legislative
district must be represented by at least three per
centum of the registered voters therein (Sec.2)
Submission
(Prevailing view)
Congress, through
a law calling for
plebiscite
Ratification
The people, through a majority
of the votes cast in a plebiscite
held not earlier than 60 days
nor later than 90 days after the
approval of such amendment or
revision
The people, through a majority
of the votes cast in a plebiscite
held not earlier than 60 days
nor later than 90 days after the
certification by the COMELEC of
the sufficiency of the petition.
Table of Cases re: Constitutional Amendments

Date/Timeline
What happened
Case and ratio
May 14, 1935
Electorate ratifies the 1935 ------Constitution
1940
1940 Amendments
(Amended to create a bicameral Congress; an independent
Electoral Commission; and a four year term for the President
13
Date/Timeline
What happened
1947
Parity Amendment
1967`
Resolution calling for the

1971 Constitutional
Convention
1971
1971 Constitutional
Convention convened
September 10,
1972
Marcos declared Martial

Law
1973
Plebiscite cases
Ratification cases
1976
1976 Amendments

Case and ratio
with a maximum of 2 consecutive terms of office)
Mabanag vs. Lopez Vito petitioners seek to prevent
enforcement of the Resolution of Congress proposing the Parity
Amendment to the people was assailed on the grounds that it did
not comply with the rule prescribed by the Constitution.
Held: Proposal of amendments to the constitution is a political
question. Moreover, the enrolled copy of the resolution in which
it was certified that the proposal had been approved by the
required vote was conclusive upon the courts.
Petition dismissed.
Gonzales vs. COMELEC involves three resolutions passed by
Congress acting as Constituent Assembly. Res.1 called for
increase in the membership of the HOR, Res.2 called for a
Constitutional Convention, and Res.3 called for amendment of
Sec.16, Art.VI to allow members of Congress to become
delegates to the ConCon without losing their seats. Petitioners
seek to restrain respondents from enforcing the law passed by
Congress providing that amendments in Res.1 and 3 be
submitted for approval by the people at the general elections
scheduled to held on November 1967.
Held: Petition denied.
1.) Proposal of amendments is not a political but a justiciable
question subject to judicial review;
2.) Congress may propose amendments and at the same time call
for a Constituent Assembly;
3.) Ratification may be done simultaneous with a general
election or in a special election called specifically for that
purpose
4.) There is proper submission
Tolentino vs. COMELEC involves the validity of a resolution of
the ConCon submitting the proposal to lower the voting age to
18 for ratification. The question here is whether piecemeal
amendments to the Constitution could be submitted to the
people for ratification or rejection.
Held: All amendments proposed by the same Constitutional
Convention shall be submitted to the people in a single election.
Petition granted.
(some delegates of the 1971 ConCon went to hiding, gone
missing, some remained, etc. The revised Constitution was
miraculously finished two months after the declaration of
Martial Law)
Planas v. COMELEC - Petitioners seek to enjoin respondents
from implementing PD 73, which called for a plebiscite (to be
held on January 15, 1973) for the constitution approved by the
ConCon on 1972, on the theory that: a.) the power to submit is
lodged exclusively in Congress, and b.) there is no proper
submission to the people.
Held: The issue of validity of calling for a plebiscite (submission)
is justiciable. BUT,
Issue became moot. Petition dismissed.
Javellana vs. Executive Secretary Petitioners now seek to
enjoin the respondents from implementing any of the provisions
of the new constitution not found in the 1935 Constitution, on
the theory that it was not validly ratified in accordance with the
provisions of Art.1, Section XV.
Held: Although the question of whether a Constitution was
validly ratified is a justiciable question, the question whether a
Constitution has come into force and effect is a political
question beyond the competence of the SC to decide.
Sanidad vs. COMELEC petitioners question the authority of the
President in issuing several PDs proposing amendments to the
New Constitution and calling for a national referendumplebiscite for the said amendments.
Held: The amending process, both as to proposal and
ratification, raises a judicial question.
14
Date/Timeline
What happened
1981
Martial Law lifted.

1981 Amendments
1986
EDSA Revolution
February 2, 1987
1987 Constitution ratified
1997
PIRMA case
2001
EDSA II
2007
Peoples Initiative of PGMA

Case and ratio
Held: In a crisis government, the President shall have the power
to assume the constituent power to propose amendments lodged
in the Legislative body.
Mitra vs. COMELEC I consider this a belated continuation of
the Ratification Cases. At the core, the petitioners are arguing
that the 1973 Constitution never validly took effect, the ruling in
Javellana aside. Their theory is that the 1973 Constitution was
still and is still at the stage of proposal, and in the event it was
rejected by the people in a plebiscite, the 1935 Constitution,
which was merely suspended by the declaration of Martial Law,
could be one more operative
Held: Even without valid ratification, a new Constitution could
come into force and effect by the acquiescence of the people.
Popular acquiescence to a new Constitution gives the document
the force and effect of the Fundamental Law of the Land,
regardless of the method of ratification. If it is accepted by the
people, in whom sovereignty resides according to the
Constitution, then the courts cannot refuse to yield assent to
such a political deicision.
(Legazpi vs. Minister of Finance) President retained his
legislative powers even after the lifting of Martial Law and the
1981 Amendments to the 1973 Constitution (which vested
executive powers back to the President) by virtue of Amendment
No.6
Lawyers League for a Better Philippines vs. Aquino
The question of legitimacy of a new government arising from a
successful revolution is a political question beyond the pale of
review by the courts.
In re: Saturnino V. Bermudez
Reaffirmed Lawyers League for a Better Philippines. vs Aquino.
The President referred to in the Draft (1987) Constitution is
Pres. Aquino, not Pres.Marcos who was proclaimed under
authority of the 1973 Constitution.
De Leon vs. Esguerra
Power granted by a superseded constitution is deemed
terminated the day the new constitution was ratified.
Santiago et al. vs. COMELEC Petitioners seek to enjoin
respondent COMELEC from acting on the petition by the PIRMA
group asking for an order fixing details on how to collect
signatures for a peoples initiative to amend the Constitution
Held: Court agreed with the position of petitioners.
The system of initiative found in Article XVII, Sec.2 is not selfexecutory. It needs an enabling law before the right of the
people to could be exercised. However, an examination of its
provisions reveals that RA 6735 is incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned.
COMELEC permanently enjoined from entertaining or taking
cognizance of any petition for initiative until a sufficient law
shall have been validly enacted to provide for the
implementation of the system.
Estrada vs. Desierto
Legal distinction between EDSA I and EDSA II: The government
arising from EDSA I was extraconstitutional, while EDSA II was a
constitutional exercise of the right to free speech, freedom of
assembly, and to petition the government for redress.
Lambino vs. COMELEC
The constituent power reserved to people under Art.XVII Sec.2 is
limited to the power to propose amendments to, not revision of,
the Constitution. Moreover, direct proposal by the people
means that the petition signed by the people should contain the
full text of the proposed amendments to the Constitution.
15
IV. Self-Executing and Non-SelfExecuting Provisions
a constitutional provision is self-executing if

the nature and extent of the right conferred and
the liability imposed are fixed by the
constitution itself, so that they can be
determined by an examination and construction
of its terms, and there is no language indicating
that the subject is referred to the legislature for
action.
A provision which lays down a general
principle, such as those found in Art. II of the
1987 Constitution, is usually not self-executing.
[Manila Prince Hotel v. GSIS (1997)]
o Exception: Sec. 16, Article II of the 1987
Constitution - As a matter of logic, by
finding petitioners cause of action as
anchored on a legal right comprised in the
constitutional statements above noted, the
Court is in effect saying that Section 15
(and Section 16) of Article II of the
Constitution
are
self-executing
and
judicially enforceable even in their present
form. [Justice Feliciano, concurring
opinion, Oposa v. Factoran (1993)]
V. General Provisions
Article XVI General Provisions
(1) Flag of the Philippines (Section 1)
a. Red, white and blue, with a sun and three
stars
b. Design of the flag may be changed only by
constitutional amendment (Bernas)
(2) Name of the country, national anthem, and
national seal (Section 2)
a.
b.
May be changed by Congress by law

Such law will only take effect upon
ratification by the people in a national
referendum
(3) Armed Forces of the Philippines (Section 4)

a. Composed of a citizen armed force
b. Shall take an oath of affirmation to
uphold and defend the Constitution
(Section 5 (1))
c.
d.
e.
f.
g.
May not be appointed or designated to a

civilian position in the Government
including
government-owned
or
controlled corporations or any of their
subsidiaries (Section 5 (4))
Laws on retirement of military officers
shall not allow extension of their service
(Section 5 (5))
Recruited proportionately from all
provinces and cities as far as practicable
(Section 5 (6))
Tour of duty of the Chief of Staff shall not
exceed three years (Section 5 (7))
May be extended by the President in

times of war or other national emergency
declared by the Congress
(4) Police Force (Section 6)
a. One police force
b. National in scope
c. Civilian in character
(5) Consumer Protection (Section 9)
(6) Mass Media (Section 11)
a. Ownership and management limited to
citizens of the Philippines or to
corporations, cooperatives or associations
wholly-owned and managed by Filipino
citizens
(7) Advertising Industry (Section 11)
a. Can only be engaged in by Filipino
citizens or corporations or associations at
least 70% of which is owned by Filipino
citizens
b. Participation of foreign investors is
limited to their proportionate share in
the capital
c. Managing officers must be Filipino citizen
B. General Considerations
I. National Territory
II. State Immunity
III. Principles and Policies
IV. Separation of Powers
V. Checks and Balances
VI. Delegation of Powers
VI. Forms of Government
I. National Territory
Scope of the national territory as defined in the
Constitution
(1) Philippine archipelago, with all the islands
embraced therein.
(2) All other territories over which the Philippines
has sovereignty or jurisdiction
(3) Territorial sea, Seabed, Subsoil, Insular shelves,
and other submarine areas corresponding to (1)
and (2)
(4) (1) and (2) also consist of terrestrial, fluvial,
and aerial domains
Treaty of Paris, Art. III
Spain cedes to the United States the archipelago
known as the Philippines Islands, and comprehending
the islands lying within the following line xxx
16
Ceding the Turtle and Mangsee Islands.
17
Straight baseline method consists of drawing
straight lines connecting appropriate points on the
coast without departing to any appreciable extent
from the general direction of the coast, in order to
delineate the internal waters from the territorial
waters of an archipelago
NOTE: Please refer to PIL, Chap. 12, II for further
discussion on Baselines
II. State Immunity

Doctrine of Sovereign Immunity (State Immunity
from Suit)
*Image taken from:

http://media.photobucket.com/image/philippine%20map%20image
%20international%20law/jibrael_2007/Jibrael%202008/map1_rpterri
tory.jpg
Archipelagic Doctrine - The basic concept of an

archipelago is that body of water studded with
islands, or the islands surrounded with water, is
viewed as a unity of islands and waters together
forming one unit.
The archipelagic doctrine is the principle that it is
an integrated unit; everything within it comprises
the archipelago.
The Constitutional
doctrine are :
provisions
embodying
this
(1) "archipelago, with all the island and waters

embraced therein"
An archipelago is a body of water, studded with
islands.
(2) "the waters around, between, and connecting
the islands of the archipelago, regardless of the
breadth and dimensions, form part of internal
water"
Treaty Limits of the Philippine Archipelago
(1) Treaty of Paris of 10 December 1898.
Article 3 defines the metes and bounds of the
archipelago by longitude and latitude, degrees and
seconds. Technical descriptions are made of the
scope of the archipelago as this may be found on the
surface of the earth.
(2) Treaty of Washington of 7 November 1900
between the United States and Spain.
Ceding Cagayan, Sibuto and Sulu.
(3) Treaty of 2 January 1930 between the United
States and Great Britain.
Constitutional Basis:
The State may not be sued without its consent.
(Sec 3, Art XVI).
International Law Basis:
Par in parem non habet imperium
Jurisprudential Basis:
(1) Positivist Theory - There can be no legal right
as against the authority that makes the laws on
which the right depends.
Also called the
doctrine of Royal Prerogative of Dishonesty.
[Kawananakoa v. Polyblank (1907)]
(2) Sociological Theory - If the State is amenable
to suits, all its time would be spent defending
itself from suits and this would prevent it from
performing it other functions. [Republic vs.
Villasor (1973)]
A suit is against the State regardless of who is named
the defendant if:
(1) It produces adverse consequences to the public
treasury in terms of disbursement of public
funds and loss of government property.
(2) Cannot prosper unless the State has given its
consent.
In the following instances, it was held that the suit is
not against the State:
a. When the purpose of the suit is to compel an
officer charged with the duty of making
payments pursuant to an appropriation
made by law in favor of the plaintiff to
make such payment, since the suit is
intended to compel performance of a
ministerial duty. [Begoso v. PVA (1970)]
b. When from the allegations in the complaint, it
is clear that the respondent is a public
officer sued in a private capacity;
c. When the action is not in personam with the
government as the named defendant, but
an action in rem that does not name the
government in particular.
How the States consent to be sued is given
Express consent - It is effected only by the will of
the legislature through the medium of a duly
enacted statute. May be embodied either in a:
(1) General Law - authorizes any person who meets
the conditions stated in the law to sue the
government in accordance with the procedure in
the law
a.
Money Claims arising from contract

express or implied
Act No. 3083. An Act Defining the Conditions under

which the Government of the
Philippines may
be Sued.
Sec. 1. Subject to the provisions of this Act, the
Government of the Philippines hereby consents and
submits to be sued upon any moneyed claim
involving liability arising from contract, express or
implied, which could serve as a basis of civil action
between private parties.
Sec. 2. A person desiring to avail himself of the
privilege herein conferred must show that he has
presented his claim to the Commission on Audit and
that the latter did not decide the same within two
months from the date of its presentation.
Sec. 3. Original actions brought pursuant to the
authority conferred in this Act shall be instituted in
the Regional Trial Court of the City of Manila or of
the province where the claimant resides, at the
option of the latter, upon which court exclusive
original jurisdiction is hereby conferred to hear and
determine such actions.
Sec. 4. Actions instituted as aforesaid shall be
governed by the same rules of procedure, both
original and appellate, as if the litigants were
private parties.
Sec. 5. When the Government of the Philippines
is plaintiff in an action instituted in any court of
original jurisdiction, the defendant shall have the
right to assert therein, by way of set-off or
counterclaim in a similar action between private
parties.
Sec. 6. Process in actions brought against the
Government of the Philippines pursuant to the
authority granted in this Act shall be served upon
the Solicitor-General whose duty it shall be to
appear and make defense, either himself or through
delegates.
Sec. 7. No execution shall issue upon any
judgment rendered by any court against the
Government of the Philippines under the provisions
of this Act; but a copy thereof duly certified by the
clerk of the Court in which judgment is rendered
shall be transmitted by such clerk to the President of
the Philippines, within five days after the same
becomes final.
Sec. 8. The President of the Philippines, at the

commencement of each regular session of the
Legislature, shall transmit to that body for
appropriate action all decisions so received by him,
and if said body determine that payment should be
made, it shall appropriate the sum which the
Government has been sentenced to pay, including
the same in the appropriations for the ensuing year.
b.
Torts
Art 2189, CC: Provinces, cities and municipalities

shall be liable for damages for the death or injuries
suffered by any person by reason of the defective
conditions of roads, streets, public buildings and
other public works under their control and
supervision.
As to the vicarious liability under Art. 2180(6) of the
CC: The Government is only liable for the acts of its
agents, officers and employees, when they act as
special agents within the meaning of Art. 2180 (6)
CC.
Special Agent - One who receives a definite
and fixed order or commission, foreign to
the exercise of the duties of his office if he
is a special official. [Merritt v. Govt of the
Philippine Islands, (1916)]
(2) Special Law - may come in the form of a private
bill authorizing a named individual to bring suit
on a special claim
Implied consent
(1) When the State enters into a business contract
or itself commences litigation.
(2) If the Govt. files a complaint, defendant may
file a counterclaim against it. When the state
files complaint, suability will result only where
the government is claiming affirmative relief
from the defendant. [US v. Guinto, (1990)]
(3) When it would be inequitable for the State to
invoke its immunity.
(4) In instances when the State takes private
property for public use or purpose.
Suits against Government Agencies Depends on
whether the agency is incorporated (there is a
separate charter) or unincorporated (no separate
personality).
(1) Incorporated If the charter provides that the
agency can sue, then suit will lie. The provision
in the charter constitutes express consent. (see
SSS v. Court of Appeals, 120 SCRA 707).
(2) Unincorporated There must be an inquiry unto
the principal functions of government.
a. If governmental NO suit without
consent. (Bureau of Printing v. Bureau
of Printing Employees Association).
b. If proprietary Suit will lie, because
when the state engages in principally
proprietary functions, then it descends
to the level of a private individual, and
may, therefore be vulnerable to suit.
18
(Civil Aeronautics Administration v.
Court of Appeals, 167 SCRA 29). State
may only be liable for proprietary acts
(jure gestionis) and not for sovereign
acts (jure imperii).
Synthesis of the Rules
Incorporated
Regardless
of
whether
it
performs
governmental
or proprietary
functions
UNincorporated Governmental
functions
Proprietary
functions
If the Charter
allows it to be
sued CAN be
sued
CANNOT
be
sued
unless
consent
is
given
CAN be sued
Suit against Public Officers The doctrine of state

immunity also applies to complaints filed against
officials of the State for acts perfomed by them in
the discharge of their duties within the scope of
their authority.
Unauthorized acts of government officials or
officers are not acts of the State, and an
action against the officials or officers by
one whose rights have been invaded or
violated by such acts, for the protection of
his rights, is not a suit against the State.
The doctrine of immunity from suit will not
apply and may not be invoked where the
public official is being sued in his private
and personal capacity as an ordinary
citizen, for acts without authority or in
excess of the powers vested in him.
[Lansang vs CA (2000)]
Caselaw provides that the following are wellrecognized exceptions when a public officer MAY be
sued without the prior consent of the state:
(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 the 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 by himself without
the State having to do a positive act to
assist him; and
(5) Where the government itself has violated its
own laws. [Sanders v. Veridiano, 162 SCRA
88].
Scope of Consent: Suability v. Liability. There
seems to be a failure to distinguish bet. suability and
liability. Suability depends on the consent of the
state to be sued, liability on the applicable law and
the established facts. The circumstance that a state
is suable does not necessarily mean that it is liable;
on the other hand, it can never be held liable if it
does not first consent to be sued. Liability is not

conceded by the mere fact that the state has
allowed itself to be sued. When the state does
waive its sovereign immunity, it is only giving the
pltff the chance to prove, it can, that the def. is
liable. (US v. Ceballos, 182 SCRA 644)
III. Principles and Policies

Art. II Declaration of Principles and State Policies
Principles: (Sections 1- 6)
Binding rules which must be observed in the conduct
of government (Bernas)
(1) The Philippines is a democratic and republican
state (Section 1)
a.
The Philippines under the new

Constitution is not just a representative
government but also shares some
aspects of direct democracy such, for
instance, as the initiative and
referendum under Article VI, Section
32 (Bernas)
(2) Renunciation of war (Section 2)

a. Only refers to wars of aggression, not
defensive war
(3) Adoption of the principle of international law
(Section 2)
(4) Adherence to a policy of peace, freedom, and
amity with all nations (Section 2)
(5) Civilian supremacy (Section 3)
a. Civilian authority (Section 3, Article II)
is not defeated in a joint task force
between the PNP and Marines for the
enforcement of law and order in Metro
Manila as long as control is left to the
PNP. [IBP v. Zamora (2000)]
(6) Role of the armed forces (Section 3)
a. Protector of the people and the State
b. Secure the sovereignty of the State and
the integrity of the national territory
(7) Compulsory military and civil service (Section 4)
a. Under conditions provided by law
(8) Maintenance of peace and order, promotion of
general welfare (Section 5)
(9) Recognition of a hierarchy of rights [Bernas]
a. Life
b. Liberty
c. Property
(10) Separation of Church and State (Section 6)
Policies: (Sections 7 28)
Guidelines for the orientation of the state [Bernas]
(1) Independent foreign policy (Section 7)
(2) Freedom from nuclear weapons (Section 8)
(3) Promote a just and dynamic social order
(Section 9)
19
(4) Promote social justice in all phases of national
development (Section 10)
(5) Personal dignity and human rights (Section 11)
(6) Family as basic social institution (Section 12)
(7) Vital role of youth in nation-building (Section
13)
(8) Role of women in nation-building (Section 14)
(9) Fundamental equality before the law of women
and men (Section 14)
(10) Right to health (Section 15)
(11) Right to a balanced and healthful ecology
(Section 16)
(12) Priority to education, science and technology,
arts, culture, and sports (Section 17)
(13) Labor as a primary social economic force
(Section 18)
(14) Self-reliant and independent national economy
(Section 19)
(15) Role of private sector (Section 20)
(16) Comprehensive rural development and agrarian
reform (Section 21)
(17) Recognition and promotion of rights of
indigenous cultural communities (Section 22)
(18) Community-based,
sectoral
organizations
(Section 23)
(19) Role of communication and information in
nation-building (Section 24)
(20) Autonomy of local governments (Section 25)
(21) Equal access for public service and prohibition
of political dynasties (Section 26)
(22) Honesty and integrity in public service (Section
27)
(23) Policy of full public disclosure (Section 28)
IV. Separation of Powers

The separation of powers is a fundamental principle
in our system of government. It obtains not through
express provision but by actual division in our
Constitution. Each department of the government
has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere.
But it does not follow from the fact that the three
powers are to be kept separate and distinct that the
Constitution intended them to be absolutely
unrestrained and independent of each other. The
Constitution has provided for an elaborate system of
checks and balances to secure coordination in the
workings of the various departments of the
government (Angara v. Electoral Commission, G.R.
No. L-45081. July 15, 1936).
The government established by the Constitution

follows fundamentally the theory of separation
of power into the legislative, the executive and
the judicial (Anagara v. Electoral Commission,
G.R. No. L-45081. July 15, 1936).
Separation of powers is not expressly provided

for in the Constitution. But it obtains from
actual division found in Section 1 of Articles VI,
VII, VIII, where the three great powers of the
government are canalized.
Separation of powers is founded on the belief

that, by establishing equilibrium among the
three power holders, harmony will result, power
will not be concentrated and thus tyranny will
be avoided (Bernas, The 1987 Constitution of
the Republic of the Philippines).

Checks and Balances
It does not follow from the fact that the three
powers are to be kept separate and distinct that the
Constitution intended them to be absolutely
unrestrained and independent of each other. The
Constitution has provided for an elaborate system of
checks and balances to secure coordination in the
workings of the various departments of the
government. For example, the Chief Executive under
our Constitution is so far made a check on the
legislative power that this assent is required in the
enactment of laws. This, however, is subject to the
further check that a bill may become a law
notwithstanding the refusal of the President to
approve it, by a vote of two-thirds or three-fourths,
as the case may be, of the National Assembly. The
President has also the right to convene the Assembly
in special session whenever he chooses. On the other
hand, the National Assembly operates as a check on
the Executive in the sense that its consent through
its Commission on Appointments is necessary in the
appointments of certain officers; and the
concurrence of a majority of all its members is
essential to the conclusion of treaties. Furthermore,
in its power to determine what courts other than the
Supreme Court shall be established, to define their
jurisdiction and to appropriate funds for their
support, the National Assembly controls the judicial
department to a certain extent. The Assembly also
exercises the judicial power of trying impeachments.
And the judiciary in turn, with the Supreme Court as
the final arbiter, effectively checks the other
departments in the exercise of its power to
determine the law, and hence to declare executive
and legislative acts void if violative of the
Constitution. [Angara v. Electoral Commission, G.R.
No. L-45081. July 15, 1936].
Delegation of Powers
GENERAL RULE on delegation of powers:
Delegata potestas non potest delegari what has
been delegated can no longer be delegated. Since
the powers of the government have been delegated
to them by the people, who possess original
sovereignty, these powers cannot be further
delegated by the different government departments
to some other branch or instrumentality of the
government. The principle of non-delegation of
powers is usually applied to legislative power. Since
the legislative power of Congress is already a
delegated power given to them by the people (thru
Article 1, Section VI of the Constitution), Congress
cannot pass laws delegating such power to some
other department, branch, or instrumentality of the
government.
EXCEPTIONS:
(1) Subordinate legislation made by administrative
agencies Under the theory of Administrative
Law, what is delegated is in fact not lawmaking power, but law-executing power.
Hence, administrative agencies have the power
to fill up the details of a statute passed by
20
Congress in the course of its implementation.
(2) Delegated
legislative
power
to
local
governments Local governments may be
allowed to legislate on purely local matters
(Rubi vs. Provincial Board of Mindoro)
(3) Legislative power reserved to the people by the
provision on initiative and referendum (Article
VI, Sec.1)
(4) Emergency power delegated to the Executive
during State of War or National Emergency
(Article VI, Sec.23 (2))
(1) De jure government

a. Has rightful title but
b. no power or control, either because this has
been withdrawn from it, or because it has
not yet actually entered into the exercise
thereof. [In re Letter of Associate Justice
Puno, (1992)]
(2) De facto government - Government of fact, that is,
it actually exercises power or control without legal
title. [Co Kim Cham v. Valdes, (1945)]
a The govt that gets possession and control of,
or usurps, by force or by the voice of the
majority, the rightful legal govt and
maintans itself against the will of the
latter.
b That established as an independent govt by
the inhabitants of a country who rise in
insurrection against the parent state.
c That which is established and maintained by
military forces who invade and occupy a
territory of the enemey in the course of
war, and w/c is denominated as a govt of
paramount force, like the Second Republic
of the Phils. established by the Japanese
belligerent.
(5) Certain taxing powers of the President (Article

VI, Sec.28 (2)). The Congress may authorize the
President to fix, within specified limits, and
subject to such limitations and restrictions as it
may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other
duties or imposts within the framework of the
national
development
program
of
the
Government.
Tests for Valid Delegation
(1) Completeness test the law must be complete
in all essential terms and conditions when it
leaves the legislature so that there will be
nothing left for the delegate to do when it
reaches him except to enforce it.
The legitimacy of the Aquino government is not

a justiciable matter. It belongs to the realm of
politics where only the people of the Philippines
are the judge. And the people have made the
judgment; they have accepted the government
of President Corazon C. Aquino which is in
effective control of the entire country so that it
is not merely a de facto government but in fact
and law a de jure government. Moreover, the
community of nations has recognized the
legitimacy of the present government. All the
eleven members of this Court, as reorganized,
have sworn to uphold the fundamental law of
the Republic under her government. [In re
Bermudez, (1986) citing Lawyers League for a
Better Philippines v. Aquino, (1986)]
In the cited cases [Lawyers League for a Better

Philippines and/or Oliver A. Lozano v. President
Corazon C. Aquino, et al], we held that the
government of former President Aquino was the
result of a successful revolution by the sovereign
people, albeit a peaceful one. No less than the
Freedom Constitution declared that the Aquino
government was installed through a direct
exercise of the power of the Filipino people "in
defiance of the provisions of the 1973
Constitution, as amended."
(2) Sufficient standard test a sufficient standard

is intended to map out boundaries of the
delegates authority by defining the legislative
policy and indicating the circumstances under
which it is to be pursued and effected.
BOTH tests must be complied with. [Pelaez v.
Auditor General, 15 SCRA 569]
V. Forms of Government
Definition
Sec. 2(1) Administrative Code. Government of the
Republic of the Philippines is defined as:
the corporate governmental entity through which
the functions of government are exercised
throughout the Philippines, including
(1) the various arms through which political
authority is made effective in the Philippines,
whether pertaining to:
i. the autonomous regions,
ii. the provincial, city, municipal, or barangay
subdivisions, or
iii. other forms of local government.
Government is that institution or aggregate of
institutions by which an independent society makes
and carries out those rules of action which are
necessary to enable men to live in a social state or
which are imposed upon the people forming that
society by those who possess the power or authority
of prescribing them. [US vs Dorr (1903)]
De Jure and De Facto Governments
It is familiar learning that the legitimacy of a

government sired by a successful revolution by
people power is beyond judicial scrutiny for that
government automatically orbits out of the
constitutional loop. In checkered contrast, the
government
of
respondent
Arroyo
is
not
revolutionary in character. The oath that she took at
the EDSA Shrine is the oath under the 1987
Constitution. In her oath, she categorically swore to
21
preserve and defend the 1987 Constitution. Indeed,
she has stressed that she is discharging the powers of
the presidency under the authority of the 1987
Constitution.
In fine, the legal distinction between EDSA People
Power I EDSA People Power II is clear. EDSA I
involves the exercise of the people power of
revolution which overthrew the whole government.
EDSA II is an exercise of people power of freedom of
speech and freedom of assembly to petition the
government for redress of grievances which only
affected the office of the President. EDSA I is extraconstitutional and the legitimacy of the new
government that resulted from it cannot be the
subject of judicial review, but EDSA II is intraconstitutional and the resignation of the sitting
President that it caused and the succession of the
Vice President as President are subject to judicial
review. EDSA I presented a political question; EDSA II
involves legal questions. xxx
Even if the petitioner can prove that he did not
resign, still, he cannot successfully claim that he is a
President on leave on the ground that he is merely
unable to govern temporarily. That claim has been
laid to rest by Congress and the decision that
respondent Arroyo is the de jure, president made by
a co-equal branch of government cannot be
reviewed by this Court. [Estrada v Desierto/ Estrada
v GMA, (2001)]
C. Legislative Department
I. Who May Exercise Legislative Power
II. Houses of Congress
III. Legislative Privileges, Inhibitions and
Disqualifications
IV. Quorum and Voting Majorities
V. Discipline of Members
VI. Electoral Tribunals and the Commission on
Appointments
VII. Powers of Congress
I. Who May Exercise Legislative Power

Legislative power is the authority to make laws and
to alter and repeal them. It is vested in:
(1) The Congress of the Philippines, which consists
of a Senate and a House of Representatives
(2) The people to themselves, by the system of
initiative and referendum (Art. VI, Sec. 1)
Grant of legislative power to Congress is plenary.
Congress may legislate on any subject matter
provided that the limitations are observed.
Initiative and Referendum
The power of initiative and referendum is the power
of the people directly to propose and enact laws or
approve or reject any act or law or part thereof
passed by the Congress or local legislative body.
(Article VI, Section 32)
o The operationalization of initiative and
referendum has been left by the
Constitution to Congress (Article VI, Section
32; Bernas, The 1987 Constitution of the
Republic of the Philippines)

RA 6735 An Act Providing for a System of Initiative
and Referendum and Appropriating Funds Therefore
II. Houses of Congress

Composition, Qualifications and Term of Office
Senate
House of
(Art. VI secs. 2-4)
Representatives
(Art. VI secs. 5-8)
Compo24 senators
Not more than 250
sition
elected at large
members, unless
otherwise
provided by law,
consisting of:
i. District Representatives
ii. Party-List
Representatives
iii. Sectoral
Representatives
Qualifi Natural-born
Natural-born
cations
citizen
citizens
At least 35 At least 25 years
years old on
old on the day of
the day of the
the election
election
Able to read and
Able to read
write
and write
Registered voter
A registered
in the district he
voter
seeks
to
represent
Resident
of
the
A resident of the
Philippines for
said district for
at least 2
at least 1 year
years
immediately
immediately
preceding
the
preceding the
day
of
the
day of the
election
election
Term of
6 years
3 years
Office
Term
2
consecutive 3
consecutive
Limits
terms.
terms.
Senate
(Art. VI Secs. 2-4)
Composition: 24 senators elected at large
Qualifications:
1) Natural-born citizen
2) At least 35 years old on the day of the
election
3) Able to read and write
4) A registered voter
5) Resident of the Philippines for at least 2 years
immediately preceding the day of the election
Term of Office: 6 years, commencing at noon on
the 30th day of June next following their election
Term Limits:
only up to 2 consecutive terms.
22
However, they may serve for more than 2 terms
provided that the terms are not consecutive.
House of Representatives
(Art. VI Secs. 5-8)
Composition: Not more than 250 members, unless
otherwise provided by law, consisting of:
(1) District Representatives
- Elected from
legislative districts apportioned among the
provinces, cities, and the Metro Manila area
election.
Term of Office: 3 years, commencing at noon on
the 30th day of June next following their election.
Tenure may be shorter than the term or it may not
exist at all. These situations will not change the
duration of the term of office. [Dimaporo vs Mitra
(1991)]
Term Limits:
No member of the House of
Representatives shall serve for more than 3
consecutive terms.
Rules on Apportionment of Legislative Districts:

a. Apportionment of legislative districts must be by
law which could be a:
General Apportionment Law; or
Special Law (i.e. creation of new

provinces)
Note: The power to apportion legislative
districts is textually committed to Congress by
the Constitution. Thus, it cannot be validly
delegated to the ARMM Regional Assembly
(Sema v. COMELEC, G.R. No. 177597, July 16,
2008).
b. Proportional representation based on number of
inhabitants
Each city with a population of at least

250,000, or each province, shall have
at least 1 representative. Each
province, irrespective of the number of
inhabitants, shall have at least 1
representative.
c. Each legislative district shall comprise, as far as
practicable,
contiguous,
compact,
and
adjacent territory.
d. Re-apportionment by Congress within 3 years
after the return of each census
(2) Party-List Representatives who shall constitute
20% of the total number of representatives,
elected through a party-list system of registered
national, regional, and sectoral parties or
organizations.
(3) Sectoral Representatives - For 3 consecutive
terms from 2 February 1987, 25 seats shall be
allotted to sectoral representatives to be chosen
by appointment or election, as may be provided
by law. Until a law is passed, they are appointed
by the President from a list of nominees by the
respective sectors. (Art. XVIII, sec. 7)
Qualifications of Representatives:
(1) Natural-born citizens
(2) At least 25 years old on the day of the
election
(3) Able to read and write
(4) Registered voter in the district he seeks to
represent
(5) A resident of the said district for at least 1
year immediately preceding the day of the
Party-list System (RA 7941, An Act Providing For

The Election Of Party-List Representatives Through
The Party-List System, And Appropriating Funds
Therefor)
Parties, organizations, and coalitions must
obtain at least 2% of all votes cast to obtain
a party-list seat.
Those garnering more than 2% are entitled to
additional seats in proportion to their total
number of votes, but may not have more
than 3 seats.
Disqualified parties:
(1) Religious Sects
(2) Foreign Organizations
(3) Those Advocating Violence or Unlawful
Means
(4) It is receiving support from any foreign
government, foreign political party,
foundation, organization, whether
directly or through any of its officers
or members or indirectly through third
parties for partisan election purposes.
(5) It violates or fails to comply with laws,
rules or regulations relating to
elections;
(6) It declares untruthful statements in its
petition;
(7) It has ceased to exist for at least one
(1) year; or
(8) It fails to participate in the last two
(2) preceding elections or fails to
obtain at least 2 per centum of the
votes cast under the party-list system
in the two (2) preceding elections for
the constituency in which it has
registered.
Qualified Sectors:
(1) Labor
(2) Peasant
(3) Fisherfolk
(4) Urban Poor
(5) Indigenous Cultural Com-munities
(6) Elderly
(7) Handicapped
(8) Women
(9) Youth
(10) Veterans
(11) Overseas Workers
(12) Professionals
23
such increase. (Sec. 10, Art. VI).

Query: Are political parties allowed to participate in
the party-list system?
Political parties are allowed by the constitution to
participate in the party-list system provided that
they represent the interests of the marginalized and
underrepresented. The following conditions must be
complied:
(1) Must represent marginalized and underrepresented sectors;
(2) Major political parties must comply with
this statutory policy;
(3) Must
be
subject
to
the
express
constitutional prohibition against religious
sects;
(4) The party must not be disqualified under RA
7941;
(5) The party must not be an adjunct or entity
or project funded by the government;
(6) The party and its nominees must comply
with the requirements of the law;
(7) The nominee must also represent a
marginalized or under-represented sector;
(8) The nominee must be able to contribute to
the formulation and enactment of
appropriate legislation that will benefit the
nation. (Ang Bagong Bayani-OFW Labor
Party v. COMELEC, G.R. No. 147589, June
26, 2001).
Four inviolable constitutional and statutory
parameters in the party-list system:
(1) 20% Allocation the combined number of all
party-list congressmen shall not exceed 20%
of the total membership of the House of
Representatives.
(2) 2% threshold only those parties garnering a
minimum of 2% of the total votes cast for
the party-list system are qualified to have a
seat in the House.
(3) Three seat limit each qualified party,
regardless of the number of votes it
actually obtained is entitled to a maximum
of three seats (1 qualifying and 2 additional
seats).
(4) Proportional representation the additional
seats which a qualified party is entitled to
shall be computed in proportion to their
total number of votes.
(Veterans
Federation v. COMELEC, G.R. No. 136781,
Oct. 6, 2000).
III. Legislative Privileges, Inhibitions

and Disqualifications
Privileges
1.
Salaries
The salaries of Senators and Members of the
House
of
Representatives
shall
be
determined by law.
No increase in said compensation shall take
effect until after the expiration of the full
term of all the Members of the Senate and
the House of Representatives approving
Official
President
Vice-President, President of the
Senate, Speaker of the House of
Representatives, and Chief
Justice of the Supreme Court
Senators, Members of the House
of Representatives, Associate
Justices of the Supreme Court,
and Chairmen of the
Constitutional Commissions
Members of the Constitutional
Commissions
2.
Annual Salary
Php 300,000
Php 240,000
Php 204,000
Php 180,000
Freedom from arrest

A Senator or Member of the House of
Representatives shall, in all offenses
punishable by not more than six years
imprisonment, be privileged from arrest
while the Congress is in session. (Sec. 11,
Art VI).
In People v. Jalosjos, G.R. No. 132875,
February 3, 2000, the SC denied the
request of Cong. Jalosjos that he be
allowed attend legislative sessions. He
denial was premised on the following: (a)
membership in Congress does not exempt
an accused from statutes and rules which
apply to validly incarcerated persons; (b)
one rationale behind confinement is public
self-defense; (c) it would amount to
creation of a privileged class, without
justification in reason; and (d) he was
provided with an office in the New Bilibid
Prison.
3.
Speech and Debate Clause

No Member shall be questioned nor be held
liable in any other place for any speech or
debate in the Congress or in any committee
thereof.
In Jimenez v. Cabangbang, a clarification of
the
scope
and
limitation
of
the
parliamentary immunity was made. There
was reiteration that, First, Congressional
immunity is a guarantee of immunity from
answerability before an outside forum but
not from answerability to the disciplinary
authority of congress itself; Second, to
come under the guarantee the speech or
debate" must be one made "in Congress or
in any committee thereof." [Jimenez v.
Cabangbang, (1966)]
Each House of the Congress can discipline its
members for disorderly conduct or
behavior.
What constitutes disorderly behavior
entirely up to Congress to define.
is
24
Although a member of Congress shall not be
held liable in any other place for any
speech or debate in the Congress or in any
committee
thereof,
such
immunity,
although absolute in its protection of the
member of Congress against suits for libel,
does not shield the member against the
disciplinary authority of the Congress.
[Osmena v. Pendatun, (1960)]
Disqualifications
The "intervention" was an afterthought to enable him

to appear actively in the proceedings in some other
capacity. [Puyat v De Guzman, (1982)]
(1) May not hold any other office or employment in

the government during his term without
forfeiting his seat. (Art VI Sec 13)
The provision refers to an Incompatible

Office. Forfeiture of the seat in
Congress shall be automatic upon the
members assumption of such office
deemed
incompatible.
[Adaza
v.
Pacana, 135 SCRA 431].
(2) Cases wherein declaration shall be disclosed to

the public in the manner provided by law:
a. President
b. Vice-President
c. the Members of the Cabinet
d. the Congress
e. the Supreme Court
f. the Constitutional Commissions and
other constitutional offices
g. officers of the armed forces with
general or flag rank (Art XI Sec 17)
(2) May not be appointed to any office created or

the emoluments thereof were increased during
the term for which he was elected. (Art VI Sec
13)
The provision refers to a Forbidden

Office. He cannot validly take the office
even of he is willing to give up his seat.
(3) Cannot personally appear as counsel before any
court, electoral tribunal, quasi-judicial and
administrative bodies during his term of office.
(Art VI Sec 14)
(4) Shall not be financially interested, directly or
indirectly, in any contract with, or franchise or
special privilege granted by the government
during his term of office. (Art VI Sec 14)
(5) Shall not intervene in any matter before any
office of the government when it is for his
pecuniary benefit or where he may be called
upon to act on account of his office. (Art VI Sec
14)
Appearance
as
counsel:
Certain
salient
circumstances militate against the intervention of
Assemblyman Fernandez in the SEC Case. He had
acquired a mere P200.00 worth of stock in IPI,
representing ten shares out of 262,843 outstanding
shares. He acquired them after the contested
election of Directors, after the quo warranto suit
had been filed before SEC, and one day before the
scheduled hearing of the case before the SEC.
Duty to disclose
(1) A public officer or employee shall, upon
assumption of office and as often as may be
required by law, submit a declaration under
oath of his assets, liabilities, and net worth.
(3) All Members of the Senate and the House of

Representatives shall, upon assumption of
office, make a full disclosure of their financial
and business interests.
They shall notify the House concerned of a
potential conflict of interest that may arise from
the filing of a proposed legislation of which they
are authors. (Art VI Sec 12)
(4) The records and books of accounts of the
Congress shall be preserved and be open to the
public in accordance with law, such books shall
be audited by the Commission on Audit which
shall publish annually an itemized list of
amounts paid to and expenses incurred for each
Member. (Art VI Sec 20)
IV. Quorum and Voting Majorities

Quorum
Majority of each House shall constitute a

quorum.
A smaller number may adjourn from day to day
and may compel the attendance of absent
members.
In computing a quorum, members who are
outside the country, thus outside of each
Houses coercive jurisdiction, are not included.
Before he moved to intervene, he had signified his

intention to appear as counsel for respondent, but
which was objected to by petitioners. Realizing,
perhaps, the validity of the objection, he decided,
instead, to "intervene" on the ground of legal
interest in the matter under litigation.
Majority refers to the number of members within

the jurisdiction of the Congress (those it can
order arrested for the purpose of questioning). In
this case, one Senator was out of the Philippines
which is not within the jurisdiction of the Senate,
so that the working majority was 23 Senators.
Under those facts and circumstances that there has

been an indirect "appearance as counsel before ...
an administrative body" and that is a circumvention
of the Constitutional prohibition.
There is a difference between a majority of "all

members of the House" and a majority of "the
House", the latter requiring less number than the
first. Therefore, an absolute majority (12) of all
members of the Senate less one (23) constitutes
25
constitutional majority of the Senate for the purpose
of the quorum. [Avelino v. Cuenco, (1949)]
(Sec.17, Article VI)

Composition
Voting Majorities
Doctrine of Shifting Majority For each House of
Congress to pass a bill, only the votes of the
majority of those present in the session, there being
a quorum, is required.
Majority of all Members of Congress
majority of the entire composition of
Congress, regardless of the number of
Members present or absent (e.g. [24 +
250/2] +1)
Majority of each House majority of all
Members actually present during the
session, provided there is a quorum
When should
Vote Separately:
Choosing the President
(Article VII, Sec.4)
Determine Presidents
disability (Article VII,
Sec.11)
Confirm the nomination of
the VP (Article VII, Sec.9)
Declaring State of War, in
joint session (Article VI,
Sec.23 (1))
Proposing Constitutional
Amendments (Article XVII,
Sec.1) [subject to
debate]
Congress:
Vote Jointly:
Revoking or extending
the suspension of the
privilege of writ of
habeas corpus (Article
VII, Sec.18)
Revoking or extending
declaration of Martial
Law (Article VII, Sec.18)
V. Discipline of Members
(1) 3 Supreme Court Justices to be designated

by the Chief Justice (The senior Justice in
the Electoral Tribunal shall be its
Chairman).
(2) 6 Members of the Senate or House, as the
case may be, chosen on the basis of
proportional representation from the
political parties and party-list organizations.
(3) The ET shall be constituted within 30 days
after the Senate and the House shall have
been organized with the election of the
President and the Speaker.
(4) Members chosen enjoy security of tenure
and cannot be removed by mere change of
party affiliation. [Bondoc v. Pineda, 201
SCRA 793].
Valid grounds/Just cause for termination of
membership to the tribunal:
(1) Expiration of Congressional term of office;
(2) Death or permanent disability;
(3) Resignation form political party which one
represents in the tribunal;
(4) Removal from office for other valid reasons.
Note: Disloyalty to party and breach of party
discipline, are not valid grounds for the expulsion of
a member of the tribunal. [Bondoc v. Pineda, 201
SCRA 793].
Nature of Function
Each house may punish its members for

disorderly behavior, and with the concurrence of
2/3 of ALL its members:
Jurisdiction: be the sole judge of all CONTESTS

relating to the election, returns, and qualifications
of their respective members.
(1) Suspension (shall not exceed 60 days)

(2) Expulsion
When does it acquire jurisdiction: ET has

jurisdiction only when there is an election contest.
Other disciplinary measures:

(1) deletion of unparliamentary remarks from
the record
(2) fine
(3) imprisonment
(4) censure
The suspension contemplated in the Constitution is

different from the suspension prescribed in the AntiGraft and Corrupt Practices Act (RA 3019). The
former is punitive in nature while the latter is
preventive. [Defensor-Santiago v. Sandiganbayan,
G.R. No. 118364, August 10, 1995].
VI. Electoral Tribunals and the

Commission on Appointments
Electoral Tribunals
Election Contest - one where a defeated

candidate challenges the qualification and
claims for himself the seat of a proclaimed
winner.
The Electoral Tribunal of each House is the
SOLE judge of all contests relating to the
election, returns, and qualifications of the
members of Congress.
In the absence of election contest, the
Electoral Tribunal has no jurisdiction.
Supreme Court has jurisdiction over the Electoral
Commission and the subject matter of the present
controversy for the purpose of determining the
character, scope and extent of the constitutional
grant to the Electoral Commission as "the sole judge
of all contests relating to the election, returns and
26
qualifications of the members of the National
Assembly." [Angara vs Electoral Commission (1936)]
(2) with grave abuse of discretion tantamount

to denial of due process.
Note: Constitution mandates that the HRET shall be

the sole judge of all contests relating to the
election, returns and qualifications of its members.
By employing the word sole, the Constitution is
emphatic that the jurisdiction of the HRET in the
adjudication of election contests involving its
members is exclusive and exhaustive. Its exercise of
power is intended to be its own full, complete and
unimpaired. [Duenas Jr. v. HRET G.R. No. 185401,
2009]
To question the jurisdiction of the lower court or the

agency exercising judicial or quasi-judicial functions,
the remedy is a special civil action for certiorari
under Rule 65 of the Rules of Court. The petitioner
in such cases must clearly show that the public
respondent acted without jurisdiction or with grave
abuse of discretion amounting to lack or excess of
jurisdiction. Grave abuse of discretion defies exact
definition, but generally refers to "capricious or
whimsical exercise of judgment as is equivalent to
lack of jurisdiction. The abuse of discretion must be
patent and gross as to amount to an evasion of
positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion and
hostility. [Garcia vs HRET (1999)]
Independence of the Electoral Tribunals
Since the ETs are independent constitutional

bodies, independent even of the respective
House, neither Congress nor the Courts may
interfere with procedural matters relating to
the functions of the ETs. [Co vs HRET, (1991)]
The HRET was created to function as a

nonpartisan court although two-thirds of its
members are politicians. It is a non-political
body in a sea of politicians.
To be able to exercise exclusive jurisdiction, the

House Electoral Tribunal must be independent.
Its jurisdiction to hear and decide congressional
election contests is not to be shared by it with
the Legislature nor with the Courts. "The
Electoral Commission is a body separate from
and independent of the legislature and though
not a power in the tripartite scheme of
government, it is to all intents and purposes,
when acting within the limits of its authority, an
independent organ; while composed of a
majority of members of the legislature it is a
body separate from and independent of the
legislature. [Bondoc v. Pineda, (1991)]
(Sec 18, Art VI)
Composition
(1) Senate President as ex-officio chairman
(shall not vote except in case of a tie.)
(2) 12 Senators
(3) 12 Members of the House
Powers
The HRET will only gain jurisdiction upon
proclamation of the candidate. Until such
proclamation, he is not yet a member of the House;
hence, the HRET will not have jurisdiction over him.
Jurisdiction over such remains with the COMELEC.
Lazatin v. HRET, (1988)
As constitutional creations invested with necessary
power, the Electoral Tribunals are, in the exercise of
their functions independent organs independent of
Congress and the Supreme Court. The power granted
to HRET by the Constitution is intended to be as
complete and unimpaired as if it had remained
originally in the legislature [Co vs HRET (1991) citing
Angara vs. Electoral Commission [1936]).
Judicial Review of Decisions of Electoral Tribunals
With the SC only insofar as the decision or resolution
was rendered:
(1) without or in excess of jurisdiction, or
The Commission on Appointments shall

be constituted within 30 days after the
Senate
and
the
House
of
Representative
shall
have
been
organized with the election of the
President and the Speaker.

act on all appointments within 30
session days from their submission to
Congress.

rule by a majority vote of all its
members.
It is NOT mandatory to elect 12

Senators to the Commission; what the
Constitution requires that there must
be at least a majority of the entire
membership. [Guingona v. Gonzales,
214 SCRA 789].
Rule on Proportional Representation The 12

Senators and 12 Representatives are elected on the
basis of proportional representation from the
political parties and party-list organizations.
The authority of the House of

Representatives
to
change
its
representation in the Commission on
Appointments to reflect at any time the
changes that may transpire in the
political alignments of its membership. It
is understood that such changes in
membership must be permanent and do
27
not include the temporary alliances or
factional divisions not involving severance
of
political
loyalties
or
formal
disaffiliation and permanent shifts of
allegiance from one political party to
another. [Daza vs SIngson (1989)]
The provision of Section 18 on

proportional representation is mandatory
in character and does not leave any
discretion to the majority party in the
Senate to disobey or disregard the rule on
proportional representation
RATIONALE: The party with a majority

representation in the Senate or the house
of Representatives can by sheer force of
numbers impose its will on the hapless
minority.
By
requiring
a
proportional
representation in the Commission on
Appointments, Section 18 in effect works
as a check on the majority party in the
Senate and helps to maintain the balance
of power. No party can claim more than
what it is entitled to under such rule.
[Guingona, Jr. vs Gonzales, (1993)]
Meetings
(1) Commission on Appointments shall meet
only while Congress is in session.
(2) Meetings are held either at the call of the
Chairman or by a majority of all its
members.
session (ad-interim appointments) shall only be

effective:
(1) Until disapproval by the Commission on
Appointments; OR
(2) Until the next adjournment of Congress.
VII. Powers of Congress

a. Legislative
General (Sec Art VI)
(1) Legislative Powers: (Scope: vested in Congress
by the Constitution except to the extent
reserved to the people by the provision on
initiative and referendum).
powers of appropriation,
taxation
expropriation
authority to make, frame and enact

laws
(2) Non-legislative Powers: (Scope)
power to canvass the presidential

elections;
declare the existence of war;
give concurrence to treaties and

amnesties;
propose constitutional amendments;
impeach;
derivative and delegated power;
implied powers such as the power to

punish
contempt
in
legislative
investigations.
Jurisdiction
Specific Powers
(1) Constituent power
(2) Legislative Inquiries
(3) Appropriation
(4) Taxation
(5) Concurrence in treaties and international
agreements
(6) War powers and delegations powers
(1) Commission on Appointments shall confirm the

appointments by the President with respect to
the following positions:
(a) Heads of the Executive Departments (except
if it is the Vice-President who is appointed
to the post);
(b) Ambassadors, other public ministers or
consuls;
(c) Officers of the AFP from the rank of Colonel
or Naval Captain;
(d) Other officers whose appointments are
vested in him by the Constitution (e.g.
COMELEC members);
Inherent Powers
(1) Police Power
Make, ordain, and establish all manner of

wholesome and reasonable laws, statutes
and ordinances as they shall judge for the
good and welfare of the constituents.
Includes maintenance of peace and

order, protection of life, liberty and
property and the promotion of general
welfare
(2) Power of Taxation
(3) Power of Eminent Domain
(4) Contempt power
(2) Congress cannot by law require that the

appointment of a person to an office created by
such law shall be subject to confirmation by the
Commission on Appointments.
Legislative Inquiries and the Oversight Functions

(Sec 21, Art VI)
Since the Commission on Appointments is

also an independent constitutional body,
its rules of procedure are also outside the
scope of congressional powers as well as
that of the judiciary.
Appointments extended by the President to the

above-mentioned positions while Congress is not in
Requisites:
(1) Must be in aid of legislation
(2) In accordance with duly published rules of
procedure
(3) Right of persons appearing in or affected by
28
such inquiries shall be respected
Note: The mere filing of a criminal or an
administrative complaint before a court or quasijudicial body should not automatically bar the
conduct of legislative inquiry. [Standard Chartered
Bank v. Senate Committee on Banks, G.R. No.
167173, December 27, 2007]
Additional limitation:
(Refer to Chap 4, III)
Executive
period of time, only if Congress does not

affirmatively disapprove of the regulation in the
meantime. Less frequently, the statute provides that
a proposed regulation will become law if Congress
affirmatively approves it.
Note: Legislative supervision is NOT allowed under
the Constitution. [Abakada Guro v. Purisima, G.R.
No. 166715, August 14, 2008]
Privilege
Categories of congressional oversight functions

The acts done by Congress purportedly in the
exercise of its oversight powers may be divided into
three categories, namely: scrutiny, investigation and
supervision.
(1) Scrutiny
Congressional scrutiny implies a lesser intensity and
continuity of attention to administrative operations.
Its primary purpose is to determine economy and
efficiency of the operation of government activities.
In the exercise of legislative scrutiny, Congress may
request information and report from the other
branches
of
government.
It
can
give
recommendations
or
pass
resolutions
for
consideration of the agency involved.
(2) Congressional investigation
While congressional scrutiny is regarded as a passive
process of looking at the facts that are readily
available, congressional investigation involves a
more intense digging of facts. The power of Congress
to conduct investigation is recognized by the 1987
Constitution under section 21, Article VI.
(2) Bicameral Conference Committee

A bill can be passed jointly (when it is a joint
session, supra), or separately. In the latter case, it
can be passed simultaneously (when a bill is taken
up by both houses separately but at the same time,
or sequentially (when a bill originates form one
house and goes to the other house). There is no
problem if the bill is passed jointly. But if it is
passed separately, the bill approved by one house
goes to the other house, which can amend such bill.
Once the other house approves the bill, this is called
the other house's version of the bill.
A Conference Committee is then organized,
composed of equal number of members from the
Senate and the House, to make recommendations to
the respective chambers on how to reconcile the two
versions of the bill. The respective members are
usually granted blanket authority to negotiate and
reconcile the bills. At the end of the process, the
committee comes up with a "Conference Committee
Report", which is then submitted to the respective
chambers for approval.
(3) Limitations on Legislative Power
Formal or Procedural Limitations (Prescribes the
manner of passing bills in the form they should
take)
(3) Legislative supervision (Legislative Veto)

The third and most encompassing form by which
Congress exercises its oversight power is thru
legislative supervision. "Supervision" connotes a
continuing and informed awareness on the part of a
congressional
committee
regarding
executive
operations in a given administrative area. While both
congressional scrutiny and investigation involve
inquiry into past executive branch actions in order to
influence future executive branch performance,
congressional supervision allows Congress to
scrutinize the exercise of delegated law-making
authority, and permits Congress to retain part of
that delegated authority.
Congress exercises supervision over the executive
agencies through its veto power. It typically utilizes
veto provisions when granting the President or an
executive agency the power to promulgate
regulations with the force of law. These provisions
require the President or an agency to present the
proposed regulations to Congress, which retains a
"right" to approve or disapprove any regulation
before it takes effect. Such legislative veto
provisions usually provide that a proposed regulation
will become a law after the expiration of a certain
(1) Every bill passed by the Congress shall embrace

only one subject which shall be expressed in the
title. [Sec. 26(1), Art. VI]
The title is not required to be an index

of the contents of the bill. It is
sufficient compliance if the title
expresses: (1) the general subject and
(2) all the provisions of the statute are
germane to that subject. [Tio v.
Videogram Regulatory Commission,
151 SCRA 208]
(2) No bill passed by either house shall become law
unless it has passed 3 readings on separate days.
[Sec. 26(2), Art. VI]
(3) Printed copies in its final form have been
distributed to its members 3 days before the
passage of the bill. [Sec. 26(2), Art. VI].
Exception: President certifies to the necessity
of its immediate enactment to meet a public
calamity or emergency
It was held that the presidential certification
dispensed with the requirement not only of
29
printing but also that of reading the bill on
separate days. [Tolentino v. Secretary of
Finance]
Substantive Limitations (Circumscribe both the
exercise of the power itself and the allowable
subject of legislation)
Express limitations:
(1) On general powers - Bill of Rights [Art. III]
(2) On taxation [Secs. 28 and 29(3), Art. VII]
(3) On appropriation [Secs. 25 and 29(1) and (2),
Art VI]
(4) On appellate jurisdiction of the SC [Sec. 30, Art.
VI]
(5) No law granting title of royalty or nobility shall
be passed [Sec. 31, Art. VI]
Implied Limitations:
(1) No power to pass irrepealable law
(2) Non-encroachment on powers
departments
(3) Non-delegability of powers
of
other
(a) Limitations on Revenue,

Appropriations and Tariff Measures
Appropriations
General Limitations:
(1) Appropriations must be for a PUBLIC PURPOSE.
(2) Cannot appropriate public funds or property,
directly or indirectly, in favor of
1.
Any sect, church, denomination, or
sectarian institution or system of religion or
2.
Any priest, preacher, minister, or
other religious teacher or dignitary as such.
EXCEPTION: if the priest, etc is assigned to:
1. the Armed Forces;
2. any penal institution;
3. government orphanage;
4. leprosarium
(3) Government
is
not
prohibited
from
appropriating money for a valid secular purpose,
even if it incidentally benefits a religion, e.g.
appropriations for a national police force is valid
even if the police also protects the safety of
clergymen.
(4) Also, the temporary use of public property for
religious purposes is valid, as long as the
property is available for all religions.
Specific Limitations
For General Appropriations Bills
(1) Congress may not increase the appropriations
recommended by the President for the
operation of the Government as specified in the
budget.
(2) Form, content and manner of preparation of the
budget shall be prescribed by law.
(3) No provision or enactment shall be embraced in
the general appropriations bill unless it relates
specifically to some particular appropriation
therein.
(4) Procedure in approving appropriations FOR THE

CONGRESS shall strictly follow the procedure for
approving appropriations for other departments
and agencies.
(5) No law shall be passed authorizing any transfer
of appropriations. However, the following may,
BY LAW, be authorized to AUGMENT any item in
the general appropriations law for their
respective offices from savings in other items of
their respective appropriations:
(a) President
(b) Senate President
(c) Speaker of the House
(d) Chief Justice of the Supreme Court
(e) Heads
of
the
Constitutional
Commissions
Guidelines for disbursement of DISCRETIONARY
FUNDS appropriated FOR PARTICULAR OFFICIALS:
(1) For public purposes
(2) To be supported by appropriate vouchers
(3) Subject to such guidelines as may be prescribed
by law
If Congress fails to pass the general appropriations
bill by the end of any fiscal year:
(1) The general appropriations bill for the previous
year is deemed reenacted
(2) It shall remain in force and effect until the
general appropriations bill is passed by
Congress.
For Special Appropriations Bill
(1) Shall specify the purpose for which it is intended
(2) Shall be supported by funds actually available as
certified by the National Treasurer or to be
raised by corresponding revenue proposal
therein
Limitation on Use of Public Funds (Sec 29, Art VI):
(1) No money shall be paid out of the National
Treasury EXCEPT in pursuance of an
appropriation made by law.
(2) However, this rule does not prohibit continuing
appropriations, e.g. for debt servicing, for the
reason that this rule does not require yearly or
annual appropriation.
Four phases of Governments budgeting process:
(1) Budget preparation
(2) Legislative authorization
(3) Budget execution
(4) Budget accountability
Taxation (Sec 28, Art VI)
Nature
Sec 28 is an enumeration of the limits on the
inherent and otherwise unlimited power
Purposes
(1) Pay debts and provide for the common defense
and general warfare;
30
(2) Raise revenue;
(3) Instrument of national and social policy;
(4) Instrument for extermination of undesirable acts
and enterprises;
(5) Tool for regulation;
(6) Imposition of tariffs designed to encourage and
protect locally produced goods against
competition for imports.
Limitations
(1) Public - Power to tax should be exercised only
for a public purpose.
(2) Uniform and Equitable.
Operates with the same force and

effect in every place where the subject
of it is found
Does not prohibit classification for the

purpose of taxation
Requirements for valid classification:

i. Based on substantial distinctions
which make real differences
ii. Germane to the purpose of law
iii. Applies to present and future
conditions substantially identical
to those of the present
iv. Applies equally to those who
belong to the same class
(3) Progressivity.
The rate increases as the tax base

increases
Tax burden is based on the taxpayers

capacity to pay
Suited to the social conditions of the

people
Reflects aim of the Convention that

legislature following social justice
command should use taxation as an
instrument
for
more
equitable
distribution of wealth
Constitutional Tax Exemptions:
(1) Religious,
charitable,
educational
institutions and their properties
(2) All revenues and assets of NON-STOCK NONPROFIT EDUCATIONAL institutions are
exempt from taxes and duties PROVIDED
that such revenues and assets are actually,
directly
and
exclusively
used
for
educational purposes (sec. 4 (3) Art XIV).
(3) Grants,
endowments,
donations
or
contributions used actually, directly and
exclusively for educational purposes shall
be exempt from tax, subject to conditions
prescribed by law (sec. 4 (4) Art XIV).
Special Funds
(1) Money collected on a tax levied for a special
purpose shall be treated as a special fund
and paid out for such purpose only.
(2) Once the special purpose is fulfilled or
abandoned, any balance shall be transferred
to the general funds of the Government
(b) Presidential Veto and
Congressional Override
Submission to the President; Presidents Veto

power (Sec 27, Art VI)
Every bill, in order to become a law, must be

presented to and signed by the President.
If the President does not approve of the bill, he

shall veto the same and return it with his
objections to the House from which it
originated.
The House shall enter the
objections in the journal and proceed to
reconsider it.
The President must communicate his decision to

veto within 30 days from the date of receipt
thereof. If he fails to do so, the bill shall
become a law as if he signed it.
To override the veto, at least 2/3 of ALL the

members of each House must agree to pass the
bill. In such case, the veto is overridden and
becomes a law without need of presidential
approval.
Note: As a rule, partial veto is invalid. It is allowed

only for particular items in an appropriation,
revenue, or tariff bill.
Item veto
The President may veto particular items in an

appropriation, revenue or tariff bill.
This veto will not affect items to which he does

not object.
Veto of a Rider
A rider is a provision which does not relate to a

particular appropriation stated in the bill.
Since it is an invalid provision under Section

25(2), the President may veto it as an item.
The executive's veto power does not carry with

it the power to strike out conditions or
restrictions. If the veto is unconstitutional, it
follows that the same produced no effect
whatsoever, and the restriction imposed by the
appropriation bill, therefore, remains. [Bolinao
Electronics Corp vs Valencia, (1964)]
DOCTRINE OF INAPPROPRIATE PROVISIONS - A

provision that is constitutionally inappropriate for an
appropriation bill may be singled out for veto even if
it is not an appropriation or revenue item. [Gonzales
vs Macaraig, (1990)]
o The Constitution provides that only a
particular item or items may be vetoed.
The power to disapprove any item or items
in an appropriate bill does not grant the
authority to veto a part of an item and to
approve the remaining portion of the same
item. [Bengzon vs. Drilon, (1992)]
Item - in a bill refers to the particulars, the details,
the distinct and severable parts . . . of the bill. It is
an indivisible sum of money dedicated to a stated
purpose. An 'item' of an appropriation bill means an
31
item which in itself is a specific appropriation of
money, not some general provision of law, which
happens to be put into an appropriation bill.'"
The president cannot veto unavoidable obligations
such as the payment of pensions which has already
been vested by the law.
b. Non-Legislative
(1) Informing Function
D. Executive Department
I. Privileges, Inhibitions and Disqualifications
II. Powers
The President
Qualifications:
(1) Natural-born citizen of the Philippines;
(2) A registered voter;
(3) Able to read and write;
(4) At least forty years of age on the day of the
election; and
(5) A resident of the Philippines for at least ten
years immediately preceding such election.
[Sec. 2, Art. VII]
Election:
(1) Regular Election Second Monday of Monday
(2) Congress as canvassing board Returns of every
election for President and Vice President, duly
certified by the board of canvassers of each
province or city, shall be transmitted to
Congress, directed to the Senate President
who, upon receipt of the certificates of
canvass, shall, not later than 30 days after the
day of the election, open all the certificates in
the presence of the Senate and the House of
Representatives in joint public session, and the
Congress,
upon
determination
of
the
authenticity and due execution thereof in the
manner provided by law, canvass the votes.
Congress shall promulgate its rules for the
canvassing of the certificates. In case two or
more candidates shall have an equal and
highest number of votes, one of them shall be
chosen by a majority vote of all the memers of
Congress. [Art. VII, Sec. 4]
Jurisprudence on Canvassing:
Congress may validly delegate the initial
determination of the authenticity and due execution
of the certificates of canvass to a Joint
Congressional Committee, composed of members of
the House of Representatives and of the Senate. The
creation of the Joint Committee does not constitute
grave abuse and cannot be said to have deprived
petitioner and the other members of Congress of
their congressional prerogatives, because under the
very Rules under attack, the decisions and final
report of the said Committee shall be subject to the
approval of the joint session of both Houses of
Congress, voting separately. [Ruy Elias Lopez v.
Senate of the Philippines, G.R. No. 163556, June 8,

2004].
Even after Congress has adjourned its regular
session, it may continue to perform this
constitutional duty of canvassing the presidential
and vice-presidential election results without need
of any call for a special session by the President. The
joint public session of both Houses of Congress
convened by express directive of the Constitution to
canvass the votes for and to proclaim the newlyelected President and Vice-President has not, and
cannot, adjourn sine die until it has accomplished its
constitutionally mandated task. Only when a board
of canvassers has completed its functions is it
rendered functus officio. [Aquilino Pimentel Jr. v.
Joint Committee of Congress to Canvass the votes
cast for President and Vice-President, G.R. No.
163783, June 22, 2004].
If the COMELEC is proscribed from conducting an
official canvass of the votes cast for the President
and Vice-President, it is, with more reason,
prohibited from making an unofficial canvass of
said votes. [Brillantes v. COMELEC, G.R. No. 163193,
June 15, 2004]
The Supreme Court as Presidential Electoral
Tribunal: The Supreme Court, sitting in banc, shall
be the sole judge of all contests relating to the
election, returns and qualifications of the President
or Vice-President, and may promulgate its rules for
the purpose.
Term of Office: 6 years which shall begin at noon on
the 30th day of June next following the day of the
election and shall end at noon of the same day 6
years thereafter. [Sec. 4, Art. VII]
NOT eligible for re-election: President.
Note: No person who has succeeded as President and
has served for more than 4 years shall be qualified
for election to the same office for any length of
time. [Sec. 4, Art. VII]
I. Privileges, Inhibitions and

Disqualifications
President
Privileges
(1) Official residence
(2) Salary. Determined by law; shall not be
decreased during tenure. No increase shall
take effect until after the expiration of the
term of the incumbent during which such
increase was approved.
(3) Immunity from Suit.
(4) Executive
President
officials
Congress,
public.
Privilege. It is the right of the

and high-level executive branch
to withhold information from
the courts, and ultimately, the
32
a.
b.
c.
Presidential
conversations,
correspondences, or discussions during
closed-door Cabinet meetings, like he
internal deliberations of the Supreme
Court and other collegiate courts, or
executive sessions of either House of
Congress,
are
recognized
as
confidential. This kind of information
cannot be pried open by a co-equal
branch of government. [Senate v.
Ermita, G.R. No. 169777, April 20,
2006]
capacity, as provided by law and as

required by the primary functions of
the said officials office. These posts
do not comprise any other office
within the contemplation of the
constitutional prohibition, but properly
an imposition of additional duties and
functions on said officials. The exofficio position being actually and in
legal contemplation part of the
principal office, it follows that the
official concerned has no right to
receive additional compensation for
his services in said position. The
reason is that these services are
already paid for and covered by the
compensation
attached
to
the
principal office. [National Amnesty
Commission v. COA, G.R. No. 156982,
September 8, 2004]
The claim of executive privilege is

highly recognized in cases where the
subject of the inquiry relates to a
power textually committed by the
Constitution to the President, such as
in the area of military and foreign
relations. Under commander-in-chief,
appointing, pardoning, and diplomatic
powers. Consistent with the doctrine
of
separation
of
powers,
the
information relating to these powers
may enjoy greater confidentiality than
others. [Neri v. Senate Committees,
G.R. No. 180843, March 25, 2008]
(3) Shall not directly or indirectly practice any

other profession, participate in any
business, or be financially interested in any
contract with; or in any franchise or special
privilege granted by the government or any
subdivision, agency, or instrumentality
thereof, including government-owned or
controlled
corporations
or
their
subsidiaries.
The privilege being an exemption from

the obligation to disclose information,
the necessity for withholding the
information must be of such a high
degree as to outweigh the public
interest in enforcing that obligation in
a particular case. In light of this highly
exceptional nature of the privilege,
the Court finds it essential to limit to
the President (and to the Executive
Secretary by oder of the President) the
power to invoke the privilege. [Senate
v. Ermita, supra]
(4) Strictly avoid conflict of interest in the

conduct of their office
(5) May not appoint spouse or relatives by
consanguinity or affinity within the fourth
civil degree as members of Constitutional
Commissions, or the Office of the
Ombudsman, or as Secretaries, Under
Secretaries, Chairmen, or heads of bureaus
or offices, including government-owned or
controlled
corporation
and
their
subsidiaries.
Vice-President
Qualifications, election and term of office and
removal are same as the President but not VicePresident shall serve for more than 2 successive
terms.
The Vice-President may be appointed as Member of
the Cabinet and such requires no confirmation by the
Commission of Appointments.
Prohibitions
A.
Prohibited acts:
(1) Shall not receive any other emoluments
from the government or any other source.
(2) Unless
otherwise
provided
in
the
constitution, shall not hold any other office
or employment.
The prohibition is not to be construed
as applying to posts occupied by the
Executive officials without additional
compensation
in
an
ex-officio
B.
Who are prohibited?

(1) President
(2) Vice-President,
(3) the Members of the Cabinet, and their
deputies or assistants
The stricter prohibition applied to the Pres. and his

official family under Sec. 13, Art. VII as compared to
the prohibition applicable to appointive officials in
general under Art. IX, B, Sec. 7, par. 2 are proof of
the intent of the 1987 Constitution to treat them as
a class by itself and to impose upon said class
stricter prohibitions.
However, the prohibition against holding dual or
multiple offices or employment under Art. VII, Sec.
13 must not be construed as applying to posts
occupied by the Executive officials specified therein
w/o additional compensation in an ex-officio
capacity as provided by law and as required by the
primary functions of said official's office. The reason
is that these posts do not comprise "any other office"
w/in the contemplation of the constitutional
33
prohibition but are properly an imposition of
additional duties and function on said officials. [Civil
Liberties Union v Executive Secretary, (1991)]
C.
Prohibitions against other officials

(1) No Senator or Member of the House of
Representatives, during his term, may:
Hold
any
other
office
or
employment in the Government, or
any of its subdivisions, agencies, or
instrumentalities including GOCCs or
their subsidiaries; OR
Be appointed to any office which

may have been created or the
emoluments
thereof
increased
during the term for which he was
elected. [Sec. 13, Art VI].
(2)
(2) Vice-President
xxx The Vice-President may be appointed
as member of the Cabinet.
Such
appointment requires no confirmation [Sec
3, Art VII]
(3) Cabinet
The Secretary of Justice shall be an

ex-officio member of the Judicial
and Bar Council. [Sec. 8(1), Art VIII]
Unless otherwise allowed by law or

by the primary functions of his
position, appointive officials shall
not hold any other office or
employment in the Government or
any
subdivision,
agency
or
instrumentality thereof, including
government- owned or controlled
corporations or their subsidiaries.
[Sec. 7, Art IX-B]
Art. VII, Sec. 13 talks of "unless

otherwise
provided
by
the
Constitution."
In the case of
Cabinet members, this refers to Art.
IX, B, 7, par. 2.
Thus, the Constitution allows a

Cabinet member to hold another
office provided either:
such is necessitated by the primary
functions of his position (e.g.
Secretary of Trade and Industry as
Chairman of NDC and Secretary of
Agrarian Reform as Chairman of the
Land Bank)
such is allowed by law
No
member
of
the
Constitutional
Commission during his term, shall:
Hold
any
other
office
or
employment;
Engage in the practice of any

profession or in the active
management or control of any
business which in any way may be
affected by the functions of his
office; OR
Be financially interested, directly or

indirectly, in any contract with, or
in any franchise or privilege granted
by the Government, any of its
subdivisions,
agencies,
or
instrumentalities,
including
government-owned or controlled
corporations or their subsidiaries.
[Sec. 2, Art IX-A].
(3) No elective official during his tenure shall
be eligible for appointment or designation
in any capacity to any public office or
position. [Sec. 7. Art IX B]
(4) No appointive official shall hold any other

office or employment in the Government or
any of its subdivisions, agencies or
instrumentalities, including GOCCs or their
subsidiaries. [Sec. 7. Art IX B]
(5) The Members of the Supreme Court and of
other courts established by law shall not be
designated to any agency performing quasijudicial or administrative functions. [Sec.
12, Art VIII]
D. Exceptions to rule prohibiting executive
officials from holding additional positions:
(1) President
The President can assume a Cabinet

post, (because the departments are
mere extensions of his personality,
according to the Doctrine of
Qualified Political Agency, so no
objection can be validly raised
based on Sec. 13, Art VII.
The President can assume ex officio

positions. E.g. The President is the
Chairman of NEDA. (Sec. 9, Art XII)
i.
ii.
a. Presidential Immunity
The President as such cannot be sued, enjoying as he
does immunity from suit, but the validity of his acts
can be tested by an action against the other
executive
officials
or
such
independent
constitutional agencies as the Commission on
Elections and the Commission on Audit. [Carillo vs.
Marcos (1981)]
The privilege may be invoked ONLY by the
President. The SC held that the privilege of
immunity from suit pertains to the President by
virtue of the office and may be invoked only by the
holder of the office; not by any other person in the
President's behalf. Thus, an accused in a criminal
case where the President is a complainant cannot
raise the presidential privilege as a defense to
prevent the case from proceeding against the
accused. Moreover, there is nothing in our laws that
would prevent the President from waiving the
privilege. The President may shed the protection
afforded by the privilege and submit to the court's
jurisdiction. [Soliven vs Makasiar (1988); Beltran vs
34
Makasiar (1988)]
Petitioners theorize that the present petition for
prohibition is improper because the same attacks an
act of the President, in violation of the doctrine of
presidential immunity from suit. Petitioners
contention is untenable for the simple reason that
the petition is directed against petitioners and not
against the President. The questioned acts are those
of petitioners and not of the President.
Furthermore, presidential decisions may be
questioned before the courts where there is grave
abuse of discretion or that the President acted
without or in excess of jurisdiction. [Gloria v.
Court of Appeals, G.R. No. 119903, August 15, 2000]
Immunity co-extensive with tenure. After tenure,
the Chief Executive cannot invoke immunity from
suit for civil damages arising out of acts done by him
while he was President which were not performed in
the exercise of official duties. [Estrada v. Desierto,
G.R. Nos. 146710-15, March 2, 2001]
b. Presidential Privilege
Definition: The power of the Government to
withhold information from the public, the courts,
and the Congress. [Schwart] It as "the right of the
President and high-level executive branch officers to
withhold information from Congress, the courts, and
ultimately the public." [Rozell]
Varieties of Executive Privilege:
(1) State secrets privilege - invoked by U.S.
Presidents, beginning with Washington, on the
ground that the information is of such nature
that its disclosure would subvert crucial military
or diplomatic objectives.
(2) Informers privilege - the privilege of the
Government not to disclose the identity of
persons who furnish information of violations of
law to officers charged with the enforcement of
that law.
Synthesis of Jurisprudential doctrines

(1) For the privilege to apply there must be a
formal claim of the privilege. Only the
President or the Executive Authority (by
authority of the President) can invoke the
privilege.
(2) A formal and proper claim of executive privilege
requires a specific designation and description
of the documents within its scope as well as
precise and certain reasons for preserving their
confidentiality. Without this specificity, it is
impossible for a court to analyze the claim
short of disclosure of the very thing sought to
be protected. [Senate v. Ermita, supra]
(3) Once properly invoked, a presumption arises
that it is privileged. If what is involved is the
presumptive
privilege
of
presidential
communications when invoked by the President
on a matter clearly within the domain of the
Executive, the said presumption dictates that
the same be recognized and be given
preference or priority, in the absence of proof
of a compelling or critical need for disclosure
by the one assailing such presumption. [Neri v.
Senate Committees, G.R. No. 180843, March
25, 2008]
(4) Three elements needed to be complied with in
order for the claim to executive privilege to be
valid. These are:
(a)
the protected communication must

relate to a quintessential and nondelegable presidential power (may
be validly claimed by the executive
department only in cases where the
power subject of the legislative
inquiry is expressly granted by the
Constitution to the President i.e. the
commander-in-chief,
appointing,
pardoning, and diplomatic powers);
(b)
it must be authored, solicited, and

received by a close advisor of the
President or the President himself.
The judicial test is that an advisor
must be in operational proximity
with the President (the availability of
executive privilege only to officials
who stand proximate to the
President, not only by reason of their
function, but also by reason of their
positions
in
the
Executives
organizational structure); and,
(c)
it may be overcome by a showing of

adequate need, such that the
information sought likely contains
important evidence, and by the
unavailability of the information
elsewhere
by
an
appropriate
investigating authority. [Neri v.
Senate, supra]
(3) Generic privilege for internal deliberations has been said to attach to intragovernmental
documents
reflecting
advisory
opinions,
recommendations and deliberations comprising
part of a process by which governmental
decisions and policies are formulated. [Senate v.
Ermita, G.R. No. 163783, June 22, 2004]
Scope: This jurisdiction recognizes the common law
holding that there is a "governmental privilege
against public disclosure with respect to state
secrets regarding military, diplomatic and other
national security matters." The same case held that
closed-door Cabinet meetings are also a recognized
limitation on the right to information.
Note: Executive privilege, is properly invoked in
relation to specific categories of information and not
to categories of persons. Only the President (and the
Executive Secretary, by order of the President) can
invoke the privilege. [Senate v. Ermita, supra]
35
II. Powers
a. Executive and Administrative Powers
b. Power of Appointment
c. Power of Control and Supervision
d. Military Powers
e. Pardoning Power
f. Diplomatic Power
g. Powers Relative to Appropriation Measures
h. Residual Powers
a.Executive and Administrative Powers in

General

departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the
rank of colonel or naval captain, and other officers
whose appointments are vested in him in this
constitution. He shall also appoint all other officers
of the Government whose appointments are not
otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts,
or in the heads of departments, agencies,
commissions or boards.
Executive power
Definition: the selection, by the authority vested

with the power, of an individual who is to exercise
the functions of a given office.
Definition: It is the duty to implement the laws

within the standards imposed by the legislature.
*This power is exercised by the President. [Sec 1, Art
VII]
Appointment is distinguished from:

(1) Designation imposition of additional
duties, usually by law, on a person already in
the public service.
The President shall have control of all the executive

departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed [Sec 17, Art VII].
(2) Commission written evidence of the

appointment.
The Court held that as administrative head of

the government, the President is vested
with the power to execute, administer and
carry out laws into practical operation.
[National Electrification Commission vs. CA
(1997)]
The powers of the President cannot be said to be
limited only to the specific power enumerated in the
Constitution. In other words, executive power is
more than the sum of specific powers so
enumerated.
The framers did not intend that by enumerating the
powers of the Pres, he shall exercise those powers
and no other.
These unstated residual powers are implied from the
grant of executive power and which are necessary
for the Pres to comply with his duties under the
Constitution. [Marcos vs Manglapus (1989)]
The President has the authority to carry out a
reorganization of the Department of Health under
the Constitution and statues. This authority is an
adjunct of the Presidents power of control under
art. VII, secs 1 and 17, and it is also an exercise of
his residual powers. However, the President must
exercise good faith in carrying out the reorganization
of any branch or agency of the executive
department. [Malaria Employees and Workers
Association of the Philippines, Inc. v. Romulo, G.R.
No. 160093, July 31, 2007]
b. Power of Appointment
IN GENERAL
Sec. 16, Art. VII: The President shall nominate and,
with the consent of the Commission on
Appointments, appoint the heads of the executive
Classification of Power of Appointment:

There are 4 groups of officers whom the Pres may
appoint:
(1) Heads of the Executive Department,
ambassadors, other public ministers and
consuls, officers of the armed forces from
the rank of colonel or naval captain and
other officers whose appointments are
vested in him;
(2) All other officers of the government whose
appointments are not otherwise provided by
law;
(3) Those whom the President
authorized to appoint;
may
be
(4) Officers lower in rank whose appointments

Congress may by law vest in the President
alone.
Note: Heads of bureaus were deliberately removed
from the provision of appointments requiring
confirmation and were included in the 4th group and
hence, their appointments no longer need
confirmation. [Sarmiento vs Mison, (1987)]
Steps in the appointing process:
(1) Nomination by the President
(2) Confirmation by the Commission
Appointments
(3) Issuance of the Commission
(4) Acceptance by the appointee
on
Note: In the case of ad interim appointments, steps

1, 3 and 4 precedes step 2.
An appointment is deemed complete only upon
acceptance. [Lacson v. Romero, 84 Phil. 740].
Appointment is essentially a discretionary power and
must be performed by the officer in which it is
36
vested according to his best lights, the only
condition being that the appointee, if issued a
permanent appointment, should possess the
minimum qualification requirements, including the
Civil Service eligibility prescribed by law for the
position. This discretion also includes the
determination of the nature or character of the
appointment.
Confirmation is not required when the President
appoints
other
government
officers
whose
appointments are not otherwise provided for by law
or those officers whom he may be authorized by law
to appoint (like the Chairman and Members of the
Commission on Human Rights). Also, as observed in
Sarmiento v. Mison, when Congress:
(1) creates inferior offices but omits to provide for
appointment thereto, or provides in an
unconstitutional
manner
for
such
appointments; or
(2) the officers are considered as among those
whose appointments are not otherwise
provided for by law.
Upon Recommendation of the Judicial and Bar
Council
(1) Members of the Supreme Court and all other
courts. (Sec 9, Art VIII)
Appointments need no confirmation.
For lower courts, appointment shall be issued
within 90 days from submission of the list
(2) Ombudsman and his 5 deputies (for Luzon,
Visayas, Mindanao, general and military) Sec 9
Art XI.
Such
appointments
shall
require
no
confirmation.
All vacancies shall be filled within three
months after they occur.
Appointment of Vice-President as Member of the
Cabinet (Sec 3, Art.VII)
Appointment requires NO confirmation
Appointments solely by the President (Sec. 16, Art
VII)
(1) Those vested by the Constitution on the
President alone (e.g. appointment of VicePresident to the Cabinet) [Art. VII, Sec. 3(2)]
(2) Those whose appointments are not otherwise
provided by law.
(3) Those whom he may be authorized by law to
appoint.
(4) Those other officers lower in rank whose
appointment is vested by law in the President
(alone).
The phraseology is muddled:
Sarmiento v Mison (1987):
In arguing that even bureau chiefs needed
confirmation even if they are of inferior rank, the
basis was the phrase, "the Congress may, by law,
vest in the appointment of other officers lower in
rank in the President alone". This meant that until a
law is passed giving such appointing power to the
President alone, then such appointment has to be
confirmed.
The SC dismissed this view however,
saying that the inclusion of the word "alone" was an
oversight. Thus, the Constitution should read "The
Congress may, by law, vest the appointment of other
officers lower in rank in the President."
Limitations on appointing power of the President
(1) The spouse and relatives by consanguinity or
affinity within the 4th civil degree of the
President shall not, during his "tenure", be
appointed as (sec 13, Art VII):
a.
members of the Constitutional
Commissions,
b.
member
of
the
Office
of
Ombudsman,
c.
Secretaries,
d.
Undersecretaries,
e.
Chairmen or heads of bureaus or
offices, including government-owned or
controlled
corporations
and
their
subsidiaries.
(2) The President shall have the power to make
appointments during the recess of the
Congress, whether voluntary or compulsory,
but such appointments shall be effective
only until disapproval by the Commission on
Appointments or until the next adjournment
of the Congress. [Sec 16(2), Art VII]
(3) Appointments extended by an acting
President shall remain effective unless
revoked by the elected President within 90
days from his assumption of office [Sec. 14,
Art. VII] This is limited to presidential
appointments. There is no law that
prohibits local executive officials from
making appointments during the last days of
their tenure. [De Rama v. Court of Appeals,
G.R. No. 131136, February 28, 2001]
Interim or recess appointments

a. Regular
and
appointments
recess
(ad-interim)
Appointments requiring confirmation are of two

kinds
(1) regular, if the CA, that is, Congress, is in
session;
(2) during the recess of Congress (because the
Commission shall meet only while Congress
is in session [Art. VI, Sec. 19].
Regular appointment - one made by the President
while Congress is in session, takes effect only after
confirmation by the Commission on Appointments,
and once approved, continues until the end of the
term of the appointee.
Ad-interim appointment - one made by the
President while Congress is not in session, takes
effect immediately, but ceases to be valid if
disapproved by the Commission on Appointments or
upon the next adjournment of Congress. (Art. VII,
Sec. 16, par. 2)
37
Ad interim appointment a permanent appointment
made by the Pres in the meantime that Congress is
in recess.
It is permanent as it takes effect
immediately and can no longer be withdrawn by the
President once the appointee has qualified into
office.
The fact that it is subject to the
confirmation of the Commission on Appointments
does not alter its permanent character. Hence, said
appointment is effective until (1) disapproved by the
CA or (2) the next adjournment of Congress [Matibag
vs Benipayo (2002)]
b. Acting/Temporary appointment
Can be withdrawn or revoked at the pleasure of the
appointing power. The appointee does not enjoy
security of tenure. This is the kind of appointment
that the Constitution prohibits the Pres from making
to the independent constitutional commissions.
The mere filing of a motion for reconsideration of
the confirmation of an appointment cannot have the
effect of recalling or setting aside said appointment.
The Constitution is clear there must either be a
rejection by the Commission on Appointments or
non-action on its part for the confirmation to be
recalled.
Also, the power to approve or disapprove
appointments is conferred on the CA as a body and
not on the individual members. [Pacete vs Secretary
(1971)]
c. Temporary Designations
Admin Code of 1987, Book III Sec. 17
The President may designate an officer already in
the govt. service or any other competent person to
perform the functions of any office in the executive
branch, appointment to which is vested in him by
law, when:
The officer regularly appointed to the office is

unable to perform his duties by reason of illness,
absence or any other cause; or
There exists a vacancy;

In no case shall a temporary designation exceed one
(1) year.
d. Limitations on the appointing power of the
Acting President
(1) Appointments extended by an Acting President
shall remain effective unless revoked by the
elected President within ninety days from his
assumption or reassumption of office. [Sec. 14,
Art VII]
(2) A President or Acting President shall not make
appointments two months immediately before
the next presidential elections and up to the
end of his term
Except temporary appointments to executive
positions when continued vacancies therein will

prejudice public service or endanger public
safety. [Sec 15, Art VII]
Confirmation
The seats reserved for sectoral reps may be filled by
appointment by the President under Art XVIII, Sec. 7.
It is indubitable that sectoral representatives to the
House are among the other officers whose
appointments are vested in the Pres in this
Constitution, referred to in the 1st sentence of Art.
VII, Sec. 16.
These appointments require the
confirmation of the Commission on Appointments.
Synthesis:
From the rulings in Sarmiento III v. Mison 1987,
Bautista v. Salonga 1989, and Deles v. Constitutional
Commission 1989, these doctrines are deducible:
Confirmation by the Commission on Appointments is
required only for presidential appointees as
mentioned in the first sentence of Sec. 16, Art. VII,
including those officers whose appointments are
expressly vested by the Constitution itself in the
President:
(1) Heads of the executive departments
(2) Ambassadors, other public ministers and
consuls
(3) Officers of the Armed Forces of the
Philippines with the rank of colonel or naval
captain (because these are officers of a
sizeable command enough to stage a coup)
(4) Other officers whose appointments are
vested in the President in the Constitution:
Chairman and Commissioners of the

Constitutional Commissions (Sec 1 Art
IX-B, Sec 1 (2) Art IX-B, Sec 1(2) Art IxD)
Regular members of the Judicial and

Bar Council (Sec 8 (2) Art VII)
Sectoral representatives (Sec 7 Art

XVIII, Sec 18 Art X)
Midnight Appointments
General Rule: Two months immediately before the
next presidential elections (2nd Monday of March),
and up to the end of his "term" (June 30), a
President (or Acting President) shall not make
appointments. [Sec 15, Art VII]
Exception: Temporary appointments to executive
positions, when continued vacancies will:
(1) prejudice public service (e.g Postmaster);
or
(2) endanger public safety (e.g. Chief of Staff).
The SC ruled that while "midnight appointments"
(note: made by outgoing President near the end of
his term) are not illegal, they should be made in the
capacity of a "caretaker" doubly careful and prudent
in making the selection, so as not to defeat the
policies of the incoming administration. The filling
up of vacancies in important posts, if few, and so
spaced as to afford some assurance of deliberate
action and careful consideration of the need for the
38
appointment and the appointees qualifications, may
be undoubtedly permitted. But the issuance of 350
appointments in one night and the planned induction
of almost all of them a few hours before the
inauguration of the new President may be regarded
as abuse of presidential prerogatives. [Aytona vs
Castillo (1962)]
The SC emphasized that the Aytona ruling does not
declare all midnight appointments as invalid, and
that the ad interim appointment of the petitioner
chief of police here, whose qualification and
regularity were not disputed, except for the fact
that it was made during the last few days of the old
administration, is thus not invalid. [Quimsing vs
Tajanglangit (1964)]
The prohibition against midnight appointments
applies only to the president and does not extend to
local elective officials. Moreover, there is no law
that prohibits local elective officials from making
appointments during the last days of his or her
tenure. [De Rama v. CA (2001)]
NOTE: The Court in the case of De Castro v. JBC, [G.
R. No. 191002, March 17, 2010] ruled that the
prohibition against midnight appointment applies
only to positions in the executive department. Thus,
the appointment of Chief Justice Corona was held
valid. This ruling effectively overruled In re: Mateo
Valenzuela [A.M. No. 98-5-01-SC, November 9, 1998]
which extended the prohibition for midnight
appointments to the judiciary.
Power of Removal
The power of removal may be implied from the
power of appointment. However, the President
cannot remove officials appointed by him where the
Constitution prescribes certain methods for
separation of such officers from public service, e.g.
Chairmen and Commissioners of Constitutional
Commissioners who can be removed only by
impeachment, or judges who are subject to the
disciplinary authority of the Supreme Court.
Members of the career civil service of the Civil
Service who are appointed by the President may be
directly disciplined by him [Villaluz v. Zaldivar, 15
SCRA 710]
Members of Cabinet and such officers whose
continuity in office depends upon the pleasure of the
president may be replaced at any time, but legally
speaking, their separation is effected not by removal
but by expiration of their term.
c. Power of Control and Supervision

Control of Executive Departments (Sec 17, Art VII)
Control - is the power of an officer to alter or
modify or nullify or to set aside what a subordinate
has done in the performance of his duties and to
substitute one's own judgment to that of a
subordinate. [Mondano v. Silvosa, ]
Doctrine of Qualified Political Agency

Qualified political agency doctrine (also alter ego
principle)- all the different executive and
administrative organizations are mere adjuncts of
the Executive Department, the heads of the various
executive departments are assistants and agents of
the Chief Executive, and, except in cases wherein
the Chief Executive is required by the Constitution
or by the law to act in person or the exigencies of
the situation demand that he act personally, the
multifarious executive and administrative functions
of the Chief Executive are performed by and through
the executive depts., performed and promulgated in
the regular course of business, are, unless
disapproved or reprobated by the Chief Executive,
presumptively acts of the Chief Executive. [Free
Telephone Workers Union vs. Minister of Labor and
Employment (1981)]
General Supervision over Local government

units and the autonomous regions
(1) The President shall exercise general
supervision over local governments. [Sec 4,
Art X]
(2) The President shall exercise general
supervision over autonomous regions to ensure
that laws are faithfully executed. [Sec 16, Art
X]
Supervision and Control Distinguished
Supervision
Control
Overseeing or the power
Power of an officer
or authority of the officer to
to alter, modify,
see that subordinate officers
nullify or set aside
perform their duties, and if
what a subordinate
the latter fail or neglect to
officer had done
fulfill them, then the former
and to substitute
may take such action or steps
the judgment of
as prescribed by law to make
the former for that
them perform these duties.
of the latter.
This does not include the
power to overrule their acts,
if these acts are within their
discretion.
d. Military powers
Commander in chief powers
(1) He may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion.
(2) He may suspend the privilege of the writ of
habeas corpus, or
(3) He may proclaim martial law over the entire
Philippines or any part thereof. [Sec. 18, Art.
VII].
Subject to judicial review to determine
whether or not there has been a grave
abuse of discretion amounting to lack or
excess of jurisdiction [Sec 1(2), Art VIII].
The President shall be the Commander-in-chief of
all armed forces of the Philippines Thus, in one
39
case, the President prohibited a general from
attending a hearing at the Senate. However, the
ability of the President to require a military official
to secure prior consent before appearing before
Congress pertains to a wholly different and
independent specie of presidential authoritythe
commander-in-chief powers of the President. By
tradition and jurisprudence, the commander-in-chief
powers of the President are not encumbered by the
same degree of restriction as that which may attach
to executive privilege or executive control. The
commander-in-chief provision in the Constitution is
denominated as Section 18, Article VII, which begins
with the simple declaration that the President shall
be the Commander-in-Chief of all armed forces of
the Philippines x x x Outside explicit constitutional
limitations, such as those found in Section 5, Article
XVI, the commander-in-chief clause vests on the
President,
as
commander-in-chief,
absolute
authority over the persons and actions of the
members of the armed forces. Such authority
includes the ability of the President to restrict the
travel, movement and speech of military officers,
activities which may otherwise be sanctioned under
civilian law. [Gudani v. Senga, G.R. No. 170165,
August 15, 2006].
Graduated Powers - Sec. 18, Art VII, grants the
President, as Commander-in-Chief, a sequence of
graduated power[s]. From the most to the least
benign, these are: the calling out power, the power
to suspend the privilege of the writ of habeas
corpus, and the power to declare martial law. In the
exercise of the latter two powers, the Constitution
requires the concurrence of two conditions, namely,
an actual invasion or rebellion, and that public
safety requires the exercise of such power.
However, as we observed in Integrated Bar of the
Philippines v. Zamora, [t]hese conditions are not
required in the exercise of the calling out power.
The only criterion is that whenever it becomes
necessary, the President may call the armed forces
to prevent or suppress lawless violence, invasion or
rebellion. [Sanlakas v. Executive Secretary, 2004]
Call out the AFP to prevent lawless

violence
This is merely a police measure meant to quell
disorder. As such, the Constitution does not regulate
its exercise radically.
It is not disputed that the President has full
discretionary power to call out the armed forces and
to determine the necessity for the exercise of such
power. While the Court may examine whether the
power was exercised within constitutional limits or
in a manner constituting grave abuse of discretion,
none of the petitioners here have, by way of proof,
supported their assertion that the President acted
without factual basis. The President, in declaring a
state of rebellion and in calling out the armed
forces, was merely exercising a wedding of her Chief
Executive and Commander-in-Chief powers. These
are purely executive powers, vested on the
President by Sections 1 and 18, Article VII, as
opposed to the delegated legislative powers
contemplated by Section 23 (2), Article VI. [Sanlakas

v Executive Secretary (2004)]
Assailed is PP1017 (Declaration of State of

National Emergency). It is different from the
law in Sanlakas as this proclamation was woven
out of the calling out and take care powers
of the President joined with the temporary
takeover provision under Art. XII, section 17.
PP1017 purports to grant the President, without

authority or delegation from Congress, to take over
or direct the operation of any privately-owned public
utility or business affected with public interest.
The SC held that while the President could validly
declare the existence of a state of national
emergency even in the absence of a Congressional
enactment, the exercise of the emergency powers,
such as the taking over of privately-owned public
utility or business affected with public interest,
requires a delegation from Congress which is the
repository of emergency powers.
PP1017 did not authorize said temporary take over
without authority from Congress. [David v. Arroyo
(2006)]
a.Suspend the privilege of the writ of

habeas corpus
"Writ of habeas corpus" is an order from the court
commanding a detaining officer to inform the court
(1) if he has the person in custody, and
(2) his basis in detaining that person.
"Privilege of the writ" is that portion of the writ
requiring the detaining officer to show cause why he
should not be tested. Note that it is the privilege
that is suspended, not the writ itself.
Requisites:
(1) There must be an invasion or rebellion, and
(2) The public safety requires the suspension.
Duration: Not to exceed 60 days unless extended by
Congress.
Effects of the suspension of the privilege:
(1) The suspension of the privilege of the writ
applies only to persons "judicially charged"
for rebellion or offenses inherent in or
directly connected with invasion [Sec. 18(5),
Art. VII].
Such persons suspected of the above

crimes can be arrested and detained
without a warrant of arrest.
The suspension of the privilege does

not make the arrest without warrant
legal. But the military is, in effect,
enabled to make the arrest, anyway
since, with the suspension of the
privilege, there is no remedy available
against such unlawful arrest (arbitrary
detention).
The arrest without warrant is justified

by the emergency situation and the
40
difficulty in applying for a warrant

considering the time and the number of
persons to be arrested.
The crime for which he is arrested must
be one related to rebellion or invasion.
As to other crimes, the suspension of
the privilege does not apply.
(2) During the suspension of the privilege of the

writ, any person thus arrested or detained
shall be judicially charged within 3 days, or
otherwise he shall be released. [Sec.
18(6),Art. VII]
The effect of the suspension of the

privilege, therefore, is only to extend
the periods during which he can be
detained without a warrant. When the
privilege is suspended, the period is
extended to 72 hours.
What happens if he is not judicially

charged nor released after 72 hours?
The public officer becomes liable under
Art. 125 for "delay in the delivery of
detained persons."
the writ of habeas corpus before the lapse

of 60 days from the date of suspension or
proclamation.
(2) Upon such proclamation or suspension,
Congress shall convene at once. If it is not
in session, it shall convene in accordance
with its rules without need of a call within
24 hours following the proclamation or
suspension.
(3) Within 48 hours from the proclamation or
the suspension, the President shall submit a
report, in person or in writing, to the
Congress (meeting in joint session of the
action he has taken).
(4) The Congress shall then vote jointly, by an
absolute majority. It has two options:
(a) To revoke such proclamation or
suspension.
When
it
so
revoked, the President cannot set
aside (or veto) the revocation as he
normally would do in the case of
bills.
(b) To extend it beyond the 60-day
period of its validity.
Congress
can only so extend the proclamation
or suspension upon the initiative of
the President.
(3) The right to bail shall not be impaired even

when the privilege of the writ of habeas
corpus is suspended. [Sec. 13,Art. III]
b. Proclaim Martial Law

Requisites:
(1) There must be an invasion or rebellion, and
(2) Public safety requires the proclamation of
martial law all over the Philippines or any
part thereof.
The following cannot be done [Sec. 18 (4), Art. VII]
(1) Suspend the operation of the Constitution.
(2) Supplant the functioning of the civil courts
and the legislative assemblies.
(3) Confer jurisdiction upon military courts and
agencies over civilians, where civil courts
are able to function.
"open court" doctrine
holds that civilians cannot be tried

by military courts if the civil courts
are open and functioning.
if the civil courts are not

functioning, then civilians can be
tried by the military courts.
Martial law usually contemplates a

case where the courts are already
closed and the civil institutions
have already crumbled, that is a
"theater of war." If the courts are
still open, the President can just
suspend the privilege and achieve
the same effect.
(4) Automatically suspend the privilege of the
writ of habeas corpus.
The President must suspend the

privilege expressly.
The Role of Congress [Art. VII, Sec. 18, pars. 1-2]
(1) Congress may revoke the proclamation of
martial law or suspension of the privilege of
The period need not be 60 days; it

could be more, as Congress would
determine, based on the persistence of
the emergency.
Note: If Congress fails to act before the measure
expires, it can no longer extend it until the
President again re-declares the measure.
Congress
cannot
"validate"
the
proclamation or suspension, because it
is already valid.
If Congress extends the measure, but
before the period of extension lapses
the requirements for the proclamation
or suspension no longer exist, Congress
can lift the extension, since the power
to confer implies the power to take
back.
If Congress does not review or lift the
order, this can be reviewed by the
Supreme Court pursuant to the next
section.
The Role of the Supreme Court [Art. VII, Sec. 18,

par. 3]
(1) The Supreme Court may review, in an
appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of:
(a) the proclamation of martial law or
the suspension of the privilege of
the writ, or
(b) the extension thereof.
It must
promulgate its decision thereon
within 30 days from its filing. [Sec
41
18 (3), Art. VII]
by court-martial.
(2) The jurisdiction of the SC may be invoked in a

proper case.
(3) Petition for habeas corpus
(a) When a person is arrested without a
warrant for complicity in the
rebellion or invasion, he or someone
else in his behalf has the standing to
question the validity of the
proclamation or suspension.
(b) Before the SC can decide on the
legality of his detention, it must
first pass upon the validity of the
proclamation or suspension.
(4) Test of Arbitrariness: The question is not
whether the President or Congress acted
correctly, but whether he acted arbitrarily in
that the action had no basis in fact. [IBP v.
Zamora, (2000)]
amounts to a determination of whether

or not there was grave abuse of discretion amounting to lack or excess of
jurisdiction. [Sec 1(2) Art. VIII]
The function of the court is to check

and not supplant the executive or to
ascertain merely whether he has gone
beyond the constitutional limits of
jurisdiction. The proper standard is not
correctness but arbitrariness.
There are 4 ways, then, for the proclamation or
suspension to be lifted: (P-C-S-O)
(1) Lifting by the President himself
(2) Revocation by Congress
(3) Nullification by the Supreme Court
(4) Operation of law after 60 days
Cf. RA 7055 (1991) "An Act Strengthening Civilian
Supremacy over the Military by Returning to the Civil
Courts the Jurisdiction over Certain Offenses
involving Members of the Armed Forces of the
Philippines, other Persons Subject to Military Law,
and the Members of the Philippine National Police,
Repealing for the Purpose Certain Presidential
Decrees"
RA 7055 effectively placed upon

courts the jurisdiction over
offenses involving members of
and other members subject to
law.
the civil
certain
the AFP
military
RA 7055 provides that when these

individuals commit crimes or offenses
penalized under the RPC, other special
penal laws, or local government
ordinances,
regardless
of
whether
civilians are co-accused, victims, or
offended parties which may be natural or
juridical persons, they shall be tried by
the proper civil court, except when the
offense,
as
determined
before
arraignment by the civil court, is serviceconnected in which case it shall be tried
The assertion of military authority over

civilians cannot rest on the President's
power as Commander in Chief or on any
theory of martial law. As long as civil
courts remain open and are regularly
functioning, military tribunals cannot try
and exercise jurisdiction over civilians for
offenses committed by them and which
are properly cognizable by civil courts.
To hold otherwise is a violation of the
right to due process. [Olaguer vs Military
Commission No. 34 (1987)]
(5) Pardoning Power

a)
b)
Nature
Forms of executive clemency
Executive clemencies
(1) Reprieves - a temporary relief from or
postponement of execution of criminal
penalty or sentence or a stay of execution.
[Blacks Law Dictionary]. It is the
withholding of a sentence for an interval of
time, a postponement of execution, a
temporary suspension of execution. [People
vs. Vera, supra]
(2) Commutations - Reduction of sentence.
[Blacks Law Dictionary] . It is a remission
of a part of the punishment; a substitution
of a less penalty for the one originally
imposed. [People vs. Vera, supra]
(3) Amnesty - a sovereign act of oblivion for
past acts, granted by government generally
to a class of persons who have been guilty
usually of political offenses and who are
subject to trial but have not yet been convicted, and often conditioned upon their
return to obedience and duty within a
prescribed time. (BLACK; Brown v Walker,
161 US 602).
(4) Pardons - Permanent cancellation of
sentence. [Blacks Law Dictionary]. It is an
act of grace proceeding from the power
entrusted with the execution of the laws,
which exempts the individual on whom it is
bestowed, from the punishment the law
inflicts for the crime he has committed. It is
a remission of guilt, a forgiveness of the
offense. [People v Vera, supra]
Plenary or partial
Plenary - extinguishes all the

penalties
imposed
upon
the
offender,
including
accessory
disabilities
Partial does not extinguish all

penalties imposed
Absolute or conditional
Conditional - the offender has the

right to reject the same since he
42
may feel that the condition

imposed is more onerous than the
penalty sought to be remitted.
Absolute pardon - pardonee has no
option at all and must accept it
whether he likes it or not. In this
sense, an absolute pardon is
similar to commutation, w/c is also
not subject to acceptance by the
offender.
Pardon
Infractions of peace of
the state
Granted to individuals
Exercised solely by the
executive
Private act which must
be pleaded and proved
Looks
forward
and
relieves the pardonee of
the consequences of the
offense
Amnesty
Addressed to Political
Offenses
To classes of persons
Requires concurrence of
Congress
Public act which the
courts
could
take
judicial notice
Looks backward and puts
into oblivion the offense
itself.
(5) Remit fines and forfeitures, after conviction by final judgment

Except:
(a) In cases of impeachment, and
(b) As otherwise provided in this
Constitution
No pardon, amnesty, parole or suspension of
sentence for violation of election laws, rules, and
regulations shall be granted by the President without
the favorable recommendation by the Commission
(on Elections.) [Sec 5, Art IX]
The President shall also have the power to grant
amnesty with the concurrence of a majority of all
the Members of the Congress. [Sec 19, Art VII]
Probation - a disposition under which a defendant
after conviction and sentence is released subject to
conditions imposed by the court and to the
supervision of a probation officer. [Sec. 3 (a), PD
968.]
Parole - suspension of the sentence of a convict
granted by a Parole Board after serving the minimum
term of the indeterminate sentence penalty, without
granting a pardon, prescribing the terms upon which
the sentence shall be suspended. [REYES]
Limitations on the Pardoning Power
(1) Cannot be granted on impeachment cases.
[Sec. 19, Art. VII].
(2) Cannot be granted in cases of violation of
election laws without the favorable
recommendation of the COMELEC. [Sec. 5,
Art. IX-C].
(3) Can be granted only after conviction by final
judgment [People v. Salle, 250 SCRA 581].
(4) Cannot absolve the convict of civil liability.
(5) Cannot be granted to cases of legislative

contempt or civil contempt.
(6) Cannot restore public offices forfeited.
Pardon implies guilt and does not erase the fact of
the commission of the crime and the conviction
thereof. It does not ipso facto restore a convicted
felon to a public office necessarily relinquished or
forfeited by reason of the conviction although such
pardon undoubtedly restores his eligibility for
appointment to that office. [Monsanto vs Factoran
(1989)]
Application of Pardoning Powers to Administrative
Cases
If the President can grant reprieves,

commutations and pardons, and remit
fines and forfeitures in criminal cases,
with much more reason can she grant
executive clemency in administrative
cases, which are clearly less serious
than criminal offenses.
However, the power of the President to

grant
executive
clemency
in
administrative cases refers only to
administrative cases in the Executive
branch and not in the Judicial or
Legislative branches of the govt.
[Llamas v Executive Secretary (1991)]
Removal of Administrative Penalties
Sec. 53, Chapter 7, Subtitle A, Title I, Book V,
Administrative Code of 1987
Removal of Administrative Penalties or Disabilities In meritorious cases and upon recommendation of
the (Civil Service) Commission, the President may
commute or remove administrative penalties or
disabilities imposed upon officers or employees in
disciplinary cases, subject to such terms and
conditions as he may impose in the interest of the
service
Who may avail of amnesty? (Case Law) (Asked 5
times in the Bar)
Amnesty Proclamation No. 76 applies even to
Hukbalahaps already undergoing sentence upon the
date of its promulgation. The majority of the Court
believes that by its context and pervading spirit the
proclamation extends to all members of the
Hukbalahap. [Tolentino vs Catoy (1948)]
The SC agreed with the Sandiganbayan that in fact
the petitioners were expressly disqualified from
amnesty. The acts for which they were convicted
were ordinary crimes without any political complexion and consisting only of diversion of public
funds to private profit. The amnesty proclamation
covered only acts in the furtherance of resistance to
duly constituted authorities of the Republic and
applies only to members of the MNLF, or other antigovernment groups. [Macaga-an vs People (1987)]
(6) Diplomatic Power
Scope of Diplomatic Power: In our system of
government, the President, being the head of state,
is regarded as the sole organ and authority in
43
external relations and is the countrys sole
representative with foreign nations. As the chief
architect of foreign policy, the President acts as the
countrys mouthpiece with respect to international
affairs. Hence, the President is vested with the
authority:
(1) to
deal
with
foreign
states
and
governments;
(2) extend or withhold recognition;
(3) maintain diplomatic relations;
(4) enter into treaties; and
(5) transact the business of foreign relations.
[Pimentel v. Executive Secretary, G. R. No.
158088, July 6, 2005]
(a) Treaty-making power

No treaty or international agreement shall be valid
and effective unless concurred in by at least twothirds of all the members of the Senate. [Sec 21, Art
VII]
Treaty - as defined by the Vienna Convention on the
Law of Treaties, is an international instrument
concluded between States in written form and
governed by international law, whether embodied in
a single instrument or in two or more related
instruments,
and
whatever
its
particular
designation. [Bayan v. Executive Secretary, G.R.
No. 138570, October 10, 2000].
Other terms for a treaty: act, protocol, agreement,
compromis d arbitrage, concordat, convention,
declaration, exchange of notes, pact, statute,
charter and modus vivendi.
Note: It is the President who RATIFIES a treaty (not
the Senate), the Senate merely CONCURES. [Bayan
v. Executive Secretary]
Executive Agreements
Entered into by the President
Needs no concurrence.
International agreements involving political
issues or changes in national policy and
those involving international agreements of
permanent character usually take the form
of TREATIES.
But the international
agreements involving adjustments in detail
carrying out well-established national
policies and traditions and those involving a
more or less temporary character usually
take the form of EXECUTIVE AGREEMENTS. [
Commissioner of Customs vs. Eastern Sea
Trading (1961)]
The agreement is not a "treaty" as the term is
used in the Constitution. The agreement
was never submitted to the Senate for
concurrence. It must be noted that a treaty
is not the only form that an international
agreement may assume. For the grant of
treaty making power to the Executive and
the Senate does not exhaust the power of
the government over international relations.
Consequently, executive agreements may be
entered into with other states and are
effective even without the concurrence of

the Senate. From the point of view of
international law, there is no difference
between treaties and executive agreements
in their binding effect upon states
concerned as long as the negotiating
functionaries have remained within their
powers.
The distinction between an
executive agreement and a treaty is purely
a constitutional one and has no
international legal significance. [USAFFE
Veterans Assn. vs Treasurer (1959)]
Two Classes of Executive Agreements
(1) Agreements made purely as executive acts
affecting external relations and independent
of or without legislative authorization,
which may be termed as presidential
agreements; and
(2) Agreements entered into in pursuance of
acts of Congress, or Congressional-Executive
Agreements.
Although the President may, under the American
constitutional
system
enter
into
executive
agreements without previous legislative authority,
he may not, by executive agreement, enter into a
transaction which is prohibited by statutes enacted
prior thereto. Under the Constitution, the main
function of the Executive is to enforce laws enacted
by Congress. The former may not interfere in the
performance of the legislative powers of the latter,
except in the exercise of his veto power. He may not
defeat legislative enactments that have acquired the
status of law, by indirectly repealing the same
through an executive agreement providing for the
performance of the very act prohibited by said laws.
[Gonzales v Hechanova (1963)]
The issue in this case is the constitutionality of the
VFA. The SC held that once the Senate performs the
power to concur with treaties or exercise its
prerogative within the boundaries prescribed by the
Constitution, the concurrence cannot be viewed as
an abuse of power, much less a grave abuse of
discretion. The President, in ratifying the VFA and
submitting the same for concurrence of the Senate,
acted within the confines and limits of the power
vested in him by the Constitution. The President
merely performed a constitutional task and
exercised a prerogative that chiefly pertains to the
functions of his office. [Bayan vs Executive Secretary
(2000)]
(b) Deportation of undesirable aliens

The President may deport only according to grounds
enumerated by law since it would be unreasonable
and undemocratic to hold that an alien be deported
upon an unstated or undefined ground depending
merely on the use of an unlimited discretion by the
President. [Qua Chee Gan vs Deportation Board
(1963]
2 ways of deporting an undesirable alien:
(1) by order of the President after due
investigation, pursuant to section 69 of the
Revised Administrative Code
44
(2) by the Commissioner of Immigration under
section 37 of the immigration Law [Qua
Chee Gan v. Deportation Board, supra]
Scope of the power
The Deportation Board can entertain
deportation based on grounds not specified
in Sec 37 of the Immigration Law. The
Board has jurisdiction to investigate Go Tek
even if he had not been convicted yet.
The Presidents power to deport aliens and to
investigate them subject to deportation are
provided in the Revised Administrative
Code.
The State has inherent power to deport
undesirable aliens. This power is exercised
by the President.
There is no legal nor constitutional provision
defining the power to deport aliens because
the intention of the law is to grant the
Chief Executive the full discretion to
determine whether an aliens residence in
the country is so undesirable as to affect
the security, welfare or interest of the
state.
The Chief Executive is the sole and exclusive
judge of the existence of facts which would
warrant the deportation of aliens. [Go Tek
vs Deportation Board (1977)]
(7) Powers Relative to Appropriation

Measures
Contracting and guaranteeing foreign loans
Requisites for contracting and guaranteeing foreign
loans:
(1) With the concurrence of the monetary board
[Sec 20, Art VII]
(2) subject to limitations as may be provided by
law [Sec 21, Art XII]
(3) information on foreign loans obtained or
guaranteed shall be made available to the
public [sec 21, Art XII]
Cf. Republic Act 4860
An Act Authorizing The President Of The Philippines
To Obtain Such Foreign Loans And Credits, Or To
Incur Such Foreign Indebtedness, As May Be
Necessary
To
Finance
Approved
Economic
Development Purposes Or Projects, And To
Guarantee, In Behalf Of The Republic Of The
Philippines, Foreign Loans Obtained Or Bonds Issued
By Corporations Owned Or Controlled By The
Government Of The Philippines For Economic
Development Purposes Including Those Incurred For
Purposes Of Re-Lending To The Private Sector,
Appropriating The Necessary Funds Therefore, And
For Other Purposes
Approved, September 8, 1966.
Role of Congress: The President does not need prior
approval by the Congress

(1) Because the Constitution places the power
to check the Presidents power on the
Monetary Board
(2) Congress may provide guidelines and have
them enforced through the Monetary Board
Prepare and Submit the Budget

The President shall submit to Congress within thirty
days from the opening of every regular session, as
the basis of the general appropriations bill, a budget
of expenditures and sources of financing, including
receipts from existing and proposed revenue
measures. [Sec 22, Art VII]
The budget is the plan indicating:

i.expenditures of the government,
ii.sources of financing, and
iii.receipts from revenue-raising measures.
This budget is the upper limit of the appropriations

bill to be passed by Congress. Through the budget,
therefore, the President reveals the priorities of the
government.
Fixing of tariff rates (Sec 28, Art VI)

The Congress may, by law, authorize the President
to fix:
within specified limits, and
subject to such limitations and

restrictions as it may impose,
tariff rates
import and export quotas
tonnage and wharfage dues
other duties or imposts within the
framework
of
the
national
development program of the
Government.
Rationale for delegation: highly technical nature of
international commerce, and the need to constantly
and with relative ease adapt the rates to prevailing
commercial standards.
Veto Power
General rule: all bills must be approved by the
President before they become law
Exceptions:
(1) the veto of the President is overridden by
2/3 vote of all the Members of the House
where it originated;
(2) the bill lapsed into law because the inaction
of the President; and
(3) the bill passed is the special law to elect
the President and Vice-President.
This gives the President an actual hand in
legislation. However, his course of action is only to
approve it or veto it as a whole. (See Legislative
Power of Congress)
45
Congress held its regular session. The

fact that Congress could now meet
meant that there was no emergency
anymore that would justify the delegation. The assertion that new legislation
is needed to repeal CA671 is not in
harmony with the Constitution. If a new
law were necessary to terminate it,
then it would be unlimited and
indefinite.
This would create an
anomaly since what was intended to
meet a temporary emergency becomes
a permanent law. [Araneta v Dinglasan
(1949)]
It is true that the Constitution provides a mechanism

for overriding a veto (Art. VI, Sec. 27 [1]). Said
remedy, however, is available only when the
presidential veto is based on policy or political
considerations but not when the veto is claimed to
be ultra vires. In the latter case, it becomes the
duty of the Court to draw the dividing line where the
exercise of executive power ends and the bounds of
legislative jurisdiction begin. [PHILCONSA v Enriquez
(1994)]
(8) Residual Powers

Emergency powers
The Congress may by law authorize the President to
exercise powers necessary and proper to carry out a
declared national policy.
Different from the Commander-in-Chief clause:
When the President acts under the
Commander-in-Chief clause, he acts under a
constitutional grant of military power,
which may include the law-making power.
When the President acts under the emergency
power, he acts under a Congressional
delegation of law-making power.
Meaning of power necessary and proper - Power
to issue rules and regulations
This power is:
(1) for a limited period, and
(2) subject to such restrictions as Congress may
provide.
The power ceases:
(1) upon being withdrawn by resolution of the
Congress, or, if Congress fails to adopt such
resolution,
(2) upon the next (voluntary) adjournment of
Congress. For the fact that Congress is able
to meet in session uninterruptedly and
adjourn of its own will proves that the
emergency no longer exists is to justify the
delegation.
This rule or the termination of the grant

of emergency powers is based on
decided cases, which in turn became
Art. VII, Sec. 15 of the 1973
Constitution.
The Congress granted the President

certain emergency powers. (CA671)
After the war, Congress held a special
session.
The SC held that the
emergency power lasted only until
The specific power to continue in force

laws and appropriations which would
lapse or otherwise become inoperative
is a limitation on the general power to
exercise such other powers as the
executive may deem necessary to
enable the government to fulfill its
responsibilities and to maintain and
enforce its authority. [Rodriguez v Gella
(1953)]
Inconsistency between the Constitution and the

cases: (BARLONGAY)
The Constitution [Art. VI, Sec. 23 (2)]

states that the emergency powers shall
cease upon the next adjournment of
Congress unless sooner withdrawn by
resolution of Congress
Cases tell us that the emergency powers

shall cease upon resumption of session.
Reconciling the two: it would not be

enough for Congress to just resume
session in order that the emergency
powers shall cease. It has to pass a
resolution withdrawing such emergency
powers, otherwise such powers shall
cease upon the next adjournment of
Congress.
Emergency Power
In times of war or other national emergency, the
Congress, may, by law, authorize the President, for
a limited period, and subject to such restrictions as
it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy.
Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next
adjournment thereof. (Sec 23, Art VI see discussion
above)
Please refer to preceding subsection 2.a. EXECUTIVE
AND ADMINISTRATIVE POWERS IN GENERAL
46
RULES ON SUCCESSION
47
President
Death or permanent disability
of the President-elect
President-elect fails to qualify
Vacancy
at the
Beginning
of the
term
Vacancy
during
the term
Temporary
disability
President shall not have been

chosen
No President and Vice-President
chosen nor shall have qualified,
or both shall have died or
become permanently disabled
Death, permanent disability,

removal
from
office,
or
resignation of the President
Death, permanent disability,
removal
from
office,
or
resignation of President and
Vice-President
When President transmits to

the Senate President and the
Speaker of the House his
written declaration that he is
unable to discharge the powers
and duties of his office
When a Majority of all the
members
of
the
Cabinet
transmit to the Senate Presdent
and the Speaker their writted
declaration that the President
is unable to discharge the
powers and duties of his office
If after the President transmits
his declaration of his ability to
discharge his office, and a
majority of members of the
Cabinet transmit within 5 days
to the Senate President and
Speaker
their
written
declaration that the President
powers and duties of his office,
Congress shall decide the issue.
Vice-President-elect
shall
become President
Vice-President-elect shal act as
President until the Presidentelect shall have qualifiedl
Vice-President-elect shall act as
President until a President shall
have
been
chosen
and
qualified.
President of the Senate or
incase of his inability,
Speaker of the House of
Representatives, shall act as
President until a President or a
Vice-President shall have been
chosen and qualified.
Vice-President-elect
become President
In the event of inability of the

officials mentioned, Congress
shall, by law, provide for the
manner in which one who is to
act as President shall be
selected until a President or
Vice-President
shall
have
qualified.
shall
Senate President or, in case of

his inability, the Speaker of the
House of Representatives, shall
act as President until a
Presidnet or Vice-President
shall be elected and qualified.
Congress, by law, shall provide
for the manner in which one is
to act as President in the event
of inability of the officials
mentioned above.
Such powers and duties shall be
discharged
by
the
VicePresident as Acting President,
until the President transmits to
them a written declaration to
the contrary
the
Vice-President
shall
immediately assume the powers
and duties of the office as
Acting President until the
President transmits to the
Senate President and Speaker
his written declaration that no
inability exists.
Congress determines by a 2/3
vote of both houses, voting
separately, that the President
powers and dutes of his office,
the Vice-President shall act as
President;
otherwise,
the
President
shall
continue
exercising the powers and
duties of his office
Congress shall convene, if not

in session, within 48 hours. And
if within 10 days from receipt
of the last written declaration
or, if not in session, within 12
days after it is required to
assemble.
JUDICIAL POWER
Constitutional duty of Congress in case of vacancy
in the offices of President and Vice-President
At 10 oclock in the morning of the 3rd day after the
vacancy occurs, Congress shall convene without need
of a call, and within 7 days enact a law calling for a
special election to elect a President and a VicePresident to be held not earlier than 45 nor more
than 60 days from the time of such call. The bill
shall be deemed certified and shall become law upon
its approval on third reading by Congress. xxx the
Convening of Congress cannot be suspended nor the
special election postponed. xxx No special election
shall be called if the vacancy occurs within 18
months before the date of the next presidential
election.
Requisites
for
exercise
Vice-President
Sec. 9 Art. VII The President shall nominate a VicePresident from among the members of the Senate
and the House of Representatives who shall assume
office upon confirmation by a majority vote of all
the members of both houses of Congress voting
separately.
D. Judicial Department
I. Concepts
II. Judicial Indepdence Safeguards
III. Judicial Restraint
IV. Appointments to the Judiciary
V. Supreme Court
I. Concepts
a. Judicial Power (Section 1, Article VIII)
Judicial power includes the duty of the courts of
justice to:
(a) settle actual controversies involving rights which
are legally demandable and enforceable, and
(b) 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.
The second clause effectively limits the doctrine of
political question.
Vested in: Supreme Court and in such lower courts
as may be established by law.
b. Judicial Review
JUDICIAL POWER
Where
vested
Definition
Supreme Court
Lower courts
Duty to settle
actual
controversies
involving rights
which are legally
demandable and
JUDICIAL
REVIEW
Supreme Court
Lower courts
Power of the
courts to test the
validity of
executive and
legislative acts in
light of their
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
[Art. VIII, Sec. 1,
Par. 2]
Jurisdiction
power to decide
and hear a case
and execute a
decision thereof
JUDICIAL
REVIEW
conformity with
the Constitution
[Angara v.
Electoral
Commission
(1936)]
1.Appropriate
case: actual
case or
controversy
2.Standing:
personal and
substantial
interest
3.Question raised
at the earliest
opportunity
4.Lis mota of the
case
When the judiciary mediates to allocate

constitutional boundaries, it does not assert any
superiority over the 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 "judicial
upremacy" which properly is the power of judicial
review under the Constitution. (Angara v. Electoral
Commission, 1936)
Functions of Judicial Review
i. Checking
ii. Legitimating
iii. Symbolic
Essential Requisites for Judicial Review

a.
Actual case or controversy
This means that there must be a genuine conflict of

legal rights and interests which can be resolved
through judicial determination. (John Hay vs. Lim,
2003)
This precludes the courts from entertaining the
following:
i.
Request for an advisory opinion [Guingona vs.

CA, (1998)]
ii.
Cases that are or have become moot and

academic, UNLESS --a. there is a grave violation of the Constitution;
b. the exceptional character of the situation and
the paramount public interest is involved;
c. when constitutional issue raised requires
formulation of controlling principles to
guide the bench, the bar, and the public;
d. fourth, the case is capable of repetition yet
evading review.[capable of repetition yet
evading review [Alunan III v. Mirasol,
(1997); Sanlakas v. Executive Secretary,
(2004)]; or
e. when the court feels called upon to exercise
its symbolic function and provide future
guidance [Salonga v. Pao, (1985)]
b. Standing: NOT the same as real party in
interest
A proper party is one who has sustained or is in
imminent danger of sustaining a direct injury as a
result of the act complained of (IBP v. Zamora,
2000). The alleged injury must also be capable of
being redressed by a favorable judgment [Tolentino
v. Comelec, 2004].
i.
Requires partial consideration of the merits of

the case in view of its constitutional and public
policy underpinnings [Kilosbayan vs Morato,
(1995)]
ii. May be brushed aside by the court as a mere
procedural
technicality
in
view
of
transcendental importance of the issues
involved [Kilosbayan vs Guingona, 1994]; [Tatad
vs DOE, (1995)}.
iii. Who are proper parties?
Taxpayers, when public funds are involved
(Tolentino vs Comelec, 2004)
Government of the Philippines, when
questioning the validity of its own laws
(People vs Vera, 1937)
Legislators, when the powers of Congress are
being impaired (Philconsa vs Enriquez,
1994).
Citizens, when the enforcement of a public
right is involved Taada vs Tuvera, (1985).
c. Constitutional question must be raised at the
earliest possible opportunity, except:
i. in criminal cases, at the discretion of the court
ii. in civil cases, if necessary for the determination
of the case itself
iii. when the jurisdiction of the court is involved
d. Decision on the constitutional question must be
determinative of the case itself.
The reason for this is the doctrine of separation of
powers which requires that due respect be given to
the co-equal branches, and because of the grave
consequences of a declaration of unconstitutionality.
(De la Llana v. Alba, 1982)
(1) Operative Fact Doctrine
Even if a law was stricken off as unconstitutional,
courts shall still give recognition to its operative
effects that inhered when it still took effect.
Although
the
orthodox
view
holds
that
unconstitutional laws cannot be the basis of any

legal right or duty, it is not sufficiently realistic in
admitting that prior to the declaration of nullity,
such challenged act must have been in force and had
to be complied with. Refusing to recognize what had
transpired prior to such adjudication will deprive the
law of its quality of fairness and justice.
The actual existence of a stature, prior to such a
determination of unconstitutionality, is an operative
fact and may have consequences which cannot be
justly ignored. [De Agbayani v. PNB (1971)]
Effect of a Declaration of Unconstitutionality
a. Orthodox view
An unconstitutional act is not a law; it confers no
rights; it imposes no duties; it affords no protection;
it creates no office; it is inoperative, as if it had not
been passed at all.
b. Modern view
Pelaez v. Auditor General, (1965)
Certain legal effects of the statute prior to
its declaration of unconstitutionality may
be recognized. [NACHURA]
(2) Moot Questions
One requirement for the exercise of judicial power is
the ripeness of the controversy.
This means it must be raised not too early that

it is conjectural or anticipatory, nor too late
that it becomes moot. HOWEVER, there are
exceptions to the mootness doctrine: When the
issue is capable of repetition yet evading
review.
(3) Political Question Doctrine
The term political question refers to: (1)

matters to be exercised by the people in their
primary political capacity; or (2) those
specifically
delegated
to
some
other
department or particular office of the
government, with discretionary power to act.
It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure.
[Taada v. Cuenco, (1957)]
In recent years, the Court has set aside this
doctrine and assumed jurisdiction whenever it
found constitutionally-imposed limits on the
exercise of powers conferred upon the
Legislative and Executive branches [BERNAS].
POLITICAL QUESTION
Alejandrino v. Quezon,
(1924): The legislatures
exercise of disciplinary
power over its member
is not to be interfered
with by the Court.
Vera v. Avelino, (1946):
inherent right of the
legislature to determine
who shall be admitted to
its membership
JUSTICIABLE
CONTROVERSY
Avelino v. Cuenco,
(1949): election of
Senate President was
done without the
required quorum
Taada v. Cuenco,
(1957): The selection of
the members of the
Senate Electoral Tribunal
is subject to
49
POLITICAL QUESTION
Mabanag v. Lopez-Vito,
(1947): Proposal to
amend the Constitution
is a highly political
function performed by
Congress in its sovereign
capacity.
Osmea v. Pendatun,
(1960): disciplinary
power of the legislature
Severino v. GovernorGeneral, (1910):
Mandamus and
injunction could not lie
to enforce or restrain a
duty which is
discretionary (calling a
special local election).
Montenegro v.
Castaeda, (1952):
Authority to decide
whether the exigency
has arisen requiring the
suspension of the
privilege of the writ of
habeas corpus belongs to
the President.
Manalang v. Quitoriano,
(1954): Presidents
appointing power is not
to be interfered with by
the Court.
Javellana v. Executive
Secretary, (1973): The
people may be deemed
to have cast their
favorable votes in the
belief that in doing so
they did the part
required of them by
Article XV, hence, it may
be said that in its
political aspect, which is
what counts most, after
all, said Article has been
substantially complied
with, and, in effect, the
1973 Constitution has
been constitutionally
ratified.
JUSTICIABLE
CONTROVERSY
constitutional
limitations.
Cunanan v. Tan, Jr.,
(1962): The Commission
on Appointments is a
constitutional creation
and does not derive its
power from Congress.
(2) The members of the judiciary are not subject

to confirmation by the CA.
Gonzales v. Comelec,
(1967); Tolentino v.
Comelec, (1971):
abandoned Mabanag v.
Lopez-Vito
Lansang v. Garcia,
(1971): Suspension of the
privilege of the writ of
habeas corpus is not a
political question.
(5) The appellate jurisdiction of the SC may not

be increased by law w/o its advice and
concurrence. (Art. VI, Sec. 30.)
Javellana v. Executive
Secretary, (1973): WON
the 1973 Constitution
had been ratified in
accordance with the
1935 Constitution is
justiciable.
II. Constitutional Safeguards of the

Supreme Court
(1) The SC is a constitutional body. It cannot be
abolished nor may its membership or the
manner of its meetings be changed by mere
legislation. [Art. VIII, Sec. 4 (1)]
(3) The members of the SC may not be removed

except by impeachment. (Art. IX, Sec. 2.)
(4) The SC may not be deprived of its minimum
original and appellate jurisdiction as
prescribed in Art. X, Sec. 5 of the Consti.
(Art. VIII, Sec. 2.)
(6) The SC now has administrative supervision

over all lower courts and their personnel.
(7) The SC has exclusive power to discipline
judges of lower courts. (Art. VIII, Sec. 11.)
(8) The members of the SC and all lower courts
have security of tenure, w/c cannot be
undermined by a law reorganizing the
judiciary. (Id.)
(9) They shall not be designated to any agency
performing quasi-judicial or administrative
functions. (Art. VIII, Sec. 12.)
(10) The salaries of judges may not be reduced
during their continuance in office. (Art. VIII,
Sec. 10.)
(11) The judiciary shall enjoy fiscal autonomy.
Fiscal autonomy means freedom from

outside control. As the Court explained
in Bengzon v. Drilon: As envisioned in
the Constitution, the fiscal autonomy
enjoyed by the Judiciary, the Civil
Service
Commission
and
the
Commission on Audit, the Commission
on Elections, and the Office of the
Ombudsman contemplates a guarantee
of full flexibility to allocate and utilize
their resources with the wisdom and
dispatch that their needs require. It
recognizes the power and authority to
levy, 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 them in the course of the
discharge of their functions. (In re:
Clarifying and Strengthening the
Organizational Structure and Set-up of
the Philippine Judicial Academy, A.M.
No. 01-1-04-SC).
(12) The SC alone may initiate rules of court. [Art.

VIII, Sec. 5 (5).]
50
(13) Only the SC may order the temporary detail of
judges. [Art. VIII, Sec. 5 (3)]
(14) The SC can appoint all officials and employees
of the judiciary. [Art. VIII, Sec. 5 (6)]
III. Judicial Restraint

The judiciary will not interfere with its co-equal
branches in cases of:
i. When there is no showing of a grave abuse of
discretion
(1) issue is a political question
ii.
There is no showing of grave abuse of

discretion
(1) PPA v. Court of Appeals: If there is no
showing of grave abuse of discretion on the part
of a branch or instrumentality of the
government, the court will decline exercising its
power of judicial review.
Courts will not rule on the WISDOM of the
decision of a separate branch or department.
Courts will only judge whether or not there has
been grave abuse of discretion amounting to
lack or excess of jurisdiction.
(2) Chavez v. COMELEC: Judicial review shall
involve only those resulting to grave abuse of
discretion by virtue of an agencys quasi-judicial
powers, and not those arising from its
administrative functions.
iii.
The issue is a political question.

Even when all requisites for justiciability has
been met, judicial review will not be exercised
when the issue involves a political question.
Mabanag v. Lopez Vito: Proposals for revision
or amendment of the Constitution duly
certified by the legislative authority shall
be binding and conclusive upon the courts
under the enrolled bill rule.
o The validity of a proposal which leads
to ratification of an amendment to the
Constitution is a political question.
o A duly authenticated copy of a
Congressional Resolution proposing an
amendment to the Constitution is
conclusive upon the Courts under the
Enrolled Bill Rule.
o An enrolled bill is a bill duly certified
by the President of the Senate and the
Speaker of the House as having been
passed in accordance with the rules
stated in the Constitution.
Reversed in Gonzales vs. COMELEC: Whether
Congress or a Constitutional convention has
properly proposed amendments to the
Constitution is a justiciable and not a
political question.
Alejandrino v. Quezon: Mandamus will not lie
against the legislative body, its members,

or its officers, to compel the performance
of duties purely legislative in their
character which therefore pertain to their
legislative functions over which they have
exclusive control.
Baker v. Carr: Guidelines for determining
whether a question is political or not:
o There is a textually demonstrable
constitutional commitment of the issue
to a political department;
o Lack of judicially discoverable and
manageable standards for resolving it;
o The impossibility of deciding without an
initial policy determination of a kind
clearly for non-judicial discretion;
o Impossibility of a courts undertaking
independent
resolution
without
expressing lack of the respect due
coordinate branches of government;
o An unusual need for unquestioning
adherence to a political decision
already made;
o Potentiality of embarrassment from
multifarious pronouncements by various
departments on one question
IV. Appointments to the Judiciary

Synthesis of Constituional and Statutory
Qualifications
SC and
RTC
MTC/
CA
JUDGE
MCTC
JUSTICE
JUDGE
Citizenship
Naturalborn
Filipino
Filipino
Age
At least
At least
At least
40 years
35 years
30 years
old
old
old
Experience
15 years
Has been engaged
or more
for at least 5 years in
as a
the practice of law*
judge or
in the Philippines or
a lower
has held public
court or
office in the
has been
Philippines requiring
engaged
admission to the
in the
practice of law as an
practice
indispensable
of law in
requisite
the Phils.
for the
same
period
Tenure
Hold office during good behavior
until they reach the age of 70 or
become incapacitated to
discharge their duties
Characteristics
Person of proven competence,
integrity, probity and
independence
*Practice of law is not confined to litigation. It
means any activity in and out of court, which
requires the application of law, legal procedure,
51
knowledge, training and experience. [Cayetano v.
Monsod, (1991)]
But the term of those initially appointed shall

be staggered in the following way so as to
create continuity in the council:
Subtopic 1. Constitutional Requirements

(cannot be reduced by law)
Supreme Court Justice:
(1) Natural born citizens
(2) At least 40 years of age
(3) Enagaged in the practice of law or a judge
of of 15 years or more
(4) Must be of proven competence, integrity,
probity and independence.
IBP representative - 4 years

Law professor - 3 years
Retired justice - 2 years
Private sector - 1 year
Primary function: Recommend appointees to the
judiciary, May exercise such other functions and
duties as the SC may assign to it. [Art. VIII, Sec. 8(5)]
Subtopic 3. Procedure of Appointment
Lower Collegiate Courts

(2) Member of the Philippine Bar
probity and independence
(4) Such additional requirements provided by
law.
(1) The JBC shall submit a list of three nominees

for every vacancy to the President. [Art. VIII,
Sec. 9]
(2) Any vacancy in the Supreme Court shall be
filed within ninety (90) days from the
occurrence thereof. [Art. VIII, Sec. 4(1)]
(3) For lower courts, the President shall issue the
appointment within ninety (90) days from the
submission by the JBC of such list. [Art. VIII,
Sec. 9].
Relate this to the constitutional
prohibition
against
midnight
appointments. The Court in the case of
De Castro v. JBC, [G. R. No. 191002,
March 17, 2010] ruled that the
prohibition
against
midnight
appointment applies only to positions in
the executive department. Thus, the
appointment of Chief Justice Corona
was held valid. This ruling effectively
overruled In re: Mateo Valenzuela [A.M.
No. 98-5-01-SC, November 9, 1998]
which extended the prohibition for
midnight
appointments
to
the
judiciary.
Lower Courts
(2) Member of the Philippine Bar
probity and independence.
(4) Such additional requirements provided by
law.
Note: In the case of judges of the lower courts, the
Congress may prescribe other qualifications. (Art
VIII, Sec. 7(3).
Subtopic 2. Judicial and Bar Council

Composition:
Ex-officio members [Art. VIII, Sec. 8(1)]
(1) Chief Justice as ex-officio Chairman
(2) Secretary of Justice
(3) Representative of Congress
Regular members [Art. VIII, Sec. 8(1)]
(4)
(5)
(6)
(7)
Representative of the Integrated Bar

Professor of Law
Retired member of the SC
Representative of private sector
Subtopic 4. Disqualification from Other

Positions or Offices
Art. VIII, Sec. 12. The Members of the Supreme
Court and of other courts established by law shall
not be designated to any agency performing quasijudicial or administrative functions.
It was held that the SC and its members should

not and cannot be required to exercise any
power or to perform any trust or to assume any
duty not pertaining to or connected w/ the
administering of judicial functions. [Meralco vs
Pasay Transportation Co., (1932)]
A judge in the CFI shall not be detailed with the

Department of Justice to perform administrative
functions as this contravenes the doctrine of
separation of powers. [Garcia vs Macaraig,
(1972)]
Secretary ex-officio [Art. VIII, Sec. 8(3)]- Clerk

of the SC, who shall keep a record of its proceedings
Appointment, Tenure, Salary of JBC Members
(1) Ex-officio members - For obvious reasons this
does not apply since the position in the
Council is good only while the person is the
occupant of the office.
(2) Regular members [Art. VIII, Sec. 8(2)] - The
regular members shall be appointed by the
President with the consent of the Commission
on Appointments. The term of the regular
members is 4 years.
Subtopic 5. Composition of the Supreme

Court
(1) Chief Justice and 14 Associate Justices
(2) May sit en banc or in divisions of three, five,
52
or seven Members
(3) Vacancy shall be filled within 90 days from
the occurrence thereof
En Banc and Division Cases
En banc - decided with the concurrence of a
majority of the Members who actually took part in
the deliberations and voted.
Instances when the SC sits en banc: (C-DD-MM-PO)
(1) Those
involving
the
constitutionality,
application, or operation of: (TOIL-PIPOO)
Treaty
Orders
International or executive agreement
Law
Presidential decrees
Instructions
Proclamations
Ordinances
Other regulations

appellate court vis--vis its Divisions. The only
constraint is that any doctrine or principle of law
laid down by the Court, either rendered en banc
or in division, may be overturned or reversed only
by the Court sitting en banc.[ Firestone Ceramics
v. CA, (2000)]
Subtopic 6. Procedural Rule Making

Art. VIII, Sec. 5. The Supreme Court shall have the
following powers:
xxx
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission
to the practice of law, the integrated bar, and legal
assistance to the under-privileged.
(2) Exercise of the power to discipline judges of

lower courts, or order their dismissal [Art. VIII,
Sec. 11]
The 1987 Constitution took away the power of

Congress to repeal, alter, or supplement rules
concerning pleading, practice and procedure. In
fine, the power to promulgate rules of pleading,
practice and procedure is no longer shared by this
Court with Congress, more so with the
Executive. [Echegaray vs Secretary of Justice,
(1999)]
(3) Cases or matters heard by a division where the

required number of votes to decide or resolve
(the majority of those who took part in the
deliberations on the issues in the case and voted
thereon and in no case less than 3 members) is
not met [Art. VIII, Sec. 4(3)]
Limitations:
a. Shall provide a simplified and inexpensive
procedure for speedy disposition of cases
b. Uniform for all courts in the same grade
c. Shall not diminish, increase or modify
substantive rights
(4) Modifying or reversing a doctrine or principle of

law laid down by the court in a decision
rendered en banc or in division [Art. VIII, Sec.
4(3)]
Subtopic 7. Administrative Supervision Over

Lower Courts
(5) Actions instituted by citizen to test the validity

of a proclamation of martial law or suspension
of the privilege of the writ [Art. VII, Sec. 18]
(6) When sitting as Presidential Electoral Tribunal
[Art. VII, Sec. 4, par. 7]
(7) All other cases which under the Rules of Court
are required to be heard by the SC en banc.
[Id., Sec. 4(2)]
In divisions
Requirement and Procedures:
(1) With the concurrence of a majority of the
Members who actually took part in the
deliberations and voted
(2) In no case without the concurrence of at least
three of such Members
(3) When required number is not obtained, the
case shall be decided en banc:
Provided: that no doctrine or principle
of law laid down by the court in a
decision rendered en banc or in division
may be modified or reversed except by
the court sitting en banc
The Supreme Court sitting en banc is not an
Administrative Powers of the Supreme Court

(1) Assign temporarily judges of lower courts to
other stations as public interest may require;
shall not exceed 6 months without the
consent of the judge concerned
(2) Order a change of venue or place of trial to
avoid a miscarriage of justice;
(3) Appoint all officials and employees of the
Judiciary in accordance with the Civil Service
Law;
(4) Supervision over all courts and the personnel
thereof;
(5) Discipline judges of lower courts, or order
their dismissal by a vote of a majority of the
Members who actually took part in the
deliberations on the issues in the case and
voted [en banc].
Grounds Removal from Office on Impeachment of
Members of the SC
(Art. XI, Sec. 2)
i. Culpable violation of the Constitution
ii. Treason
iii. Bribery
iv. Graft and corruption
v. Other high crimes
vi. Betrayal of public trust
53
F. Constitutional Commissions
I. Institutional Independence Safeguards
II. Powers and Functions
III. Judicial Review
Commission on Election
Commission on Audit
Civil Service Commission
I. Institutional Independence
Safeguards
The three constitutional commissions perform

key functions in the government. In order to
protect their integrity, they have been made
constitutional bodies.
Because they
government,
independence
influences and
perform vital functions in the

it is essential that their
be protected against outside
political pressures.
Hence, the following institutional safeguards:

(1) They are constitutionally created, hence
may not be abolished by statute.
(2) Each commission is vested with powers and
functions which cannot be reduced by
statute.
(3) Independent constitutional bodies.
(4) The Chairmen and members cannot be
removed except by impeachment.
(5) Fixed term of office of 7 years.
(6) The Chairmen and members may not be
appointed in an acting capacity.
(7) The salaries of the Chairmen and may not
be decreased during their tenure.
(8) The Commissions enjoy fiscal autonomy.
(9) Each Commission may promulgate its own
procedural rules, provided they do not
diminish, increase or modify substantive
rights [though subject to disapproval by the
Supreme Court].
(10) The Commission may appoint their own
officials and employees in accordance with
Civil Service Law.
Prohibitions: No members of the Constitutional

Commissions shall, during their tenure:
(1) Hold any other office or employment. This is
similar to the prohibition against executive
officers. It applies to both public and
private offices and employment.

instrumentalities, including GOCCs or their
subsidiaries.
II. Powers and Functions

Civil Service Commission
Art. IX-B, Sec. 3. The Civil Service Commission, as
the central personnel agency of the Government,
shall establish a career service and adopt measures
to
promote
morale,
efficiency,
integrity,
responsiveness, progressiveness, and courtesy in the
civil service. It shall strengthen the merit and
rewards system, integrate all human resources
development programs for all levels and ranks, and
institutionalize a management climate conducive
to public accountability. It shall submit to the
President and the Congress an annual report on its
personnel programs.
Functions:
(1) In the exercise of its powers to implement R.A.
6850 (granting civil service eligibility to
employees under provisional or temporary status
who have rendered seven years of efficient
service), the CSC enjoys a wide latitude of
discretion, and may not be compelled by
mandamus.
[Torregoza
v.
Civil
Service
Commission, 211 SCRA 230].
(2) Under the Administrative Code of 1987, the
Civil Service Commission has the power to hear
and decide administrative cases instituted
before it directly or on appeal, including
contested appointments.
(3) The Commission has original jurisdiction to hear
and decide a complaint for cheating in the Civil
Service examinations committed by government
employees. [Cruz v. CSC, G.R. No. 144464, Nov.
22, 2001]
(4) It is the intent of the Civil Service Law, in
requiring the establishment of a grievance
procedure, that decisions of lower level officials
(in cases involving personnel actions) be
appealed to the agency head, then to the Civil
Service Commission. [Olanda v. Bugayong, G.R.
No. 140917, Oct. 10, 2003].
Scope of the Civil Service: Embraces all branches,
subdivisions, instrumentalities and agencies of the
Government, including GOCCs with original charters.
[Sec. 2(1), Art. IX-B].
The University of the Philippines, having an
original charter, is clearly part of the CSC.
[UP v. Regino, 221 SCRA 598]
(2) Engage in the practice of any profession.
Composition: A Chairman and 2 Commissioners
(3) Engage in the active management or control

of any business which in any way may be
affected by the functions of his office.
Qualifications:
(1) Natural-born citizens of the Philippines;
(2) At the time of their appointment, at least 35
years of age;
(3) With proven capacity for public administration;
and
(4) Must not have been candidates for any elective
position in the election immediately preceding
their election.
(4) Be financially interested, directly or

indirectly, in any contract with, or in any
franchise or privilege granted by, the
Government, its subdivisions, agencies or
54
Classes of Service:
(1) Career Service Characterized by entrance
based on merit and fitness to be determined, as
far as practicable by competitive examinations,
or based on highly technical qualifications;
opportunity for advancement to higher career
positions; and security of tenure.
a. Open career positions where prior
qualification
in
an
appropriate
examination is required.
b. Closed career positions e.g. scientific
or highly technical in nature;
c. Career Executive Service e.g.
undersecretaries, bureau directors
d. Career Officers other than those
belonging to the Career Executive
Service who are appointed by the
President, e.g. those in the foreign
service
e. Positions in the AFP although governed
by a different merit system
f. Personnel of GOCCs with original
charters
g. Permanent laborers, whether skilled,
semi-skilled or unskilled.
(3) Highly technical requires possession of

technical skill or training in supreme degree. [De
los Santos v. Mallare, supra]
Disqualifications:
(1) No candidate who has lost in any election shall
within 1 year after such election, be appointed
to any office in the Government of any GOCC or
in any of its subsidiaries. [Sec. 6, Art. IX-B]
(2) No elective official shall be eligible for
appointment or designation in any capacity to
any public office or position during his tenure.
[Sec. 7(1), Art. IX-B].
(3) Unless otherwise allowed by law or by the
primary functions of his position, no appointive
official shall hold any other office or
employment in the Government or any
subdivision agency or instrumentality thereof
including GOCCs or their subsidiaries. [Sec. 7(2),
Art IX-B]
(4) No office or employee in the civil service shall
engage
directly
or
indirectly,
in
any
electioneering or partisan political activity. [Sec.
2(4), Art. IX-B]
Commission on Election
(2) Non-career Service characterized by entrance

on bases other than those of the usual tests
utilized for the career service; tenure limited to
a period specified by law, or which is coterminus with that of the appointing authority or
subject to his pleasure, or which is limited to
the duration of a particular project for which
purpose the employment was made.
a. Elective officials, and their personal
and confidential staff;
b. Department heads and officials of
Cabinet rank who hold office at the
pleasure of the President, and their
personal and confidential staff;
c. Chairmen and members of commissions
and bureaus with fixed terms;
d. Contractual personnel;
e. Emergency and seasonal personnel.
Functions and Powers
Appointments in the Civil Service

General Rule: Made only according to merit and
fitness to be determined, as far as practicable, by
competitive examination.
Recall is the termination of official relationship of

a local elective official for loss of confidence prior to
the expiration of his term through the will of the
electorate.
Exceptions:
(1) Policy determining where the officer lays down
principal or fundamental guidelines or rules; or
formulates a method of action for government
or any of its subdivisions. E.g. department head.
(2) Primarily confidential denoting not only
confidence in the aptitude of the appointee for
the duties of the office but primarily close
intimacy which ensures freedom of intercourse
without embarrassment or freedom from
misgivings or betrayals on confidential matters
of state [De los Santos v. Mallare, 87 Phil 289];
OR one declared to be so by the President of the
Philippines upon the recommendation of the CSC
[Salazar v. Mathay, 73 SCRA 285].
Plebiscite is the submission of constitutional

amendments or important legislative measures to
the people for ratification.
(1) Enforce all laws relating to the conduct of

election, plebiscite, initiative, referendum and
recall.
Initiative the power of the people to propose
amendments to the Constitution or to propose and
enact legislation through an election called for that
purpose. There are 3 systems of initiative: Initiative
on the Constitution, initiative on statutes, and
initiative on local legislation[Sec. 2(a), R.A. 6735].
Referendum is the power of the electorate to
approve or reject legislation through an lection
called for that purpose. There are 2 classes:
referendum on statutes or referendum on local laws.
[Sec. 2(c), R.A. 6735].
(2) Recommend to the Congress effective measures

to minimize election spending, and to prevent
and penalize all forms of election frauds,
offenses,
malpractices,
and
nuisance
candidacies.
(3) Submit to the President and the Congress, a
comprehensive report on the conduct of each
election, plebiscite, initiative, referendum, or
recall.
Power to declare failure of election The
55
COMELEC may exercise such power muto proprio
or upon a verified petition, and the hearing of
the case shall be summary in nature. The SC
held that there are only 3 instances where a
failure of elections may be declared: (a) the
election in any polling place has not been held
on the date fixed on account of force majeure,
violence, terrorism, fraud, or other analogous
causes; (b) the election in any poling place had
been suspended before the hour fixed by law for
the closing of the voting on account of force
majeure, violence, fraud, or other analogous
causes; and (c) after the voting and during the
preparation and transmission of the election
returns or in the custody or canvass thereof
such election results in a failure to elect on
account of force majeure, violence, terrorism,
fraud or other analogous causes. [Sison v.
COMELEC, G.R. No. 134096, March 3, 1999]
(4) Decide administrative questions pertaining to
election except the right to vote.
(5) File petitions in court for inclusion or exclusion
of voters.
(6) Investigate and prosecute cases of violations of
election laws.
The COMELEC has exclusive jurisdiction to
investigate and prosecute cases for violations of
election laws. [De Jesus v. People, 120 SCRA
760]
Thus, the trial court was in error when it
dismissed an information filed by the Election
Supervisor because the latter failed to comply
with the order of the Court to secure the
concurrence of the Prosecutor. [People v. Inting,
187 SCRA 788]. However, the COMELEC may
validly delegate this power to the Provincial
Fiscal. [People v. Judge Basilia 179 SCRA 87]
(7) Recommend pardon, amnesty, parole or
suspension of sentence of election law violators.
(8) Deputize law enforcement agencies and
instrumentalities of the Government for the
exclusive purpose of ensuring free, orderly,
honest, peaceful, and credible elections.
(9) Recommend to the President the removal of any
officer or employee it has deputized for
violation or disregard of, or disobedience to its
directive.
(10) Registration of political parties, organizations
and coalitions and accreditation of citizens
arms.
(11) Regulation of public utilities and media of
information. The law limits the right of free
speech and of access to mass media of the
candidates
themselves.
The
limitation
however, bears a clear and reasonable
connection with the objective set out in the
Constitution. For it is precisely in the unlimited

purchase of print space and radio and television
time that the resources of the financially
affluent candidates are likely to make a crucial
difference. The purpose is to ensure "equal
opportunity, time, and space, and the right to
reply," as well as uniform and reasonable rates
of charges for the use of such media facilities,
in connection with "public information
campaigns and forums among candidates."
[National Press Club vs Comelec, (1992)]
Note: The SC held that this power may be
exercised only over the media, not over
practitioners of media. Thus, the SC invalidated
a COMELEC resolution prohibiting radio and TV
commentators and newspaper columnists from
commenting on the issues involved in the
forthcoming plebiscite for the ratification of the
organic law establishing the CAR. [Sanidad v.
COMELEC, 181 SCRA 529]
(12) Decide election cases
Art. IX-C, Sec. 3. The Commission on Elections
may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to
expedite disposition of election cases, including
pre- proclamation controversies. All such
election cases shall be heard and decided in
division,
provided
that
motions
for
reconsideration of decisions shall be decided
by the Commission en banc.
Cases which must be heard by division
All election cases, including pre-proclamation
contests originally cognizable by the
Commission in the exercise of its powers
under Sec. 2(2), Art IX-C.
Jurisdiction over a petition to cancel a
certificate of candidacy.
Even cases appealed from the RTC or MTC
have to be heard and decided in Division
before they may be heard en banc.
Note:
If the COMELEC exercises its quasi-judicial
functions then the case must be heard through a
division.
If the COMELEC exercises its administrative
functions then it must act en banc. [Buatista v.
COMELEC, 414 SCRA 299 (2003)].
Composition: A Chairman and 6 Commissioners.
Qualifications:
(1) Must be natural-born citizens;
(2) At least 35 years of age;
(3) Holders of a college degree;
(4) Have not been candidates in the
immediately preceding election;
(5) Majority, including the Chairman, must be
members of the Philippine Bar who have
been engaged in the practice of law for at
least 10 years. [Sec. 1, Art. IX-C].
Commission on Audit
56
Powers and Functions
(1) Examine, audit, and settle accounts pertaining
to Government funds or property: its revenue,
receipts, expenditures, and uses
Post-audit basis: Constitutional bodies,
commissions and offices; Autonomous state
colleges and universities; GOCCs with no
original charters and their subsidiaries; Nongovernmental entities receiving subsidy or
equity, directly or indirectly, from or
through the Government, which are
required by law or the granting institution
to submit such audit as a condition of
subsidy or equity.
(2) Exclusive Authority
Define the scope of its audit and examination;
Establish techniques and methods required ;
Promulgate accounting and auditing rules and
regulations.
Note: Art. IX-D, Sec. 3. No law shall be passed
exempting any entity of the Government or its
subsidiaries in any guise whatever, or any
investment of public funds, from the jurisdiction of
the Commission on Audit.
Composition: A Chairman and 2 Commissioners
Qualifications:
(1) Natural born Filipino citizens
(2) At least 35 years of age
(3) CPAs with not less than 10 years of auditing
experience or members of the Philippine
bar with at least 10 years practice of law
Note: At no time shall all members belong to
the same profession.
III. Judicial Review

a. Quasi-Judicial Functions
Article IX-A, Section 7. Each Commission shall
decide by a majority vote of all its Members, any
case or matter brought before it within sixty days
from the date of its submission for decision or
resolution. A case or matter is deemed submitted for
decision or resolution upon the filing of the last
pleading, brief, or memorandum required by the
rules of the Commission or by the Commission itself.
Unless otherwise provided by this Constitution or by
law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days
from receipt of a copy thereof.
Decisions Each Commission shall decide by a
majority vote of all its members [NOT only those
who participated in the deliberations] any case or
matter brought before it within 60 days from the
date of its submission for decision or resolution.
[Sec. 7, Art. IX-A]
Any decision, order or ruling of each
Commission may be brought to the SC on
certiorari by the aggrieved party within 30

days from receipt of the copy thereof.
Certiorari jurisdiction of the Supreme Court:
Limited to decisions rendered in actions or
proceedings taken cognizance of by the Commissions
in the exercise of their quasi-judicial powers.
The Court exercises extraordinary jurisdiction,
thus, the proceeding is limited only to issues
involving grave abuse of discretion resulting
in lack or excess of jurisdiction, and does
not ordinarily empower the Court to review
the factual findings of the Commission.
[Aratuc v. COMELEC, G.R. No. 133676, April
14, 1999]
Synthesis on the Rules of Modes of Review
(1) Decisions, order or ruling of the Commissions in
the exercise of their quasi-judicial functions
may be reviewed by the Supreme Court.
(2) The mode of review is a petition for certiorari
under Rule 64 (not Rule 65).
(3) The Rules of Civil Procedure, however, provides
for a different legal route in the case of the
Commission on Civil Service. In the case of
CSC, Rule 43 will be applied, and the case will
be brought to the Court of Appeals.
b. Administrative
Each Commission shall appoint its own officials in
accordance with law (Art IX-A, Section 4)
Each Commission en banc may promulgate its own
rules concerning pleadings and practices before it
(Art IX-A, Section 6)
o But these rules shall not diminish, increase or
modify substantive rights
Each Commission shall perform such other functions
as may be provided by law (Art IX-A, Section 8)
G. Citizenship
1.
2.
3.
4.
Natural-Born Citizens and Public Office

Naturalization and Denaturalization
Loss of Citizenship
Repatriation
(Asked 25 times in the Bar)

Who are citizens?
(1) Citizens of the Philippines at the time of the
adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of
the Philippines;
(3) Those who elected to be citizens. This is
available only to:
those born before January 17, 1973,
to Filipino mothers,
and elect Philippine citizenship upon reaching
the age of majority
(4) Those naturalized in accordance with law.
57
ARTICLE IV, Section 1 (3), 1987 Constitution is also
applicable to those who are born to Filipino mothers
and elected Philippine citizenship before February 2,
1987.
This is to correct the anomalous situation where one
born of a Filipino father and an alien mother was
automatically granted the status of a natural-born
citizen, while one born of a Filipino mother and an
alien father would still have to elect Philippine
citizenship. [Co v. Electoral Tribunal of the House of
Representatives (1991)]
Who were the citizens of the Philippines at the time
of the adoption of the 1987 Constitution?
To answer this question, we have to go back to 1973
Constitution.
Citizens under the 1973 Constitution
(1) Those who are citizens of the Philippines at
the time of the adoption of this
Constitution;
(2) Those whose fathers or mothers are citizens
of the Philippines;
(3) Those who elect Philippine citizenship
pursuant to the provisions of the
Constitution of 1935; and
(4) Those who are naturalized in accordance
with law. [Sec.1(1), Art. III]
Citizens under the 1935 Constitution
(1) Those who are citizens at the time of the
adoption of this Constitution;
(2) Those born in the Philippine Islands of
foreign parents who, before the adoption of
this Constitution, had been elected to
public office in the Philippine Islands;
(3) Those whose mothers are citizens of the
Philippines and, upon reaching the age of
majority, elect Philippine citizenship;
(4) Those who are naturalized in accordance
with law. [Sec. 1, Art. IV]
The following persons were citizens of the
Philippines on May 14, 1935 the date of the
adoption of the 1935 Constitution:
(1) Persons born in the Philippine Islands who
resided therein on April 11, 1899 and were
Spanish subjects on that date, unless they
had lost their Philippine citizenship on or
before May 14, 1935.
(2) Natives of the Spanish Peninsula who
resided in the Philippines on April 11, 1899,
and who did not declare their intention of
preserving
their
Spanish
nationality
between that date and October 11, 1900,
unless they had lost their Philippine
citizenship on or before May 14, 1935.
(3) Naturalized citizens of Spain who resided in
the Philippines on April 11, 1899, and did
not declare their intention to preserve their
Spanish nationality within the prescribed
period (up to October 11, 1900).
(4) Children born of (1), (2) and (3) subsequent
to April 11, 1899, unless they lost their

Philippine citizenship on or before May 14,
1935.
(5) Persons who became naturalized citizens of
the
Philippines
in
accordance
of
naturalization law since its enactment on
March 26, 1920.
1. Natural-Born Citizens and Public

Office
Natural-born
(1) citizens of the Philippines from birth without
having to perform any act to acquire or perfect
their Philippine citizenship; and
(2) those who elect Philippine citizenship in
accordance with ARTICLE IV, Section 1 (3)
The term "natural-born citizens," is defined to
include "those who are citizens of the
Philippines from birth without having to
perform any act to acquire or perfect their
Philippine citizenship." [Tecson vs COMELEC
(2004)]
Only two, i.e., jus soli and jus sanguinis, could
qualify a person to being a "natural-born" citizen of
the Philippines. Jus soli, per Roa vs. Collector of
Customs (1912), did not last long. With the adoption
of the 1935 Constitution and the reversal of Roa in
Tan Chong vs. Secretary of Labor (1947), jus
sanguinis or blood relationship would now become
the primary basis of citizenship by birth.
Who must be Natural-Born?
(1) President (Sec. 2, Art VII)
(2) Vice-President (Sec. 3, Art VII)
(3) Members of Congress (Secs. 3 and 6, Art VI)
(4) Justices of SC and lower collegiate courts (Sec.
7 (1), Art VIII)
(5) Ombudsman and his deputies (Sec. 8, Art XI)
(6) Members of Constitutional Commissions
(7) CSC (Sec. 1 (1), Art IX B)
(8) COMELEC (Sec. 1 (1) Art IX C)
(9) COA (Sec. 1 (1), Art IX D)
(10) Members of the Central Monetary Authority
(Sec. 20, Art XII)
(11) Members of the Commission on Human Rights
(Sec. 17 (2), Art XIII)
2. Naturalization and
Denaturalization
How may citizenship be reacquired?
(1) Naturalization (CA No. 63 and CA No. 473)
(a) now an abbreviated process, no need to
wait for 3 years (1 year for declaration of
intent, and 2 years for the judgment to
become executory)
(b) requirements:
be 21 years of age
be a resident for 6 months
have good moral character
have no disqualification
58
Naturalization is never final and may be revoked
if one commits acts of moral turpitude.
[Republic vs Guy (1982)]
(2) Repatriation
NOTE: Please see subsection 4 for further discussion
(3) Legislative Act
Both a mode of acquiring and reacquiring
citizenship
Dual Allegiance
(1) aliens who are naturalized as Filipinos but
remain loyal to their country of origin (cite
source)
(2) public officers who, while serving the
government, seek citizenship in another country
disqualified from running for any elective local

position. (Sec 40d, Local Government Code)
Once a candidate files his candidacy, he is
deemed to have renounced his foreign
citizenship in case of dual citizenship. [Mercado
vs Manzano (1999)]
(1) Clearly, in including 5 in Article IV on

citizenship, the concern of the Constitutional
Commission was not with dual citizens per se
but with naturalized citizens who maintain their
allegiance to their countries of origin even after
their naturalization. Hence, the phrase dual
citizenship in R.A. No. 7160, 40(d) and in R.A.
No. 7854, 20 must be understood as referring
to dual allegiance.
(2) 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, for candidates with dual
citizenship, it should suffice if, upon the filing
of their certificates of candidacy, they elect
Philippine citizenship to terminate their status
as persons with dual citizenship considering that
their condition is the unavoidable consequence
of conflicting laws of different states.
Cf: RA 9225 (Citizenship Retention and Reacquisition Act of 2003)
Sec. 3. Retention of Philippine Citizenship. Any
provision of law to the contrary notwithstanding,
natural-born citizens of the Philippines who have lost
their Philippine citizenship by reason of their
naturalization as citizens of a foreign country are
hereby deemed to have re-acquired Philippine
citizenship upon taking the following oath of
allegiance to the Republic: xxx
Natural-born citizens of the Philippines who, after
the effectivity of this Act, become citizens of a
foreign country shall retain their Philippine
citizenship upon taking the aforesaid oath.
Sec. 4. Derivative Citizenship. The unmarried
child, whether legitimate, illegitimate or adopted,
below eighteen (18) years of age, of those who re-

acquire Philippine citizenship upon effectivity of this
Act shall be deemed citizens of the Philippines.
Sec. 5. Civil and Political Rights and Liabilities.
Those who retain or re-acquire Philippine citizenship
under this Act shall enjoy full civil and political
rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines
and the following conditions:
(1) Those intending to exercise their right of
suffrage must meet the requirements under Sec.
1, Art. V of the Constitution, RA 9189, otherwise
known as "The Overseas Absentee Voting Act of
2003" and other existing laws;
(2) Those seeking elective public office in the
Philippines shall meet the qualifications for
holding such public office as required by the
Constitution and existing laws and, at the time
of the filing of the certificate of candidacy,
make a personal and sworn renunciation of any
and all foreign citizenship before any public
officer authorized to administer an oath;
(3) Those appointed to any public office shall
subscribe and swear to an oath of allegiance to
the Republic of the Philippines and its duly
constituted authorities prior to their assumption
of office: provided, that they renounce their
oath of allegiance to the country where they
took that oath;
(4) Those intending to practice their profession in
the Philippines shall apply with the proper
authority for a license or permit to engage in
such practice; and
(5) That right to vote or be elected or appointed to
any public office in the Philippines cannot be
exercised by, or extended to, those who:
a) are candidates for or are occupying any public
office in the country of which they are
naturalized citizens; and/or
b) are in active service as commissioned or noncommissioned officers in the armed forces
of the country which they are naturalized
citizens.
3. Loss of Citizenship
Grounds for Loss of Citizenship
(1) Naturalization in a foreign country [Sec.1 (1),
CA 63];
(2) Express renunciation or expatriation [Sec.1 (2),
CA 63];
(3) Taking an oath of allegiance to another country
upon reaching the age of majority;
(4) Accepting a commission and serving in the
armed forces of another country, unless there is
an offensive/ defensive pact with the country,
or it maintains armed forces in RP with RPs
consent;
(5) Denaturalization;
(6) Being found by final judgment to be a deserter
of the AFP;
(7) Marriage by a Filipino woman to an alien, if by
the laws of her husbands country, she becomes
a citizen thereof.
Expatriation is a constitutional right. No one can be
59
compelled to remain a Filipino if he does not want
to. [Go Gullian vs Government]
1. Regalian Doctrine
EXCEPTION: A Filipino may not divest himself of

Philippine citizenship in any manner while the
Republic of the Philippines is at war with any
country. (Sec. 1 (3), Com. Act No. 63)
2. Nationalist and Citizenship

Requirement Provisions
Aznar v COMELEC (1995):

Loss of Philippine citizenship cannot be presumed.
Considering the fact that admittedly, Osmea was
both a Filipino and an American, the mere fact that
he has a certificate stating that he is an American
does not mean that he is not still a Filipino, since
there has been NO EXPRESS renunciation of his
Philippine citizenship. [Aznar vs COMELEC (1995)]
4. Repatriation
Repatriation results in the recovery of the
original nationality. Therefore, if he is a
natural-born citizen before he lost his
citizenship, he will be restored to his
former status as a natural-born Filipino.
[Bengson III vs. HRET (2001)]
Mere filing of certificate of candidacy is not
a
sufficient
act
of
repatriation.
Repatriation requires an express and
equivocal act. [Frivaldo vs COMELEC (1989)]
In the absence of any official action or
approval by proper authorities, a mere
application for repatriation does not, and
cannot,
amount
to
an
automatic
reacquisition of the applicants Philippine
citizenship. [Labo vs COMELEC (1989)]
H. National Economy & Patrimony

1.
2.
3.
4.
5.
6.
7.
8.
Regalian Doctrine
Nationalist and Citizenship Requirement
Provisions
Exploration, Development and Utilization of
Natural Resources
Franchises, Authority and Certificates for
Public Utilities
Acquisition, Ownership and Transfer of
Public and Private Lands
Practice of Professions
Organization and Regulation of Corporations,
Private and Public
Monopolies, Restraint of Trade and Unfair
Competition
General Principles
Goals
(1) More equitable distribution of opportunities,
income and wealth
(2) Sustained increase in amount of goods and
services produced by the nation for the benefit
of the people
(3) Expanding production as the key to raising the
quality of life for all, especially the
underprivileged.
Please refer to next page
Citizenship Requirements
100% Filipino
60-40
Marine Wealth Natural
[Art. XII, Sec. 2, Resources [Art.
par. 2]
XII, Sec. 2, par.
1]
(Co-production,
Joint venture,
Production
sharing
agreemenents)
Agricultural
lands [Art. XII,
Sec. 3]
o Lease:
<
500 ha.
o Purchase,
homestead
or
grant: < 12 ha.
o Private
corporations
may lease not
more
than
1,000 ha. for 25
years,
renewable for
another
25
years.
Practice
of
professions
[Art. XII, Sec.
14]
Small-scale
utilization
of
natural
resources
(as
may
be
provided
by
law) [Art. XII,
Sec. 2, par. 3]
70-30
Advertising
Industry [Art.
XVI, Sec. 11]
Agreements
shall not exceed
a period of 25
years renewable
for another 25
years.
Educational
Institutions
[Art. XIV, Sec.
4(2)]
Areas
of
Investment
as
Congress
may
prescribe
(percentage can
be higher) [Art.
XII, Sec. 10]
Operation
of
public
utility
[Art. XII, Sec.
11]
o Cannot be
for
longer
period than 50
years
o Executive
and
managing
officers must be
Filipino
A public utility is a business or service engaged

in regularly supplying the public with some
commodity or service of public consequence. A
joint venture falls within the purview of an
60
association pursuant to Sec. 11, Art. XII; thus
a joint venture which would engage in the
business of operating a public utility must
comply with the 60%-40% Filipino-foreign
capitalization
requirement.
[JG
Summit
Holdings v. CA, (2000)]
Filipino First
Art. XII, Sec. 10. In the grant of rights, privileges,
and concessions covering the national economy and
patrimony, the State shall give preference to
qualified Filipinos.
The State shall regulate and exercise authority over
foreign investments within its national jurisdiction
and in accordance with its national goals and
priorities.
The term patrimony pertains to heritage,

and given the history of the Manila Hotel, it has
become a part of our national economy and
patrimony. Thus, the Filipino First policy
provision of the Constitution is applicable. Such
provision is per se enforceable, and requires
no further guidelines or implementing rules or
laws for its operation. [Manila Prince Hotel v.
GSIS, (1997)]
Art. XII, Sec. 12. The State shall promote the

preferential use of Filipino labor, domestic materials
and locally produced goods, and adopt measures
that help make them competitive.
Natural Resources
Regalian Doctrine [Jura Regalia]
The King had title to all the land in the

Philippines except so far as it saw fit to permit
private titles to be acquired. [Cario v. Insular
Government, (1909)]. In present context,
ownership of all lands of the public domain is
vested in the State.
As in previous Constitutions, the 1987

Constitution adheres to this doctrine as
illustrated by this section:
Art. XII, Sec. 2. All lands of the public domain,
waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State.
With the exception of agricultural lands, all other
natural resources shall not be alienated.
Under the Regalian Doctrine, all lands not

otherwise clearly appearing to be privately
owned are presumed to belong to the State. The
classification of public lands is an exclusive
prerogative of the Executive Department
through the Office of the President. [Republic v.
Register of Deeds of Quezon, (1994)]
3. Exploration, Development and

Utilization of Natural Resources
Art. XII, Sec. 2, par. 4. The President may enter

into agreements with foreign-owned corporations
involving either technical or financial assistance
for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral
oils according to the general terms and conditions
provided by law, based on real contributions to the
economic growth and general welfare of the
country. In such agreements, the State shall promote
the development and use of local scientific and
technical resources.
The State, being the owner of the natural resources,
is accorded the primary power and responsibility in
the exploration, development and utilization
thereof. As such it may undertake these activities
through four modes:
(1) The State may directly undertake such
activities;
(2) The State may enter into co-production,
joint
venture
or
production-sharing
agreements with Filipino citizens or
qualified corporations;
(3) Congress may, by law, allow small-scale
utilization of natural resources by Filipino
citizens; or
(4) For
the
large-scale
exploration,
development and utilization of minerals,
petroleum and other mineral oils, the
President may enter into agreements with
foreign-owned
corporations
involving
technical or financial assistance. [La
Bugal-BLaan Tribal Assn. v. Ramos,
(Jan,2004)]
FTAA
(1987 Const.)
Parties
Size
of
Activities
Natural
Resources
Covered
Scope of the
Agreements
Only
the
President (in
behalf of the
State),
and
only
with
corporations
Only
largescale
exploration,
development
and utilization
Minerals,
petroleum and
other mineral
oils
Involving
either
financial
or
technical
assistance
SERVICE
CONTRACT
(1973 Const.)
A Filipino citizen,
corporation
or
association with
a foreign person
or entity
Contractor
provides
all
necessary
services
and
technology
and
the
requisite
financing,
performs
the
exploration work
obligations,
and
assumes
all
exploration risks
Virtually
the
entire range of
the
countrys
natural resources
Contractor
provides financial
or
technical
resources,
undertakes
the
exploitation
or
61
FTAA
(1987 Const.)
SERVICE
CONTRACT
(1973 Const.)
production of a
given resource,
or
directly
manages
the
productive
enterprise,
operations of the
exploration
and
exploitation of the
resources or the
disposition
of
marketing
or
resources
Following this framework, the SC declared the

following provisions of the Philippine Mining Act of
1995 (RA 7942) unconstitutional for being contrary
to Sec. 2, Art. XII of the 1987 Constitution:
a. The proviso in Sec. 3(aq), which defines a
qualified person, to wit: Provided, That a
legally foreign-owned corporation shall be
deemed a qualified person for purposes of
granting an exploration permit, FTAA or mineral
processing permit
b. Sec. 23, which specifies the rights and
obligations of an exploration permit grantee
c. Sec. 33, which prescribes the eligibility of a
contractor in an FTAA
d. Sec. 35, which enumerates the terms and
conditions for every FTAA
e. Sec. 39, which allows the contractor to convert
the FTAA into a mineral production-sharing
agreement (MPSA)
f. Sec. 56, which authorizes the issuance of a
mineral processing permit to a contractor in an
FTAA
The Court then struck down the Financial and
Technical Assistance Agreement (FTAA) entered into
between the Government and Western Mining
Corporation (Phils.), Inc. (WMCP) for being similar to
service contracts, previously allowed under the 1973
Constitution but which are now proscribed under the
1987 Constitution.
On motion for reconsideration, the SC reversed

its original decision and upheld the
constitutionality of the subject FTAA, the Mining
Law, and its Implementing Rules.
The Constitution should be read in broad, life-giving

strokes. It should not be used to strangulate
economic growth or to serve narrow, parochial
interests. Rather, it should be construed to grant
the President and Congress sufficient discretion and
reasonable leeway to enable them to attract foreign
investments and expertise, as well as to secure for
our people and our posterity the blessings of
prosperity and peace. The Court fully sympathize
with the plight of La Bugal Blaan and other tribal
groups, and commend their efforts to uplift their
communities. However, the Court cannot justify
the invalidation of an otherwise constitutional
statute along with its implementing rules, or the

nullification of an otherwise legal and binding
FTAA contract.
The Court believes that it is not unconstitutional to
allow a wide degree of discretion to the Chief
Executive, given the nature and complexity of such
agreements, the humongous amounts of capital and
financing required for large-scale mining operations,
the complicated technology needed, and the
intricacies of international trade, coupled with the
States need to maintain flexibility in its dealings, in
order to preserve and enhance our countrys
competitiveness in world markets. On the basis of
this control standard, the Court upholds the
constitutionality of the Philippine Mining Law, its
Implementing Rules and Regulations -- insofar as
they relate to financial and technical agreements -as well as the subject Financial and Technical
Assistance Agreement (FTAA). [La Bugal-Blaan
Tribal Assn. v. Ramos, (Dec. 2004)]
4. Franchises, Authority and

Certificates for Public Utilities
Franchise, certificate or any other form of
authorization for the operation of public utilities
ONLY to citizens of the Philippines, or corporations
at least 60% of whose capital is Filipino-owned. [Sec.
11, Art. XII]
Nature of the franchise:
(1) It is a privilege not a right
(2) Shall NOT be exclusive;
(3) Shall NOT be for a period of more than 50 years;
(3) Shall be subject to amendment, alteration or
repeal by Congress. [Sec.11, Art. XII]
Jurisprudence:
(1) The Congress does not have the exclusive power
to issue franchises. Administrative bodies (i.e.
LTFRB, Energy Regulatory Board) may be
empowered by law to do so. [Albano v. Reyes,
175 SCRA 264]
(2) What constitutes a public utility is not the
ownership but the use to the public. The
Constitution requires a franchise for the
operation of public utilities. However, it does
not require a franchise before one can own the
facilities needed to operate a public utility so
long as it does not operate them to serve the
public. [Tatad v. Garcia] E.g. X Company may
own an airline without the need of a franchise.
But in operating an air transport business,
franchise is required.
(3) A joint venture falls within the purview of an
association pursuant to Sec. 11, Art. XII; thus
a joint venture which would engage in the
business of operating a public utility, such as
shipyard, most comply with the 60%-40% rule.
[JG Summit Holdings v. Court of Appeals, G.R.
No. 124293, Nov. 2, 2000]
62
5. Acquisition, Ownership and

Transfer of Public and Private Lands
Lands of the Public Domain are classified into:
(1) Agricultural Lands
(2) Forest or Timber Lands
(3) Mineral Lands
(4) National Park [Sec. 3, Art. XII]
Note: The classification of public lands is a function
of the executive branch, specifically the Director of
the Land Management Bureau (formerly Director of
Lands). The decision of the Director, when approved
by the Secretary of the DENR, as to questions of
fact, is conclusive upon the courts. [Republic v.
Imperial, G.R. No. 130906, February 11, 1999].
Alienable lands of the public domain shall be
limited to agricultural lands. [Sec. 3, Art.
XII]
To prove that the land subject of an
application for registration is alienable, an
applicant must conclusively establish the
existence of a positive act of the
government such as
a presidential
proclamation or an executive order or a
legislative act or statute. [Republic v.
Candymaker, Inc. G.R. No. 163766, June 22,
2006]
Foreshore land is that part of the land which
is between the high and low water, and left
dry by the flux and reflux of the tides. It is
part of the alienable land of the public
domain and may be disposed of only by
lease and not otherwise. [Republic v.
Imperial, G.R. No. 130906, February 11,
1999]
Private corporations or associations may not
hold such alienable lands of public domain
except by lease, for a period not exceeding
25 years, and not to exceed 1000 hectares
in area.
Citizens of the Philippines may lease not more
than 500 has, or acquire not more than 12
hectares thereof by purchase, homestead,
or grant. [Sec. 3, Art. XII]
Query: Can a former owner file an action to recover

the property?
YES. The Court in Philippine Banking Corp. v. Lui
She, (21 SCRA 52) abandoned the application of the
principle of in pari delicto. Thus, the action will lie.
HOWEVER, land sold to an alien which was later
transferred to a Filipino citizen OR when the alien
later becomes a Filipino citizen can no longer be
recovered by the vendor, because there is no longer
any public policy involved. [Republic v. IAC, 175
SCRA 398]
6. Practice of Professions
The practice of ALL profession in the Philippines
shall be limited to Filipino citizens, save in the case
prescribed by law. [Sec. 12, Art. XII]
7. Organization and Regulation of

Corporations, Private and Public
Stewardship Concept
Art. XII, Sec. 6. The use of property bears a social
function, and all economic agents shall contribute to
the common good.
Individuals
and
private
groups,
including
corporations, cooperatives, and similar collective
organizations, shall have the right to own, establish,
and operate economic enterprises, subject to the
duty of the State to promote distributive justice and
to intervene when the common good so demands.
Art. XIII, Sec. 6. The State shall apply the principles
of agrarian reform or stewardship, whenever
applicable in accordance with law,
in the disposition or utilization of other natural
resources, including lands of the public domain
under lease or concession suitable to agriculture,
subject to prior rights, homestead rights of small
settlers, and the rights of indigenous communities to
their ancestral lands.
Private Lands
GENERAL RULE
No private lands shall be transferred or conveyed
except to individuals, corporations, or associations
qualified to acquire or hold lands of the public
domain. [Sec. 7, Art. XII]
EXCEPTIONS
(1) Hereditary succession [Sec. 7, Art. XII]
(2) A natural-born citizen of the Philippines who has
lost his Philippine citizenship may be a
transferee of private lands, subject to
limitations provided by law. [Sec. 8, Art. XII]
Consequence of sale to non-citizens: Any sale or
transfer in violation of the prohibition is null and
void. [Ong Ching Po. V. CA]
8. Monopolies, Restraint of Trade and

Unfair Competition
Monopolies
Art. XIII, Sec. 19. The State shall regulate or
prohibit monopolies when the public interest so
requires. No combinations in restraint of trade or
unfair competition shall be allowed.
Although the Constitution enshrines free

enterprise as a policy, it nevertheless reserves
to the Government the power to intervene
whenever necessary for the promotion of the
general welfare. [Philippine Coconut Dessicators
v. PCA, (1998)]
Monopolies are not per se prohibited by the
63
Constitution but may be permitted to exist to
aid the government in carrying on an enterprise
or to aid in the performance of various services
and functions in the interest of the public.
Nonetheless, a determination must first be
made as to whether public interest requires a
monopoly. As monopolies are subject to abuses
that can inflict severe prejudice to the public,
they are subject to a higher level of State
regulation
than
an
ordinary
business
undertaking. [Agan, Jr. v. PIATCO, (2003)]
Central Monetary Authority [Art. XII, Sec. 20]
Functions:
(1) Provide policy directions in the areas of money,
banking, and credit;
(2) Supervise the operations of banks;
(3) Exercise such regulatory powers as may be
provided by law over the operations of finance
companies and other institutions performing
similar functions
Qualifications of the Governors:
(1) Natural-born Filipino;
(2) Known probity, integrity and patriotism;
(3) Majority shall come from the private sector
Subject to such other qualifications

disabilities as may be provided by law
and
Until the Congress otherwise provides, the Central

Bank of the Philippines operating under existing
laws, shall function as the central monetary
authority.
I. Social Justice & Human Rights

1. Concepts of Social Justice
2. Commission on Human Rights
1. Concept of Social Justice

1987 Phil. Constitution
Article 2, Section 10. The State shall promote social
justice in all phases of national development.
Article 13, Section 1. The Congress shall give
highest priority to the enactment of measures that
protect and enhance the right of all the people to
human dignity, reduce social, economic, and
political inequalities, and remove cultural inequities
by equitably diffusing wealth and political power for
the common good.
To this end, the State shall regulate the acquisition,
ownership, use, and disposition of property and its
increments.
Article 13, Section 2. The promotion of social
justice shall include the commitment to create
economic opportunities based on freedom of
initiative and self-reliance.
Calalang vs. Williams (GR 47800, 2 December 1940):
Social justice is "neither communism, nor despotism,

nor atomism, nor anarchy," but the humanization of
laws and the equalization of social and economic
forces by the State so that justice in its rational and
objectively secular conception may at least be
approximated. Social justice means the promotion of
the welfare of all the people, the adoption by the
Government of measures calculated to insure
economic stability of all the competent elements of
society, through the maintenance of a proper
economic and social equilibrium in the interrelations
of the members of the community, constitutionally,
through the adoption of measures legally justifiable,
or extra-constitutionally, through the exercise of
powers underlying the existence of all governments
on the time-honored principle of salus populi est
suprema lex. Social justice, therefore, must be
founded on the recognition of the necessity of
interdependence among divers and diverse units of a
society and of the protection that should be equally
and evenly extended to all groups as a combined
force in our social and economic life, consistent with
the fundamental and paramount objective of the
state of promoting the health, comfort, and quiet of
all persons, and of bringing about "the greatest good
to the greatest number."
2. Commission on Human Rights

1987 Phil. Constitution
Article 13, Section 17.
(1) There is hereby created an independent office
called the Commission on Human Rights.
(2) The Commission shall be composed of a
Chairman and four Members who must be
natural-born citizens of the Philippines and a
majority of whom shall be members of the Bar.
The term of office and other qualifications and
disabilities of the Members of the Commission
shall be provided by law.
(3) Until this Commission is constituted, the existing
Presidential Committee on Human Rights shall
continue to exercise its present functions and
powers.
(4) The approved annual appropriations of the
Commission shall be automatically and regularly
released.
Article 13, Section 18. The Commission on Human
Rights shall have the following powers and functions:
(1) Investigate, on its own or on complaint by any
party, all forms of human rights violations
involving civil and political rights;
(2) Adopt its operational guidelines and rules of
procedure, and cite for contempt for violations
thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the
protection of human rights of all persons within
the Philippines, as well as Filipinos residing
abroad, and provide for preventive measures
and legal aid services to the under-privileged
whose human rights have been violated or need
protection;
(4) Exercise visitorial powers over jails, prisons, or
detention facilities;
64
(5) Establish a continuing program of research,
education, and information to enhance respect
for the primacy of human rights;
(6) Recommend to Congress effective measures to
promote human rights and to provide for
compensation to victims of violations of human
rights, or their families;
(7) Monitor the Philippine Government's compliance
with international treaty obligations on human
rights;
(8) Grant immunity from prosecution to any person
whose testimony or whose possession of
documents or other evidence is necessary or
convenient to determine the truth in any
investigation conducted by it or under its
authority;
(9) Request the assistance of any department,
bureau, office, or agency in the performance of
its functions;
(10) Appoint its officers and employees in
accordance with law; and
(11) Perform such other duties and functions as may
be provided by law.
Cario vs. CHR (G.R. No. 96681 December 2, 1991):
As should at once be observed, only the first of the
enumerated powers and functions bears any
resemblance to adjudication or adjudgment. The
Constitution clearly and categorically grants to the
Commission the power to investigate all forms of
human rights violations involving civil and political
rightsBut it cannot try and decide cases (or hear
and determine causes) as courts of justice, or even
quasi-judicial bodies do. To investigate is not to
adjudicate or adjudge. Whether in the popular or
the technical sense, these terms have well
understood and quite distinct meanings.
J. Education, Science, Technology,

Arts, Culture and Sports
1. Academic Freedom
1. Academic Freedom
1987 Phil. Constitution, Article 14, Section 5.
(2) Academic freedom shall be enjoyed in all
institutions of higher learning.
DLSU Inc., vs CA (G.R. No. 127980, December 19,
2007):
Section 5(2), Article XIV of the Constitution
guaranties all institutions of higher learning
academic freedom. This institutional academic
freedom includes the right of the school or college
to decide for itself, its aims and objectives, and how
best to attain them free from outside coercion or
interference save possibly when the overriding
public interest calls for some restraint. According to
present
jurisprudence,
academic
freedom
encompasses the independence of an academic
institution to determine for itself (1) who may
teach, (2) what may be taught, (3) how it shall
teach, and (4) who may be admitted to study.

It cannot be gainsaid that "the school has an interest
in teaching the student discipline, a necessary, if not
indispensable, value in any field of learning. By
instilling discipline, the school teaches discipline.
Accordingly, the right to discipline the student
likewise finds basis in the freedom "what to
teach." Indeed, while it is categorically stated under
the Education Act of 1982 that students have a right
"to freely choose their field of study, subject to
existing curricula and to continue their course
therein up to graduation," such right is subject to
the established academic and disciplinary standards
laid down by the academic institution.
65
UP
L
AW
BAR REVIEWER
2012
POLITICAL
22
EXECUTIVE COMMITTEE
COMMITTEE HEADS
OPERATIONS HEADS
LAW
Ronette Colobong
LAYOUT TEAM 2012

Cris Bernardino
Reyes
Administrative Law
Election Law
Local Governments
POLITICAL LAW
Fundamental Powers of the State
Private Acts and the Bill of Rights
Due Process
Equal Protection
Searches and Seizures
Privacy of Communications and
Correspondence
G. Freedom of Expression
H. Freedom of Religion
Movement
J. Right to Information
K. Right to Association
L. Eminent Domain
M. Contract Clause
N. Legal Assistance and Free Access to
Courts
O. Rights of Suspects
P. Rights of the Accused
Q. Writ of Habeas Corpus
R. Writ of Amparo
S. Self-Incrimination Clause
T. Involuntary Servitude and Political
Prisoners
Inhuman Punishments
V. U.Non-Imprisonment for Debts
W. Double Jeopardy
X. Ex Post Facto Laws and Bills of
Attainder
A.
B.
C.
D.
E.
F.
A. Fundamental Powers of the

State
1.
2.
3.
4.
Concept and Application

Requisites for Valid Exercise
Similarities and Differences
Delegation
1. Concept and Application

Police Power
a.
Definition
It is the inherent and plenary power of the state

which enables it to prohibit all that is hurtful to the
comfort, safety and welfare of society. [ErmitaMalate Hotel and Motel Operators Association, Inc.
vs. Mayor of Manila (1967)]
b.
Scope and Limitations
General Coverage
"The police power of the State," one court has said,
"is a power coextensive with self-protection, and is
not inaptly termed the 'law of overruling necessity.'
[Rubi vs. Provincial Board (1919)]
It may be said to be that inherent and plenary power
in the State which enables it to prohibit all things
hurtful to the comfort, safety and welfare of
society." [Lake View vs. Rose Hill Cemetery Co.

(1873)]
the state, in order to promote the general welfare,
may interfere with personal liberty, with property,
and with business and occupations. Persons may be
subjected to all kinds of restraints and burdens, in
order to secure the general comfort health and
prosperity of the state and to this fundamental aim
of our Government, the rights of the individual are
subordinated. [Ortigas & Co., Limited Partnership
vs. Feati Bank and Trust Co. (1979)]
...has been properly characterized as the most
essential, insistent and the least limitable of
powers, [Ermita-Malate Hotel and Motel Operators
Assoc. vs. Mayor of Manila (1967) Cf. Ichong v.
Hernandez, (1957)] extending as it does "to all the
great public needs." [Noble State Bank vs. Haskell,
219 U.S. 412]
Police Power cannot be bargained away through
treaty or contract. [Ichong v. Hernandez (1957)]
Taxation may be used as an implement of police
power [Lutz v. Araneta (1955); Tiu v. Videogram
Regulatory Board, 151 SCRA 208; Gaston v. Republic
Planters Bank, 158 SCRA 626; Osmena v. Orbos, 220
SCRA 703]
Eminent domain may be used as an implement to
attain the police objective [Association of Small
Landowners v. Secretary of Agrarian Reform (1989)]
Police power prevails over contracts. [PNB v. Office
of the President (1996)]
Specific Coverage
(1) Public Health
(2) Public Morals
(3) Public Safety
(4) Public Welfare
Test of Reasonability
(1) Lawful subject
(2) Lawful means
(3) Least restrictions of individual right.
The limit to police power is reasonability. The Court
looks at the test of reasonability to decide whether
it encroaches on the right of an individual. So long as
legitimate means can reasonably lead to create that
end, it is reasonable. [Morfe vs. Mutuc (1968)]
The legislative determination as to what is a proper
exercise of its police powers is not final or
conclusive, but is subject to the supervision of the
court. [US vs. Toribio (1910) citing Mr. Justice
Brown in his opinion in the case of Lawton vs.
Steele (152 U.S., 133, 136)]
The proper exercise of Police Power requires
compliance with the following requisites: (a) the
interests of the public generally, as distinguished
from those of a particular class, require the
interference by the State; and (b) the means
employed are reasonably necessary for the
67
attainment of the object sought and not unduly
oppressive upon individuals. [Lucena Grand Central
Terminal v. JAC Liner (2005)]
The SC Upheld the validity of Administrative Orders
which converted existing mine leases and other
mining
agreements
into
production-sharing
agreements within one year from effectivity. The
subject sought to be governed by the AOs are
germane to the object and purpose of E.O. 279 and
that mining leases or agreements granted by the
State are subject to alterations through a reasonable
exercise of police power of the State. [Miners
Association of the Philippines v. Factoran, 240 SCRA
100]
c.
Illustrations on the Exercise of Police Power
General Welfare
RA 9257, the Expanded Senior Citizens Act of 2003,
is a legitimate exercise of police power.
Administrative Order No. 177 issued by the
Department of Health, providing that the 20%
discount privilege of senior citizens shall not be
limited to the purchase of unbranded generic
medicine but shall extend to both prescription and
non-prescription medicine, whether branded or
generic, is valid. When conditions so demand, as
determined by the legislature, property rights must
bow to the primacy of police power because
property rights, though sheltered by the due process
clause, must yield to the general welfare. [Carlos
Superdrug Corporation v. DSWC et al. G.R. No.
166494, June 29, 2007]
National Security
SC upheld the constitutionality of RA 1180 (An Act to
Regulate the Retail Business) which sought to
nationalize the retail trade business by prohibiting
aliens in general from engaging directly or indirectly
in the retail trade. Aliens did not question the
exercise of police power; they claim, however, that
there was a violation of the due process and equal
protection clauses. [Ichong vs. Hernandez (1957)]
Scope of the police power: Since the Courts cannot
foresee the needs and demands of public interest
and welfare, they cannot delimit beforehand the
extent or scope of the police power by which and
through which the state seeks to attain or achieve
public interest and welfare.
Police power and national security: The disputed
law was enacted to remedy a real actual threat and
danger to national economy posed by alien
dominance and control of the retail business; the
enactment clearly falls within the scope of the
police power of the State, thru which and by which
it protects its own personality and insures its
security and future.
vehicles to install specific early warning devices to

reduce road accidents. Agustin already installed
warning devices in his car but they were not the
same ones specified in the LOI. He argued that the
said LOI violated the police power of the state for
being oppressive, arbitrary and unconscionable.
Police power, public safety: The Court identified
police power as a dynamic agency, suitably vague
and far from precisely defined, rooted in the
conception that men in organizing the state and
imposing upon its government limitations to
safeguard constitutional rights did not intend to
enable an individual citizen or a group of citizens to
obstruct unreasonably the enactment of such
salutary measures calculated to communal peace,
safety, good order, and welfare. According to the
Court, a heavy burden lies in the hands of the
petitioner who questions the states police power if
it was clearly intended to promote public safety.
[Agustin vs. Edu, (1979)]
Public Morals
Ermita Malate Hotel and Motel Operations Assoc.
assails the constitutionality of Ordinance No. 4760.
The grounds adduced were: (1) unreasonable and
violative of due process insofar as it would impose
different fees for different classes of hotels/motels
and prohibit 18 year-olds from being accepted in
such hotels, unless accompanied by parents or a
lawful guardian and making it unlawful for the
owner, manager, keeper or duly authorized
representative of such establishments to lease any
room or portion more than twice every 24 hours, and
(2) invasion of the right to privacy and the guaranty
against self-incrimination because it requires clients
to fill up the prescribed form in a lobby open to
public view at all times and in his presence, wherein
personal information are mandated to be divulged.
Police power, public morals: The mantle of
protection associated with the due process guaranty
does not cover petitioners. This particular
manifestation of a police power measure being
specifically aimed to safeguard public morals is
immune from such imputation of nullity resting
purely on conjecture and unsupported by anything of
substance. Police power is "that inherent and
plenary power in the State which enables it to
prohibit all that is hurtful to the comfort, safety,
and welfare of society xxx There is no question but
that the challenged ordinance was precisely enacted
to minimize certain practices hurtful to public
morals. [Ermita-Malate Motel and Motel Operators
Assn. vs. City Mayor of Manila (1967)]
Public Safety
The case of White Light vs. City of Manila was

termed by Justice Tinga as a middle case. It was
meant to identify its case within a spectrum of cases
decided by the Supreme Court which dealt with
ordinances which has for its view the regulation of
public morals.
Agustin questions President Marcos Letter of

Instruction No. 229 compelling owners of motor
It is called a middle case because unlike its

predecessors where the issue is either a wholesale
68
ban against hotels and motels or a reasonable
regulatory device as the one found in Ermita-Malate
vs. City of Manila, this is a case where the ordinance
in question severely restricts the services of the
abovementioned establishments.
The rationale started with an outline of the test of a
valid ordinance i.e. it must be within the corporate
powers of the local government to enact and pass
and it must conform with substantive requirements.
A reading of the ordinance at bar would yield that it
prohibits two practices: the wash-up rate admission
and renting out a room more than twice per day.
These prohibitions are anchored in the power of the
LGU to implement ordinances hinged on the general
welfare clausethe devolved aspect of police power.
This case churned out three standards for judicial
review: the STRICT SCRUTINY TEST for laws dealing
with freedom of the mind and curtailment of
political process and the RATIONAL BASIS STANDARD
OF REVIEW for economic legislation. A third standard
was created known as the IMMEDIATE SCRUTINY for
evaluating standards based on gender and
legitimacy.
The Supreme Court justified the application of the
strict scrutiny test to this particular ordinance
despite its lack of political significance by saying
that it is not gravitas alone which is sheltered by the
Bill of Rights. It is precisely these reflexive exercises
of fundamental acts which best reflect the degree of
liberty enjoyed.
Sexual behavior is one of these fundamental acts
covered by the penumbra of rights. While the reality
of illicit activity is judicially recognized, it cannot be
denied that sexual behavior between consenting
adults is constitutionally protected.
Apart from the right to privacy, the ordinance also
proscribes other legitimate activities most of which
are grounded on the convenience of having a place
to stay during the short intervals between travels.
The Ordinance was struck down as an arbitrary
intrusion to private rights. It made no distinction
between lodgings and placed every establishment as
susceptible to illicit patronage. [Cf. White Light
Corporation, et al vs. City of Manila (2009)]
Eminent Domain
a.
Definition and Scope
The power of eminent domain is the inherent right

of the State to condemn private property to public
use upon payment of just compensation. It also
known as the power of expropriation.
It is well settled that eminent domain is an inherent
power of the state that need not be granted even by
the fundamental law. Sec. 9, Art. III merely imposes
a limit on the governments exercise of this power.
[Republic v. Tagle, G.R. No. 129079, Dec. 2, 1998].
b. Who may exercise the power

Congress and, by delegation, the President,
administrative bodies, local government units, and
even private enterprises performing public services
may exercise the power of eminent domain.
The exercise of the right of eminent domain,
whether directly by the state or by its authorized
agents, is necessarily in derogation of private rights.
Hence, strict construction will be made against the
agency exercising the power. [Jesus is the Lord
Christian School Foundation v. Mun. of Pasig, G.R.
No. 152230, Aug. 9, 2005]
Taxation
a.
Definition and Scope
It is the enforced proportional contributions from

persons and property, levied by the State by virtue
of its sovereignty, for the support of the government
and for all public needs.
It is as broad as the purpose for which it is given.
Purpose:
(1) To raise revenue
(2) Tool for regulation
(3) Protection/power to keep alive
Tax for special purpose [Sec. 29 (3), Art. VI]:
Treated as a special fund and paid out for such
purpose only; when purpose is fulfilled, the balance,
if any shall be transferred to the general funds of
the Government. See: Osmena v. Orbos, 220 SCRA
703
Scope and Limitation
General Limitations
(1) Power to tax exists for the general welfare;
should be exercised only for a public
purpose
(2) might be justified as for public purpose
even if the immediate beneficiaries are
private individuals
(3) Tax should not be confiscatory: If a tax
measure is so unconscionable as to amount
to confiscation of property, the Court will
invalidate it. But invalidating a tax measure
must be exercised with utmost caution,
otherwise, the States power to legislate for
the public welfare might be seriously
curtailed
(4) Taxes should be uniform and equitable [Sec.
28(1), Art. VI]
The legislature has discretion to determine the
nature, object, extent, coverage, and situs of
taxation. But where a tax measure becomes so
unconscionable and unjust as to amount to
confiscation of property, courts will not hesitate to
strike it down, for despite all its plenitude, the
power to tax cannot override constitutional
prescriptions. [Tan v. del Rosario, 237 SCRA 324]
69
Specific Limitations
(1) Uniformity of taxation:
GENERAL RULE: simply geographical
uniformity, meaning it operates with the
same force and effect in every place where
the subject of it is found
EXCEPTION: rule does not prohibit
classification for purposes of taxation,
provided the ff requisites are met:
(SNAGAE)
(a) standards used are substantial and
not arbitrary
(b) if the classification is germane to
achieve the legislative purpose
(c) if that classification applies to
both
present
and
future
conditions, other circumstances
being equal
(d) applies equally to members of the
same class. [Pepsi Cola v. City of
Butuan].
(2) Tax Exemptions
No law granting any tax exemption shall be passed
without the concurrence of a majority of all the
Members of Congress [Sec. 28 (4), Art. VI]
A corollary power but must be for a public purpose,
uniform and equitable and in conformity with the
equal protection clause
Tax exemptions are granted gratuitously and may be
revoked at will, except when it was granted for
valuable consideration
May either be constitutional or statutory
If statutory, it has to have been passed by majority
of all the members of Congress [sec. 28 (4), Art. VI]
Constitutional exemptions [sec. 28(3), Art. VI]
(a) Educational institutions (both
profit and non-profit): Benefits
redound to students, but only
applied to property taxes and not
excise taxes

(b) Charitable institutions: Religious
and charitable institutions give
considerable assistance to the
State in the improvement of the
morality of the people and the
care of the indigent and the
handicapped
(c) Religious property: Charitable
Institutions,
churches,
and
parsonages
or
convents
appurtenant thereto, mosques,
non-profit cemeteries, and all
lands, buildings and improvements,
actually, directly and exclusively
used for religious, charitable or
educational purposes shall be
exempt from taxation. [Sec. 28 (3),
Art. VI]
2. Requisites for Valid Exercise

Police Power
Tests for Validity of Exercise of Police Power
(1) LAWFUL SUBJECT: Interest of the general
public (as distinguished from a particular
class required exercise). This means that
the activity or property sought to be
regulated affects the general welfare. [see
Taxicab
Operators
v.
Board
of
Transportation, 119 SCRA 597]
(2) LAWFUL MEANS: Means employed are
reasonably
necessary
for
the
accomplishment of the purpose, and are not
unduly oppressive. [see Tablarin v.
Gutierrez, 152 SCRA 730]
(3) Least restrictions of individual rights.
Additional Limitations when police power is
delegated.
(1) Express grant by law [e.g. Secs. 16, 391,
447, 458 and 468, R.A. 7160, for LGUs]
(2) Limited within its territorial jurisdiction [for
local government units]
(3) Must not be contrary to law.
Eminent Domain
All revenues and assets of non-stock, non-profit

educational institutions used actually, directly and
exclusively for educational purposes shall be exempt
from taxes and duties. xxx Proprietary educational
institutions, including those co-operatively owned,
may likewise be entitled to such exemptions subject
to the limitations provided by law including
restrictions on dividends and provisions for
reinvestment. [Sec. 4(3), Art. XIV]
a. Requisites for a valid taking [Republic v.

Castelvi, 58 SCRA 336]:
(1) The expropriator must enter a private
property
Subject to conditions prescribed by law, all grants,

endowments, donations, or contributions used
actually, directly and exclusively for educational
purposes shall be exempt from tax.
(2) Entry must be for more than a momentary

period
(3) Entry must be under warrant or color of
legal authority
All private property capable of ownership

may be expropriated, except money and
choses in action. [Republic v. PLDT, 26
SCRA 620]
70
(4) Property must be devoted to public use or
otherwise informally appropriated or
injuriously affected
Utilization of the property must be in such a way as
to oust the owner and deprive him of beneficial
enjoyment of the property
When is there taking in the constitutional case?
When the owner is deprived of his proprietary rights
there is taking of private property. Examples:
(1) The imposition of a right-of-way easement
was held to be taking. The exercise of the
power of eminent domain does not always
result in the taking or appropriation of title
to the expropriated property; it may also
result in the imposition of a burden upon
the owner of the condemned property,
without loss of title or possession. [NPC v.
(2) May include trespass without actual eviction
of the owner, material impairment of the
value of the property or prevention of the
ordinary uses for which the property was
intended. [Ayala de Roxas v. City of Manila,
9 Phil 215]
(3) A municipal ordinance prohibiting a building
which would impair the view of the plaza
from the highway was likewise considered
taking. [People v. Fajardo, 104 Phil. 44]
Delegated tax legislation: Congress may delegate

law-making authority when the constitution itself
specifically authorizes it.
3. Similarities and Differences

Similarities (Nachura)
(1) Inherent in the State (Exercised even
without need of express constitutional
grant)
(2) Necessary and indispensable (State cannot
be effective without them)
(3) Method by which state interferes with
private property
(4) Presuppose equivalent compensation
(5) Exercised primarily by the legislature
Differences
Police
Power
None
(The
altruistic
feeling
that one
has
contribute
d to the
public
good
[NACHURA
])
Eminent
Domain
Just
compensat
ion
(Full and
fair
equivalent
of the
property
taken)
required.
Use of
Property
Not
appropria
ted for
public use
Appropriat
ed for
public use
Objective
To
destroy
noxious
property
or to
restrain
the
noxious
use of
property
Liberty
and
Property
Property
taken for
public use;
it is not
necessarily
noxious
Compensat
ion
b. Adequacy of compensation
The full and fair equivalent of the property taken; it
is the fair market value of the property.
Fair market value is the sum of money which a
person, desirous but not compelled to buy, and an
owner, willing but not compelled to sell, would
agree on as a price to be given and received
therefore.
However, where only a PORTION of the property is
taken, the owner is entitled only to the market value
of the portion actually taken and the consequential
damage to the remaining part.
Note: Just compensation means not only the correct
amount to be paid but also payment within
reasonable time from its taking. [Esteban v. De
Onorio, G.R. No. 146062, June 28, 2001]
Taxation
Equal protection clause: taxes should be uniform
(persons or things belonging to the same class shall
be taxed at the same rate) and equitable (taxes
should be apportioned among the people according
to their ability to pay)
Progressive system of taxation: The rate increases
as the tax base increases, with basis as social justice
Taxation as an instrument for a more
equitable distribution of wealth
Coverage
Property
rights only
Taxation
None
(The
protection
given and
public
improveme
nts
instituted
by the
State
because of
these taxes
[NACHURA]
)
Use taxing
power as
an
implement
for the
attainment
of a
legitimate
police
objective
to regulate
a business
or trade
Earn
revenue
for the
governmen
t
Property
rights only
Police power is the power of the State to promote

public welfare by restraining and regulating the use
of liberty and property. The power of eminent
domain is the inherent right of the state to condemn
71
private property to public use upon payment of just
compensation.
Although both police power and eminent domain
have the general welfare for their object, and
recent trends show a mingling of the two with the
latter being used as an implement of the former,
there are still traditional distinctions between the
two.
Property condemned under police power is usually
noxious or intended for a noxious purpose, hence no
compensation is paid. Likewise in the exercise of
police power, property rights of individuals are
subjected to restraints and burdens in order to
secure the general comfort, health and prosperity of
the State. Where a property interest is merely
restricted because the continued use thereof would
be injurious to public interest, there is no
compensable taking.
However, when a property interest is appropriated
and applied to some public purpose, there is need to
pay just compensation. In the exercise of police
power, the State restricts the use of private
property, but none of the property interests in the
bundles of rights which constitute ownership is
appropriated for use by or for the benefit of the
public. Use of the property by the owners is limited,
but no aspect of the property used or for the benefit
of the public. The deprivation of use can, in fact, be
total, and it will not constitute compensable taking
if nobody else acquires use of the property or any
interest therein. If, however, in the regulation of
the use of the property, somebody else acquires the
use or interest thereof, such restriction constitutes
compensable
taking.
[Dipidio
Earth-Savers
Multipurpose Association v. Gozun, G.R. No. 157882,
March 30, 2006]
If the generation of revenue is the primary purpose
and regulation is merely incidental, the imposition is
a tax, but if regulation is the primary purpose, the
fact that revenue is incidentally raised does not
make the imposition a tax. [Gerochi v. Department
of Energy, G.R. No. 159796, July 17, 2007]
License Fee v. Tax
License Fee is paid for the privilege of doing
something, and may be revoked when public interest
so requires; Tax is imposed on persons of property
for revenue. [Compania General de Tabaco v. City of
Manila, 8 SCRA 367]
Amount collected for a license fee is limited to the
cost of permit and reasonable police regulation
[Except when the license fee is imposed on a nonuseful occupation, such as the practice of hygienic
and aesthetic massage in Physical Therapy
Organization v. Municipal Board of Manila (1957)].
4. Delegation
Police Power
a.
Legislature
Police power is lodged primarily in the national

legislature.
b.
Executive
By virtue of a valid delegation of legislative power,

it may also be exercised by the president,
administrative bodies, and lawmaking bodies of
LGUs. [sec. 16, R.A. 7160]
...this power is limited only by the Acts of Congress
and those fundamentals principles which lie at the
foundation of all republican forms of government. An
Act of the Legislature which is obviously and
undoubtedly foreign to any of the purposes of the
police power and interferes with the ordinary
enjoyment of property would, without doubt, be
held to be invalid. [Churchill and Tait vs. Rafferty
(1915)]
Rep. Act No. 7924 does not grant the MMDA with
police power, let alone legislative power, and all its
functions are administrative in nature. [MMDA v.
Bel-Air Village Association, G.R. No. 135962, March
27, 2000]
BUT it is not precludedand in fact is duty-bound
to confiscate and suspend or revoke drivers' licenses
in the exercise of its mandate of transport and
traffic management, as well as the administration
and implementation of all traffic enforcement
operations, traffic engineering services and traffic
education programs. [MMDA vs. Garin (2005); Sec.
3(b), Rep. Act No. 7924]
Eminent Domain
The general power to exercise the right of eminent
domain must not be confused with the right to
exercise it in a particular case.
The power of the legislature to confer, upon
municipal corporations and other entities within the
State, general authority to exercise the right of
eminent domain cannot be questioned by the courts,
but that general authority of municipalities or
entities must not be confused with the right to
exercise it in particular instances.
The moment the municipal corporation or entity
attempts to exercise the authority conferred, it
must comply with the conditions accompanying the
authority. The necessity for conferring the authority
upon a municipal corporation to exercise the right of
eminent domain is admittedly within the power of
the legislature.
But whether or not the municipal corporation or
entity is exercising the right in a particular case
under the conditions imposed by the general
authority is a question which the courts have the
right to inquire into. [City of Manila vs. Chinese
Community of Manila, G.R. No. L-14355, October 31,
1919]
72
When a statute or charter or by general law has
conferred the right of eminent domain upon a
private entity. [Tenorio vs. Manila Railroad Co.,
G.R. No. L-6690, March 29, 1912]
Extent of
Power
Question
of
Necessity
AS EXERCISED BY
CONGRESS
Pervasive and allencompassing
Political question
Re:
Private
Property
AS EXERCISED BY
DELEGATES
Can only be as
broad
as
the
enabling law and
the
conferring
authorities want it
to be
Justiciable
question. RTC has
to
determine
whether there is a
genuine necessity
for its exercise, as
well as what the
propertys value
is.
If not justiciable,
theres grant of
special authority
for
special
purpose
Delegate cannot
expropriate
private property
already
devoted
to public use
It is generally self-executing
Article III contains the chief protection for
human rights but the body of the
Constitution guarantees other rights as
well.
(1) Civil rights rights that belong to
an individual by virtue of his
citizenship in a state or community
(e.g. rights to property, marriage,
freedom
to
contract,
equal
protection, etc.)
(2) Political rights rights that pertain
to an individuals citizenship vis-vis the management of the
government (e.g. right of suffrage,
right to petition government for
redress, right to hold public office,
etc.)
(3) Social and economic rights rights
which are intended to insure the
well-being and economic security
of the individual
(4) Rights of the accused civil rights
intended for the protection of a
person accused of any crime
2. Bases and Purpose

a.
(1) Importance accorded to the dignity and

worth of the individual.
(2) Protection against arbitrary actions of
government and other members of society
Taxation
(1) legislature (primarily)
(2) local legislative bodies [Sec. 5, Art. X]
(3) President (to a limited extent, when
granted delegated tariff powers under Sec.
28 (2) Art. VI)
B. Private Acts & the Bill of Rights

1. In General
2. Bases and Purpose
3. Accountability
1. In General
It is a declaration and enumeration of a person's
fundamental civil and political rights. It also
imposes safeguards against violations by the
government, by individuals, or by groups of
individuals.
The Bill of Rights governs the relationship between
the individual and the state. Its concern is not the
relation between individuals, between a private
individual and other individuals. What the Bill of
Rights does is to declare some forbidden zones in the
private sphere inaccessible to any power holder.
(Sponsorship Speech of Commissioner Bernas, Record
of the Constitutional Commission, Vol. 1, p. 674;
July 17, 1986; Emphasis supplied) [People vs. Marti,
G.R. No. 81561, January 18, 1991]
Bases:
b.
Purpose:
(1) To preserve democratic ideals
(2) To safeguard fundamental rights
(3) To promote the happiness of an individual
The Bill of Rights is designed to preserve the ideals

of liberty, equality and security "against the assaults
of opportunism, the expediency of the passing hour,
the erosion of small encroachments, and the scorn
and derision of those who have no patience with
general principles." (Justice Cardozo, Nature of
Judicial Process, 90-93; Tanada and Fernando,
Constitution of the Philippines, 1952 ed., 71.)
[Philippine Blooming Mills Employees Organization
vs. Philippine Blooming Mills Co., Inc. (1973)]
In the pithy language of Mr. Justice Robert Jackson,
the purpose of the Bill of Rights is to withdraw
"certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of
majorities and officials, and to establish them as
legal principles to be applied by the courts. One's
rights to life, liberty and property, to free speech,
or free press, freedom of worship and assembly, and
other fundamental rights may not be submitted to a
vote; they depend on the outcome of no elections."
[West Virginia State Board of Education vs.
Barnette, 319 U.S. 624, 638]
73
3. Accountability
Sec. 2 Art III shall apply only against law officials or
people working as agents of government concerned
about being able to procure evidence. [People vs.
Marti (1991)]
Section 3 of Article XIII of the Constitution requires
the State to give full protection to labor. We cannot
be faithful to this duty if we give no protection to
labor when the violator of its rights happens to be
private parties like private employers. A private
person does not have a better right than the
government to violate an employee's right to due
process. To be sure, violation of the particular right
of employees to security of tenure comes almost
always from their private employers. [Serrano vs.
NLRC (2000)]
C. Due Process
1.
2.
3.
4.
5.
6.
Relativity of Due Process

Procedural and Substantive Due Process
Constitutional and Statutory Due Process
Hierarchy of Rights
Judicial Standards of Review
Void for Vagueness Doctrine
Art. III, Sec. 1. No person shall be deprived of life,

liberty or property without due process of law, nor
shall any person be denied the equal protection of
the laws.
Art. XIII, Sec. 1. The Congress shall give highest
priority to the enactment of measures that protect
and enhance the right of all the people to human
dignity, reduce social, economic, and political
inequalities and remove cultural inequities by
equitably diffusing wealth and political power for
the common good.
To this end, the State shall regulate the acquisition,
ownership, use, and disposition of property and its
increments.
In General
Due process of law simply states that [i]t is part of
the sporting idea of fair play to hear "the other side"
before an opinion is formed or a decision is made by
those who sit in judgment. [Ynot vs. IAC (1987)]
It covers any governmental action which constitutes
a deprivation of some person's life, liberty, or
property.
Definition
A law which hears before it condemns, which
proceeds upon inquiry and renders judgment only
after trial [Darthmouth College v. Woodward, 4
Wheaton 518]
Responsiveness to the supremacy of reason,
obedience to the dictates of justice [Ermita-Malate

Hotel & Motel Operators Association v. City of
Manila, 20 SCRA 849]
Life includes the right of an individual to his body in
its completeness, free from dismemberment, and
extends to the use of God-given faculties which
make life enjoyable [Justice Malcolm Malcolm,
Philippine Constitutional Law, pp. 320-321; See Buck
v. Bell, 274 US 200]
Liberty includes the right to exist and the right to
be free from arbitrary personal restraint or
servitude.xxx (It) includes the right of the citizen to
be free to use his faculties in all lawful ways xxx
[Rubi v. Provincial Board of Mindoro, 39 Phil 660]
Property is anything that can come under the right
of ownership and be the subject of contract. It
represents more than the things a person owns; it
includes the right to secure, use and dispose of
them. [Torraco v. Thompson, 263 US 197]
Universal in application to all persons without regard
to any difference in race, color or nationality.
Artificial persons are covered by the protection but
only insofar as their property is concerned [Smith
Bell & Co. v. Natividad, 40 Phil. 163]
The guarantee extends to aliens and includes the
means of livelihood. [Villegas v. Hiu Chiong, 86 SCRA
275]
Minimum Requirements
Due process of law guarantees:
(1) notice and
(2) opportunity to be heard
(3) to persons who would be affected by the
order or act contemplated.
Noted Exceptions to Due Process
(1) The conclusive presumption, bars the
admission of contrary evidence as long as
such presumption is based on human
experience or there is a rational connection
between the fact proved and the fact
ultimately presumed therefrom.
(2) There are instances when the need for
expeditious action will justify omission of
these requisites, as in the summary
abatement of a nuisance per se, like a mad
dog on the loose, which may be killed on
sight because of the immediate danger it
poses to the safety and lives of the people.
(3) Pornographic materials, contaminated meat
and narcotic drugs are inherently pernicious
and may be summarily destroyed.
(4) The passport of a person sought for a
criminal offense may be cancelled without
hearing, to compel his return to the country
he has fled.
(5) Filthy restaurants may be summarily
padlocked in the interest of the public
74
health and bawdy houses to protect the
public morals. [Ynot vs. IAC (1987)]
In such instances, previous judicial hearing may be
omitted without violation of due process in view of:
1) the nature of the property involved; or 2) the
urgency of the need to protect the general welfare
from a clear and present danger.
1. Relativity of Due Process

2. Procedural and Substantive Due
Process
a. Scope
Procedural Due Process
Procedural due process is that aspect of due process
which serves as a restriction on actions of judicial
and quasi-judicial agencies of the government. It
refers to the method or manner by which a law is
enforced.
Concerns with government action on established
process when it makes intrusion into the private
sphere
Substantive Due Process

Substantive due process, asks whether the
government has an adequate reason for taking away
a persons life, liberty, or property. [City of Manila
vs. Laguio (2005)]
In other words, substantive due process looks to
whether there is a sufficient justification for the
governments action.
Substantive due process is an aspect of due process
which serves as a restriction on the law-making and
rule-making power of the government.
The law itself, not merely the procedures by which
the law would be enforced, should be fair,
reasonable, and just.
It guarantees against the arbitrary power even when
exercised according to proper forms and procedure.
b. Requisites
Procedural Due Process
In Civil Proceedings
Requisites
(1) An impartial court of tribunal clothed with
judicial power to hear and determine the
matter before it.
(2) Jurisdiction must be lawfully acquired over
the person of the defendant and over the
property subject matter of the proceeding
[Banco Espaol vs. Palanca (1918)]

Note: NOTICE is an essential element of due
process, otherwise the Court will not acquire
jurisdiction and its judgment will not bind the
defendant.
To be meaningful, it must be both as to time and
place.
Service of summons is not only required to give the
court jurisdiction over the person of the defendant
but also to afford the latter the opportunity to be
heard on the claim made against him. Thus,
compliance with the rules regarding the service of
summons is as much an issue of due process as of
jurisdiction. [Sarmiento v. Raon, G.R. No. 131482,
July 3, 2002]
(3) The defendant must
opportunity to be heard
be
given
an
Due process is satisfied as long as the party is

accorded the opportunity to be heard. If it is not
availed of, it is deemed waived or forfeited without
violating the constitutional guarantee. [Bautista v.
Court of Appeals, G.R. No. 157219, May 28, 2004]
The Supreme Court reiterated that the right to
appeal is not a natural right nor part of due process;
it is merely a statutory privilege, and may be
exercised only in the manner and in accordance with
the provisions of law. [Alba v. Nitorreda, 254 SCRA
753]
(4) Judgment must be rendered upon lawful
hearing and must clearly explain its factual
and legal bases... [Sec. 14, Art. VIII; Banco
Espaol-Filipino vs. Palanca (1918)]
Note: The allowance or denial of motions for
extension rests principally on the sound discretion of
the court to which it is addressed, but such
discretion must be exercised wisely and prudently,
with a view to substantial justice. Poverty is
recognized as a sufficient ground for extending
existing period for filing. The right to appeal is part
of due process of law. [Reyes vs. CA (1977)]
In Administrative Agencies
The Ang Tibay Rules:
(1) Right to a hearing to present own case and
submit evidence in support thereof.
(2) Tribunal must consider the evidence
presented.
(3) Decision rendered must have support.
(4) Evidence which supports the finding or
conclusion is substantial (such relevant
evidence as a reasonable mind accept as
adequate to support a conclusion).
(5) The decision must be rendered on the
evidence presented at the hearing, or at
least contained in the record and disclosed
to the parties affected.
(6) The tribunal or any of its judges, must act
on its or his own independent consideration
of the law and facts of the controversy, and
not simply accept the views of a
subordinate in arriving at a decision.
75
(7) The tribunal should, in all controversial
questions, render its decision in such a
manner that the parties to the proceeding
can know the various issues involved, and
the reasons for the decision rendered. [Ang
Tibay vs. CIR (1940)]
In Criminal Proceedings
See Rights of the Accused, Topic 1 Criminal Due
Process
In Academic Disciplinary Proceedings
Requisites
(1) The students must be informed in writing of
the nature and cause of any accusation
against them;
(2) They shall have the right to answer the
charges against them, with the assistance of
counsel, if desired;
(3) They shall be informed of the evidence
against them;
(4) They shall have the right to adduce
evidence in their own behalf;
(5) The evidence must be duly considered by
the investigating committee or official
designated by the school authorities to hear
and decide the case [Non vs. Judge Dames
(1990)]
Substantive Due Process

Laws which interfere with life, liberty or property
satisfy substantive due process when there is:
(1) Lawful object i.e. the interests of the
public in general (as distinguished from
those of a particular class) require the
intervention of the State, and
(2) Lawful means i.e. means employed are
reasonably
necessary
for
the
accomplishment of the purpose and not
unduly oppressive on individuals. [US vs.
Toribio (1910)]
Publication of laws is part of substantive due
process. [Taada vs. Tuvera (1986)]
3. Constitutional and Statutory Due

Process
Due process under the Labor Code, like
constitutional due process, has two aspects:
substantive (i.e. the valid and authorized causes of
employment termination), and procedural (i.e. the
manner of dismissal). . . Breaches of these due
process requirements violate the Labor Code, not
the Constitution. Therefore, statutory due process
should be differentiated from failure to comply with
constitutional due process.
Constitutional due process protects the individual
from the government and assures him of his rights in
criminal, civil or administrative proceedings; while
statutory due process found in the Labor Code and
Implementing Rules protects employees from being

unjustly terminated without just cause after notice
and hearing. [Agabon v. NLRC (2004)]
The Labor Code requires twin requirements of notice
and hearing for a valid dismissal. However, the Court
in Serrano v. NLRC clarified that this procedural
due process requirement is not constitutional but
merely statutory, thus a violation of such
requirement does not render the dismissal void.
There are three reasons why violation by the
employer of the notice requirement cannot be
considered a denial of due process resulting in the
nullity of the employee's dismissal or layoff. xxx The
first is that the Due Process Clause of the
Constitution is a limitation on governmental powers.
It does not apply to the exercise of private power,
such as the termination of employment under the
Labor Code. x x x The second reason is that notice
and hearing are required under the Due Process
Clause before the power of organized society are
brought to bear upon the individual. This is obviously
not the case of termination of employment under
Art. 283. x x x The third reason why the notice
requirement under Art. 283 cannot be considered a
requirement of the Due Process Clause is that the
employer cannot really be expected to be entirely
an impartial judge of his own cause. [Serrano v.
NLRC (2000)]
4. Hierarchy of Rights
When the Bill of Rights also protects property rights,
the primacy of human rights over property rights is
recognized. Because these freedoms are delicate
and vulnerable, as well as supremely precious in our
society and the threat of sanctions may deter
their exercise almost as potently as the actual
application of sanctions, they need breathing
space to survive, permitting government regulation
only with narrow specificity. [Philippine Blooming
Mills Employees Organization v. Philippine Blooming
Mills Co., Inc (1973)]
If the liberty involved were freedom of the mind or
the person, the standard for the validity of
governmental acts is much more rigorous and
exacting, but where the liberty curtailed affects at
the most rights of property, the permissible scope of
regulatory measure is wider. [Ermita-Malate Hotel
and Motel Operators Association, Inc. v. City Mayor
of Manila (1967)]
Under the present provision, understood in the light
of established jurisprudence on the position of
property in the hierarchy of constitutional values,
property stands a good chance of serving and
enhancing the life and liberty of all. Running through
various provisions of the Constitution are various
provisions to protect propertybut always with the
explicit or implicit reminder that property has a
social dimension and that the right to property is
weighted with a social obligation. [Bernas]
76
5. Judicial Standards of Review

a. Rational Basis Test
The classification should bear a reasonable relation
to government's purpose, and the legislative
classification is presumed valid.
Notes:
Important when there is no plausible
difference between the disadvantaged class
and those not disadvantaged.
Also important when the government attaches
a
morally
irrelevant
and
negative
significance to a difference between the
advantaged and the disadvantaged.
b. Strict Scrutiny Test

This test is triggered when a fundamental
constitutional right is limited by a law. This requires
the government to show an overriding or compelling
government interest so great that it justifies the
limitation of fundamental constitutional rights (the
courts make the decision of WON the purpose of the
law makes the classification necessary).
necessarily guess at its meaning and differ as to its

application." It is subject to the same principles
governing overbreadth doctrine. For one, it is also an
analytical tool for testing "on their faces" statutes in
free speech cases. Like overbreadth, it is said that a
litigant may challenge a statute on its face only if it
is vague in all its possible applications.
A facial review of PP 1017 on the ground of
vagueness is unwarranted. Petitioners did not even
attempt to show that PP 1017 is vague in all its
application. They also failed to establish that men of
common intelligence cannot understand the meaning
and application of PP 1017. [David vs. Arroyo (2006)]
VOID FOR VAGUENESS DOCTRINE: An accused is
denied the right to be informed of the charge
against him and to DUE PROCESS where the statute
itself is couched in such INDEFINITE LANGUAGE that
its not possible for men of ordinary intelligence to
determine therefrom what acts/omissions are
punished. [People vs. Nazario (1988)]
D. Equal Protection
1. Concept
2. Requisites for Valid Classification
Applied also when the classification has a "suspect"

basis (Suspect Classes classes subject to such a
history of purposeful unequal treatment or relegated
to such a position of political powerlessness as to
command extraordinary protection from the
majoritarian political process.)
1. Concept
c. Intermediate Scrutiny Test
Similar subjects, in other words, should not be

treated differently, so as to give undue favor to
some and unjustly discriminate against others.
A third standard, denominated as heightened or

immediate scrutiny, was later adopted by the U.S.
Supreme Court for evaluating classifications based
on gender and legitimacy. Immediate scrutiny was
adopted by the U.S. Supreme Court in Craig. While
the test may have first been articulated in equal
protection analysis, it has in the United States since
been applied in all substantive due process cases as
well. [White Light Corporation vs. City of Manila
(2009)]
6. Void-for-Vagueness Doctrine
Void for Vagueness: An act is vague when it lacks
comprehensible standards that men of common
intelligence must necessarily guess at its common
meaning and differ as to its application.
The statute is repugnant to the constitution in 2
respects:
(1) It violates due process for failure to accord
persons, especially the parties targeted by
it, fair notice of what conduct to avoid,
(2) It leaves law enforcers an unbridled
discretion in carrying out its provisions.
Related to the "overbreadth" doctrine is the "void for
vagueness doctrine" which holds that "a law is
facially invalid if men of common intelligence must
Definition
Equal protection requires that all persons or things
similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed.
The guarantee means that no person or class of

persons shall be denied the same protection of laws
which is enjoyed by other persons or other classes in
like circumstances. [City of Manila vs. Laguio (2005)
citing Ichong vs. Hernandez (1957)]
Scope
Natural and juridical Persons (the equal protection
clause extends to artificial persons but only insofar
as their property is concerned.)
A corporation as an artificial person is
protected under the Bill of Rights against
denial of due process, and it enjoys the
equal protection of the law. [Smith, Bell &
Co., vs. Natividad (1919)]
A corporation is also protected against
unreasonable searches and seizures. [See
Stonehill vs. Diokno (1967)]
It can only be proceeded against by due
process of law, and is protected against
unlawful discrimination. [Bache & Co. vs.
Ruiz (1971)]
2. Requisites for Valid Classification

(1) It must rest on substantial distinctions
which make real differences;
77
(2) It must be germane to the purpose of the
law;
(3) It must not be limited to existing conditions
only.
An ordinance was declared void because it taxes only
centrifugal sugar produced and exported by the
Ormoc Sugar Company and none other, such that if a
new sugar central is established in Ormoc, it would
not be subject to the ordinance. [Ormoc Sugar Co. vs
Treasurer of Ormoc City (1968)]
(4) Apply equally to all members of the same
class [People vs. Cayat (1939)]
Serrano v. Gallant Maritime introduced a
modification in equal protection jurisprudence by
using the three-level review/scrutiny used in due
process cases. So that, in effect, the level of review
when it comes to equal protection challenges may
follow the following format:
(1) Whether the State was justified in making a
classification at all. (three level scrutiny)
(a) Rational basis test the classification
should bear a reasonable relation to
the governments purpose
(b) Strict scrutiny test in which a
legislative
classification
which
impermissibly interferes with the
exercise of a fundamental right or
operates to the peculiar disadvantage
of a suspect class is presumed
unconstitutional, and the burden is
upon the government to prove that the
classification is necessary to achieve a
compelling state interest and that it is
the least restrictive means to protect
such interest. It is applied when the
classification has a suspect basis
(suspect classes classes subject to
such a history of purposeful unequal
treatment or relegated to such a
position of political powerlessness as to
command extraordinary protection
from the majoritarian political process.
(c) Intermediate scrutiny test Court
accepts the articulated purpose of the
legislation but it closely scrutinizes the
relationship between the classification
and the purpose based on a spectrum
of standards, by gauging the extent to
which
constitutionally
guaranteed
rights depend upon the affected
individual interest.
In which the
government must show that the
challenged classification serves an
important state interest and that the
classification is at least substantially
related to serving that interest
Applicable to certain sensitive but not
suspect classes; certain important but
not fundamental interest.
(2) Whether the classification was valid. (test
of valid classification in People v. Cayat)
Examples of Valid Classification

All classifications made by law are generally
presumed to be valid unless shown otherwise by
petitioner. [Lacson vs. Executive Secretary (1999)]
Aliens
GENERAL RULE: The general rule is that a legislative
act may not validly classify the citizens of the State
on the basis of their origin, race or parentage.
EXCEPTIONS
(1) In times of great and imminent danger, such
as a threatened invasion or war, such a
classification
is
permitted
by
the
Constitution when the facts so warrant
(e.g. discriminatory legislation against
Japanese citizens during WWII).
(2) The political rights of aliens do not enjoy
the same protection as that of citizens.
(3) Statutes may validly limit to citizens
exclusively the enjoyment of rights or
privileges connected with the public
domain, the public works, or the natural
resources of the State. The rights and
interests of the state in these things are not
simply political but also proprietary in
nature; and so the citizens may lawfully be
given preference over aliens in their use or
enjoyment.
The Court upheld the Retail Trade Nationalization
Law despite the objection that it violated the EP
clause, because there exists real and actual, positive
and fundamental differences between an alien and a
national. [Ichong vs, Hernandez (1957)]
Filipino Female Domestics Working Abroad

They are a class by themselves because of the
special risks to which their class was exposed. [Phil
Association of Service Exporters vs. Drilon (1988)]
Land-based vs. Sea-based Filipino Overseas

Workers
There is dissimilarity as to work environment,
safety, danger to life and limb, and accessibility to
social, civil and spiritual activities. [Conference of
Maritime Manning Agencies vs. POEA (1995)]
Qualification for Elective Office

Disqualification from running in the same elective
office from which he retired of a retired elective
provincial/municipal official who has received
payment of retirement benefits and who shall have
been 65 y.o. at the commencement of the term of
office to which he seeks to be elected is valid.
[Dumlao vs. Comelec (1980)]
Office of the Ombudsman

Allowing the Ombudsman to start an investigation
based on an anonymous letter does not violate EP
clause. The Office of the Ombudsman is different
from other investigatory and prosecutory agencies of
government because those subject to its jurisdiction
are public officials who, through official pressure
and influence, can quash, delay or dismiss
78
investigations against them. [Almonte vs. Vasquez
(1995)]
Print vs. Broadcast Media

There are substantial distinctions between the two
to warrant their different treatment under BP 881
[Telecommunications and Broadcast Attorneys of the
Phil vs. COMELEC (1998)]
E. Searches and Seizures

1.
2.
3.
4.
5.
6.
Concept
Warrant Requirement
Warrantless Searches
Warrantless Arrests
Administrative Arrests
Drug, Alcohol and Blood Tests
1. Concept
ART. III, SEC. 2. The right of the people to be secure
in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination under
oath or affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the persons
or things to be seized.
Nature
Personal
It may be invoked only by the person entitled to it.
[Stonehill vs. Diokno (1967)]
It may be waived expressly or impliedly only by the
person whose right is invaded, not by one who is not
duly authorized to effect such waiver. [People vs.
Damaso (1992)]
Directed Against the Government and Its Agencies
(State Action Requirement)
The right cannot be set up against acts committed
by private individuals. The right applies as a
restraint directed only against the government and
its agencies tasked with the enforcement of the law.
The protection cannot extend to acts committed by
private individuals so as to bring them within the
ambit of alleged unlawful intrusion by the
government. [People vs. Marti (1991)]
What constitutes a reasonable or unreasonable
search and seizure in any particular case is purely a
judicial question, determinable from a consideration
of the circumstances involved. [Valmonte v. De
Villa, 178 SCRA 211]
Objections to the warrant of arrest must be made
before the accused enters his plea. [People v.
Codilla, 224 SCRA 104; People v. Robles, G.R. No.
101335, June 8, 2000]
Scope
Natural Persons
It protects all persons including aliens [Qua Chee
Gan vs. Deportation Board (1963)]
Artificial Persons
Artificial persons are protected to a limited extent.
[Bache & Co. Inc vs. Ruiz (1971)] The opening of
their account books is not protected, by virtue of
police and taxing powers of the State.
2. Warrant Requirement
Must refer to one specific offense. [Asian Surety v.
Herrera, 54 SCRA 312; Castro v. Pabalan, 70 SCRA
477]
The Dangerous Drugs Act of 1972 is a special law that
deals specifically with dangerous drugs which are
subsumed into prohibited and regulated drugs,
and defines and penalizes categories of offenses
which are closely related or which belong to the
same class or species; thus, one search warrant may
be validly issued for several violations thereof.
[People v. Dichoso, 223 SCRA 174] The doctrine was
reiterated in People v. Salanguit, G.R. No.
133254055, April 19, 2001.
Requisites
(1) Existence of probable cause
Warrant of Arrest
Such facts and circumstances antecedent to the
issuance of the warrant that in themselves are
sufficient to induce a cautious man to rely on
them and act in pursuance thereof. [People v.
Syjuco, 64 Phil. 667; Alvarez v. CFI, 64 Phil 33]
Search Warrant
Such facts and circumstances which would lead
a reasonably discreet and prudent man to
believe that an offense has been committed and
that the objects sought in connection with the
offense are in the place sought to be searched.
[Burgos v. Chief of Staff, 133 SCRA 800]
(2) Determination of probable cause personally by
the judge.
Issuance of a warrant of arrest is not a

ministerial function of the judge.
[Placer v. Villanueva 126 SCRA 463; Lim
v. Judge Felix, 194 SCRA 292]
(3) After personal examination under oath or
affirmation of the complainant and the
witnesses he may produce.
How it is done: In the form of searching
questions and answers, in writing and under
oath (Rule 126, Sec. 6, ROC)
Mere affidavits of the complainant and his
witnesses are thus not sufficient.
The examining Judge has to take depositions
in writing of the complainant and the
79
witnesses he may produce and attach them

to the record.
Such written deposition is necessary in order
that the Judge may be able to properly
determine the existence or non-existence of
the probable cause, to hold liable for
perjury the person giving it if it will be
found later that his declarations are false
It is axiomatic that the examination must be
probing and exhaustive, not merely
routinary or pro-forma, if the claimed
probable cause is to be established.
The examining magistrate must not simply
rehash the contents of the affidavit but
must make his own inquiry on the intent
and justification of the application. [Roan
vs. Gonzales (1984)]
conducted surveillance and test-buy ops before

obtaining the SW and subsequently implementing it.
They had personal knowledge of the identity of the
persons and the place to be searched, although they
did not specifically know the names of the accused.
[People vs. Tiu Won Chua (2003)]
(4) On the basis of their personal knowledge of the

facts they are testifying to.
Conduct of the Search (Sec. 7, Rule 126, ROC)

In the presence of a lawful occupant thereof
or any member of his family, OR
If occupant or members of the family are
absent, in the presence of 2 witnesses of
sufficient age
discretion
residing in the same locality
Force may be used in entering a dwelling if
justified by Rule 126 ROC.
(5) The warrant must describe particularly the

place to be searched and the persons or things
to be seized.
Requirement is primarily meant to enable the law
enforcers serving the warrant to (1) readily identify
the properties to be seized and thus prevent them
from seizing the wrong items; and (2) leave said
peace officers with no discretion regarding the
articles to be seized and thus prevent unreasonable
searches and seizures. [People v. Tee, G.R. Nos.
140546-47, January 20, 2003]
PLACE TO BE SEARCHED
The search warrant issued to search petitioners
compound for unlicensed firearms was held invalid
for failing to describe the place with particularity,
considering that the compound was made up of 200
buildings, 15 plants, 84 staff houses, 1 airstrip etc
spread out over 155 hectares. [PICOP vs. Asuncion
(1999)]
DESCRIPTION OF PLACE/THINGS
The description of the property to be seized need
not be technically accurate or precise. Its nature will
vary according to whether the identity of the
property is a matter of concern. The description is
required to be specific only in so far as the
circumstances will allow. [Kho vs. Judge Makalintal
(1999)]
GENERAL WARRANT: One that (1) does not describe

with particularity the things subject of the search
and seizure; and (2) where probable cause has not
been properly established. It is a void warrant.
[Nolasco vs. Pao (1985)]
EXCEPTION TO GENERAL WARRANTS: General
descriptions will not invalidate the entire warrant if
other items have been particularly described. [Uy
vs. BIR (2000)]
Failure to comply with Sec. 7 Rule 126 invalidates

the search. [People vs. Gesmundo (1993)]
FORCIBLE ENTRY JUSTIFIED:
Occupants of the house refused to open the door
despite the fact that the searching party knocked
several times, and the agents saw suspicious
movements of the people inside the house. [People
vs. Salanguit (2001)]
UNLAWFUL SEARCH:
Police officers arrived at appellants residence and
side-swiped (sinagi) appellants car (which was
parked outside) to gain entry into the house.
Appellants son, who is the only one present in the
house, opened the door and was immediately
handcuffed to a chair after being informed that they
are policemen with a warrant to search the
premises. [People vs. Benny Go (2003)]
3. Warrantless Searches
A search warrant may be said to particularly

describe the things to be seized when the
description therein is as specific as the
circumstances will ordinarily allow. [People v.
Rubio, 57 Phil 384] or when 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 when the tings described are
limited to those which bear direct relation to the
offense for which the warrant is being issued. [Bache
& Co. v. Ruiz, 37 SCRA 823]
GENERAL RULE
Areas within the reach and control of the accused
are the permissible areas of search for both stopand-frisk
and
search-incident-to-a-valid-arrest.
[Espano vs. CA; People vs. Cubcubin (2001)]
DESCRIPTION OF PERSONS SEARCHED

Search warrant is valid despite the mistake in the
name of the persons to be searched. The authorities
Evidence obtained in violation of Sec. 2 Art. III shall

be inadmissible for any purpose and in any
proceeding. [Stonehill vs, Diokno (1967)]
EXCEPTION
Sec. 3(2), Art. III, 1987 CONSTI. Any evidence
obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any
proceeding.
80
Once the primary source is shown to have been
unlawfully obtained, any secondary or derivative
evidence is also inadmissible. [Nardone vs. US
(1939)]
It was alleged that Parliamentary Club was a
gambling house; search warrant was obtained.
Veloso read the warrant and said that he was not
John Doe. The Court ruled that the John Doe
search warrant was valid and held that there is
nothing to prevent issue and service of warrant
against a party whose name is unknown. Besides, the
officers had the right to arrest the persons engaged
in prohibited game. An officer making an arrest may
take from the person arrested any money / property
found upon his person, w/c was used in commission
of crime, or was the fruit of the crime, or w/c may
furnish the person w/ means of committing violence
or escaping, or w/c may be used as evidence on
trial, but not otherwise. [People vs. Veloso (1925)]
Other specific situations:
Quick Look:
a. Search is an Incident to a Lawful Arrest.
b. Search of Moving Vehicles
c. Plain View Doctrine
d. Stop and Frisk Searches
e. Valid Express Waiver
f. Customs search
g. Visual Search at Checkpoints
h. Conduct of Aerial Target Zoning
saturation drive
i. Exigent and Emergency Circumstances
Aguilar-Roque and Nolasco, allegedly connected w/

the CPP-NPA and accused of rebellion and
subversion, assert that the search warrant in this
case is void because (1) it doesnt sufficiently
describe things subject of the search & seizure and
(2) probable cause hasnt been established for lack
of searching questions propounded to applicants
witness. Court ruled that the search warrant is void.
However, the Court also ruled that the search in
question did not need a search warrant. Under the
Rules of Court, a person charged w/ an offense may
be searched for dangerous weapons or anything w/c
may be used as proof of the commission of the
offense. As an incident of an arrest, the premises
where the arrest was made can also be searched w/o
search warrant. [Nolasco vs Cruz Pao (1985)]
In this Motion for Partial Reconsideration of the 1985
decision, the petitioners submit that a warrantless
search can be justified only if its an incident to a
lawful arrest and that since Aguilar wasnt lawfully
arrested, a search w/o warrant couldnt be made.
The SolGen offered no objection to declaration that
the search was illegal and to the return of the seized
items. The Motion for Partial Reconsideration is
granted. [Nolasco vs. Pao on M.R. (1987)]
b. Search of Moving Vehicles

and
a. Search is an incident to a lawful arrest.

Sec. 12, Rule 126, Rules of Court. Search incident
to lawful arrest. - A person lawfully arrested may
be searched for dangerous weapons or anything
which may be used as proof of the commission of an
offense, without a search warrant.
The provision is declaratory in the sense that
it is confined to the search, without a
search warrant, of a person who had been
arrested.
It is also a general rule that, as an incident of
an arrest, the place or premises where the
arrest was made can also be searched
without a search warrant. In this case, the
extent and reasonableness of the search
must be decided on its own facts and
circumstances.
What must be considered is the balancing of
the individuals right to privacy and the
publics interest in the prevention of crime
and the apprehension of criminals. [Nolasco
vs. Pano (1985)]
Test for validity

Item to be searched was within the arresters
custody;
Search was contemporaneous with the arrest
Securing a search warrant is not practicable since

the vehicle can be quickly moved out of the locality
or jurisdiction in which the warrant must be sought
[Papa vs. Mago (1968)]
c. Plain View Doctrine: Things seized are

within plain view of a searching party
Requisites
(1) Prior valid intrusion into a place;
(2) Evidence:
inadvertently discovered
by police who had the right to be

where they were;
(3) Evidence must be immediately apparent
and
(4) Noticed without further search [People vs.
Musa; People vs. Sarap (2003)]
An object is in plain view if the object itself is
plainly exposed to sight. Where the seized object is
inside a closed package, the object is not in plain
view and, therefore, cannot be seized without a
warrant. However, if the package proclaims its
contents, whether by its distinctive configuration, its
transparency, or if its contents are obvious to an
observer, then the content are in plain view, and
may be seized. [Caballes v. Court of Appeals, G.R.
No. 136282, January 15, 2002]
If the package is such that it contains prohibited
articles, then the article is deemed in plain view.
[People v. Nuevasm G.R. No. 170233, February 22,
2007]
d. Stop and Frisk Searches
81
There should be a genuine reason to stop-and-frisk
in the light of the police officers experience and
surrounding conditions to warrant a belief that the
person detained has weapons concealed. [Malacat
vs. CA (1997) citing Terry vs. Ohio]
The police officer should properly introduce himself
and make initial inquiries, approach and restrain a
person who manifests unusual and suspicious
conduct, in order to check the latters outer clothing
for possibly concealed weapons. The apprehending
police officer must have a genuine reason, in
accordance with the police officers experience and
the surrounding conditions, to warrant the belief
that the person to be held has weapons or
contraband concealed about him. [People v. Sy
Chua, G.R. Nos. 136066-67, February 4, 2003]
e. Valid Express Waiver made Voluntarily

and Intelligently
Requisites
(1) Must appear that right exists;
(2) Person involved had actual/ constructive
knowledge of the existence of such right;
(3) Said person had an actual interest to
relinquish the right;
(4) Waiver is limited only to the arrest;
(5) Waiver does not extend to search made as
an incident thereto, or to any subsequent
seizure of evidence found in the search.
[People vs. Peralta (2004)]
It was ruled that the right to be secure from
unreasonable search may be waived. Waiver may be
express or implied. When one voluntarily submits to
a search or consents to have it made of his person /
premises, he is precluded from later complaining. In
this case, the appellant neither made objection nor
even muttered a bit of protest when the search was
conducted on his person. Also, as held in Weeks v.
United States, when the search of the person
detained or arrested and seizure of effects found in
his possession are incidental to an arrest made in
conformity w/ the law, they cannot be considered
unreasonable, much less unlawful. [People vs. Kagui
Malasugui (1936)]
It is the State that has the burden of proving, by
clear and convincing evidence, that the necessary
consent was obtained and that it was voluntarily and
freely given. [Caballes v. Court of Appeals, G.R. No.
136292, January 15, 2002]
When accused checked in his luggage as passenger of
a plane, he agreed to the inspection of his luggage in
accordance with customs laws and regulations, and
thus waived any objection to a warrantless search.
[People v. Gatward, 267 SCRA 785]
f.
Customs Search
Searches of vessel and aircraft for violation of

immigration and smuggling laws [Papa vs. Mago
(1968)]
g. Visual Search at Checkpoints

Stop and search without a warrant at military or
police checkpoints, which has been declared not to
be illegal per se so long as it is required by
exigencies of public order and conducted in a way
least intrusive to motorists. [Valmonte vs. de Villa,
178 SCRA 211]
For a mere routine inspection, the search is normally
permissible when it is limited to a mere visual
search, where the occupants are not subjected to
physical or body search. On the other hand, when
the vehicle is stopped and subjected to a physical or
body search. On the other hand, when the vehicle is
stopped and subjected to an extensive search, it
would be constitutionally permissible only If the
officers conducting the search had reasonable or
probable cause to believe, before the search, that
either the motorist is a law offender or they will find
the instrumentality or evidence pertaining to a crime
in the vehicle to be searched. [Caballes v. Court of
Appeals, G.R. No. 136292, Januarcy 15, 2002,;
People v. Libnao, G.R. No. 136860, January 20,
2003]
h. Conduct of aerial target zoning and

saturation drive in the exercise of the
military powers of the President [Guanzon vs.
de Villa (1990)]
i.
Exigent and Emergency Circumstances
The raid and seizure of firearms and ammunition at

the height of the 1989 coup-de-etat, was held valid,
considering the exigent and emergency situation.
The military operatives had reasonable ground to
believe that a crime was being committed, and they
had no opportunity to apply for a search warrant
from the courts because the latter were closed.
Under such urgency and exigency, a search warrant
could be validly dispersed with. [People vs. de
Gracia, 233 SCRA 716]
j. Search and seizure incident to a lawful

arrest
Arresting officer may take from the arrested
individual any money or property found upon the
latters person --- that which was used in the
commission of the crime or was the fruit of the
crime, or which may provide the person arrested
with the means of committing violence or escaping,
or which may be used in evidence in the trial of the
case.
The
search,
must,
however,
be
contemporaneous to the arrest and made within a
permissible area of search. [People v. Estella, G.R.
Nos. 138539-40, January 21, 2003]
Properties Subject to Seizure

GENERAL RULE: Only the articles particularly
described in the warrant may be seized.
Property subject of an offense
82
Stolen or embezzled property and other
proceeds or fruits of an offense
Used or intended to be used as a means of
committing an offense (Sec. 2 Rule 126,
ROC)
Where the warrant authorized only the seizure of
shabu, and not marijuana, the seizure of the latter
was held unlawful. [People vs. Salanguit, supra]
It is not necessary that the property to be searched
or seized should be owned by the person against
whom the warrant is issued; it is sufficient that the
property is within his control or possession. [Burgos
vs. Chief of Staff (1984)]
Comparison of Procedures in Obtaining Search
Warrants and Arrest Warrants
R112, Sec. 6. When warrant of arrest may issue.
(a) By the Regional Trial Court. Within ten (10)
days from the filing of the complaint or information,
the judge shall personally evaluate the resolution of
the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on
record clearly fails to establish probable cause. If he
finds probable cause, he shall issue a warrant of
arrest, or a commitment order if the accused has
already been arrested pursuant to a warrant issued
by the judge who conducted the preliminary
investigation or when the complaint or information
was filed pursuant to section 7 of this Rule. In case
of doubt on the existence of probable cause, the
judge may order the prosecutor to present
additional evidence [NOTE: THIS IS NOT FOUND IN
THE PROCEDURE FOR A SEARCH WARRANT] within
five (5) days from notice and the issue must be
resolved by the court within thirty (30) days from
the filing of the complaint of information.
Rule 126, Sec. 4. Requisites for issuing search
warrant. A search warrant shall not issue except
upon probable cause in connection with one specific
offense to be determined personally by the judge
after examination under oath or affirmation of the
complainant and the witness he may produce, and
particularly describing the place to be searched and
the things to be seized which may be anywhere in
the Philippines
4. Warrantless Arrests
Requisites for Issuance of a Valid Arrest
Warrant
What the Constitution underscores is the exclusive
and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause.
In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the
judge is NOT required to personally examine the
complainant and his witnesses.

Following established doctrine and procedure, he
shall:
(1) Personally evaluate the report and the
supporting documents submitted by the
fiscal regarding the existence of probable
cause and, on the basis thereof, issue a
warrant of arrest; or
(2) If he finds no probable cause, he may
disregard the fiscal's report and require the
submission of supporting affidavits of
witnesses to aid him in arriving at a
conclusion as to the existence of probable
cause. [Beltran vs. Makasiar (1988)]
Existence of probable cause: Such facts and
circumstances which would lead a reasonably
discreet and prudent mean to believe that an
offense has been committed by the person sought to
be arrested. [Webb vs. De Leon (1995)]
Determination of probable cause personally by the
judge as to warrant of arrest:
(1) On the basis of the witnesses personal
knowledge of the facts they are testifying
to.
(2) The
arrest
warrant
must
describe
particularly the person to be seized.
By stating the name of the person to be

arrested.
If not known, then a John Doe

warrant may be issued, with some
descriptio persona that will enable the
officer to identify the accused.
JOHN DOE WARRANT: Warrants issued against 50
John Does, none of whom the witnesses could
identify, were considered as general warrants and
thus void. [Pangandaman vs. Casar (1988)]
Requisites of a Valid Warrantless Arrest

(Rule 113, Sec. 5, Rules on Criminal Procedure)
1. When, in his presence, the person to be
arrested has committed, is actually committing, or
is attempting to commit an offense; (in flagrante
delicto)
Rebellion is a continuing offense. Therefore a rebel
may be arrested w/o a warrant at any time of the
day or the night as he is deemed to be in the act of
committing rebellion. [Umil vs. Ramos (1991)]
Though kidnapping w/ serious illegal detention is
deemed a continuing crime, it can be considered as
such only when the deprivation of liberty is
persistent and continuing from one place to another.
[Parulan vs. Dir of Prisons (1968)]
HOT PURSUIT: The arrest of the accused inside his
house following hot pursuit of the person who
committed the offense in flagrante was held valid.
[People vs. De Lara (1994)]
BUY-BUST: A buy-bust operation is a valid in
flagrante arrest. The subsequent search of the
person arrested and the premises within his
83
immediate control is valid as an incident to a lawful
arrest. [People vs. Hindoy (2001)]
EXCEPTION TO BUY-BUST: Instead of arresting the
suspect after the sale in a buy-bust op, the officer
returned to the police headquarters and filed his
report. It was only in the evening that he, without
warrant, arrested the suspect at his house where
dried marijuana leaves were found and seized. This
is unlawful arrest. [People vs. Rodrigueza]
2. When an offense has just been committed and
he has probable cause to believe based on
personal knowledge of facts or circumstances that
the person to be arrested has committed it;
Requisites:
(1) Offense had JUST been committed;
(2) Person making the arrest has probable
cause to believe based on PERSONAL
KNOWLEDGE.
Note: There must be a large measure of immediacy
between the time the offense is committed and the
time of the arrest. If there was an appreciable lapse
of time between arrest and commission of crime,
warrant of arrest must be secured. (NACHURA)
Warrantless arrest of accused for selling marijuana 2
days after he escaped is invalid. [People vs Kimura
(2004)]
The police saw the victim dead at the hospital and
when they inspected the crime scene, they found
the instruments of death. The eyewitnesses reported
the happening and pointed to Gerente as one of the
killers. Here the warrantless arrest only 3 hrs after
the killing was held valid since personal knowledge
was established as to the fact of death and facts
indicating that Gerente killed the victim. [People vs
Gerente (1993)]
PERSONAL KNOWLEDGE: Experience of an officer
which gives the idea that there is probable cause
that the person caught is responsible. It has been
ruled that personal knowledge of facts in arrests
without a warrant must be based on probable cause,
which means an actual belief or reasonable grounds
of suspicion. [Cadua v. Court of Appeals, G.R. No.
123123, Aug. 19, 1999]
Burgos was convicted for the crime of Illegal
Possession of Firearms in Furtherance of Subversion.
Masamlok claimed that he had been forcibly
recruited by Burgos to the NPA, threatening him with
the use of firearm against his life and family.
Masamlok was also allegedly threatened to attend an
NPA seminar. The next day the authorities went to
arrest Burgos without a warrant. They found him in
his residence plowing his field. Burgos denied the
accusation, but his wife pointed to a place below
their house where a gun was buried in the ground.
After the firearm was recovered, Burgos allegedly
pointed to a stock pile of cogon where he had hidden
subversive documents. The prosecution presented an

extrajudicial confession made by Burgos. However,
Burgos claimed that he had been mauled and hit
repeatedly until he would admit and sign an
extrajudicial confession.
Exceptions to warrant of arrest: Art. IV, Sec. 3 of
the Constitution safeguards against wanton and
unreasonable invasion of the privacy and liberty of a
citizen as to his person, papers, and effects. Rule
113, Sec. 6 of the Rules of Court provides the
exceptions to the warrant requirement.
However, the instant case does not fall under any of
the exceptions in Rule 113, Sec. 6. First, it requires
that the officer arresting a person who has
committed, is committing, or is about to commit an
offense must have personal knowledge of that fact.
The offense must be committed in his presence or
within his view. In the instant case:
The knowledge as to the offense was furnished

by Masamlok.
The location of the firearm was given by the

Burgos wife.
At the time of the arrest, Burgos was not in

actual possession of any firearm or subversive
document.
Neither was he committing any act which could

be described as subversive. He was in fact
plowing his field at the time of his arrest.
It is clear that the arresting officers had no personal
knowledge of the commission of the offense because
such information was only supplied to them by an
informant.
Neither has Burgos committed any offense in their
presence as he was merely plowing his field at the
time of arrest. On the other hand, Sec. 6 (b) of Rule
113 requires that a crime must in fact or actually
have been committed first. It is not enough that
there is reasonable ground to believe that the person
to be arrested has committed a crime. That a crime
has actually been committed is an essential
precondition. In the instant case, it was not even
established that indeed a crime has been
committed. The information that a crime was
probably committed was supplied by Masamlok who
did not even give his testimony under oath.
Finally, the Court finds no compelling reason for the
haste of the arresting officers to arrest Burgos if
indeed he committed a crime. There is no showing
that there was real apprehension that Burgos was on
the verge of flight or escape and that his
whereabouts are unknown. [People vs. Burgos
(1986)]
3. When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or is
temporarily confined while his case is pending, or
has escaped while being transferred from one
confinement to another.
ADDITIONAL EXCEPTIONS (NOT IN THE RULES):
(1) When the right is voluntarily waived
(estoppel).
84
(2) Violent insanity.
Appellant is estopped from questioning the illegality
of the arrest when he voluntarily submitted himself
to the jurisdiction of the court by entering a plea of
not guilty and by participating in the trial. [People
vs. Salvatierra (1997)]
SCOPE OF WAIVER: Waiver is limited to the illegal
arrest. It does not extend to the search made as an
incident thereto, or the subsequent seizure of
evidence allegedly found during the search [People
vs. Peralta (2004]]
5. Administrative Arrests
Under the express terms of our Constitution, it is,
therefore, even doubtful whether the arrest of an
individual may be ordered by any authority other
than the judge if the purpose is merely to determine
the existence of a probable cause, leading to an
administrative investigation. The Constitution does
not distinguish between warrants in a criminal case
and administrative warrants in administrative
proceedings. And if one suspected of having
committed aim is entitled to a determination of the
probable cause against him, by a judge, why should
one suspected of a violation of an administrative
nature deserve less guarantee? Of course it is
different if the order of arrest is issued to carry out
a final finding of a violation, either by an executive
or legislative officer or agency duly authorized for
the purpose, as then the warrant is not that
mentioned in the Constitution which is issuable only
on probable cause. Such, for example, would be a
warrant of arrest to carry out a final order of
deportation, or to effect compliance of an order of
contempt. The contention of the Solicitor General
that the arrest of a foreigner is necessary to carry
into effect the power of deportation is valid only
when, as already stated, there is already an order of
deportation. To carry out the order of deportation,
the President obviously has the power to order the
arrest of the deportee. But, certainly, during the
investigation, it is not indispensable that the alien
be arrested. It is enough, as was true before the
executive order of President Quirino, that a bond be
required to insure the appearance of the alien during
the investigation, as was authorized in the executive
order of President Roxas. [Vivio v. Montesa (1968)]
The
Supreme
Court
distinguished
between
administrative arrest in the execution of a final
deportation order and arrest as preliminary to
further administrative proceedings:
"Section 1 (3), Article III of the Constitution, we
perceive, does not require judicial intervention in
the execution of a final order of deportation issued
in accordance with law. The constitutional limitation
contemplates an order of arrest in the exercise of
judicial power as a step preliminary or incidental to
prosecution or proceedings for a given offense or
administrative
action,
not
as
a
measure
indispensable to carry out a valid decision by a
competent official, such a legal order of
deportation, issued by the Commissioner of

Immigration, in pursuance of a valid legislation."
[Morano vs. Vivo, L-22196, 30 June 1967, 20 SCRA,
562; PHILD. 1967B, page 741]
6. Drug, Alcohol and Blood Tests

The Court held that Randomized Drug Testing (RDT)
for students and employees doesnt violate the right
to privacy in the Constitution. Students do not have
rational expectation of privacy since they are minors
and the school is in loco parentis. Employees and
students in universities, on the other hand,
voluntarily subject themselves to the intrusion
because of their contractual relation to the company
or university.
It is unconstitutional to subject candidates for public
office and criminals to RDT. The Constitution clearly
provides the requirements for candidates, and
adding RDT would violate or amend the Constitution.
Criminals subjected to RDT would violate their right
against self-incrimination since it would not be
random anymore. [SJS v. Dangerous Drugs Board
(2008)]
F. Privacy of Communications and

Correspondence
1. Private and Public Communications
2. Writ of Habeas Data
SEC. 3, ART. III, 1987 CONSTITUTION

(1) The
privacy
of
communication
and
correspondence shall be inviolable except upon
lawful order of the court, or when public safety
or order requires otherwise, as prescribed by
law.
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceeding.
1. Private and Public Communications

Intrusion, When Allowed
a.
By lawful order of the court
Probable cause in Sec. 2, Art. III should be followed

for the court to allow intrusion. Particularity of
description is needed for written correspondence,
but if the intrusion is done through wire-taps and
the like, there is no need to describe the content.
However, identity of the person or persons whose
communication is to be intercepted, and the offense
or offenses sought to be prevented, and the period
of the authorization given can be specified.
b.
When public safety or public order

requires otherwise, as may be provided
by law:
85
Intrusion has to be based upon a non-judicial
government officials assessment that public safety
and order demands such intrusion, limited to the
provisions of law. To hold otherwise would be to opt
for a government of men, and not of laws.
Public order and safety is defined as the security of
human lives, liberty and property against the
activities of invaders, insurrectionist and rebels.
[1971 Constitutional Convention, Session of
November 25, 1972]
Forms of Correspondence Covered

(1)
(2)
(3)
(4)
letters
messages
telephone calls
telegrams, and the like (BERNAS)
Private Communication
Revised Penal Code, Art. 354. Requirement for
publicity. - Every defamatory imputation is
presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is
shown, except in the following cases:
1)
A private communication made by any person to

another in the performance of any legal, moral
or social duty; x x x
A privileged communication may be either absolutely

privileged or qualifiedly privileged. Absolutely
privileged communications are those which are not
actionable even if the author has acted in bad faith.
An example is found in Sec. 11, Art. VI, of the 1987
Constitution which exempts a member of Congress
from liability for any speech or debate in the
Congress or in any Committee thereof. Upon the
other hand, qualifiedly privileged communications
containing defamatory imputations are not
actionable unless found to have been made without
good intention or justifiable motive. To this genre
belong "private communications" and "fair and true
report without any comments or remarks." [Borjal
vs. CA (1999)]
Anti-wire tapping act (RA 4200), clearly and
unequivocably makes it illegal for any person, not
authorized by all the parties to any private
communication,
to
secretly
record
such
communications by means of a tape recorder. The
law does not make any distinction. [Ramirez v.Court
of Appeals, 248 SCRA 590]
Right may be invoked against the wife who went to
the clinic of her husband and there took documents
consisting of private communications between her
husband and his alleged paramour [Zulueta v. Court
of Appeals, 253 SCRA 699]
G. Freedom of Expression
1. Concept and Scope
Regulations
3. Facial Challenges and the Overbreadth
Doctrine
4. Tests
5. State Regulation of Different Types of Mass
Media
6. Commercial Speech
7. Private v. Government Speech
1. Concept and Scope

Basis
Sec. 4, Art. 3. No law shall be passed abridging the
freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and
petition the government for redress of grievances.
Sec. 18. (1), Art. 3 No person shall be detained
solely by reason of his political beliefs and
aspirations.
All are indispensable to the uninhibited, robust and
wide-open debate in the free marketplace of ideas.
[Abrams vs. US (1919)]
While indeed, the news item subject of the present
case might have ruffled the sensitivities of plaintiff,
this Court however believes that the alleged
defamatory articles fall within the purview of a
qualifiedly privileged matter, and that therefore, it
cannot be presumed to be malicious. The onus of
proving malice is accordingly shifted to the plaintiff,
that is, that he must prove that the defendants were
actuated by ill-will in what they caused to be
printed and published, with a design to carelessly or
wantonly injure the plaintiff. [U.S. vs. Bustos (1909)]
Components
Speech, expression, and press include:
(1) Written or spoken words (recorded or not)
(2) Symbolic speech (e.g. wearing armbands as
symbol of protest)
(3) Movies (BERNAS)
Scope of Protected Freedoms
Any and all modes of protection are embraced in the
guaranty. It is reinforced by Sec. 18(1), Art. 3.
Prior Restraint (Censorship)

Concept
Censorship conditions the exercise of freedom of
expression upon the prior approval of the
government.
2. Writ of Habeas Data
The censor serves therefore as the political, moral,

social and artistic arbiter for the people, usually
applying only his own subjective standards in
determining what is good and whats not.
See Annex A.
GENERAL RULES
Public Communication
86
(1) Any system of prior restraints of expression
comes to the Court bearing a heavy
presumption against its constitutionality,
giving the government a heavy burden to
show justification for the imposition of such
restraint. (New York vs. United States 1971)
(2) There need not be total suppression. Even
restriction
of
circulation
constitutes
censorship [Grosjean vs. American Press
Co., 297 US 233]
Examples of Unconstitutional Prior Restraint
(1) COMELEC
prohibition
against
radio
commentators or newspaper columnists
from commenting on the issues involved in
a scheduled plebiscite [Sanidad vs.
COMELEC (1990)]
(2) Arbitrary closure of a radio station (Eastern
Broadcasting vs. Dans (1985))
(3) COMELEC resolution prohibiting the posting
of decals and stickers in mobile units like
cars and other moving vehicles [Adiong vs.
COMELEC (1992)]
(4) Search, padlocking and sealing of the
offices of newspaper publishers (We Forum)
by military authorities [Burgos vs. Chief of
Staff, supra]
(5) An announcement of a public figure to
prohibit the media to issue a specific kind
of statement amounts to prior restraint,
which is violative of the right to free press.
[Chavez vs. Gonzales (2006)]
Examples of Constitutional Prior Restraint:
(1) Law which prohibits, except during the
prescribed election period, the making of
speeches, announcements or commentaries
for or against the election of any candidate
for office [Gonzales vs. COMELEC (1969)]
(2) Prohibition on any person making use of the
media to sell or to give free of charge print
space or air time for campaign or other
political purposes except to the COMELEC.
Ratio: police power of State to regulate
media for purpose of ensuring equal
opportunity, time and space for political
campaigns. [National Press Club vs.
COMELEC, G.R. NO. 1026653, March 5,
1992; Osmena vs. COMELEC]
(3) Movie censorship: the power of the MTCRB
can be exercised only for purposes of
reasonable classification, not censorship.
[NACHURA citing Gonzalez vs. Katigbak
(1985) and Ayer vs. Judge Capulong]
(4) Near vs. Minnesota, (1931):
(a) When a nation is at war, many things
that might be said in time of peace are
such a hindrance to its effort that their
utterance will not be endured so long
as men fight and that no court could
regard them as protected by any
constitutional right
(b) Actual obstruction to the governments
recruiting service or the publication of
the sailing dates of transports or the
number and location of troops
(c) Obscene publications

(d) Incitements to acts of violence and the
overthrow by force of orderly
government
Subsequent Punishment
Concept: Freedom of speech includes freedom after
speech. Without this assurance, the citizen would
hesitate to speak for fear he might be provoking the
vengeance of the officials he has criticized (chilling
effect).
If criticism is not to be conditioned on the
governments consent, then neither should it be
subject
to
the
governments
subsequent
chastisement.
Examples of Valid Subsequent Restraints:
(1) Libel. Every defamatory imputation is presumed
to be malicious. [Alonzo vs. CA (1995)]
Exceptions to this presumption are found in Art.
354 of the RPC.
(2) Obscenity. The determination of what is
obscene is a judicial function. [Pita vs. CA
(1989)]
Accused was convicted for exhibiting nude
painting and pictures, notwithstanding his claim
that he had done so in the interest of art. Court
said that the purpose was commercial, not
merely artistic, because he charged admission
fees to the exhibition. [U.S. vs. Kottinger
(1923)]
(3) Contempt for criticism/publications tending to
impede, obstruct, embarrass or influence the
courts in administering justice in a pending suit
or proceeding (sub judice) [People vs. Alarcon
(1939)]
(4) Being a public figure does not automatically
destroy in toto a person's right to privacy. The
limits of freedom of expression are reached
when it touches upon matters of private concern
[Lagunzad vs. Gonzales (1979)]
(5) Right of students to free speech in school
premises must not infringe on the schools right
to discipline its students [Miriam College
Foundation vs. CA (2000)]
EXCEPTIONS
(1) Fair comment on matters of public interest.
Fair comment is that which is true or, if
false, expresses the real opinion of the
author based upon reasonable degree of
care and on reasonable grounds.
(2) Criticism of official conduct is given the
widest latitude. [US vs. Bustos (1918)]

Regulations
Content-Based Restrictions
87
Specific Instances
Freedom of Expression and National Security
Espuelas was convicted in the lower court of the
crime of inciting to sedition. Espuelas had his picture
taken, making it to appear as if he were hanging
lifeless at the end of a piece of rope suspended from
the limb of a tree, when in truth and in fact, he was
merely standing on a barrel. After securing copies of
his photograph, he sent copies to several newspapers
and weeklies of general circulation throughout the
Philippines and abroad, for their publication with a
suicide note or letter, wherein he made to appear
that it was written by a fictitious suicidee, Alberto
Reveniera and addressed to the latter's supposed
wife.
These reasons point to the Roxas administration, his
disappointments and humiliations because of the
former and his lack of power to put under Juez de
Cuchillo all the Roxas people in power. Finally, the
letter instructed the wife to teach their children to
burn pictures of Roxas if they come across one.
Espuelas admitted the fact that he wrote the letter
and caused its publication and that he had
impersonated one Alberto Reveniera and posed
himself as Alberto Reveniera in a picture taken
wherein he was shown hanging by the end of a rope
tied to a limb of a tree.
Freedom of Expression, national security: The
letter is a scurrilous libel against the Government. It
suggests or incites rebellious conspiracies or riots
and tends to stir up the people against the
constituted authorities, or to provoke violence from
opposition groups who may seek to silence the
writer, which is the sum and substance of the
offense under consideration. Such writings are
criminal not only because they tend to incite to a
breach of the peace but because they are conducive
to the destruction of the very government itself.
Malicious endeavors to stir up public strife are
prohibited.
Our Legislature has spoken in article 142 of the RPC
and the law must be applied. This kind of legislation
must be weighed carefully vis--vis the fundamental
right to freedom of speech. Such freedom, although
secured by the Constitution, does not confer an
absolute right to speak or publish without
responsibility whatever one may choose. It is not
unbridled license that gives immunity for every
possible use of language and prevents the
punishment of those who abuse this freedom.
The privilege of any citizen to criticize his
government and government officials and to submit
his criticism to the "free trade of ideas" and to plead
for its acceptance in "the competition of the market"
is not to be restrained. However, let such criticism
be specific and therefore constructive, reasoned or
tempered, and not a contemptuous condemnation of
the entire government set-up.
Such wholesale attack is nothing less than an
invitation to disloyalty to the government. When

the use of irritating language centers not on
persuading the readers but on creating disturbance,
the rationale of free speech cannot apply and the
speaker or writer is removed from the protection of
the constitutional guaranty. [Espuelas vs. People
(1951)]
Freedom of Expression and Libel
NATIONAL COMMUNITY STANDARD AS BASIS OF
WHAT IS DEFAMATORY: An article in Phil. Panorama
described Amir Mindalano as not belonging to a royal
house. The Court held that there is no libel. Such a
description cannot be regarded as defamatory, an
imputation of a vice or defect, or tending to cast
dishonor, discredit or contempt or to blacken the
memory of one who is dead. In a community like
ours which is both republican and egalitarian, such
an ascription, whether correct or not, cannot be
defamatory.
It is to the standards of the national community, not
to those of the region that a court must refer
especially where a newspaper is national in reach
and coverage. [Bulletin Publishing vs. Noel (1988)]
REPORT OF OFFICIAL CONDUCT IS PRIVILEGED AND
COVERED BY PRESS FREEDOM: Where the
defamation is alleged to have been directed at a
group/class, it is essential that the statement must
be so sweeping or all-embracing as to apply to every
individual in that group or class, or sufficiently
specific so that each individual in the class or group
can prove that the defamatory statement
specifically pointed to him, so that he can bring the
action separately, if need be.
Also, the report in the Newsweek article referring as
it does to an official act performed by an elective
public official (i.e. that the victim had been arrested
by members of special police unit brought by the
mayor of Kabankalan who incidentally is a sugar
planter), is w/in the realm of privilege and is
protected by the constitutional guarantees of free
speech and press. [Newsweek vs. IAC (1986)]
Islamic DaWah Council of the Philippines, Inc., a
local federation of more than 70 Muslim religious
organizations, filed a complaint for damages against
MVRS Publications, Inc., arising from an article,
which says that the pig is sacred for the Muslims.
Freedom of Expression, Libel: As the size of these
groups increases, the chances for members of such
groups to recover damages on tortious libel become
elusive. This principle is said to embrace two
important public policies: first, where the group
referred to is large, the courts presume that no
reasonable reader would take the statements as so
literally applying to each individual member; and
second, the limitation on liability would
satisfactorily safeguard freedom of speech and
expression, as well as of the press, effecting a sound
compromise between the conflicting fundamental
interests involved in libel cases.
88
Courts must be viewpoint-neutral when it comes to
religious matters if only to affirm the neutrality
principle of free speech rights under modern
jurisprudence where "all ideas are treated equal in
the eyes of the First Amendment - even those ideas
that are universally condemned and run counter to
constitutional principles."
through a letter addressed to the Presidential

Complaints and Actions Commission (PCAC). A
contempt charge was brought against him for
sending that letter which tended to degrade the
lower court in the eyes of the President and of the
people. SC reversed the ruling which cited him in
contempt.
Under the right to free speech, "there is no such

thing as a false idea. However pernicious an opinion
may seem, we depend for its correction not on the
conscience of judges and juries but on the
competition of other ideas."
Freedom of Expression and the Administration of

Justice: For his act (of sending his letter to the
President and not to the Sec of Justice or SC) to be
contemptuous, the danger must cause a serious
imminent threat to the administration of justice. We
cannot infer that such act has "a dangerous
tendency" to belittle the court or undermine the
administration of justice for the writer merely
exercised his constitutional right to petition the
government for redress of a legitimate grievance.
[Cabansag vs. Fernandez (1957)]
Denying certiorari and affirming the appellate court

decision would surely create a chilling effect on the
constitutional guarantees of freedom of speech, of
expression, and of the press. [MVRS v. Islamic
DaWah Council of the Phil (2003)]
Freedom of Expression and the Right to Privacy
Being a public figure does not automatically destroy
in toto a persons right to privacy. The right to
invade a persons privacy to disseminate public info
does not extend to a fictional representation of a
person, no matter how public a figure he/she may
be. In the case at bar, petitioner admits that he
included a little romance in the film about Moises
Padilla (despite efforts to present the true-to-life
story of the latter) because w/o it, it would be a
drab story of torture and brutality. [Lagunzad vs.
Soto (1979)
The TC issued a writ of preliminary injunction
against petitioners ordering them to desist from
producing the movie The Four-Day Revolution, a
docu-drama of EDSA I, on the ground that it violated
the right to privacy of Juan Ponce Enrile who was
featured in the documentary.
The Court held that Freedom of speech and
expression includes freedom of filming and
producing motion pictures and to exhibit them. The
fact that such film production is a commercial
activity is not a disqualification for availing of
freedom of speech and expression.
The right to privacy cannot be involved to resist
publication and dissemination of matter of public
interest.
The intrusion is no more than necessary to keep the
film a truthful historical account. Enrile is a public
figure because of his participation as a principal
actor in the culminating events of the revolution.
There must be no knowing or reckless disregard of
truth in depicting the participation of Enrile in EDSA
I. Also, there must be no presentation of his private
life and no revelation of intimate or embarrassing
personal facts. [Ayer Productions vs. Capulong
(1988)]
Freedom of Expression and the Administration Of
Justice
Due to the delay in the disposition of his original
case, Cabansag asked for help from the President
Content-Neutral Restrictions
Freedom of Assembly
The right to freedom of speech and to peaceably
assemble, and petition the government for redress
of grievances are fundamental personal rights of the
people guaranteed by the constitutions of
democratic countries. City or town mayors are not
conferred the power to refuse to grant the permit,
but only the discretion in issuing the permit to
determine or specify the streets or public places
where the parade may pass or the meeting may be
held. [Primicias vs. Fugoso (1948)]
The Court held here that freedom of speech and
freedom to peaceably assemble is entitled to be
accorded utmost deference and respect, and cannot
be limited or denied unless there is showing of a
clear and present danger of a substantive evil that
the State has a right to prevent. For the
constitutional right to be invoked, riotous conduct,
injury to property and acts of vandalism must be
avoided. Furthermore, absent any clear and present
danger of a substantive evil, peaceable assembly in
public places like streets or parks cannot be denied.
[J.B.L. Reyes vs. Bagatsing (1983)]
The CPR, insofar as it would purport to differ from
or be in lieu of maximum tolerance, is NULL and
VOID. CPR serves no valid purpose if it means the
same thing as maximum tolerance (Sec. 3 [c] of B.P.
880), and is illegal if it means something else.
Accordingly, what is to be followed is and should be
that mandated by the law itself, namely, maximum
tolerance.
B.P. 880 not unconstitutional. B.P. No. 880 is not
an absolute ban of public assemblies but a
restriction that simply regulates the time, place and
manner of the assemblies. The law is not vague or
overbroad. There is, likewise, no prior restraint,
since the content of the speech is not relevant to
the regulation. A fair and impartial reading of B.P.
No. 880 thus readily shows that it refers to all kinds
of public assemblies that would use public places.
89
Freedom Parks. B.P. 880 provides that every city
and municipality must set aside a freedom park
within six months from the laws effectivity in 1985,
or 20 years ago. Section 15 of the law provides for
an alternative forum through the creation of
freedom parks where no prior permit is needed for
peaceful assembly and petition at any time.
According to the SolGen (Nachura), however, he is
aware of only ONE declared freedom park - Fuente
Osmena in Cebu City. Without such alternative
forum, to deny the permit would in effect be to
deny the right.
Hence, local governments are given a deadline of 30
days within which to designate specific freedom
parks as provided under B.P. No. 880. If, after that
period, no such parks are so identified in accordance
with Section 15 of the law, all public parks and
plazas of the municipality or city concerned shall in
effect be deemed freedom parks; no prior permit of
whatever kind shall be required to hold an assembly
therein. The only requirement will be written
notices to the police and the office of the mayor to
allow proper coordination and orderly activities.
Permit Application. There is need to address the
situation adverted to by petitioners where mayors do
not act on applications for a permit and when the
police demand a permit and the rallyists could not
produce one, the rally is immediately dispersed.
In such a situation, as a necessary consequence and
part of maximum tolerance, rallyists who can show
the police an application duly filed on a given date
can, after two days from said date, rally in
accordance with their application without the need
to show a permit, the grant of the permit being then
presumed under the law, and it will be the burden of
the authorities to show that there has been a denial
of the application, in which case the rally may be
peacefully dispersed following the procedure of
maximum tolerance prescribed by the law.
Conclusion. For this reason, the so-called calibrated
pre-emptive response policy has no place in our legal
firmament and must be struck down as a darkness
that shrouds freedom. It merely confuses our people
and is used by some police agents to justify abuses.
On the other hand, B.P. No. 880 cannot be
condemned as unconstitutional; it does not curtail or
unduly restrict freedoms; it merely regulates the use
of public places as to the time, place and manner of
assemblies.
Far from being insidious, maximum tolerance is for
the benefit of rallyists, not the government. The
delegation to the mayors of the power to issue rally
permits is valid because it is subject to the
constitutionally-sound clear and present danger
standard. [Bayan vs. Ermita (2006)]
Freedom of Association and Self-Organization

SEC. 17. Human Security Act
Proscription of Terrorist Organizations, Association,
or Group of Persons. Any organization, association,

or group of persons organized for the purpose of
engaging in terrorism, or which, although not
organized for that purpose, actually uses the acts to
terrorize mentioned in this Act or to sow and create
a condition of widespread and extraordinary fear
and panic among the populace in order to coerce the
government to give in to an unlawful demand shall,
upon application of the Department of Justice
before a competent Regional Trial Court, with due
notice and opportunity to be heard given to the
organization, association, or group of persons
concerned, be declared as a terrorist and outlawed
organization, association, or group of persons by the
said Regional Trial Court.
The right to associate is not absolute. [People vs.
Ferrer (1972)]
Sec. 2 (5), Art 9-B. 1987 Constitution. The right to
self-organization shall not be denied to government
employees.
Sec. 8, Art. 3, 1987 Constitution. The right of the
people, including those employed in the public and
private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not
be abridged.
Par. 2, Sec. 3(2), Art. 13, 1987 Constitution. It
shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations,
and peaceful concerted activities, including the right
to strike in accordance with law. They shall be
entitled to security of tenure, humane conditions of
work, and a living wage. They shall also participate
in policy and decision-making processes affecting
their rights and benefits as may be provided by law.
3. Facial Challenges and the

Overbreadth Doctrine
Overbreadth Doctrine: A governmental purpose may
not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of
protected freedoms.
(1) Claims
of
facial
overbreadth
are
entertained in cases involving statutes
which by their terms seek to regulate only
spoken words. Such claims have been
curtailed when invoked against ordinary
criminal laws that are sought to be applied
to protected conduct.
(2) A facial challenge using the overbreadth
doctrine will require the Court to examine
PP 1017 and pinpoint its flaws and defects,
not on the basis of its actual operation to
petitioners, but on the assumption or
prediction that its very existence may cause
others not before the Court to refrain from
constitutionally
protected
speech
or
expression.
90
(3) Also, the challenger must establish that
there can be no instance when the assailed
law may be valid.
(4) Used on freedom of expression, when on
the face of a regulation, it appears
sweeping.
A plain reading of PP 1017 shows that it is not
primarily directed to speech / speech-related
conduct. It is actually a call upon the AFP to prevent
or suppress all forms of lawless violence. Petitioners
did not show WON theres an instance when PP1017
may be valid. [David vs. Arroyo (2006)]
4. Tests
Dangerous Tendency Test
If the words uttered create a dangerous tendency of
an evil which the State has the right to prevent,
then such words are punishable. [Cabansag vs.
Fernandez (1957)]
It is sufficient if the natural tendency and the
probable effect of the utterance were to bring
about the substantive evil that the legislative body
seeks to prevent. [People vs. Perez (1956)]
Clear and Present Danger Test

The question in every case is whether the words
used are used in such circumstances and are of such
a nature as to create a clear and present danger that
they will bring about the substantive evils that
Congress has a right to prevent. It is a question of
proximity and degree. [Schenck vs. United States
(1919)]
This rule requires that the danger created must not
only be clear and present but also traceable to the
ideas expressed. [Gonzales vs. COMELEC (1969)]
Note: This test has been adopted by the Philippine
SC lock, stock and barrel and is the test most applied
to cases re: freedom of expression.
Balancing of Interest Test

When a particular conduct is regulated in the
interest of public order, and the regulation results in
an indirect, conditional and partial abridgement of
speech, the duty of the courts is to determine
which
of the two conflicting interests demands
greater protection. [American Communications
Assoc. vs. Douds, 339 US 282]
The test is applied when two legitimate values not
involving national security crimes compete.
[Gonzales vs. COMELEC (1969)]
Direct Incitement Test

In this case, the Petitioner was charged with
violation of the Revised Anti-Subversion Act after
being apparently implicated by a certain Victor

Lovely as being involved in the series of bombings in
Metro Manila.
Direct Incitement Test: In the case before us, there
is no teaching of the moral propriety of a resort to
violence, much less an advocacy of force or a
conspiracy to organize the use of force against the
duly constituted authorities.
The alleged remark about the likelihood of violent
struggle unless reforms are instituted is not a threat
against the government. Nor is it even the
uninhibited, robust, caustic, or unpleasantly sharp
attack which is protected by the guarantee of free
speech.
Parenthetically, the American case of Brandenburg
vs. Ohio (395 U.S. 444) states that the constitutional
guarantees of free speech and free press do not
permit a State to forbid or proscribe advocacy of the
use of force or of law violation except where such
advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or
produce such action.
Political discussion even among those opposed to the
present administration is within the protective
clause of freedom of speech and expression. The
same cannot be construed as subversive activities
per se or as evidence of membership in a subversive
organization. [Salonga vs. Cruz Pao (1986)]
Grave-But-Improbable Danger Test

In this case, the Petitioners, leaders of the
Communist Party in this country, were indicted in a
federal district court under 3 of the Smith Act for
(1) wilfully and knowingly conspiring to organize as
the Communist Party a group of persons to teach and
advocate the overthrow and destruction of the
Government of the United States by force and
violence, and (2) to knowingly and wilfully advocate
and teach the duty and necessity of overthrowing
and destroying the Government of the United States
by force and violence. [Dennis vs. U.S. (1951)]
Grave-But-Improbable Danger Test: To determine
the clear and present danger of the utterances
bringing about the evil which that legislature has the
power to punish, "In each case [courts] must ask
whether the gravity of the 'evil,' discounted by its
improbability, justifies such invasion of free speech
as is necessary to avoid the danger." In this case, an
attempt to overthrow the Government by force is a
sufficient evil for Congress to prevent. It is the
existence of the conspiracy which creates the
danger.
5. State Regulation of Different Types

of Mass Media
Art. XVI Section 11. (1) The ownership and
management of mass media shall be limited to
citizens of the Philippines, or to corporations,
91
cooperatives or associations, wholly-owned and
managed by such citizens.
The Congress shall regulate or prohibit monopolies in
commercial mass media when the public interest so
requires. No combinations in restraint of trade or
unfair competition therein shall be allowed.
(2) The advertising industry is impressed with public
interest, and shall be regulated by law for the
protection of consumers and the promotion of the
general welfare.
Only Filipino citizens or corporations or associations
at least seventy per centum of the capital of which
is owned by such citizens shall be allowed to engage
in the advertising industry.
The participation of foreign investors in the
governing body of entities in such industry shall be
limited to their proportionate share in the capital
thereof, and all the executive and managing officers
of such entities must be citizens of the Philippines.
The Court pronounced that the freedom of broadcast
media is lesser in scope than the press because of
their pervasive presence in the lives of people and
because of their accessibility to children.
Movie Censorship
Gonzales was the producer of the movie Kapit sa
Patalim w/c the Board of Review for Motion Pictures
and Televisions classified as fit For Adults Only.
Here the Court held that the power of the Board is
limited to the classification of films. For freedom of
expression is the rule and restrictions the exception.
Censorship is allowable only under the clearest
proof of a clear and present danger of a
substantive evil to public safety, morals, health or
any other legit public interest:
(1) There should be no doubt what is feared
may be traced to the expression
complained of.
(2) Also,
there
must
be
reasonable
apprehension about its imminence. It does
not suffice that the danger is only
probable. [Gonzales vs. Kalaw Katigbak
(1985)]
Limited intrusion into a persons privacy is
permissible when that person is a public figure and
the information sought to be published is of a public
character.
What is protected is the right to be free from
unwarranted publicity, from the wrongful publicizing
of the private affairs of an individual which are
outside the realm of public concern. [Ayer
Productions vs Capulong, supra]
By the clear terms of the law, the Board has the

power to approve, delete, or prohibit the
exhibition and/or television broadcasts of television
programs. The law also directs the Board to apply
contemporary Filipino culture values as standard to
determine those which are objectionable for being
immoral, indecent, contrary to law and/or good
customs injurious to the prestige of the Republic of
the Philippines and its people, or with a dangerous
tendency to encourage the commission of a violence
or of a wrong or a crime.
According to Iglesia ni Cristo vs. CA: The law gives
the Board the power to screen, review and examine
ALL television programs whether religious, public
affairs, news documentary, etc. (Ubi lex non
distinguit nec distinguere debemos-when the law
does not make any exception, courts may not except
something therefrom, unless there is compelling
reason apparent in the law to justify it).
Also, the fact that freedom of religion has been
accorded a preferred status, still the Court did not
exempt Iglesia ni Cristos program from MTRCBs
power to review. Freedom of expression and of the
press has not been declared of preferred status.
[MTRCB vs. ABS-CBN (2005)]
The Supreme Court could not compel TV stations and
radio stations, being indispensable parties, to give
UNIDO free air time as they were not impleaded in
this case. UNIDO must seek a contract with these TV
stations and radio stations at its own expense.
[UNIDO vs COMELEC (1981)]
The television camera is a powerful weapon which
intentionally or inadvertently can destroy an accused
and his case in the eyes of the public.
Considering the prejudice it poses to the defendants
right to due process as well as to the fair and orderly
administration of justice, and considering further
that the freedom of the press and the right of the
people to information may be served and satisfied by
less distracting, degrading and prejudicial means,
live radio and television coverage of the court
proceedings shall not be allowed. No video shots or
photographs shall be permitted during the trial
proper.
Video footages of court hearings for news purposes
shall be limited and restricted as above indicated.
[Secretary of Justice vs Sandiganbayan (2001)]
Radio Censorship
Television Censorship
The Supreme Court does not uphold claim that Far

Eastern had no right to require the submission of the
manuscript. It is a duty of Far Eastern to require the
submission of a manuscript as a requirement in
broadcasting speeches. Besides, laws provide for
such actions:
P.D. 1986 gives the petitioner the power to screen,

review and examine all television programs.
Act 8130. Franchise for Far Eastern; radio to be

open to the general public but subject to regulations
92
Comm. Act 98. Sec. of Interior and/or the Radio
Board is empowered to censor what is considered
neither moral, educational or entertaining, and
prejudicial to public interest. The Board can
forfeit the license of a broadcasting station.
Sec. of the Interior, Dept. Order 13. Requires
submission of daily reports to Sec. of Interior/Radio
Board re: programs before airing. For speeches, a
manuscript or short gist must be submitted.
[Santiago vs. Far Eastern Broadcasting (1941)]
6. Commercial Speech
Commercial speech is unprotected speech.
Commercial Advertising in the U.S. has been
accorded First Amendment protection but it not in
the same level of protection given to political
speech. One case set down the requirements for
protection of commercial speech: (1) speech must
not be false, misleading or proposing an illegal
activity; (2) government interest sought to be served
by regulation must be substantial; (3) the regulation
must advance government interest; and (4) the
regulation must not be overbroad. [BERNAS]
7. Private v. Government Speech

Parliamentary immunity guarantees the members
the freedom of expression without fear of being
made responsible in criminal or civil actions before
courts or forum outside of Congress. But this does
not protect them from responsibility from the
legislative body. The members may nevertheless be
questioned in Congress itself.
For unparliamentary conduct, members of the
Congress have been, or could be censured,
committed to prison, even expelled by the votes of
their colleagues. [Osmea v. Pendatun (1960)]
8. Hecklers Veto
An attempt to limit unpopular speech. For example,
an unpopular group wants to hold a rally and asks for
a permit. The government isn't allowed to refuse the
permit based upon the beliefs of the applicants. But
the government can deny the permit, reasoning that
it isn't because the government disapproves of the
group's message, it's just afraid that so many people
will be outraged that there might be violent
protests. Under the Free Speech Clause of Sec. 4 Art
III, the government may not silence speech based on
the reaction (or anticipated reaction) of a hostile
audience, unless there is a "clear and present
danger" of grave and imminent harm, which isn't
easy to prove.
H. Freedom of Religion
1. Non-Establishment Clause
2. Free Exercise Clause
Art. III, Sec. 5. No law shall be made respecting an

establishment of religion; or prohibiting the free
exercise thereof. The free exercise and enjoyment
of religious profession and worship, without
discrimination or preference, shall forever be
allowed. No religious test shall be required for the
exercise of civil or political rights.
1. Non-Establishment Clause
Concept
The
clause
prohibits
excessive
government
entanglement with, endorsement or disapproval of
religion [Victoriano v. Elizalde Rope Workers Union
(1974); Lynch v. Donnelly, 465 US 668 (1984)
O'Connor, J., concurring); Allegheny County v.
Greater Pittsburg ACLU (1989)]
Basis
Rooted in the separation of Church and State [Sec.
2(5), Art. IX-C; Sec. 5(2), Sec. 29(2) Art. VI, 1987
Consti]
Acts NOT permitted by Non-establishment

Clause
(1) Prayer and Bible-reading in public schools
[Engel v. Vitale (1967); Abington School
District v. Schemp (1963)]
(2) Financial subsidy for parochial
[Lemon vs. Kurtzman (1971)]
schools
(3) Religious displays in public spaces: Display

of granite monument of 10 commandments
in front of a courthouse is unconstitutional
for being unmistakably non-secular. Nothing
in its setting de-emphasizes its religious
nature. It engenders in viewers a sense that
Christianity is endorsed by the government.
[Glassroth vs. Moore, 335 F.3d 1282 (11th
Cir. 2003)]
(4) Mandatory religious subjects or prohibition
of secular subjects (evolution) in schools
[Epperson vs. Arkansas (1968)]
(5) Mandatory bible reading in school (a form of
preference for belief over non-belief)
[School District vs. Schempp (1963)]
(6) Word God in the Pledge of Allegiance:
Mandatory recitation in school of such a
Pledge of Allegiance would tend to
discriminate against students who are
atheists. [Newdow vs. US (2003)]
Acts Permitted by the Establishment Clause

(1) Tax exemption
Sec. 28 (3), Art. 6. Charitable institutions, churches
and personages or convents appurtenant thereto,
mosques, non-profit cemeteries, and all lands,
buildings, and improvements, actually, directly, and
93
exclusively used for religious, charitable, or
educational purposes shall be exempt from taxation.
(2) Operation of sectarian schools
Sec. 4(2), Art. 14. Educational institutions, other
than those established by religious groups and
mission boards, shall be owned solely by citizens of
the Philippines or corporations or associations at
least sixty per centum of the capital of which is
owned by such citizens
(3) Religious instruction in public schools
Sec. 3(3), Art. 14. At the option expressed in
writing by the parents or guardians, religion shall be
allowed to be taught to their children or wards in
public elementary and high schools within the
regular class hours by instructors designated or
approved by the religious authorities of the religion
to which the children or wards belong, without
additional cost to the Government.
Civil Code, Art. 359. The government promotes the
full growth of the faculties of every child. For this
purpose, the government will establish, whenever
possible:
(1) Schools in every barrio, municipality and city
where optional religious instruction shall be
taught as part of the curriculum at the option of
the parent or guardian. xxx
(4) Public aid to religion
Sec. 29 (2), Art. 6. No public money or property
shall be appropriated, applied, paid, or employed,
directly or indirectly, for the use, benefit, or
support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest,
preacher, minister, other religious teacher, or
dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the
armed forces, or to any penal institution, or
government orphanage or leprosarium.
(5) Postage stamps depicting Philippines as the
site of a significant religious event
Postage stamps which promote a Catholic event
are constitutional. The benefit to religious sect
is incidental to promotion of Philippines as a
tourist destination. [Aglipay vs. Ruiz, (64 Phil.
201)]
(6) Government sponsorship of town fiestas.
Traditions which used to be purely religious
but have now acquired secular character
are permissible [Garces vs. Estenzo (1981)]
(7) Book lending program for students in
parochial schools. The benefit redounds to
students and parents and not to any
particular sect. [Board of Education vs.
Allen, 392 U.S. 236]
(8) Display of crche in a secular setting
Crche is displayed in a secular manner, and

merely depicts the origins of the holiday. The
Constitution mandates accommodation and not
merely tolerance. Instead of an absolutist
approach, court inquires if the law or conduct
has a secular purpose. [Lynch vs. Donnely
(1984)]
(9) Financial support for secular academic
facilities
WON a law that grants financial support for
expansion of educational facilities in parochial
schools is constitutional. HELD: Yes, secular
purpose facilities to be used for secular
activities. The facilities built here were a library
and a science center. [Tilton vs. Richardson
(403 U.S. 672)]
(10) Exemption from zoning requirements to
accommodate unique architectural features
of religious buildings
WON zoning law giving exemption to religious
sect (Mormons building a tall pointed steeple) is
constitutional. HELD: Yes, court may not
determine whether architectural features are
necessary for a particular religion, e.g. steeple
pointing upwards into heaven for Mormons.
[Martin vs. Corporation of the Presiding Bishop
(434 Mass. 141)]
Test
Lemon Test
(1) Statute must have a secular legislative
purpose.
(2) Primary effect must be one that neither
advances nor inhibits religion.
(3) Must not foster excessive entanglement
between government and religion. [Lemon
vs. Kurtzman, (403 U.S. 602)]
2. Free Exercise Clause

Dual Aspect
(1) Freedom to believe - absolute
(2) Freedom to act on ones belief subject to
regulation
Laws Justified under Free Exercise Clause

(1) Exemption from flag salute
Conscientious Objectors cannot be compelled to
salute the flag on pain of being dismissed from
one's job or of being expelled from school.
[Ebralinag vs. Division Superintendent of
Schools of Cebu (1993)]
(2) Freedom to propagate religious doctrines
The power to tax the exercise of the privilege is
the power to control or suppress its enjoyment.
Those who can tax the exercise of religious
practice can make its exercise so costly as to
94
deprive it of the resources necessary for its
maintenance. [American Bible Society vs. City
of Manila (1957)]
(3) Exemption from union shop
Neither
does
the
law
constitute
an
establishment of religion. It has been held that
in order to withstand objections based on this
ground, the statute must have a secular purpose
and that purpose must not directly advance or
diminish the interest of any religion. Congress
acted merely to relieve persons of the burden
imposed by union security agreements. The free
exercise of religious profession or belief is
superior to contract rights. [Victoriano vs.
Elizalde Rope Workers Union (1974)]
(4) Non-disqualification from local government
office
For lack of votes, law disqualifying religious
leaders from public office is held valid. As per
free exercise clause, it is invalid for it requires a
religious test for qualification. [Pamil vs.
Teleron (1978)]
Dean Pangalangan: There should be no distinction
between ordinary believer and the Pope; if the
former can hold office, why not the latter.

Movement
1. Limitations
2. Return to Ones Country
Sec. 6, Art. III: The liberty of abode and of changing
the same within the limits prescribed by law shall
not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired
except in the interest of national security, public
safety or public health, as may be provided by law.
make them live together and the noble intention of

the Government of organizing them politically will
come to naught. Furthermore, their relocation (and
the imposition that they are not allowed to emigrate
to some other places under penalty of imprisonment)
is a proper restraint to their liberty, they being
taught and guided in Tigbao to improve their living
conditions, and improve their education. In short,
everything is being done from them in order that
their advancement in civilization and material
prosperity may be assured. [Rubi vs. Provincial
Board (1919)]
The executive of a municipality does not have the
right to force citizens of the Philippine Islands to
change their domicile from one locality to another.
Law defines power, and there is no law nor
regulation that allows a mayor or a police chief to
restrain the liberty of abode of citizens of the
Philippines. [Villavicencio vs. Lukban (1919)]
1. Limitations
Right to Travel
RIGHT NOT ABSOLUTE: The Constitutional Right to
Travel under Sec. 5, Art. IV of the 1973 Constitution
is not an absolute right, and can only be impaired
upon lawful order of the court, or when necessary in
the interest of national security, public safety or
public health. Releasing the petitioner on bail and
that as a condition, he make himself available at all
times is a valid restriction on his right to travel. To
allow him to travel, especially abroad will make the
order of the court nugatory as the court's jurisdiction
cannot extend beyond the Philippines. [Manotok vs.
CA (1986)]
2. Return to Ones Country
The right of the individual is necessarily subject to

reasonable restraint by general law for the common
good. The Liberty of the citizens may be restrained
in the interest of the public health, or of the public
order and safety, or otherwise within the proper
scope of the police power.
The threats to the government, to which the return

of the Marcoses has been viewed to provide a
catalytic effect, have not been shown to have
ceased. The President has unstated residual powers
which are implied from the grant of executive power
and which are necessary for her to comply with her
duties under the Constitution. One of her duties is to
protect and promote the interest and welfare of the
people. Her decision to bar the return of the
Marcoses and, subsequently, the remains of Mr.
Marcos at the present time and under present
circumstances is in compliance with this bounden
duty. [Marcos vs. Manglapus (1989)]
None of the rights of the citizen can be taken away

except by due process of law.
J. Right to Information
"Liberty" as understood in democracies, is not

license; it is "Liberty regulated by law."
The government's measure in relocating the

Manguianes, a nomadic people with a wayfaring life
and without permanent individual property is
necessary both in the interest of the public as owner
of the lands about which they are roving and for the
proper accomplishment of the purposes and
objectives of the government. For as people
accustomed to nomadic habit, they will always long
to return to the mountains and follow a wayfaring
life, and unless a penalty is provided for, you cannot
1.
2.
3.
4.
Limitations
Publication of Laws and Regulations
Access to Court Records
Right to Information Relative to
Art. II Section 28. Subject to reasonable conditions

prescribed by law, the State adopts and implements
a policy of full public disclosure of all its
transactions involving public interest.
95
Art. III Section 7. The right of the people to
information on matters of public concern shall be
recognized. Access to official records, and to
documents and papers pertaining to official acts,
transactions, or decisions, as well as to government
research data used as basis for policy development,
shall be afforded the citizen, subject to such
limitations as may be provided by law.
Art. XVI Section 10. The State shall provide the
policy environment for the full development of
Filipino capability and the emergence of
communication structures suitable to the needs and
aspirations of the nation and the balanced flow of
information into, out of, and across the country, in
accordance with a policy that respects the freedom
of speech and of the press.
Scope
Right to information contemplates inclusion of
negotiations leading to the consummation of the
transaction. Otherwise, the people can never
exercise the right if no contract is consummated, or
if one is consummated, it may be too late for the
public to expose its defects. However, if the right
only affords access to records, documents and
papers, which means the opportunity to inspect and
copy them at his expense. The exercise is also
subject to reasonable regulations to protect the
integrity of public records and to minimize
disruption of government operations. [Chavez v. PEA
and Amari, G.R. No. 133250, July 9, 2002]
1. Limitations
The right does not extend to matters recognized as
privileged information rooted in separation of
powers, nor to information on military and
diplomatic secrets, information affecting national
security, and information on investigations of crimes
by law enforcement agencies before the prosecution
of the accused. [Chavez v. PEA and Amari, supra]
Media practitioners requested information from the
GM of GSIS regarding clean loans granted to certain
members of the defunct Batasang Pambansa on the
guaranty of Imelda Marcos shortly before the Feb
1986 elections. Request was refused on the ground
of confidentiality.
The right to information is not absolute. It is limited
to matters of public concern and is subject to such
limitations as may be provided by law. That the GSIS
was exercising a proprietary function would not
justify its exclusion of the transactions from the
coverage of the right to info. But although citizens
have such right and, pursuant thereto, are entitled
to access to official records, the Constitution does
not accord them the right to compel custodians of
official records to prepare lists, summaries and the
like in their desire to get info on matters of public
concern. [Valmonte vs. Belmonte (1989)]

While the Constitution guarantees access to
information on matters of public concern, access is
subject to reasonable regulation for the convenience
of and for order in the office that has custody of the
documents. [Baldoza vs Dimaano (1976)]
While the public officers in custody or in control of
public records have the discretion to regulate the
manner in which such records may be inspected,
examined or copied by interested persons, such
discretion does not carry with it the authority to
prohibit access, inspection, examination, or
copying. [Lantaco vs Llamas (1981)]
2. Publication of Laws and

Regulations
We hold therefore that all statutes, including those
of local application and private laws, shall be
published as a condition for their effectivity, which
shall begin fifteen days after publication unless a
different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and
executive orders promulgated by the President in
the exercise of legislative powers whenever the
same are validly delegated by the legislature or, at
present, directly conferred by the Constitution.
Administrative rules and regulations must also be
published if their purpose is to enforce or implement
existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal
in nature, that is, regulating only the personnel of
the administrative agency and not the public, need
not be published. Neither is publication required of
the so-called letters of instructions issued by
administrative superiors concerning the rules or
guidelines to be followed by their subordinates in
the performance of their duties.
Accordingly, even the charter of a city must be
published notwithstanding that it applies to only a
portion of the national territory and directly affects
only the inhabitants of that place. All presidential
decrees must be published, x x x. The circulars
issued by the Monetary Board must be published if
they are meant not merely to interpret but to "fill in
the details" of the Central Bank Act which that body
is supposed to enforce.
Publication must be in full or it is no publication at
all since its purpose is to inform the public of the
contents of the laws. [Taada vs Tuvera (1986)]
3. Access to Court Records

Canon II Confidentiality Code of Conduct for Court
Personnel (AM No. 03-06-13-SC)
SECTION 1. Court personnel shall not disclose to any
unauthorized person any confidential information
acquired by them while employed in the judiciary,
whether such information came from authorized or
unauthorized sources.
96
Confidential information means information not yet
made a matter of public record relating to pending
cases, as well as information not yet made public
concerning the work of any justice or judge relating
to pending cases, including notes, drafts, research
papers, internal discussions, internal memoranda,
records of internal deliberations and similar papers.
The notes, drafts, research papers, internal
discussions, internal memoranda, records of internal
deliberations and similar papers that a justice or
judge uses in preparing a decision, resolution or
order shall remain confidential even after the
decision, resolution or order is made public.
Decisions are matters of public concern and interest.
Pleadings and other documents filed by parties to a
case need not be matters of public concern or
interest. They are filed for the purpose of
establishing the basis upon which the court may
issue an order or a judgment affecting their rights
and interest. Access to court records may be
permitted at the discretion and subject to the
supervisory and protective powers of the court, after
considering the actual use or purpose for which the
request for access is based and the obvious
prejudice to any of the parties. [Hilado, et al vs
Judge (2006)]
4. Right to Information Relative to

Government Contract Negotiations
The constitutional right to information includes
official information on on-going negotiations before
a final contract. The information, however, must
constitute definite propositions by the government,
and should not cover recognized exceptions. [Chavez
v. Philippine Estate Authority (2002)]
The limitations recognized to the right of
information are:
(1) National security matter including state
secrets regarding military and diplomatic
matters, inter-government exchanges prior
to the conclusion of treaties and executive
agreements.
(2) Trade secrets and banking transactions
(3) Criminal Matters
(4) Other confidential matters. [Neri vs Senate
(2008)
citing
Chavez
vs
President
Commission on Good Government]
Diplomatic Negotiations
Diplomatic negotiations have a privileged character.
[Akbayan vs Aquino cited in Neri vs Senate (2008)]
Court Hearings
When the constitutional guarantees of freedom of
the press and the right to public information, on the
one hand, and the fundamental rights of the
accused, on the other hand, along with the
constitutional power of a court to control its

proceedings in ensuring a fair and impartial trial
race against another, jurisprudence tells us that the
right of the accused must be preferred to win. With
the possibility of losing not only the precious liberty
but also the very life of an accused, it behooves all
to make absolutely certain that an accused receives
a verdict solely on the basis of a just and
dispassionate judgment, a verdict that would come
only after the presentation of credible evidence
testified to by unbiased witnesses unswayed by any
kind of pressure, whether open or subtle, in
proceedings that are devoid of histrionics that might
detract from its basic aim to ferret veritable facts
free from improper influence, and decreed by a
judge with an unprejudiced mind unbridled by
running emotions or passions. [Re: Request for Live
Radio-TV Coverage of the Trial in the Sandiganbayan
of the Plunder Cases against former President
Joseph Ejercito Estrada, Secretary of Justice
Hernando Perez v. Joseph Ejercito Estrada, A.M. No.
00-1-4-03-SC, June 29, 2001]
K. Right to Association
1. Labor Unionism
2. Communist and Similar Organizations
3. Integrated Bar of the Philippines
Sec. 8, Art. III. The right of the people, including
those employed in the public and private sectors, to
form unions, association, or societies for purposes
not contrary to law shall not be abridged.
Sec 2(5), Art. IX-B. The right to self-organization
shall not be denied to government employees.
Sec. 3, Art. XIII. x x x. It shall guarantee the rights
of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance
with law. They shall be entitled to security of
tenure, humane conditions of work, and a living
wage. They shall also participate in policy and
decision-making processes affecting their rights and
benefits as may be provided by law.
With or without a constitutional provision of this
character, it may be assumed that the freedom to
organize or to be a member of any group or society
exists. With this explicit provision, whatever doubts
there may be on the matter are dispelled. Unlike the
cases of other guarantee which are mostly American
in origin, this particular freedom has an indigenous
cast. It can trace its origin to the Malolos
Constitution.
The limitation "for purposes not contrary to law"
should be interpreted as another way of expressing
the clear and present danger rule for unless an
association or society could be shown to create an
imminent danger to public safety, there is no
justification for abridging the right to form
association societies. [Gonzales vs COMELEC (1969)]
Note: The right is recognized as belonging to people
whether employed or unemployed, and whether
97
employed in the government or in the private sector.
It also recognizes that the right to form associations
includes the right to unionize
It should be noted that the provision guarantees the
right to associations. It does not include the right to
compel others to form an association. But there may
be situations in which, by entering into a contract,
one may also be agreeing to join an association.
[BERNAS]
If a land buyer who buys a lot with an annotated lien
that the lot owner becomes an automatic member of
a homeowners association thereby voluntarily joins
the association. [Bel-Air Village Association vs
Diokno (1989)]
1. Labor Unionism
The right to form associations does not necessarily
include the right to be given legal personality.
However, if the law itself should make possession of
legal personality a pre-condition for effective
associational action, involved would be not just the
right to have legal personality but also the right to
be an association. [Philippine Association of Free
Labor Unions vs Secretary of Labor (1969)]
The right of association of managerial employees is
denied because of Article 245 of the Labor Code
which provides that managerial employees are not
eligible to join, assist or form any labor
organization. This is because Art III Sec 8 is subject
to the condition that its exercise is for the purposes
not contrary to law. [United Pepsi-Cola Supervisory
Union (UPSU) vs Laguesma (1998)]
2. Communist and Similar

Organizations
This is a question of the constitutionality of the AntiSubversion Act which declares the Communist Party
of the Philippines (CPP) and similar organizations
illegal and outlawed. Although the Supreme Court
upheld the validity of the statute, we cannot
overemphasize the need for prudence and
circumspection in its enforcement, operating as it
does in the sensitive area of freedom of expression
and belief. The basic guidelines for prosecution
under the Act, are the following elements for the
crime to be established:
(1) In case of subversive organizations other
than the CPP, (a) that the purpose of the
organization is to overthrow the present
Government of the Philippines and to
establish in this country a totalitarian
regime under the domination of a foreign
power; (b) that the accused joined such
organization; and (c) that he did so
knowingly, willfully and by overt acts; and
(2) In the case of the CPP, (a) that the CPP
continues to pursue the objectives which
led Congress in 1957 to declare it to be an
organized conspiracy for the overthrow of

the Government by illegal means for the
purpose of placing the country under the
control of a foreign power; (b) that the
accused joined the CPP; (c) that he did so
willfully, knowingly and by overt acts.
[People vs Ferrer (1972)]
3. Integrated Bar of the Philippines

Compulsory membership of a lawyer in the
integrated bar of the Philippines does not violate the
constitutional guarantee. [In Re: Edillon, 84 SCRA
554]
L. Eminent Domain
1. Concept
2. Expansive Concept of Public Use
3. Just Compensation
4. Abandonment of Intended Use and Right of
Repurchase
5. Miscellaneous Application
1. Concept
It is the right of the government to take private
property with just compensation.
The power of eminent domain does not depend for
its existence on a specific grant in the constitution.
It is inherent in sovereignty and exists in a sovereign
state without any recognition of it in the
constitution. The provisions found in most of the
state constitutions relating to the taking of property
for the public use do not, by implication, grant the
power to the government of the state, but limit a
power which would otherwise be without limit.
(citations omitted) [Visayan Refining Co. vs. Camus,
G.R. No. L-15870, December 3, 1919]
Generally
(1) Taking of Private Property
(2) for Public Use,
(3) with Just Compensation, and
(4) Due Process.
Specifically (LGUs, Sec. 19, Local Government Code)
(1) Ordinance by a local legislature council is
enacted authorizing local chief executive to
exercise eminent domain,
(2) For public use, purpose or welfare or for
the benefit of the poor and of the landless,
(3) Payment of just compensation,
(4) Valid and definite offer has been previously
made to owner of the property sought to be
expropriated but such offer was not
accepted [Municipality of Paraaque vs. VM
Realty (1998)]
Jurisdiction over a complaint for eminent domain is
with the Regional Trial Court. While the value of the
property to be expropriated is estimated in
monetary terms for the court is duty bound to
determine the amount of just compensation to be
98
paid for the property it is merely incidental to the
expropriation suit [Barangay San Roque, Talisay,
Cebu v. Heirs of Francisco Pastor, G.R. No. 138869,
June 20, 2000; Bardillion v. Barangay Masili of
Calamba, Laguna, G.R. No. 146886, April 30, 2003]
The issuance of a writ of possession becomes
ministerial upon the (1) filing of a complaint for
expropriation sufficient in form and substance, and
(2) upon deposit made by the government of the
amount equivalent to 15% of the fair market value of
the property sought to be expropriated per current
tax declaration. [Biglang-Awa v. Judge Bacalla, G.R.
Nos. 139927-139936, November 22, 2000; Bardillon
v. Barangay Masili of Calamba, Laguna, Laguna, G.R.
No. 146886, April 30, 2003]
All Private Property capable of ownership may be
expropriated, except money and choses in action.
Even services may be subject to eminent domain.
[Republic v. PLDT, 26 SCRA 620]
The exercise of the right of eminent domain,
whether directly by the State or by its authorized
agents, is necessarily in derogation of private rights.
Hence, strict construction will be made against the
agency exercising the power. [Jesus is Lord Christian
School Foundation v. Municipality of Pasig, G.R. No.
152230, August 9, 2005]
Necessity
The foundation of the right to exercise eminent
domain is genuine necessity and that necessity must
be of public character. Government may not
capriciously or arbitrarily choose which private
property should be expropriated. [Lagcao v. Judge
Labra, G.R. No. 155746, October 13, 2004]
When the power is exercised by the legislature, the
question of necessity is generally a political
question. [Municipality of Meycauyan, Bulacan v.
Intermediate Appellate Court, 157 SCRA 640]
The RTC has the power to inquire into the legality of
the exercise of the right of eminent domain and to
determine whether there is a genuine necessity for
it. [Bardillon v. Barangay Masili of Calamba, Laguna,
G.R. No. 146886, April 30, 2003]
Private Property
Private property already devoted to public use
cannot be expropriated by a delegate of legislature
acting under a general grant of authority. [City of
Manila v. Chinese Community, 40 Phil 349]
Taking
The exercise of the power of eminent does not
always result in the taking or appropriation of title
to the expropriated property; it may only result in
the imposition of a burden upon the owner of the
condemned property, without loss of title or
possession. [National Power Corporation v.
Requisites for a valid taking:

(1) The expropriator must enter a private
property
(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
otherwise informally appropriated or
injuriously affected
Utilization of the property must be in such a way as
to oust the owner and deprive him of beneficial
enjoyment of the property. [Republic v. Castelvi, 58
SCRA 336]
Due Process
The defendant must be given an opportunity to be
heard. In the case of Belen v. Court of Appeals, the
Supreme Court declared two Presidential Decrees
unconstitutional for violating due process because
they did not provide for any form of hearing or
procedure by which the propriety of the
expropriation or the reasonableness of the
compensation.
Taking via eminent domain vs. taking under
social justice clause
Agrarian Reform (Art. XIII, Sec. 4): This provision is
an exercise of the police power of the State through
eminent domain (Association of Small Landowners
vs. Secretary of Agrarian Reform) as it is a means to
regulate private property.
The Comprehensive Agrarian Reform Law prescribes
retention limits to the landowners, there is an
exercise of police power for the regulation of private
property in accordance with the constitution. But in
carrying out such regulation, the owners are
deprived of lands they own in excess of the
maximum area allowed, there is also taking under
the power of eminent domain. The taking
contemplated is not a mere limitation on the use of
the land, but the surrender of the title to and
physical possession of the excess and all beneficial
rights accruing to the owner in favor of the
beneficiary. [Sta. Rosa Realty & Development Corp.
v. Court of Appeals, G.R. No. 112526, October 12,
2001]
2. Expansive Concept of Public Use

Definition
The idea that "public use" means "use by the public"
has been discarded. At present, whatever may be
beneficially employed for the general welfare
satisfies the requirement of public use. [Heirs of
Juancho Ardona vs. Reyes, 123 SCRA 220]
That only a few benefit from the expropriation does
not diminish its public-use character, inasmuch as
pubic use now includes the broader notion of
indirect public benefit or advantage [Filstream
International vs. CA, 284 SCRA 716]
Public use is the general concept of meeting
public need or public exigency. It is not confined to
actual use by the public in its traditional sense. The
99
idea that public use is strictly limited to clear
cases of use by the public has been abandoned.
The term public use has now been held to be
synonymous with public interest, public benefit,
public welfare and public convenience. [Reyes v.
National Housing Authority, G.R. No. 147511,
January 20, 2003]
The practical reality that greater benefit may be
derived by Iglesia ni Cristo members than most
others could well be true, but such peculiar
advantage still remains merely incidental and
secondary in nature. That only few would benefit
from the expropriation of the property does not
necessarily diminish the essence and character of
public use [Manosca v. Court of Appeals, 252 SCRA
412]
3. Just Compensation
Definition
It is the just and complete equivalent of the loss
which the owner of the thing expropriated has to
suffer by reason of the expropriation.
Full and fair equivalent of the property taken; it is
the fair market value of the property. It is settled
that the market value of the property is that the
sum of money which a person, desirous but not
compelled to buy, and an owner, willing but not
compelled to sell, would agree on as a price to be
given and received therefor [Province of Tayabas
vs. Perez (1938)]
Determination
BASIS: Fair Market Value
Price fixed by a buyer desirous but not compelled to
buy and a seller willing but not compelled to sell.
Must include consequential damages (damages to
other interest of the owner attributable to the
expropriation) and deduct consequential benefits
(increase of value of other interests attributable to
new use of the former property).
CHOICE OF PROPERTY TO BE EXPROPRIATED IS
SUBJECT
TO
JUDICIAL
REVIEW
AS
TO
REASONABLENESS: Under Section 2, Article IV of the
Philippine Constitution, the Republic of the
Philippines can take private property upon payment
of just compensation. However, private property to
be taken cannot be chosen arbitrarily and
capriciously, as the landowner is entitled to due
process. The Department of Public Highways
originally established the extension in Cuneta
Avenue, and it is assumed that they made extensive
studies regarding it. The change from Cuneta Avenue
to Fernando Rein-Del Pan Streets cannot be justified
on the ground of social impact, as the properties to
be affected along Cuneta Avenue are mostly motels.
[De Knecht vs. Bautista (1980)]
The Presidential Decrees merely serve as a guide or
a factor for the courts in determining amount of just
compensation (which should be the fair and full

value of the property at time of taking). The courts
have the power and authority to determine just
compensation, independent of what the decrees
state, and thus may appoint commissioners to help
in determining just compensation. [EPZA vs. Dulay,
148 SCRA 305]
While commissioners are to be appointed by the
court for the determination of just compensation,
the latter is not bound by the commissioners
findings. [Republic v. Santos, 141 SCRA 30; Republic
(MECS) v. IAC, 185 SCRA 572]
The court may substitute its own estimate of the
value of the property only for valid reasons: (a) the
commissioners have applied illegal principles to the
evidence submitted to them; (b) they have
disregarded a clear preponderance of evidence; or
(c) where the amount allowed is either grossly
inadequate
or
excessive.
[National
Power
Corporation v. De la Cruz, G.R. No. 156093,
February 2, 2007]
Non-payment of just compensation in an
expropriation proceeding does not entitle the
private landowners to recover possession of the
expropriated lots, but only to demand payment of
the fair market value of the property. [Republic of
the Philippines v. Court of Appeals, G.R. No.
146587, July 2, 2002; Reyes v. National Housing
Authority, G.R. No. 147511, Janaury 29, 2003]
The Republic was ordered to pay just compensation
twice: first, in the expropriation and then, in the
action for recovery of possession but it never did. 57
years have lapsed since the expropriation case was
terminated but the Republic never paid the owners.
The court construed the failure to pay as a
deliberate refusal on the part of the Republic. When
the government fails to pay just compensation
within five years from the finality of the judgment in
the
expropriation
proceedings,
the
owners
concerned shall have the right to recover possession
of their property. [Republic of the Philippines v.
Vicente Lim, G.R. No. 161656, June 29, 2005]
Effect of Delay
Just compensation means not only the correct
amount to be paid to the owner of the land but also
payment within a reasonable time from its taking
[Eslaban v. De Onorio, G.R. No. 146062, June 28,
2001]
The filing of the case generally coincides with the
taking. When the filing of the case coincides with
the taking, and the value of the property has
increased because of the use to which the
expropriator has put it, the value is that of the time
of the earlier taking. Otherwise the owner would
gain undeserved profit. But if the value increased
independently of what the expropriator did, then
the value is that of the later filing of the case. Also,
between the time payment is due and the actual
payment, legal interest (6%) accrues. [NAPOCOR v.
CA (1996)]
10
0

use" is strictly limited to clear cases of "use by the
public" has been discarded.
4. Abandonment of Intended Use and

Right of Repurchase
If the expropriator (government) does not use the
property for a public purpose, the property reverts
to the owner in fee simple. [Heirs of Moreno vs.
Mactan-Cebu International Airport (2005)]
5. Miscellaneous Application
What the due process clause requires is that the
landowner must be given reasonable opportunity to
be heard and to present his claim or defense.
Although due process does not always necessarily
demand that a proceeding be had before a court of
law, it still mandates some form of proceeding
wherein notice and reasonable opportunity to be
heard are given to the owner to protect his property
rights. Although there are exceptional situations
when in the exercise of the power of eminent
domain, the requirement does not need judicial
process, when it is alleged that the landowners
right to due process of law has been violated in the
taking of his property, the courts can probe and
check on the alleged violation. [Manotok vs. NHA
(1987)]
The performance of the administrative acts
necessary to the exercise of the power of eminent
domain in behalf of the state is lodged by tradition
in the Sovereign or other Chief Executive.
Where the Legislature has expressly conferred the
authority to maintain expropriation proceedings
upon the Chief Executive, the right of the latter to
proceed therein is clear.
Once authority is given to exercise the power of
eminent domain, the matter ceases to be wholly
legislative. The executive authorities may then
decide whether the power will be invoked and to
what extent. (citations omitted) [Visayan Refining
Co. vs. Camus, G.R. No. L-15870, December 3, 1919]
The particular mention in the Constitution of
agrarian reform and the transfer of utilities and
other private enterprises to public ownership merely
underscores the magnitude of the problems sought
to be remedied by these programs. They do not
preclude nor limit the exercise of the power of
eminent domain for such purposes like tourism and
other development programs.
There can be no doubt that expropriation for such
traditions' purposes as the construction of roads,
bridges, ports, waterworks, schools, electric and
telecommunications systems, hydroelectric power
plants, markets and slaughterhouses, parks,
hospitals, government office buildings, and flood
control or irrigation systems is valid. However, the
concept of public use is not limited to traditional
purposes. Here as elsewhere the Idea that "public
Private bus firms, taxicab fleets, roadside

restaurants, and other private businesses using
public streets and highways do not diminish in the
least bit the public character of expropriations for
roads and streets. The lease of store spaces in
underpasses of streets built on expropriated land
does not make the taking for a private purpose.
Airports and piers catering exclusively to private
airlines and shipping companies are still for public
use. The expropriation of private land for slum
clearance and urban development is for a public
purpose even if the developed area is later sold to
private
homeowners,
commercial
firms,
entertainment and service companies, and other
private concerns. [Heirs of Ardona vs. Reyes, G.R.
Nos. L-60549, 60553 to 60555, October 26, 1983)
Art. III, Sec. 9. Private property shall not be taken
for public use without just compensation.
Art. XII, Sec. 18. The State may, in the interest of
national welfare or defense, establish and operate
vital industries and, upon payment of just
compensation, transfer to public ownership utilities
and other private enterprises to be operated by the
government.
Art. XIII, Sec. 4 The State shall, by law, undertake
an agrarian reform program founded on the right
of farmers and regular farmworkers who are
landless, to own directly or collectively the lands
they till or, in the case of other farmworkers, to
receive a just share of the fruits thereof.
To this end, the State shall encourage and undertake
the just distribution of all agricultural lands, subject
to such priorities and reasonable retention limits as
the Congress may prescribe, taking into account
ecological, developmental, or equity considerations,
and subject to the payment of just compensation.
In determining retention limits, the State shall
respect the right of small landowners. The State
shall further provide incentives for voluntary landsharing.
Art. XIII, Sec. 9 The State shall, by law, and for the
common good, undertake, in cooperation with the
private sector, a continuing program of urban land
reform and housing which will make available at
affordable cost, decent housing and basic services
to under-privileged and homeless citizens in urban
centers and resettlement areas.
It shall also promote adequate employment
opportunities to such citizens. In the implementation
of such program the State shall respect the rights of
small property owners.
Art XIV, Sec. 13. The National assembly may
authorize, upon payment of just compensation, the
10
1
expropriation of private lands to be subdivided into
small lots and conveyed at cost to deserving citizens.
M. Contracts Clause
1. Application of the Contracts Clause
2. Contemporary Application of the Contracts
Clause
3. Limitations
Art. III Section 10 (1987 Constitution):
No law impairing the obligation of contracts shall be
passed.
1. Application
of the Contract Clause
Impairment is anything that diminishes the efficacy

of the contract. There is substantial impairment
when the law changes the terms of a legal contact
between the parties, either in the time or mode of
performance, or imposes new conditions, or
dispenses with those expressed, or authorizes for its
satisfaction something different from that provided
in its terms. [Clements v. Nolting, 42 Phil. 702]
2. Contemporary Application of the

Contract Clause
As to Tax:
GENERAL RULE: Power of taxation may not be used
to violate the constitutional right of every person to
be secured against any statute that impairs the
obligation of contracts.
EXCEPTION: But if the statute exempts a party from
any one class of taxes, the imposition of a different
tax is not an impairment of the obligation of
contracts.
A law enacted in the exercise of police power to
regulate or govern certain activities or transactions
could be given retroactive effect and may
reasonably impair vested rights or contracts. Police
power legislation is applicable not only to future
contracts, but equally to those already in existence.
Non-impairment of contracts or vested rights clauses
will have to yield to the superior and legitimate
exercise by the State of the police power. [Ortigas &
Co. v. CA, G.R. No. 126102, December 4, 2000]
New regulations on loans making redemption of
property sold on foreclosure more strict are not
allowed to apply retroactively. [Co v. Philippine
National Bank (1982)]
Limitations on the use of land imposed by a contract
to yield to a reasonable exercise of police power are
affirmed. Thus, zoning regulations are superior to
contractual restrictions on the use of property.
[Presley v. Bel-Air Village Association (1991)]
A separation pa law can be given retroactive effect
to apply to existing contracts. [Abella v. National
Labor Regulations Commission (1987)]
The charter of a bank, even if a contract, is no

obstacle to liquidation done under police power.
[Philippine Veterans Bank Employees Union v.
Philippine Veterans Bank (1990)]
Contracts also yield to the requirements of the
freedom of religion. [Victoriano v. Elizalde Rope
Workers (1974)]
Timber licenses, permits, and license agreements
are the principal instruments by which the State
regulates the utilization and disposition of forest
resources to the end that public welfare is
promoted. They may be validly amended, modified,
replaced, or rescinded by the Chief Executive when
national interests so require. Thus, they are not
deemed contracts within the purview of the due
process of law clause. [Oposa v. Factoran (1993)]
A rehabilitation plan approved by statute which
merely suspends the actions for claims does not
violate the contract clause. [GSIS v. Kapisanan
(2006)]
The SECs approval of the Rehabilitation Plan did not
impair BPIs right to contract. The impairment
clause is a limit on the exercise of legislative power
and not of judicial or quasi-judicial power. The
SECwas acting as a quasi-judicial body, and its
order approving the plan cannot constitute an
impairment of the right and the freedom to
contract.
Besides, the mere fact that the Rehabilitation Plan
proposes a dacion en pago approach does not render
it defective on the ground of impairment of the right
to contract. The undertaking really partakes in a
sense of the nature of sale. As such, the essential
elements of a contract of sale must be present.
Being a form of contract, the dacion en pago
agreement cannot be perfected without the consent
of the parties involved. [China Banking Corporation
v. ADB Holdings (2008)]
The amount of rental is an essential condition of any
lease contract. The change of its rate in the
Rehabilitation Plan is not justified as it impairs the
stipulation between the parties. [Leca Realty v.
Manuela Corporation (2007)]
The non-impairment clause is a limit on legislative
power, and not of judicial or quasi-judicial power.
The approval of the Rehabilitation Plan by the
Securities and Exchange Commission is an exercise of
adjudicatory power by an administrative agency and
thus the non-impairment clause does not apply.
Neither does it impair the power to contract. [BPI v.
SEC (2007)]
Laws prohibiting premature campaigning are
intended to level the playing field for candidates to
public office, to equalize the situation between
popular or rich candidates, on one hand, and lesserknown or poorer candidates, on the other, by
preventing undue advantage in exposure and
publicity on account of their resources and
10
2
popularity. Such laws might affect advertising
contracts, the non-impairment clause of the
Constitution must yield to the loftier purposes
targeted by the Government. [Chavez v. COMELEC
(2004)]
The Court has imposed 2 essential requisites in order
that RA 7641 (Retirement Law) may be given
retroactive effect. First, the claimant for retirement
benefits must still be in the employ of the employer
at the time the statute took effect. Second, the
claimant must have complied with the requirements
for eligibility for such retirement benefits under the
statute. [Universal Robina Sugar v. Cabaleda (2008)]
3. Limitations
It is ingrained in jurisprudence that the
constitutional prohibition does not prohibit every
change in existing laws. To fall within the
prohibition, the change must not only impair the
obligation of the existing contract, but the
impairment must be substantial. Moreover, the law
must effect a change in the rights of the parties with
reference to each other, and not with respect to
non-parties. [Philippine Rural Electric Cooperatives
Association v. Secretary, DILG, G.R. No. 143076,
June 10, 2003]
N. Legal Assistance and Free

Access to Courts
Sec. 11 Art. III:
Free access to the courts and quasi-judicial bodies
and adequate legal assistance shall not be denied to
any person by reason of poverty.
Rules of Court Rule 141 Sec. 18:
SEC. 18. Indigent litigants exempt from payment of
legal fees.Indigent litigants (a) whose gross income
and that of their immediate family do not exceed
four thousand (P4,000.00) pesos a month if residing
in Metro Manila, and three thousand (P3,000.00)
pesos a month if residing outside Metro Manila, and
(b) who do not own real property with an assessed
value of more than fifty thousand (P50,000.00) pesos
shall be exempt from the payment of legal fees.
The legal fees shall be a lien on any judgment
rendered in the case favorably to the indigent
litigant, unless the court otherwise provides.
To be entitled to the exemption herein provided, the
litigant shall execute an affidavit that he and his
immediate family do not earn a gross income
abovementioned, nor they own any real property
with the assessed value aforementioned, supported
by an affidavit of a disinterested person attesting to
the truth of the litigant's affidavit.
Any falsity in the affidavit of a litigant or
disinterested person shall be sufficient cause to
strike out the pleading of that party, without
prejudice to whatever criminal liability may have

been incurred.
Rules of Court Rule 3 Sec. 21:
Indigent party.A party may be authorized to
litigate his action, claim or defense as an indigent if
the court, upon an ex parte application and hearing,
is satisfied that the party is one who has no money
or property sufficient and available for food, shelter
and basic necessities for himself and his family.
Such authority shall include an exemption from
payment of docket and other lawful fees, and of
transcripts of stenographic notes which the court
may order to be furnished him. The amount of the
docket and other lawful fees which the indigent was
exempted from paying shall be a lien on any
judgment rendered in the case favorable to the
indigent, unless the court otherwise provides.
Any adverse party may contest the grant of such
authority at any time before judgment is rendered
by the trial court. If the court should determine
after hearing that the party declared as an indigent
is in fact a person with sufficient income or
property, the proper docket and other lawful fees
shall be assessed and collected by the clerk of court.
If the payment is not made within the time fixed by
the court, execution shall issue or the payment
thereof, without prejudice to such other sanctions as
the court may impose.
Those protected include low paid employees,
domestic servants and laborers. [Cabangis v. Almeda
Lopez (1940)]
The difference between paupers and indigent
persons is that the latter are persons who have no
property or sources of income sufficient for their
support aside from their own labor though selfsupporting when able to work and in employment.
[Acar v. Rosal (1067)]
The new rule applies even to litigation pending at
the time of its enactment. The retroactive
application of the new rule has been found to be
more in keeping with Section 11 of Article III. The
previous rule, denied the right to litigate as paupers
in appellate courts. [Martinez v. People (2000)]
Note: The significance of having an explicit free
access provisions in the Constitution may be
gathered from the rocky road which free access
seems to have traveled in American jurisprudence.
The American constitution does not have an explicit
free access provision and, hence, its free access
doctrine has been developed as implicit from both
the equal protection clause and the due process
clause. [BERNAS]
O. Rights of Suspects
1. Availability
2. Requisites
3. Waiver
10
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ART. III, SEC. 12, 1987 CONSTITUTION
1. Any person under investigation for the
commission of an offense shall have the right to
be informed of his right to remain silent and to
have competent and independent counsel
preferably of his own choice. If the person
cannot afford the services of counsel, he must
be provided with one. These rights cannot be
waived except in writing and in the presence of
counsel.
2. No
torture,
force,
violence,
threat,
intimidation, or any other means which vitiate
the free will shall be used against him. Secret
detention places, solitary, incommunicado, or
other similar forms of detention are prohibited.
3. Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
4. The law shall provide for penal and civil
sanctions for violations of this section as well as
compensation to the rehabilitation of victims of
torture or similar practices, and their families.
The SC reversed the lower courts imposition of

death penalty because the accused was not even
informed at the start of the investigation of his right
to counsel, much less afforded the service of counsel
notwithstanding his insistence. He was given the
unacceptable excuse that there were no available
lawyers.
In Miranda vs. Arizona: The Federal Supreme Court

made it clear that what is prohibited is the
"incommunicado interrogation of individuals in a
police dominated atmosphere, resulting in selfincriminating statements without full warnings of
constitutional rights.
RA 7438, Rights of Persons under Custodial

Investigation;
MIRANDA RIGHTS: The person under custodial

investigation must be warned that
(1) He has a right to remain silent,
(2) That any statement he makes may be used
as evidence against him, and
(3) That he has a right to the presence of an
attorney, either retained or appointed.
Section 2. Rights of Persons Arrested, Detained or

Under Custodial Investigation; Duties of Public
Officers.
The long question during the appraisal of Galits

constitutional rights followed by a monosyllabic
answer does not satisfy the requirements of the law
that the accused be informed of his rights. Instead
there should be several short and clear questions
and every right explained in simple words in a
dialect or language known to the person under
investigation. In this case, the accused is from
Samar and there is no showing that he understands
Tagalog. Furthermore, waiver of the right to counsel
must be done in the presence of counsel, otherwise,
the procured statements will be inadmissible.
[People vs. Galit (1985)]
Inasmuch as the prosecution in this case failed to
prove that before Duero made his alleged oral
confession he was informed of his rights to remain
silent and to have counsel and because there is no
proof that he knowingly and intelligently waived
those rights, his confession is inadmissible in
evidence. Accused repudiated his alleged oral
confession during trial. Since, the SC found that the
procedure set out in the Miranda case was not
followed, oral confession of accused to police station
commander is inadmissible in evidence. (enshrined
in Art. III, Sec. 12 of the 1987 Constitution) [People
vs. Duero (1985)]
As used in this Act, "custodial investigation" shall

include the practice of issuing an "invitation" to a
person who is investigated in connection with an
offense he is suspected to have committed, without
prejudice to the liability of the "inviting" officer for
any violation of law. [People vs. Andag (1980)]
NOTE: These rights were further reiterated under RA
7438, otherwise known as AN ACT DEFINING CERTAIN
RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER
CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES
OF THE ARRESTING, DETAINING AND INVESTIGATING
OFFICERS,
AND
PROVIDING
PENALTIES
FOR
VIOLATIONS THEREOF
Section 1. Statement of Policy. - It is the policy of

the Senate to value the dignity of every human being
and guarantee full respect for human rights
(b) Any public officer or employee, or anyone acting

under his order or his place, who arrests, detains or
investigates any person for the commission of an
offense:
(1) shall inform the latter, in a language known to
and understood by him,
(2) of his rights to remain silent and
(3) to have competent and independent counsel,
preferably of his own choice,
(4) who shall at all times be allowed to confer
privately with the person arrested, detained or
under custodial investigation.
(5) If such person cannot afford the services of his
own counsel, he must be provided with a
competent and independent counsel by the
investigating officer.
1. Availability
When the person is already in custody

Custodial investigation involves any questioning
initiated by law enforcement
During critical pre-trial stages in the criminal
process
The rights under Sec. 12, Art. 3 are available when

the investigation is no longer a general inquiry unto
an unsolved crime but has begun to focus on a
particular suspect, as when the suspect has been
taken into police custody and the police carries out
a process of interrogation that lends itself to
10
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eliciting incriminating statements. [People vs. Mara
(1994)]
communication which results in the subject/accused

understanding what is conveyed.
An out-of-court identification may be made in a

show up (accused is brought face to face with the
witness for identification), or police line-up
(suspect is identified by witness from a group of
persons gathered for that purpose). [People vs.
Escordial (2002)]
a. Right to Remain Silent
Neither the lineup itself nor anything required

therein violated respondent's Fifth Amendment
privilege against self-incrimination, since merely
exhibiting his person for observation by witnesses
and using his voice as an identifying physical
characteristic involved no compulsion of the accused
to give evidence of a testimonial nature against
himself which is prohibited by that Amendment.
HOWEVER, the Sixth Amendment guarantees an
accused the right to counsel not only at his trial but
at any critical confrontation by the prosecution at
pretrial proceedings where the results might well
determine his fate and where the absence of counsel
might derogate from his right to a fair trial. [U.S. vs.
Wade, 388 U.S. 218 (1967)]
During custodial investigations, these types of
identification have been recognized as critical
confrontations of the accused by the prosecution,
necessitating presence of counsel for the accused.
Otherwise, the identification will be inadmissible in
evidence.
Note: INVITATIONS - Sec. 2, RA 7438 provides that
custodial investigation shall include the practice of
issuing an invitation to a person who is under
investigation in connection with an offense he is
suspected to have committed.
Ordinarily, an invitation to attend a hearing and
answer some questions which the person invited may
heed or refuse is not unconstitutional. Under certain
circumstances, however, such an invitation can
easily assume a different appearance. Here, where
the invitation comes from a powerful group
composed predominantly of ranking military officers
issued at a time when the country has just emerged
from martial rule and when the suspension of the
privilege of the writ of habeas corpus has not
entirely been lifted and the designated interrogation
site is a military camp, the same can easily be taken
not as a strictly voluntary invitation but as an
authoritative command which one can only defy at
his peril, especially where the invitation carries the
ominous seaming that "failure to appear . . . shall be
considered as a waiverand this Committee will be
constrained to proceed in accordance with law."
[Babst vs. NBI (1984)]
2. Requisites
People vs. Agustin (1995): This carries the
correlative obligation on the part of the investigator
to
explain,
and
contemplates
effective
The warning is needed simply to make the

person under custodial investigation aware
of the existence of the right;
This warning is the threshold requirement for
an intelligent decision as to its exercise.
More importantly, such a warning is an
absolute pre-requisite in overcoming the
inherent pressures of the interrogation
atmosphere.
Further, the warning will show the individual
that his interrogators are prepared to
recognize his privilege should he choose to
exercise it.
b. Right against Self-Incrimination

Art. III, Sec. 12
under
The warning of the right to remain silent must

be accompanied by the explanation that
anything said can and will be used against
the individual in court.
This warning is needed in order to make him
aware not only of the privilege to remain
silent, but also of the consequences of
forgoing it.
c. Right to Counsel
Investigation; Section 2. Rights of Persons Arrested,
Detained or Under Custodial Investigation; Duties of
Public Officers.
(a) Any person arrested detained or under custodial
investigation shall at all times be assisted by
counsel; otherwise the waiver shall be null and
void and of no effect.
The Miranda doctrine was modified to qualify
the right to counsel to mean competent and
independent counsel preferably of the
suspect's own choice.
An individual need not make a preinterrogation request for a lawyer.
While such request affirmatively secures his
right to have one, his failure to ask for a
lawyer does not constitute a waiver.
No effective waiver of the right to counsel
during interrogation can be recognized
unless specifically made AFTER the
warnings have been given.
The accused who does not know his
rights and therefore does not make a
request may be the person who most
needs counsel.
If an individual indicates that he wishes the
assistance
of
counsel
before
any
interrogation occurs, the authorities cannot
rationally ignore or deny his request on the
basis that the individual does not have or
cannot afford a retained attorney.
In order fully to apprise a person interrogated
of the extent of his rights under this system
then, it is necessary to warn him not only
that he has the right to consult with an
10
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attorney, but also that if he is indigent a
lawyer will be appointed to represent him.
The right to counsel does not mean that the accused
must personally hire his own counsel. The
constitutional requirement is satisfied when a
counsel is engaged by anyone acting on behalf of the
person under investigation, or appointed by the
court upon petition by said person or by someone on
his behalf. [People v. Espiritu, G.R. No. 128287,
February 2, 1999]
POLICE LINE-UPS When petitioner was identified by
the complainant at the police line-up, he had not
been held yet to answer for a criminal offense. The
police line-up is not a part of the custodial inquest,
hence, he was not yet entitled to counsel.
Rule on Waiver
SEC. 12, ART. III:
(1) Must be in writing
(2) Made in the presence of counsel
Investigation; Section 2. Rights of Persons Arrested,
Public Officers.
(e) Any waiver by a person arrested or detained
under the provisions of Article 125 of the Revised
Penal Code, or under custodial investigation, shall
be in writing and signed by such person in the
presence of his counsel; otherwise the waiver shall
be null and void and of no effect.
Burden of Proving Voluntariness of Waiver
Thus, it was held that when the process had not yet
shifted from the investigatory to the accusatory as
when police investigation does not elicit a confession
the accused may not yet avail of the services of his
lawyer. [Escobedo vs. Illinois of the United States
Federal Supreme Court (1964)]
Whenever a protection given by the Constitution is

waived by the person entitled to that protection,
the presumption is always against the waiver.
However, given the clear constitutional intent in the

1987 Constitution, the moment there is a move or
even an urge of said investigators to elicit admissions
or confessions or even plain information which may
appear innocent or innocuous at the time, from said
suspect, he should then and there be assisted by
counsel, unless he waives the right, but the waiver
shall be made in writing and in the presence of
counsel. [Gamboa vs. Cruz (1988)]
Consequently, the prosecution must prove with

strongly convincing evidence to the satisfaction of
this Court that indeed the accused:
(1) Willingly and voluntarily submitted his
confession and
(2) Knowingly and deliberately manifested that
he was not interested in having a lawyer
assist him during the taking of that
confession.
d. Rights to Visitation and Conference
P. Rights of the Accused
Sec. 2. Rights of Persons Arrested, Detained or

Under Custodial Investigation; Duties of Public
Officers. (f) Any person arrested or detained or
under custodial investigation shall be allowed visits
by or conferences with:
(1) any member of his immediate family, or
(2) any medical doctor;
(3) priest or religious minister chosen by him; or
(4) by his counsel; or
(5) by any national non-governmental organization
duly accredited by the Commission on Human
Rights or
(6) by
any
international
non-governmental
organization duly accredited by the Office of
the President.
(7) The person's "immediate family" shall include his
or her spouse, fiance or fiancee, parent or child,
brother or sister, grandparent or grandchild,
uncle or aunt, nephew or niece, and guardian or
ward.
3. Waiver
What Cannot be Waived
(1) The right to remain silent and the right to
counsel may be waived.
(2) What CANNOT be waived is THE RIGHT TO
BE GIVEN THE MIRANDA WARNINGS.
(People vs. Jara, 1986)
1. Criminal Due Process

2. Bail
3. Presumption of Innocence
4. Right to be Heard
5. Assistance of Counsel
6. Right to be Informed
7. Right to Speedy, Impartial and Public Trial
8. Right to Confrontation
9. Compulsory Process
10. Trials in Absentia
SEC. 14, ART. III, 1987 CONSTITUTION.
(1) No person shall be held to answer for a criminal
offense without due process of law.
(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved,
and shall enjoy the right to be heard by himself
and counsel, to be informed of the nature and
cause of the accusation against him, to have a
speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory
process to secure the attendance of witnesses
and the production of evidence in his behalf.
However, after arraignment, trial may proceed
notwithstanding the absence of the accused:
Provided, that he has been duly notified and his
failure to appear is unjustifiable.
ROC. RULE 115. RIGHTS OF ACCUSED
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Section 1. Rights of accused at trial. In all
criminal prosecutions, the accused shall be entitled
to the following rights:
(a) To be presumed innocent until the contrary is
proved beyond reasonable doubt.
(b) To be informed of the nature and cause of the
accusation against him.
(c) To be present and defend in person and by
counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment.
The accused may, however, waive his presence
at the trial pursuant to the stipulations set forth
in his bail, unless his presence is specifically
ordered by the court for purposes of
identification.
The absence of the accused without justifiable
cause at the trial of which he had notice shall
be considered a waiver of his right to be present
thereat.
When an accused under custody escapes, he
shall be deemed to have waived his right to be
present on all subsequent trial dates until
custody over him is regained. Upon motion, the
accused may be allowed to defend himself in
person when it sufficiently appears to the court
that he can properly protect his rights without
the assistance of counsel.
(d) To testify as a witness in his own behalf but
subject to cross-examination on matters
covered by direct examination. His silence shall
not in any manner prejudice him.
(e) To be exempt from being compelled to be a
witness against himself.
(f) To confront and cross-examine the witnesses
against him at the trial. Either party may utilize
as part of its evidence the testimony of a
witness who is deceased, out of or cannot with
due diligence be found in the Philippines,
unavailable, or otherwise unable to testify,
given in another case or proceeding, judicial or
administrative, involving the same parties and
subject matter, the adverse party having the
opportunity to cross-examine him.
(g) To have compulsory process issued to secure the
attendance of witnesses and production of other
evidence in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the manner
prescribed by law.
1. Criminal Due Process

Requisites [People vs. Vera (1937)]
(1) Accused is heard by a court of competent
jurisdiction;
(2) Accused is proceeded against under the

orderly process of law;
(3) Accused is given notice and opportunity to
be heard;
(4) Judgment rendered is within the authority
of a constitutional law. (Mejia vs. Pamaran,
1988)
2. Bail
Sec. 13, Art. III. All persons, except those charged
with offenses punishable by reclusion perpetua when
the evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law.
The right to bail shall not be impaired even when
the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
Definition [Sec. 1, Rule 114, ROC]
Bail is the security given for the release of a person
in custody of the law, furnished by him or a
bondsman, conditioned upon his appearance before
any court as may be required.
Before conviction, every person is bailable except if
charged with capital offenses when the evidence of
guilt is strong. Such a right flows from the
presumption of innocence in favor of every accused
who should not be subjected to the loss of freedom
as thereafter he would be entitled to acquittal,
unless his guilt be proved beyond reasonable doubt.
[Dela Camara vs. Enage (1971)]
The military men who participated in the failed coup
d etat should be denied release on bail. The
argument that denial from the military of the right
to bail would violate the equal protection clause is
not acceptable, given that the officers and members
of the military are not similarly situated with others.
They are allowed a fiduciary use of firearms and can
easily continue their insurgent activities against the
government. National security considerations should
impress upon the Court that release on bail of
respondents constitutes a damaging precedent.
[Comendador vs. De Villa (1991)]
It has not been alleged that the persons to be
arrested for their alleged participation in the
"rebellion" on May 1, 2001 are members of an
outlawed organization intending to overthrow the
government. Therefore, to justify a warrantless
arrest under Section 5(a), there must be a showing
that the persons arrested or to be arrested has
committed, is actually committing or is attempting
to commit the offense of rebellion. In other words,
there must be an overt act constitutive of rebellion
taking place in the presence of the arresting officer.
This requirement was not complied with particularly
in the arrest of Senator Enrile. In the Court's
Resolution of May 5, 2001 in the petition for habeas
corpus filed by Senator Enrile, the Court noted that
the sworn statements of the policemen who
purportedly arrested him were hearsay. Senator
10
7
Enrile was arrested two (2) days after he delivered
allegedly seditious speeches. Consequently, his
arrest without warrant cannot be justified under
Section 5(b) which states that an arrest without a
warrant is lawful when made after an offense has
just been committed and the arresting officer or
private person has probable cause to believe based
on personal knowledge of facts and circumstances
that the person arrested has committed the offense.
Since the evidence in this case is hearsay, the
evidence of guilt is not strong, bail is allowed.
[Enrile vs. Perez (En Banc Resolution, 2001)]
Bail as a Matter of Right vs. Matter of

Discretion
Matter of right
Bail is a matter of right
in
all
cases
not
punishable by reclusion
perpetua.
Matter of Discretion
1. In case the evidence
of guilt is strong. In such
a case, according to
People vs. San Diego
(1966),
the
court's
discretion to grant bail
must be exercised in the
light of a summary of the
evidence presented by
the prosecution.
Thus, the order granting
or refusing bail must
contain a summary of
the evidence for the
prosecution followed by
the
conclusion
on
whether or not the
evidence of guilt is
strong (Note: it is not
the existence of guilt
itself
which
is
concluded
but
the
strength
of
the
probability that guilt
exists).
2.
In
extradition
proceedings. Extradition
courts do not render
judgments of conviction
or acquittal so it does
not matter WON the
crimes the accused is
being extradited for is
punishable by reclusion
perpetua [US Govt. vs.
Judge Puruganan and
Mark Jimenez (2002)]
When Available
General rule: From the very moment of arrest
(which may be before or after the filing of formal
charges in court) up to the time of conviction by
final judgment (which means after appeal).

No charge need be filed formally before one can file
for bail, so long as one is under arrest. [Heras
Teehankee vs. Rovica (1945)]
Arraignment of the accused is not essential to the
approval of the bail bond. When bail is authorized, it
should be granted before arraignment. Otherwise
the accused may be precluded from filing a motion
to quash. Also, the court will be assured of the
presence of the accused at the arraignment
precisely by grating bail and ordering his presence at
any stage of the proceeding. [Lavides vs CA (2000)]
Exceptions:
(1) When charged with an offense punishable
by reclusion perpetua.
(2) Traditionally, the right to bail is not
available to the military, as an exception to
the bill of rights. [People v. Reyes, 212
SCRA 402]
Standards for Fixing Bail

RULE 114. Sec. 9. Amount of bail; guidelines.
The judge who issued the warrant or granted the
application shall fix a reasonable amount of bail
considering primarily, but not limited to, the
following factors:
(a) Financial liability of the accused to give bail;
(b) Nature and circumstance of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the
trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from
justice when arrested; and
(j) Pendency of other cases where the accused is on
bail.
Excessive bail shall not be required.
The constitution prohibits excessive bail. Where
the lower court fixed bail at P 1, 195, 200.00, it
rendered the right to bail nugatory.
"Discretion is with the court called upon to rule on
the question of bail. We must stress, however, that
where conditions imposed upon a defendant seeking
bail would amount to a refusal thereof and render
nugatory the constitutional right to bail, we will not
hesitate to exercise our supervisory powers to
provide the required remedy. [Dela Camara v. Enage
(1971)]
STANDARDS FOR FIXING BAIL: Guidelines in the
fixing of bail are: (1) ability of the accused to give
bail; (2) nature of the offense; (3) penalty for the
offense charged; (4) character and reputation of the
accused; (5) health of the accused; (6) character and
strength of the evidence; (7) probability of the
accused appearing in trial; (8) forfeiture of other
bonds; (9) whether the accused was a fugitive from
justice when arrested; and (10) if the accused is
10
8
under bond for appearance at trial in other cases."

[Villaseor vs. Abano (1967)]
These rights cannot be waived except in writing and

in the presence of counsel.
Right to Bail and Right to Travel Abroad
It means the accused is amply accorded legal

assistance extended by a counsel who commits
himself to the cause of the defense and acts
accordingly. It is an efficient and truly decisive legal
assistance, and not simply a perfunctory
representation. [People v. Bermas, G.R. No. 120420,
April 21, 1999]
The main issue in this case is WON a person facing a

criminal indictment and provisionally released on
bail have an unrestricted right to travel. The Court
held that the constitutional right to travel being
invoked by petitioner is not an absolute right.
Section 5, Article IV of the 1973 Constitution states:
The liberty of abode and of travel shall not be
impaired except upon lawful order of the court, or
when necessary in the interest of national security,
public safety or public health.
The Court considered the order of the TC releasing
petitioner on bail as a lawful order contemplated by
the above-quoted constitutional provision. [Manotok
vs CA (1986)]
3. Presumption of Innocence
The requirement of proof beyond reasonable doubt
is a necessary corollary of the constitutional right to
be presumed innocent. [People vs. Dramavo (1971)]
The accused cannot present evidence before the
prosecution does so, even if the accused pleads
guilty. It violates the presumption of innocence.
[Alejandro vs. Pepito (1980)]
The presumption of regularity (in official duties)
cannot by itself prevail over the presumption of
innocence of the accused. But where it is not the
sole basis for conviction, the presumption of
regularity of performance of official functions may
prevail over the constitutional presumption of
innocence. [People vs. Acuram (2000)]
EQUIPOISE RULE: Where the evidence adduced by
the parties is evenly balanced, the constitutional
presumption of innocence should tilt the balance in
favor of the accused. [Corpuz vs. People (1991)]
In order that circumstantial evidence may warrant
conviction, the following requisites must concur:
(1) There is more than one circumstance
(2) The facts from which the inferences are
derived are proven
(3) The combination of all the circumstances is
such as to produce conviction beyond
reasonable doubt. [People v. Bato, G.R. No.
113804, January 16, 1998]
4. Right to be Heard
SEC. 12, ART. III. 1987 CONSTITUTION.
1. Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel preferably of
his own choice. If the person cannot afford the
services of counsel, he must be provided with one.
5. Assistance of Counsel
RA 7438. Rights of Persons under Custodial
Investigation. SEC. 2. Rights of Persons Arrested,
Public Officers. (a) Any person arrested detained
or under custodial investigation shall at all times
be assisted by counsel;
Elements of the Right to Counsel
(1) Courts duty to inform the accused of right
to counsel before being arraigned;
(2) It must ask him if he desires the services of
counsel;
(3) If he does, and is unable to get one, the
Court must give him one; if the accused
wishes to procure private counsel, the
Court must give him time to obtain one.
(4) Where no lawyer is available, the Court may
appoint any person resident of the province
and of good repute for probity and ability.
6. Right to be Informed
Procedural due process requires that the accused
must be informed why he is being prosecuted and
what charge he must meet. [Vera vs. People, supra]
7. Right to Speedy, Impartial and

Public Trial
ART. III. SEC. 16. All persons shall have the right to
a speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies.
ART. III. SEC. 3. Civilian authority is, at all times,
supreme over the military. xxx
Sec. 10. Law on speedy trial not a bar to
provision on speedy trial in the Constitution No
provision of law on speedy trial and no rule
implementing the same shall be interpreted as a bar
to any charge of denial of the right to speedy trial
guaranteed by Section 14(2), Article III, of the 1987
Constitution.
IMPARTIAL TRIAL: A civilian cannot be tried by a
military court so long as the civil courts are open
and operating, even during Martial Law. [Olaguer vs.
Military Commission (1987)]
10
9
Dismissal based on the denial of the right to speedy
trial amounts to an acquittal.
[Acevedo
vs.
Sarmiento (1970)]
Note: RA 8493 provides: a 30-day arraignment
within the filing of the information or from the date
the accused appeared before the court; trial shall
commence 30 days from the arraignment, as fixed by
the court. The entire trial period shall not exceed
180 days, except as otherwise authorized by the SC
Chief Justice.
The right to a speedy trial is violated only when the
proceeding is attended by vexatious, capricious and
oppressive
delays,
or
when
unjustified
postponements of the trial are asked for and
secured, or when without cause or justifiable
motive, a long period of time is allowed to elapse
without the party having his case tried. [dela Rosa v.
Court of Appeals, 253 SCRA 499; Tai Lim v. Court of
Appeals, G.R. No. 131483, October 26, 1999]
The different interests of the defendant which the
right to speedy trail are designed to protect are:
(1) To
prevent
oppressive
pre-trail
incarceration,
(2) To minimize anxiety and concern of the
accused,
(3) To limit the possibility that the defense will
be impaired.
But the right to speedy trail cannot be invoked
where to sustain the same would result in a clear
denial of due process to the prosecution. In essence,
the right to a speedy trial does not preclude the
peoples equally important right to public justice.
[Uy v. Hon. Adriano, G.r. No. 159098, October 27,
2006]
RA 8493 is a means of enforcing the right of the
accused to a speedy trial. The spirit of the law is
that the accused must go on record in the attitude
of demanding a trial or resisting delay. If he does not
do this, he must be held, in law, to have waived the
privilege. [Uy v. Hon. Adriano, G.R. No. 159098,
October 27, 2006]
8. Right of Confrontation
This is the basis of the right to cross-examination.
Testimony of a witness who has not submitted
himself to cross examination is not admissible in
evidence. The affidavits of witnesses who are not
presented during the trial, hence not subjected to
cross examination, are inadmissible because they are
hearsay. [People v. Quidate, G.R. No. 117401,
October 1, 1998; Cariago v. Court of Appeals, G.R.
No. 143561, June 6, 2001]
9. Compulsory Process
(1) Right to Secure Attendance of Witness
(2) Right to Production of Other Evidence

Subpoena is a process directed to a person requiring
him to attend and to testify at the hearing or trial of
an action or at any investigation conducted under
the laws of the Philippines, or for the taking of his
deposition. [Caamic v. Galapon, 237 SCRA 390]
Before a subpoena duces tecum may issue, the court
must first be satisfied that the following requisites
are present:
(1) The books, documents or other things
requested must appear prima facie relevant
to the issue subject of the controversy (test
of relevancy), and
(2) Such books must be reasonably described by
the parties to be readily identified (test of
definiteness). [Roco v. Contreras, G.R. No.
158275, June 28, 2005]
10. Trials In Absentia

WHEN CAN TRIAL IN ABSENTIA BE DONE: Accused
failed to appear for trial despite postponement and
notice to his bondsmen. The Court then allowed
prosecution to present evidence despite the fact
that accused had not been arraigned. Petitioner was
found guilty. The issue is WON the court has
jurisdiction. The Court held that because accused
was not arraigned, he was not informed of the
nature and cause of accusation against him,
Therefore, the Court has no jurisdiction. The
indispensable requisite for trial in absentia is that it
should come after arraignment. [Borja vs. Mendoza
(1977)]
After arraignment, during which accused pleaded
not guilty, case was set for hearing but the accused
escaped. He was tried in absentia. Lower court held
the proceedings against him in abeyance to give him
the opportunity to cross examine witnesses against
him and present his evidence.
The Court held that abeyance of proceedings was
invalid. Such right to cross examine and present
evidence on his behalf is waived by failure to appear
during the trial of which he had notice. [Gimenez vs.
Nazareno (1988)]
When Presence of the Accused is a DUTY
(1) Arraignment and Plea
(2) During Trial, for identification
(3) Promulgation of Sentence
(Exception: Light offense -> can be via counsel)
Petitioner challenges the jurisdiction of military
commissions to try him (for murder, illegal
possession of firearms and for violation of the AntiSubversion Act) arguing that he being a civilian, such
trial during martial law deprives him of his right to
due process.
An issue has been raised as to WON petitioner could
waive his right to be present during trial.
On a 7-5 voting: SEVEN justices voted that petitioner
may waive his right to be present at ALL stages of
the proceedings while FIVE voted that this waiver is
11
0
qualified, he cannot waive when he is to be
identified.
Trial in Absentia: As a general rule, subject to
certain exceptions, any constitutional or statutory
right may be waived if such waiver is not against
public policy.
Considering Art IV, Sec 19, 1973 Constitution (trial
of a capital offense may proceed even in the
absence of the accused) and the absence of any law
specifically requiring his presence at all stages of his
trial, there appears, no logical reason why
petitioner, although he is charged with a capital
offense, should be precluded from waiving his right
to be present in the proceedings for the
perpetuation of testimony, since this right was
conferred upon him for his protection and benefit.
[Aquino vs. Military Commission (1975)]
Q. Writ of Habeas Corpus

Habeas Corpus
SEC. 15. ART. III. 1987 CONSTITUTION
The privilege of the writ of habeas corpus shall not
be suspended except in cases of invasion or rebellion
when the public safety requires it.
SEC. 18. ART. VII. 1987 CONSTITUTION
The President shall be the Commander-in-Chief of
all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence,
invasion or rebellion.
In case of invasion or rebellion, when the public
safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any
part thereof under martial law.
Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special
session, may revoke such proclamation or
suspension, which revocation shall not be set aside
by the President.
Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation
or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist
and public safety requires it.
The Congress, if not in session, shall, within twentyfour hours following such proclamation or
suspension, convene in accordance with its rules
without need of a call.

The Supreme Court may: 1) review, 2) in an
appropriate proceeding; 3) filed by any citizen, 4)
the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and 5)
must promulgate its decision thereon within thirty
days from its filing.
A state of martial law does not suspend the
operation of the Constitution, nor supplant the
functioning of the civil courts or legislative
assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall
apply only to persons judicially charged for
rebellion or offenses inherent in or directly
connected with invasion.
A prime specification of an application for a writ of
habeas corpus is restraint of liberty.
The essential object and purpose of the writ of
habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary,
and to relieve a person therefrom if such restraint is
illegal. Any restraint which will preclude freedom of
action is sufficient.
The forcible taking of these women from Manila by
officials of that city, who handed them over to other
parties, who deposited them in a distant region,
deprived these women of freedom of locomotion
just as effectively as if they had been imprisoned.
Placed in Davao without either money or personal
belongings, they were prevented from exercising the
liberty of going when and where they pleased.
The restraint of liberty which began in Manila
continued until the aggrieved parties were returned
to Manila and released or until they freely and truly
waived his right.
The true principle should be that, if the respondent
is within the jurisdiction of the court and has it in
his power to obey the order of the court and thus to
undo the wrong that he has inflicted, he should be
compelled to do so. Even if the party to whom the
writ is addressed has illegally parted with the
custody of a person before the application for the
writ is no reason why the writ should not issue.
[Villavicencio vs. Lukban (1919)]
Petitioners were arrested without warrants and
detained, upon the authority of Proclamation 889
(Which suspended the privilege of the Writ of Habeas
Corpus) and subsequently filed a petition for writ of
habeas corpus, assailing the validity of the said
Proclamation and their detention.
The Court upheld the violation of the Proclamation
and dismissed the petitions. The Supreme Court held
that the authority to suspend the privilege of the
writ is circumscribed, confined and restricted, not
11
1
only by the prescribed setting or the conditions
essential to its existence, but, also, as regards the
time when and the place where it may be exercised.
Thus, the Court has the authority to inquire into the
existence of the factual bases for the proclamation
in order to determine its constitutional sufficiency.
The test for such judicial inquiry is whether or not
the Executive acted arbitrarily in issuing the
Proclamation. The test is not correctness, but
arbitrariness.
For the suspension of the privilege of the writ to be
valid, (a) there must be "invasion, insurrection or
rebellion" or, pursuant to paragraph (2), section 10
of Art. VII of the Constitution, "imminent danger
thereof"; and (b) public safety must require the
aforementioned suspension. The President declared
in Proclamation No. 889, as amended, that both
conditions are present, and the Supreme Court
agreed. The President did not act arbitrarily; the
Court acknowledged the existence of a sizeable
group of men (Communists and the NPA) who have
publicly risen in arms to overthrow the government
and have thus been and still are engaged in rebellion
against the Government of the Philippines. [Lansang
vs. Garcia (1971)]
It is not physical restraint alone which can be
inquired into by means of the writ of habeas corpus.
In this case, the petition is valid as petitioners
temporary release from detention is accompanied
with restrictions w/ the ff effects: 1) curtailed
freedom of movement by the condition that he must
get approval of respondents for any travel outside
Metro Manila, 2) abridged liberty of abode because
prior approval of respondent is required in case
petitioner wants to change place of residence, 3)
abridged freedom of speech due to prohibition from
taking any interviews inimical to national security,
and 4) petitioner is required to report regularly to
respondents or their reps. [Moncupa vs. Enrile
(1986)]
It being undeniable that if the Hernandez ruling
were to be given retroactive effect, petitioners had
served the full term for which they could have been
legally committed, is habeas corpus the appropriate
remedy?
YES. Cruz vs. Director of Prisons (1910): "The courts
uniformly hold that where a sentence imposes
punishment in excess of the power of the court to
impose, such sentence is void as to the excess. The
rule is that the petitioner is not entitled to his
discharge on a writ of habeas corpus unless he has
served out so much of the sentence as was valid."
While the above decision speaks of a trial judge
losing jurisdiction over the case, insofar as the
remedy of habeas corpus is concerned, the emphatic
affirmation that it is the only means of benefiting
the accused by the retroactive character of a
favorable decision holds true. Petitioners clearly
have thus successfully sustained the burden of
justifying their release. [Gumabon vs. Director of
Prisons (1971)]
Sombong claims that she is the mother of the child

Christina, who is under the custody of Neri, and filed
a petition for the issuance of the writ of habeas
corpus. The Supreme Court denied the petition.
In order to justify the grant of the writ of habeas
corpus, the restraint of liberty must be in the nature
of an illegal and involuntary deprivation of freedom
of action. However, habeas corpus may still be
resorted to even if the restraint is voluntary in cases
where the rightful custody of any person is withheld
from the person entitled thereto. The said writ is
the proper legal remedy to enable parents to regain
the custody of a minor child even if the child is in
the custody of a third person of her own free will.
Sombong does not have the right of custody over the
child, because the evidence adduced does not
warrant the conclusion that Christina is the same
person as her child Arabella. [Sombong vs. CA
(1990)]
Larkins was arrested after a certain Alinea filed a
complaint-affidavit for rape against him before the
NBI. There was no warrant. A complaint for rape was
subsequently filed before the RTC. His common-law
wife filed a petition for habeas corpus.
The Supreme Court held that even if the arrest of a
person is illegal, supervening events may bar his
release or discharge from custody. The court must
thus look into the legality of his detention as of, at
the earliest, the filing of the application for a writ of
habeas corpus, for even if the detention is at its
inception illegal, it may, by reason of some
supervening events, such as the instances mentioned
in Section 4 of Rule 102, be no longer illegal at the
time of the filing of the application. Among such
supervening events are:
(1) The issuance of a judicial process
preventing the discharge of the detained
person.
(2) Another is the filing of a complaint or
information for the offense for which the
accused is detained.
By then, the restraint of liberty is already by virtue
of the complaint or information and, therefore, the
writ of habeas corpus is no longer available.
Section 4 of Rule 102 reads in part as follows: "Nor
shall anything in this rule be held to authorize the
discharge of a person charged with or convicted an
offense in the Philippines." It may also be said that
by filing his motion for bail, Larkins admitted that he
was under the custody of the court and voluntarily
submitted his person to its jurisdiction. [Velasco vs.
CA (1995)]
R. Writ of Amparo
Definition
The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty
11
2
and security is violated or threatened with violation
by an unlawful act or omission of a public official or
employee, or of a private individual or entity. [Sec.
1, The Rule on the Writ of Amparo]
Basis
The Supreme Court shall have the following powers:
xxx (5) Promulgate rules concerning the protection
and enforcement of constitutional rights, xxx. Such
rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall
be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive
rights. xxx [Sec. 5, Art. VIII, 1987 Consti]
Petition for Writ

Form
The petition shall be signed and verified. [Sec. 5]
Contents
The petition shall allege the following:
(a) The personal circumstances of the
petitioner
(b) The name and personal circumstances of
the respondent responsible for the threat,
act or omission, or, if the name is unknown
or uncertain, the respondent may be
described by an assumed appellation
(c) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of
the respondent, and how such threat or
violation is committed with the attendant
circumstances detailed in supporting
affidavits
(d) The investigation conducted, if any,
specifying
the
names,
personal
circumstances, and addresses of the
investigating authority or individuals, as
well as the manner and conduct of the
investigation, together with any report
(e) The actions and recourses taken by the
petitioner to determine the fate or
whereabouts of the aggrieved party and the
identity of the person responsible for the
threat, act or omission
(f) The relief prayed for.
The petition may include a general prayer for other
just and equitable reliefs. [Sec. 5]
Where to file
The petition may be filed on any day and at any time
[Sec. 3]
Filing
RTC
of
the
place
where
the threat, act
or omission was
committed or
any
of
its
elements
occurred
Sandiganbayan
or any of its
Enforceability
Returnable
Before
the
issuing court or
judge
Anywhere
in
the Philippines
(1) Before the
issuing court or
justices
Court
of
Appeals or any
of its justices
SC or any of its
justices
any
justice
thereof, OR
(2) Any RTC of
the
place
where
the
threat, act or
omission was
committed or
any
of
its
elements
occurred
(1) Before the
issuing court or
any
justice
thereof
(2) Before the
Sandiganbayan
or CA or any of
their justices,
OR
(3) Any RTC of
the
place
where
the
threat, act or
omission was
committed or
any
of
its
elements
occurred
Docket fees
The petitioner shall be exempted from the payment
of the docket and other lawful fees when filing the
petition. The court, justice or judge shall docket
the petition and act upon it immediately. [Sec. 4]
Return
Within 72 hours after service of the writ, the
respondent shall file a verified written return
together with supporting affidavits which shall,
among other things, contain the following:
(a) The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and
security of the aggrieved party, through any
act or omission
(b) The steps or actions taken by the
respondent to determine the date or
whereabouts of the aggrieved party and the
person/s responsible for the threat, act or
omission
(c) All relevant information in the possession of
the respondent pertaining to the threat, act
or omission against the aggrieved party
(d) If the respondent is a public official or
employee, the return shall further state the
actions that have been or will still be taken:
(i) To verify the identity of the
aggrieved party
(ii) To recover and preserve evidence
related
to
the
death
or
disappearance of the person
identified in the petition which
may aid in the prosecution of the
person/s responsible
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(iii) To identify witnesses and obtain
statements from them concerning
the death or disappearance
(iv) To determine the cause, manner,
location and time of death or
disappearance as well as any
pattern or practice that may have
brought about the death or
disappearance
(v) To identify and apprehend the
person/s involved in the death or
disappearance
(vi) To bring the suspected offenders
before a competent court.
The return shall also state other matters relevant to
the investigation, its resolution and the prosecution
of the case.
A general denial of the allegations in the petition
shall not be allowed. [Sec. 9]
Hearing
The hearing on the petition shall be summary.
However, the court, justice or judge may call for a
preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations
and admissions from the parties.
The hearing shall be from day to day until completed
and given the same priority as petitions for habeas
corpus. [Sec. 13]
Burden of proof
The parties shall establish their claims by substantial
evidence.
The respondent who is a private individual or entity
must prove that ordinary diligence as required by
applicable laws, rules and regulations was observed
in the performance of duty.
The respondent who is a public official or employee
must prove that extraordinary diligence as required
by applicable laws, rules and regulations was
observed in the performance of duty.
The respondent public official or employee cannot
invoke the presumption that official duty has been
regularly performed to evade responsibility or
liability. [Sec. 17]
The Manalo brothers were abducted, detained, and
tortured repeatedly by the military. After their
escape, they filed a petition for the privilege of the
Writ of Amparo. The Supreme Court granted the
petition and held that there was a continuing
violation of the Manalos right to security.
Considering that they only escaped from captivity
and have implicated military officers, there is still a
threat to their lives, liberty, and security. The
threat vitiates their free will and they are forced to
limit their movements and activities. The
government also failed to provide them protection
because the military themselves perpetrated the
abduction, detention, and torture. The government
also failed to provide an effective investigation.
As regards the relief granted, the Court held that

the production order under the Amparo rule is
different from a search warrant and may be likened
to the production of documents or things under
Rule27.1, ROC.
They also said that the disclosure of the present
places of assignment of the implicated military
officers would not jeopardize the exercise of the
military functions of the officers. Such disclosure is
relevant in ensuring the safety of the Manalo
brothers. [Secretary of National Defense vs. Manalo
(2008)]
S. Self-Incrimination Clause
1. Scope and Coverage
2. Application
3. Immunity Statutes
1. Scope and Coverage

Sec. 17, Art. 3. No person shall be compelled to be
a witness against himself.
Only applies to compulsory testimonial, and doesnt
apply to material objects [Villaflor vs. Summers
(1920)]
It refers therefore to the use of the mental process
and the communicative faculties, and not to a
merely physical activity.
If the act is physical or mechanical, the accused can
be compelled to allow or perform the act, and the
result can be used in evidence against him.
Examples
(1) Handwriting
in
connection
with
a
prosecution for falsification is NOT allowed,
for this involves the use of the mental
processes [Beltran vs. Samson, 53 Phil 570;
Bermudez vs. Castillo (1937)]
(2) Re-enactment of the crime by the accused
is NOT allowed, for this also involves the
mental process.
(3) The accused can be required to allow a
sample of a substance taken from his body
[U.S. vs. Tan The (1912)], or be ordered to
expel the morphine from his mouth [U.S. vs.
Ong Sio Hong (1917)]
(4) Accused may be made to take off her
garments and shoes and be photographed
[People vs. Otadura, 96 Phil 244, 1950];
compelled to show her body for physical
investigation to see if she is pregnant by an
adulterous relation [Villaflor vs. Summers
(1920)]
(5) Order to give a footprint sample to see if it
matches the ones found in the scene of the
crime is allowed [People vs. Salas and
People vs. Sara]
Foreign Laws
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The privilege which exists as to private papers,
cannot be maintained in relation to records
required by law to be kept in order that there may
be suitable information of transactions which are the
appropriate subjects of governmental regulation and
the enforcement of restrictions validly established.
[Shapiro v. US (1948)]
In recent cases, the US Supreme Court has struck
down certain registration requirements that
presented real and appreciable risk of selfincrimination. These involved statues directed at
inherently suspect groups in areas permeated by
criminal statutes, a circumstance which laid the
subjects open to real risk of self-incrimination.
[BERNAS]
The great majority of persons who file income tax
returns do not incriminate themselves by disclosing
their
occupation.
The
requirement
that
such returns be completed and filed simply does not
involve the compulsion to incriminate considered in
Mackey. [US v. Sullivan (1927)]
(8) Grant immunity from prosecution to any person

whose testimony or whose possession of
documents or other evidence is necessary or
convenient to determine the truth in any
investigation conducted by it or under its
authority;
Use and Fruit of Immunity

Use immunity prohibits use of a witness
compelled testimony and its fruits in any manner in
connection with the criminal prosecution of the
witness. On the other hand, transactional
immunity grants immunity to witness from
prosecution for an offense to which his compelled
testimony relates. [Galman vs. Pamaran (1985)]
T. Involuntary Servitude and

Political Prisoners
2. Application
SEC. 18, ART. III.

(1) No person shall be detained solely by reason of
his political beliefs and aspirations.
GENERAL RULE: The privilege is available in any

proceedings, even outside the court, for they may
eventually lead to a criminal prosecution.
(2) No involuntary servitude in any form shall exist

except as a punishment for a crime whereof the
party shall have been duly convicted.
It extends to administrative proceedings which

possess a criminal or penal aspect. A doctor who was
being investigated by a medical board for alleged
malpractice who would lose his license if found
guilty, could not be compelled to take the witness
stand without his consent. [Pascual vs. Board of
Medical Examiners (1969)]
Involuntary Servitude
It extends to a fact-finding investigation by an ad

hoc body. A person can be compelled to testify
provided he is given immunity co-extensive with the
privilege against self-incrimination [Galman vs.
Pamaran (1985)]
The term of broadest scope is possibly involuntary

servitude. It has ben applied to any servitude in fact
involuntary, no matter under what form such
servitude may have been disguised. [Bailey v.
Alabama (1910) in Rubi v. Provincial Board of
Mindoro (1919)]
Effect of Denial of Privilege

EXCLUSIONARY RULE under SEC. 17, ART. III in
relation to SEC. 12: When the privilege against selfincrimination is violated outside of court (e.g.
police), then the testimony, as already noted, is not
admissible.
OUSTED OF JURISDICTION: When the privilege is
violated by the Court itself, that is, by the judge,
the court is ousted of its jurisdiction, all its
proceedings, and even judgment are null and void.
[Chavez vs. CA (1968)]
3. Immunity Statutes
Transactional Immunity
ART. XIII. SEC. 18. 1987 CONSTITUTION.
The Commission on Human Rights shall have the
following powers and functions: xxx
Slavery and involuntary servitude, together with

their corollary peonage, all denote a condition of
enforced, compulsory service of one to another.
[Hodges v. US (1906) in Rubi v. Provincial Board of
Mindoro (1919)]
A private person who contracts obligations of this

sort toward the Army cannot, by law that we know
of, either civil or military be compelled to fulfill
them by imprisonment and deportation from his
place of residence, we deem it wholly improper to
sustain such means of compulsion which are not
justified either by law or by the contract. [In Re
Brooks (1901)]
While the constitutional prohibition operated to
nullify agreements violative of it, suppletory
legislation was required to give the prohibition penal
effect. [US v. Cabanag (1907)]
Domestic services are always to be remunerated,
and no agreement may subsist in law in which it is
stipulated that any domestic service shall be
absolutely gratuitous, unless it be admitted that
slavery may be established in this country through a
covenant entered into between interested parties.
[de los Reyes v. Alojado (1910)]
11
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A former court stenographer may be compelled
under pain of contempt to transcribe stenographic
notes he had failed to attend to while in service. x x
x such compulsion is not the condition of enforced
compulsory service referred to by the Constitution.
Fernando, J. concurring opinion:
The matter could become tricky should a
stenographer stubbornly refuse to obey and the
court insist on keeping him in jail. The detention
could then become punitive and give rise to the
issue of involuntary servitude. [Aclaracion v.
Gatmaitan (1975)]
Political Prisoners
Although they may also be considered as military
prisoners as indicated in the second "Whereas", are
in fact civil prisoners, accused of offenses of
political character, not amenable to military justice
but to the ordinary administration of justice in civil
courts.
If the petitioners are political prisoners subject to
the civil jurisdiction of ordinary courts of justice if
they are to be prosecuted at all, the army has no
jurisdiction, nor power, nor authority, from all legal
standpoints, to continue holding them in restraint.
They are entitled, as a matter of fundamental right,
to be immediately released, any allegation as to
whether the war was ended or not. [Raquiza v.
Bradford (1945)]
Sec. 19 of CA No. 682 authorizes that the political
prisoners in question "may be released on bail, even
prior to the presentation of the corresponding
information," and this may be done "existing
provisions of law to the contrary notwithstanding."
We must assume that the discretion granted must be
construed in the sense that the same may be
exercised in cases wherein it was not heretofore
granted by law. And it is reasonable to assume that
the discretion granted is to the effect that the
People's Court may exercise jurisdiction to order the
release on bail of political prisoners "even prior to
the presentation of the corresponding information."
[Duran v. Abad Santos (1945)]
Petitioner has also contended that his arrest was
partly motivated by political reasons, and has
endeavored to show that, due to his oratorical
ability, he became very popular and contributed "to
the bad licking" of political opponents in Davao.
Petitioner also called our attention to the fact that
of the thousands of other prisoners who were
released by the Japanese by pardon or otherwise, no
one except him has been re-arrested. Thus,
Camasura
was
released
from
confinement.
[Camasura v. Provost Marshal (1947)]

Inhuman Punishments

1. Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted.
Neither shall death penalty be imposed, unless,
for compelling reasons involving heinous crimes,
the Congress hereafter provides for it. Any
death penalty already imposed shall be reduced
to reclusion perpetua.
2. The employment of physical, psychological, or
degrading punishment against any prisoner or
detainee or the use of substandard or
inadequate penal facilities under subhuman
conditions shall be dealt with by law.
In this case the Court took into account, in lowering
the penalty to reclusion perpetua of the accused
most of whom were already death row convicts, the
deplorable sub-human conditions of the National
Penitentiary where the crime was committed.
[People vs. dela Cruz (1953)]
RA 9346 (June 24, 2006): An Act Prohibiting the
Imposition of Death Penalty in the Philippines:
Sec. 1. The imposition of the penalty of death is
hereby prohibited. Accordingly, R.A. No. 8177,
otherwise known as the Act Designating Death by
Lethal Injection is hereby repealed. R.A. No. 7659,
otherwise known as the Death Penalty Law, and all
other laws, executive orders and decrees, insofar as
they impose the death penalty are hereby repealed
or amended accordingly.
The import of the grant of power to Congress to
restore the death penalty requires: (1) that Congress
define or describe what is meant by heinous crimes;
(2) that Congress specify and penalize by death, only
crimes that qualify as heinous in accordance with
the definition or description set in the death penalty
bill and/or designate crimes punishable by reclusion
perpetua to death in which latter case, death can
only be imposed upon the attendance of
circumstances duly proven in court that characterize
the crime to be heinous in accordance with the
definition or description set in the death penalty
bill; and (3) that Congress, in enacting this death
penalty bill be singularly motivated by compelling
reasons involving heinous crimes.
For a death penalty bill to be valid, a positive
manifestation in the form of higher incidence of
crime should first be perceived and statistically
proven following the suspension of the death penalty
[is not required in Sec. 19 (1)]. Neither does the said
provision require that the death penalty be resorted
to as a last recourse when all other criminal reforms
have failed to abate criminality in society. [People
v. Echegaray (1997)]
The Golez resolution, signed by 113 congressman as
of January 11, 1999 (House Resolution No. 629
introduced
by
Congressman
Golez
entitled
"Resolution expressing the sense of the House of
Representatives to reject any move to review R.A.
No. 7659, which provided for the re-imposition of
death penalty, notifying the Senate, the Judiciary
11
6
and the Executive Department of the position of the
House of Representative on this matter and urging
the President to exhaust all means under the law to
immediately implement the death penalty law.")
House Resolution No. 25 expressed the sentiment
that the House ". . . does not desire at this time to
review Republic Act 7659." In addition, the President
has stated that he will not request Congress to ratify
the Second Protocol in review of the prevalence of
heinous crimes in the country. [Echegaray v.
Secretary (1998)]
To be prohibited by this provision the punishment
must not only be unusual but it must also be cruel.
There is no reason why unusual punishments which
were not cruel should have been prohibited. If that
had been done it would have been impossible to
change the punishments that existed when the
Constitution was adopted. A law which changes a
penalty so as to make it less severe would be
unconstitutional if the new penalty were an unusual
one.
Punishments are cruel when they involve torture or a
lingering death; but the punishment of death is not
cruel, within the meaning of that word as used in
the Constitution. It implies there something inhuman
and barbarous, something more than the mere
extinguishment of life. The constitutional limit must
be reckoned on the basis of the nature and mode of
punishment measured in terms of physical pain.
[Legarda v. Valdez (1902)]
Cruel and unusual as found in the Constitution, do
not have the same meaning as clearly excessive
found in Article 5 of the Penal Code. It takes more
than merely being harsh, excessive, out of
proportion, or severe for a penalty to be obnoxious
to the Constitution. The fact that the punishment
authorized by the statute is severe does not make it
cruel and unusual. x x x the punishment must be
flagrantly and plainly oppressive, wholly
disproportionate to the nature of the offense as to
shock the moral sense of the community [for it to be
banned]. [People v. Estoista (1953)]
Sec 19 (2) as worded, already embodies
constitutional authorization for the Commission on
Human Rights to take action in accordance with Art
XIII Sec 18. There is a command addressed to
Congressed to pass whatever civil or penal
legislation might be required for the subject.
[BERNAS]
V. Non-Imprisonment for Debts

ART. III. SEC. 20. 1987 CONSTITUTION
No person shall be imprisoned for debt or nonpayment of a poll tax.
Santos refused to pay 16 pesos for Ramirezs cedula
as payment for what Santos owed Ramirez. Thus,
Ramirez was convicted and imprisoned for estafa.
Upon demand for release, the Court held that the
imprisonment was correct since it was for estafa and
not involuntary servitude or imprisonment for debt.

[Ramirez v. de Orozco (1916)]
The obligation incurred by the debtor, as shown by
the receipt, was yp [ay an ordinary contractual
obligation. Since the guardianship proceeding was
civil in nature, the Court did not allow enforcement
of the civil obligation by an order of imprisonment.
[In re Tamboco (1917)]
No person may be imprisoned for debt in virtue of a
civil proceeding. [Makapagal v. Santamaria (1930)]
A person may be imprisoned as a penalty for a crime
arising from a contractual debt and imposed in a
proper criminal proceeding. Thus, the conversion of
a criminal fine into a prison term does not violate
the provision because in such a case, imprisonment
is imposed for a monetary obligation arising from a
crime. [Ajeno v, Judge Insero (1976)]
W. Double Jeopardy
1. Requisites
2. Motions for Reconsideration and Appeals
3. Dismissal with Consent of Accused
SEC. 21. ART. III. No person shall be twice put in
jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute
a bar to another prosecution for the same act.
Termination of Jeopardy
(1) By acquittal
(2) By final conviction
(3) By dismissal without express consent of
accused
(4) By dismissal on the merits
1. Requisites
(1) Court of competent jurisdiction;
(2) A Complaint/Information sufficient in form
and substance to sustain a conviction;
(3) Arraignment and plea by the accused;
(4) Conviction, acquittal, or dismissal of the
case without the express consent, of the
accused. [Rule 117, Sec. 7; People vs.
Obsania (1968)]
When Subsequent Prosecution is Barred
(1) Same offense
(2) Attempt of the same offense
(3) Frustration of the same offense
(4) Offense necessarily included in the 1st
offense (All the elements of the 2nd
constitute some of the elements of the 1st
offense)
(5) Offense that necessarily includes the 1st
offense (All the elements of the 1st
constitute some of the elements of the 2nd
offense)
Exceptions
(1) The graver offense developed due to
"supervening facts" arising from the same
11
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act or omission constituting the former
charged.
(2) The facts constituting the graver charge
became known or were discovered only
after the filing of the former complaint or
information.
(3) The plea of guilty to the lesser offense was
made without the consent of the fiscal and
the offended party.
When Defense of Double Jeopardy is Available
(1) Dismissal based on insufficiency of
evidence;
(2) Dismissal because of denial of right to
speedy trial;
(3) Accused is discharged to be a state witness.
2. Motions for Reconsideration and

Appeals
The accused cannot be prosecuted a second time for
the same offense and the prosecution cannot appeal
a judgment of acquittal. [Kepner v. US (1904)]
Provided, that the judge considered the evidence,
even if the appreciation of the evidence leading to
the acquittal is erroneous, an appeal or motion for
reconsideration by the prosecution will not be
allowed. [People v. Judge Velasco (2000)]
No error, however, flagrant, committed by the court
against the state, can be reserved by it for decision
by the Supreme Court when the defendant has once
been placed in jeopardy and discharged even though
the discharge was the result of the error committed.
[People v. Ang Cho (1945) citing State v. Rook]
A mere verbal dismissal is not final until written and
signed by the judge. [Rivera, Jr. v. People (1990)]
When an accused appeals his conviction, he waives
his right to the plea of double jeopardy. If the
accused had been prosecuted for a higher offense
but was convicted for a lower offense, he has
technically been acquitted of the higher offense. His
appeal would give the Court the right to impose a
penalty higher than that of the original conviction
imposed on him. [Trono v. US (1905)]
Double jeopardy provides three related protections:
(1) Against a second prosecution for the same
offense after conviction;
(2) Against a second prosecution for the same
offense after conviction; and
(3) Against multiple punishments for the same
offense. [People v. Dela Torre, G.R. No.
1379-58, March 11, 2002]
3. Dismissal with Consent of Accused

RULE 117. Sec. 8, par 1. Provisional dismissal.A
case shall not be provisionally dismissed except with
the express consent of the accused and with notice
to the offended party.

When the case is dismissed other than on the merits,
upon motion of the accused personally, or through
counsel, such dismissal is regarded as with express
consent of the accused, who is therefore deemed
to have waived the right to plea double jeopardy.
X. Ex Post Facto and Bills of

Attainder
No ex post facto law or bill of attainder shall be
enacted.
RA 1700 which declared the Communist Party of the
Philippines a clear and present danger to Philippine
security, and thus prohibited membership in such
organization, was contended to be a bill of
attainder. Although the law mentions the CPP in
particular, its purpose is not to define a crime but
only to lay a basis or to justify the legislative
determination that membership in such organization
is a crime because of the clear and present danger
to national security. [People vs. Ferrer (1972)]
Ex Post Facto LawsDefined

(1) Makes an action done before the passing of
the law and which was innocent when done
criminal, and punishes such action.
(2) Aggravates a crime or makes it greater than
when it was committed.
(3) Changes the punishment and inflicts a
greater punishment than the law annexed
to the crime when it was committed.
(4) Alters the legal rules of evidence and
receives less or different testimony than
the law required at the time of the
commission of the offense in order to
convict the defendant. (Mekin v. Wolfe,
1903)
(5) Assumes to regulate civil rights and
remedies only but in effect imposes a
penalty or deprivation of a right which
when done was lawful.
(6) Deprives a person accused of a crime of
some lawful protection of a former
conviction or acquittal, or a proclamation
of amnesty. [In re Kay Villegas Kami (1970)]
The prohibition applies only to criminal legislation
which affects the substantial rights of the accused.
[Phil. National Bank v. Ruperto (1960)]
It applies to criminal procedural law prejudicial to
the accused. [US v. Gomez (1908)]
It is improper to apply the prohibition to an
executive proclamation suspending the privilege of
11
8
the writ of habeas corpus. [Montenegro v. Castaeda
(1952)]
Bills of AttainderDefined
A bill of attainder is a legislative act which inflicts
punishment without judicial trial. If the punishment
be less than death, the act is termed a bill of pains
and penalties. Within the meaning of the

Constitution, bills of attainder include bills of pains
and penalties. [Cummings v. Missouri (1867)]
It is a general safeguard against legislative exercise
of the judicial function, or trial by legislature. [US v.
Brown (1965)]
Annex A
QUERY
What is the writ of
habeas data?
What rule governs

petitions for and the
issuance of a writ of
habeas data?
What is the Supreme
Courts basis in issuing
the Rule?
When does the Rule take
effect?
Who may file a petition
for the issuance of a writ
of habeas data?
Where can the petition

be filed?
How much is the docket

or filing fees for the
petition?
Instead of having the
hearing in open court,
can it be done in
chambers?
HABEAS DATA
Remedy
Available to any person
Whose right to life, liberty, and security
has been violated or is threatened with violation
By an unlawful act or omission
of a public official or employee, or of a private individual or entity
Engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved
party.
The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC), which was approved by the
Supreme Court on 22 January 2008. That Rule shall not diminish, increase or modify
substantive rights.
(Constitution, Art. VIII, Sec. 5[5]).

The Rule takes effect on 2 February 2008, following its publication in three (3)
newspapers of general circulation.
The aggrieved party.
However, in cases of extralegal killings and enforced disappearances, the
petition may be filed by
Any member of the immediate family of the aggrieved party,
namely: the spouse, children and parents; or
Any ascendant, descendant or collateral relative of the aggrieved
party within the fourth civil degree of consanguinity or affinity, in
default of those mentioned in the preceding paragraph.
Regional Trial Court
where the petitioner or respondent resides,
or that which has jurisdiction over the place where the data or information is
gathered, collected or stored, at the option of the petitioner.
Supreme Court;
Court of Appeals;
Sandiganbayan: when the action concerns public data files of government offices.
No docket and other lawful fees shall be required from an indigent petitioner.
The petition of the indigent shall be docketed and acted upon immediately,
without prejudice to subsequent submission of proof of indigency not later than 15
days from the filing of the petition.
Yes. It can be done when the respondent invokes the defense that the release of the
data or information in question shall compromise national security or state secrets,
or when the data or information cannot be divulged to the public due to its nature or
privileged character
11
9
UP
L
AW
BAR REVIEWER
2012
POLITICAL

EXECUTIVE COMMITTEE
COMMITTEE HEADS
OPERATIONS HEADS
LAW
Ronette Colobong
LAYOUT TEAM 2012
Cris Bernardino
Reyes
LAW ON PUBLIC OFFICERS

Administrative Law
Election Law
Local Governments
POLITICAL LAW
A. General Principles
B. Modes of Acquiring Title to Public
Office
C. Modes and Kinds of Appointment
Requirements
E. Disabilities and Inhibitions of Public
Officers
F. Powers and Duties of Public
Officers
G. Rights of Public Officers
H. Liabilities of Public Officers
I. Immunity of Public Officers
J. De Facto Officers
K. Termination of Official Relation
L. The Civil Service
M. Accountability of Public Officers
N. Term Limits
I. Concept and Application
II. Public Officer
III. Classification of Public Officers and Public
Officers
I. Concept and Application

1. Definition
The term "public office" is frequently used to refer
to the right, authority and duty, created and
conferred by law, by which, for a given period either
fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some
portion of the sovereign functions of government, to
be exercised by that individual for the benefit of the
public. [Fernandez v. Sto. Tomas (1995)]
Breakdown of the definition:
(nature) right, authority and duty
(origin) created and conferred by law
(duration) by which for a given period either:

1) fixed by law or
2) enduring at the pleasure of the appointing
power
an individual is invested with some portion of

the sovereign functions of the government
(purpose) to be exercised by him for the benefit

of the public.
2. Purpose
to effect the end for the governments
institution : common good;
NOT profit, honor, or private interest of any
person, family or class of persons [63 Am
Jur 2d 667]
3. Nature
Philippine Constitution, Art. XI
Sec. 1. Public office is a public trust. Public officers
and employees must, at all times, be accountable to
the people, serve them with utmost responsibility,

integrity, loyalty, and efficiency; act with patriotism
and justice, and lead modest lives.
Public office is a responsibility, not a right. [Morfe
v. Mutuc (1968)]
4. Elements
i.
Created by law or by authority of law

Public office must be created by:
o Constitution
o National Legislation
o Municipal or other bodys legislation,
via authority conferred by the
Legislature
The first element defines the mode of
creation of a public office while the other
elements illustrate its characteristics.
ii. Possess a delegation of a portion of the

sovereign powers of government, to be exercised for
the benefit of the public
There are certain GOCCs which, though created by
law, are not delegated with a portion of the
sovereign powers of the government (those that are
purely proprietary in nature), and thus may not be
considered as a Public Office.
iii. Powers conferred and duties imposed must be
defined, directly or impliedly
iv. Duties must be performed independently and
without the control of a superior power other than
the law, UNLESS for duties of an inferior or
subordinate office that created or authorized by the
Legislature and which inferior or subordinate office
is placed under the general control of a superior
office or body
Defined as unhindered performance.
v.
Must have permanence and continuity
Note:
The elements of permanence and
continuity are dispensable.
On the dispensability of the element of
permanence: an example is the public office of
the Board of Canvassers, yet its duties are only
for a limited period of time.
On the dispensability of the element of
continuance: Mechem in one case states that
the the most important characteristic in
characterizing a position as a public office is
the DELEGATION to the individual of some of
the sovereign functions of government.
o Here, the court held that Laurel, as chair of
the National Centennial Commission (NCC),
is a public officer. The public office of NCC
was delegated and is performing executive
functions: it enforces the conservation and
promotion of the nations historical and
cultural heritage.
o Such delegated function is a policy embodied
in the Constitution. It is inconsequential
12
1

that Laurel was not compensated during his
tenure. A salary is a usual (but not
necessary) criterion for determining the
nature of a position. Also, the element of
continuance is not indispensable. [Laurel v.
Desierto (2002)]
as in the case of Ad Hoc Bodies or
commissions
5. Public Office v. Public Employment
Public employment is broader than public

office. All public office is public employment,
but not all public employment is a public office.
Public employment as a position lacks either one
or more of the foregoing elements of a public
office. (Bernard v. Humble [182 S.W. 2d. 24.
Cited by De Leon, page 8-9])1
o created by contract rather than by force of
law
the most important characteristic which
distinguishes an office from an employment is
that:
o the creation and conferring of an office
involves a delegation to the individual of
ome of the sovereign functions of
government, to be exercised by him for the
benefit of the public, and
o that the same portion of the sovereignty of
the country, either legislative, executive or
judicial, attached, for the time being, to be
exercised for the public benefit.
Unless the powers so conferred are of this nature,

the individual is not a public officer. [Laurel v.
Desierto (2002)]
6. Public Office v. Public Contract

How
Created
Object
Subject
Matter
Scope
Public Office
Incident of
sovereignty.
Sovereignty is
omnipresent.
To carry out the
sovereign as well as
governmental
functions affecting
even persons not
bound by the
contract.
A public office
embraces the idea
of tenure,
duration,
continuity, and the
duties connected
therewith are
generally
continuing and
permanent.
Duties that are
generally
continuing and
permanent.
Public Contract
Originates from will
of contracting
parties.
Obligations
imposed only upon
the persons who
entered into the
contract.
Limited duration and
specific in its object.
Its terms define and
limit the rights and
obligations of the
parties, and neither
may depart
therefrom without
the consent of the
other.
Duties are very
specific to the
contract.
ALL DE LEON CITATIONS BASED ON: De Leon, Hector. THE
Where
duties
are
defined
The law
Contract
7. No vested right to public office.

GENERAL RULE:
A public office, being a mere privilege given by the
State, does not vest any right in the holder of the
office. This rule applies when the law is clear.
EXCEPTION:
When the law is vague, the persons holding of the
office is protected and he should not be easily
deprived of his office.
A public office is neither property nor a public

contract. Yet the incumbent has, in a sense, a
right to his office. If that right is to be taken
away by statute, the terms should be clear.
[Segovia v. Noel (1925)]
8. Public Office is not Property.

A public office is not the property of the public
officer within the meaning of the due process clause
of the non-impairment of the obligation of contract
clause of the Constitution.
It is a public trust/agency. Due process is

violated only if an office is considered property.
However, a public office is not property within
the constitutional guaranties of due process. It
is a public trust or agency. As public officers
are mere agents and not rulers of the people, no
man has a proprietary or contractual right to an
office. [Cornejo v. Gabriel (1920)]
It is personal. Public office being personal, the

death of a public officer terminates his right to
occupy the contested office and extinguishes his
counterclaim for damages. His widow and/or
heirs cannot be substituted in the counterclaim
suit. [Abeja v. Taada (1994)]
Exceptions:
In quo warranto proceedings relating to the

question as to which of 2 persons is entitled to a
public office
In an action for recovery of compensation

accruing by virtue of the public office
9. Creation of Public Office

Modes of Creation of Public Office
by the Constitution
by statute / law
by a tribunal or body to which the power to

create the office has been delegated
How Public Office is Created
GENERAL RULE:
The creation of a public
office is PRIMARILY a Legislative Function.
EXCEPTIONS:
o where the offices are created by the
Constitution;
12
2

o where the Legislature validly delegates such
power.
Legislature should Validly Delegate the Power to
Create a Public Office
Or else, the office is inexistent. The Presidents

authority to "reorganize within one year the
different executive departments, bureaus and
other instrumentalities of the Government" in
order to promote efficiency in the public service
is limited in scope and cannot be extended to
other matters not embraced therein. [UST v.
Board of Tax Appeals (1953)]
Therefore, an executive order depriving the Courts
of First Instance of jurisdiction over cases involving
recovery of taxes illegally collected is null and void,
as Congress alone has the "power to define,
prescribe and apportion the jurisdiction of the
various courts."
[Art. VIII sec. 2, 1987
Constitution]
Except when the public official is constrained to

accept because the non-acceptance of the new
appointment would affect public interest. (no
abandonment) [Zandueta v. De La Costa
(1938)]
12. Estoppel in Denying Existence of Office

A person is estopped from denying that he has
occupied a public office when he has acted as a
public officer; more so when he has received public
monies by virtue of such office. [Mendenilla v.
Onandia (1962)]
II. Public Officer

1.
Definition
(What he is) He performs governmental public
functions / duties which involve the
exercise of discretion ( not clerical or
manual)
But note: No law shall be passed increasing the

appellate jurisdiction of the Supreme Court as
provided in this Constitution without its advice and
concurrence. [Art. VI, sec. 30, 1987 Constitution]
(How he became Public Officer) by virtue of

direct provision of law, popular election, or
appointment by competent authority.
10. Methods of Organizing Public Offices
(Who ARE Public Officers)
Method
Singlehead
Composition
one head assisted
by subordinates
Board
System
collegial body for

formulating polices
and implementing
programs
11. Modification
Office
and
Efficiency
Swifter decision and
action
but may sometimes
be hastily made
Mature studies and
deliberations but
may be slow in
responding to issues
and problems
Abolition
of
Public
GENERAL RULE
The power to create an office includes the power to
modify or abolish it (i.e. Legislature generally has
this power)
EXCEPTIONS
Where
the
Constitution
prohibits
such
modification / abolition;
Where the Constitution gives the people the

power to modify or abolish the office [i.e.
Recall]
Abolishing an office also abolishes unexpired

term. The legislatures abolition of an office
(i.e. court) also abolishes the unexpired term.
The legislative power to create a court carries
with it the power to abolish it. [Ocampo v. Sec.
of Justice (1955)]
Is Abandonment equivalent to Abolition? When a
public official voluntarily accepts an appointment to
an office newly created by law -- which new office
is incompatible with the former -- he will be
considered to have abandoned his former office.
Administrative Code, Sec. 2.

(14) The term officer includes any government
employee, agent, or body authorized to exercise
governmental power in performing particular acts or
functions
Revised Penal Code
Art 203. Who are public officersfor the purpose of
applying the provisions of this and the preceding
titles of this book, any person who, by direct
provision of the law, popular election or
appointment by competent authority, shall take part
in the performance of public functions in the
Government of the Philippine Islands, or shall
perform in said Government or in any of its branches
public duties as an employee, agent or subordinate
official of any rank or class, shall be deemed to be a
public officer
Persons in authority and their agents (Art. 152,
RPC)
A PERSON IN AUTHORITY is any person, either an

individual or a member of a governmental body,
who is directly vested with jurisdiction.
o The barrio captains and barangay chairpersons
are included.
o For RPC Articles 148 [Direct Assaults] and 151
[Resistance and Disobedience], teachers,
professors, and persons charged with the
supervision of public or duly recognized
private schools, colleges and universities
are included.
An AGENT of a person in authority is charged

with the maintenance of public order and the
protection and security of life and property.
12
3

o They become such either by direct provision
of law, by election or by a competent
authoritys appointment.
o Examples
are
barrio
captain,
barrio
councilman, barrio policeman, barangay
leader, and any person who comes to the
aid of persons in authority.
officers therefore are likewise agents entrusted with

the responsibility of discharging its functions. As
such, there is no presumption that they are
empowered to act. There must be a DELEGATION
of such authority, either express or implied. In the
absence of a valid grant, they are devoid of power.
[Villegas v. Subido (1971)]
Temporary performer of public functions

A person performing public functions even
temporarily is a public official. Here, a laborer
temporarily in charge of issuing summons and
subpoenas for traffic violations in a judge's sala was
convicted for bribery under RPC 203.
III. Classification of Public Offices and

Public Officers
According to the Court, the law is comprehensive:

who, by direct provision of law, popular election or
appointment by competent authority, shall take part
in the performance of public functions in the
Philippine Government, or shall perform in said
government or any of its branches, public duties as
an employee, agent or subordinate official or any
rank or class [Maniego v. People (1951)]
Department of government to which

their functions pertain
Money order-sorter and filer.

A person sorting and filing money orders in the
Auditor's Office of the Bureau of Posts is obviously
doing a public function or duty. Such person here
was convicted for infidelity in the custody of
documents. [People v. Paloma (1997)]
Who are NOT Public Officers
Special policemen salaried by a private entity

and patrolling only the premises of such private
entity [Manila Terminal Co. v. CIR (1952)]
Concession forest guards [Martha Lumber Mill

v. Lagradante (1956)]
Company cashier of a private corporation owned

by the government [Tanchoco v. GSIS (1962)]
Creation
Public Body Served
Nature of functions
Exercise of Judgment or Discretion
Legality of Title to office
Compensation
B. Modes of Acquiring Title to

Public Office
Modes of Commencing Official Relation
1.
2.
3.
Election
Appointment
Others:
a. Succession by operation of law;
b. Direct provision of law, e.g. ex-officio officers
2. A Person Cannot be Compelled to Accept

a Public Office.
1. Election
EXCEPTIONS
When citizens are required, under conditions

provided by law, to render personal military or
civil service (see Sec. 4, Art. II, 1987 Const.);
When a person who, having been elected by

popular election to a public office, refuses
without legal motive to be sworn in or to
discharge the duties of said office. This is a
felony.
Art 234, RPC: Refusal to discharge elective

office- the penalty of arresto mayor or a fine
not exceeding 1,000 pesos, or both, shall be
imposed upon any person who, having been
elected by popular election to a public office,
shall refuse without legal motive to be sworn in
or to discharge the duties of said office.
2. Appointment
3. Public Officers Power is Delegated (not

Presumed)
A public official exercises power, not rights. The
government itself is merely an agency through which
the will of the state is expressed and enforced. Its
Constitutional
Statutory
National
Local
Legislative
Executive
Judicial
Civil
Military
Quasi-judicial
Ministerial
De Jure
De Facto
Lucrative
Honorary
Selection or designation by popular vote
(a) Definition
Designation
Definition
Imposition of
additional duties
upon existing
office
Extent of
Powers
Security of
tenure?
Is prior/1st
office
abandoned
when
Limited
Appointment
Appointing
authority selects
an individual
who will occupy
a certain public
office
Comprehensive
No.
Yes.
a 2nd
designated
position is
assumed?
NO
a 2nd
appointive
position is
assumed?
Usually YES
Political. Appointment is generally a political

question so long as the appointee fulfills the
12
4

minimum qualification requirements prescribed
by law.
(No Security of Tenure) revocable at will: just

cause or valid investigation UNNECESSARY;
o an acting appointment is a temporary
appointment
and
revocable
in
character. [Marohombsar v. Alonto
(1991)]
o A temporary appointee is like a
designated officer they:
occupy a position in an acting

capacity and
do not enjoy security of tenure.

[Sevilla v. CA (1992)]
o Even
a
Career
Service
Officer
unqualified for the position is deemed
temporarily-appointed. Thus he does
not enjoy security of tenure he is
terminable at will.
o A public officer who later accepts a
temporary appointment terminates his
relationship with his former office.
[Romualdez III v. CSC (1991)]
o EXCEPT
Fixed-Period
Temporary
Appointments: may be revoked ONLY at
the periods expiration. Revocation
before expiration must be for a valid
cause.
(Duration) until a permanent appointment is
issued.
Vacancy for Validity. For the appointment to be

valid, the position must be vacant [Castin v.
Quimbo (1983)]
(b) Nature of Power to Appoint
The power to appoint is intrinsically an
executive act involving the exercise of
discretion. [Concepcion v. Paredes (1921)]
Must be unhindered and unlimited by Congress.

Congress cannot either appoint a public officer
or impose upon the President the duty to
appoint any particular person to an office. The
appointing power is the exclusive prerogative
of the President, upon which no limitations
may be imposed by Congress, EXCEPT those:
o requiring the concurrence of the Commission
on Appointments; and
o resulting from the exercise of the limited
legislative
power
to
prescribe
the
qualifications to a given appointive office.
[Manalang v. Quitoriano (1954)]
The Presidents power to appoint under the

Constitution
should
necessarily
have
a
reasonable measure of freedom, latitude, or
discretion in choosing appointees. [Cuyegkeng
v. Cruz (1960)]
Where only one can qualify for the posts in

question, the President is precluded from
exercising his discretion to choose whom to
appoint. Such supposed power of appointment,
sans the essential element of choice, is no
power at all and goes against the very nature of
appointment itself. [Flores v. Drilon (1993)]
II. Steps in Appointment Process

For Appointments requiring confirmation
Regular Appointments (NCIA)

1. President nominates.
2. Commission on Appointments confirms.
3. Commission issues appointment.
4. Appointee accepts.
C. Modes and Kinds of Appointment

I. Classification of Appointments
II. Steps in Appointment Process
III. Presidential Appointees
IV. Discretion of Appointing Official
V. Effectivity of Appointment
VI. Effects of a Complete, Final and Irrevocable
Appointment
For Appointments Not Requiring Confirmation

(AIA)
1. Appointing authority appoints.
I. Classification of Appointments
1)
2)
Permanent:
The permanent appointee:
o must be qualified
o must be eligible
o is constitutionally guaranteed security
of tenure
(Duration) until lawful termination.
Note: Conditional appointments are not
permanent.
Temporary:
an acting appointment;
the temporary appointee
qualified or eligible;
NEED
NOT
Ad-Interim Appointments (NIAC)

1. President nominates.
4. Commission on Appointments confirms.
be
Note: If a person is appointed to the career

service of the Civil Service, the Civil Service
Commission must bestow attestation.
III. Presidential Appointees

Who can be nominated and appointed only WITH
the Commission on Appointments consent? (Art.
VII, Sec. 16, 1987 Const.)
Heads of the executive departments;
Ambassadors;
Other public ministers and consuls;
Officers of the armed forces from the rank of

colonel or naval captain;
12
5
the Constitutional prohibition on temporary

or acting appointments of COMELEC
Commissioners.
Other officers whose appointments are vested in

him by the Constitution, including Constitutional
Commissioners (Art. IX-B, Sec. 1 (2) for CSC;
Art. IX-C, Sec. 1 (2) for COMELEC; Art. IX-D,
Sec. 1 (2) for COA).
Who can the President appoint WITHOUT CAs

approval?
All other officers of the government whose

appointments are not otherwise provided for by
law;
Those whom he may be authorized by law to

appoint;
Members of the Supreme Court;
Judges of lower courts;
Ombudsman and his deputies

Kinds of Presidential Appointments
Regular: made by the President while Congress

is in session after the nomination is confirmed
by the Commission of Appointments, and
continues until the end of the term.
Ad interim: made while Congress is not in

session, before confirmation by the Commission
on Appointments; immediately effective and
ceases to be valid if disapproved or bypassed by
the Commission on Appointments. This is a
permanent appointment and it being subject to
confirmation does not alter its permanent
character.
o Efficient. Recess appointment power keeps in
continuous operation the business of
government when Congress is not in session.
The individual chosen may thus qualify and
perform his function without loss of time.
o Duration. The appointment shall cease to be
effective upon rejection by the Commission
on Appointments, or if not acted upon, at
the adjournment of the next session,
regular or special, of Congress.
o Permanent. It takes effect immediately and
can no longer be withdrawn by the
President once the appointee has qualified
into office.
The fact that it is subject to confirmation
by the Commission on Appointments does
not alter its permanent character.
The Constitution itself makes an ad interim
appointment permanent in character by
making it effective until disapproved by the
Commission on Appointments or until the
next adjournment of Congress. [Matibay v.
Benipayo (2002)]
o Not Acting. An ad interim appointment is
distinguishable
from
an
acting
appointment which is merely temporary,
good until another permanent appointment
is issued.
o Applicable to COMELEC Commissionsers, being
permanent appointments, do not violate
o By-passed Appointee may be Reappointed.

Commission on Appointments failure to
confirm an ad interim appointment is NOT
disapproval. An ad interim appointee
disapproved by the COA cannot be
reappointed. But a by-passed appointee, or
one whose appointment was not acted upon
the merits by the COA, may be appointed
again by the President.
IV. Discretion of Appointing Official
Presumed.
Administrators of public officers, primarily the
department heads should be entrusted with plenary,
or at least sufficient, discretion. Their position most
favorably determines who can best fulfill the
functions of a vacated office. There should always
be full recognition of the wide scope of a
discretionary authority, UNLESS the law speaks in
the most mandatory and peremptory tone,
considering all the circumstances. [Reyes v.
Abeleda (1968)]
Discretionary Act.
Appointment is an essentially discretionary power. It
must be performed by the officer in whom it is
vested, the only condition being that the appointee
should possess the qualifications required by law.
[Lapinid v. CSC (1991)]
Scope. The discretion of the appointing

authority is not only in the choice of the person
who is to be appointed but also in the nature
and character of the appointment intended
(i.e., whether the appointment is permanent or
temporary).
Inclusive Power. The appointing authority holds

the power and prerogative to fulfill a vacant
position in the civil service.
The exercise of the power to transfer,

reinstate, reemploy or certify is widely used
(need not state reason)
To hold that the Civil Service Law requires filling up

any vacancy by promotion, transfer, reinstatement,
reemployment, or certification IN THAT ORDER
would be tantamount to legislative appointment
which is repugnant to the Constitution. What it does
purport to say is that as far as practicable the
person next in rank should be promoted,
otherwise the vacancy may be filled by transfer,
reinstatement, reemployment or certification, as
the appointing power sees fit, provided the
appointee is certified to be qualified and eligible.
[Pineda v. Claudio (1969)]
Promotion of next-in-rank career officer is

not Mandatory. The appointing authority should
12
6

be allowed the choice of men of his confidence,
provided they are qualified and eligible.
IV. Eligibility Presumed

V. Qualifications Prescribed By Constitution
VI. Religious Test or Qualification is not Required
VII. Qualification Standards and Requirements
under the Civil Service Law
When abused, use Mandamus.

Where the palpable excess of authority or abuse of
discretion in refusing to issue promotional
appointment would lead to manifest injustice,
mandamus will lie to compel the appointing
authority to issue said appointments. [Gesolgon v.
Lacson (1961)]
I. Definition
Upon recommendation is not Merely Advisory.

Sec. 9. Provincial/City Prosecution Offices. [par. 3]
All provincial and city prosecutors and their
assistants shall be appointed by the President upon
the recommendation of the Secretary.
Eligibility:
endowment/requirement/accomplish-ment that
fits one for a public office.
Qualification: endowment/act which a person

must do before he can occupy a public office.
Note: Failure to perform an act required by law

could affect the officers title to the given
office. Under BP 881, the office of any elected
official who fails or refuses to take his oath of
office within six months from his proclamation
shall be considered vacant unless said failure is
for cause or causes beyond his control.
o An oath of office is a qualifying requirement
for a public office. Only when the public
officer has satisfied this prerequisite can his
right to enter into the position be
considered plenary and complete. Until
then, he has none at all, and for as long as
he has not qualified, the holdover officer is
the rightful occupant. [Lecaroz v.
Sandiganbayan (1999)]
o Once proclaimed and duly sworn in office, a
public officer is entitled to assume office
and to exercise the functions thereof. The
pendency of an election protest is not
sufficient basis to enjoin him from assuming
office or from discharging his functions.
[Mendoza v. Laxina (2003)]
The phrase upon recommendation of the Sec.

of Justice should be interpreted to be a mere
advice. It is persuasive in character, BUT is not
binding or obligatory upon the person to whom
it is made.
V. Effectivity of Appointment
Immediately upon appointing authoritys issuance
(Rule V, Sec. 10, Omnibus Rules)
VI. Effects of a Complete, Final and

Irrevocable Appointment
GENERAL RULE
An appointment, once made, is irrevocable and not
subject to reconsideration.
It vests a legal right. It cannot be taken away

EXCEPT for cause, and with previous notice and
hearing (due process).
It may be issued and deemed complete before

acquiring the needed assent, confirmation, or
approval of some other officer or body.
EXCEPTIONS
Appointment is an absolute nullity [Mitra v.

Subido (1967)];
Appointee commits fraud [Mitra v. Subido,

supra];
Midnight appointments
o GENERAL RULE: A President or Acting
President shall not appoint 2 months
immediately before the next presidential
elections until his term ends. (Art. VII, Sec.
15, 1987 Const.)
o EXCEPTION: Temporary appointments to
executive
positions
when
continued
vacancies will prejudice public service or
will endanger public safety.

Requirements
I. Definition
II. Power to Prescribe Qualifications
III. Time of Possession of Qualifications
II. Power to Prescribe Qualifications
GENERAL RULE:
Congress is empowered to
prescribe the qualifications for holding public
office.
In the absence of constitutional inhibition,

Congress has the same right to provide
disqualifications that it has to provide
qualifications for office. (De Leon, 23)
RESTRICTIONS on the Power of Congress to

Prescribe Qualifications:
o Congress cannot exceed its constitutional
powers;
o Congress cannot impose conditions of
eligibility inconsistent with constitutional
provisions;
o The qualification must be germane to the
position ("reasonable relation" rule);
o Where the Constitution establishes specific
eligibility requirements for a particular
constitutional office, the constitutional
criteria are exclusive, and Congress cannot
add to them except if the Constitution
12
7

expressly or impliedly gives the power to
set qualifications.
o Congress cannot prescribe qualifications so
detailed as to practically amount to making
a legislative appointment:
it is
unconstitutional and therefore void for
being a usurpation of executive power
examples:
Extensions of the terms of office of the

incumbents;
A proviso which limits the choices of

the appointing authority to only one
eligible, e.g. the incumbent Mayor of
Olongapo City; [Flores v. Drilon
(1993)]
Designating an unqualified person. The

People's Court Act, which provided that
the President could designate Judges of
First Instance, Judges-at-large of First
Instance or Cadastral Judges to sit as
substitute Justices of the Supreme
Court in treason cases without them
necessarily having to possess the
required constitutional qualifications of
a regular Supreme Court Justice.;
[Vargas v. Rilloraza (1948)]
Automatic transfer to a new office. A

legislative enactment abolishing a
particular office and providing for the
automatic transfer of the incumbent
officer to a new office created;
[Manalang v. Quitorano (1954)]
Requiring inclusion in a list. A provision

that impliedly prescribes inclusion in a
list submitted by the Executive Council
of the Phil. Medical Association as one
of the qualifications for appointment;
and which confines the selection of the
members of the Board of Medical
Examiners to the 12 persons included in
the list; [Cuyegkeng v. Cruz (1960)]
o Citizenship requirement should be possessed

on start of term (i.e. on filing candidacy).
The Local Government Code does not
specify any particular date or time when
the candidate must possess the required
citizenship, unlike for residence and age.
The requirement is to ensure that no alien
shall govern our people and country or a
unit of territory thereof. An official begins
to govern or discharge his functions only
upon proclamation and on start of his term.
This liberal interpretation gives spirit, life
and meaning to our law on qualifications
consistent with its purpose. [Frivaldo v.
COMELEC (1996)]
IV. Eligibility is Presumed

IN FAVOR of one who has been elected or
appointed to public office.
The right to public office should be strictly
construed against ineligibility.
(De Leon, 26)
V. Qualifications Prescribed By
Constitution
1.
For President (Sec. 2, Art. VI, Constitution)

and Vice President (Sec. 3, Art. VII,
Constitution)
Natural-born citizen
40 years old on election day
Philippine resident for at least 10 years
immediately preceding election day
2.
For Senator (Sec. 3, Art. VI, Constitution)

able to read and write
registered voter
resident of the Philippines for not less than
two years immediately preceding election
day
3.
For
Congressmen
(Sec.
6,
Art.
VI,
Constitution)
able to read and write
registered voter in district in which he shall
be elected
resident thereof for not less than one year
immediately preceding election day
4.
Supreme Court Justice

Natural born citizen
at least 40 years old
15 years or more as a judge or engaged in law
practice
of proven competence, integrity, probity and
independence (C.I.P.I.)
5.
Civil Service Commissioners (Sec. 1 [1], Art.

IXB. Constitution)
III. Time of Possession of

Qualifications
At the time specified by the Constitution or law.
If time is unspecified, 2 views:

a. qualification during commencement of term
or induction into office;
b. qualification / eligibility during election or
appointment
(De Leon, 26-27)
Eligibility is a continuing nature, and must

exist throughout the holding of the public
office. Once the qualifications are lost, the
public officer forfeits the office.
o No estoppel in ineligibility. Knowledge of
ineligibility of a candidate and failure to
question such ineligibility before or during
the election is not a bar to questioning such
eligibility after such ineligible candidate
has won and been proclaimed. Estoppel will
not apply in such a case. [Castaneda v. Yap
(1952)]
12
8
6.
7.
35 years old at time of appointment
proven capacity for public administration
not a candidate for any elective position in
election
immediately
preceding
appointment
COMELEC Commissioners (Sec. 1[1], Art. IXC)

college degree holder
not a candidate for elective position in
election
immediately
preceding
appointment
chairman and majority should be members of
the bar who have been engaged in the
practice of law for at least 10 years
VI. Religious Test or Qualification is

not Required
Philippine Constitution, Art. III
Sec. 5. No religious test shall be required for the
exercise of civil or political rights.
VII. Qualification Standards and

Requirements under the Civil Service
Law
1.
COA Commissioners
CPA with >10 year of auditing experience or
Bar member engaged in practice of law for at
least 10 years
Not candidates for any elective position in
election
immediately
preceding
appointment.
Notes:
Practice of Law defined. Practice of law

means any activity, in or out of court, which
requires the application of law, legal
procedure,
knowledge,
training
and
experience. Generally, to practice law is to
give notice or render any kind of service which
requires the use in any degree of legal
knowledge or skill. [Cayetano v. Monsod
(1991)]
In the dissenting opinion of Justice Padilla in the

case of Cayetano v. Monsod, citing Agpalo, he
stated that engaging in the practice of law
presupposes the existence of lawyer-client
relationship. Hence, where a lawyer undertakes
an activity which requires knowledge of law but
involves no attorney-client relationship, such as
teaching law or writing law books or articles, he
cannot be said to be engaged in the practice of
his profession or a lawyer
Residency defined. In election law, residence

refers to domicile, i.e. the place where a party
actually or constructively has his permanent
home, where he intends to return. To
successfully effect a change of domicile, the
candidate must prove an actual removal or an
actual change of domicile. [Aquino v. COMELEC
(1995)]
Presumption in favor of domicile of origin.

Domicile requires the twin elements of actual
habitual residence and animus manendi
(intent to permanently remain). Domicile of
origin is not easily lost; it is deemed to continue
absent a clear and positive proof of a successful
change of domicile. [Marcos v. COMELEC
(1995)]
Qualification Standards
It enumerates the minimum requirements for
a class of positions in terms of education,
training and experience, civil service
eligibility, physical fitness, and other
qualities
required
for
successful
performance.
(Sec.
22,
Book
V,
Administrative Code)
The Departments and Agencies are responsible
for continuously establishing, administering
and maintaining the qualification standards
as an incentive to career advancement.
(Sec. 7, Rule IV, Omnibus Rules)
Such establishment, administration, and
maintenance shall be assisted and approved
by the CSC and shall be in consultation with
the Wage and Position Classification Office
(ibid)
It shall be established for all positions in the
1st and 2nd levels (Sec. 1, Rule IV,
Omnibus Rules)
2. Political Qualifications for an Office

(i.e. membership in a political party)
GENERAL RULE
Political qualifications are NOT Required for public
office.
EXCEPTIONS
Membership in the electoral tribunals of either

the House of Representatives or Senate (Art. VI,
Sec. 17, 1987 Const.);
Party-list representation;
Commission on Appointments;
Vacancies in the Sanggunian (Sec. 45, Local

Government Code)
3. No Property Qualifications
Since sovereignty resides in the people, it is
necessarily implied that the right to vote and to be
voted should not be dependent upon a candidates
wealth. Poor people should also be allowed to be
elected to public office because social justice
presupposes equal opportunity for both rich and
poor. [Maguera v. Borra and Aurea v. COMELEC
(1965)]
4.
Citizenship
Aliens not eligible for public office.
The purpose of the citizenship requirement is
to ensure that no alien, i.e., no person
12
9

owing allegiance to another nation, shall
govern our people and country or a unit of
territory thereof. [Frivaldo v. COMELEC
(1996)]
5. Effect of Removal of Qualifications During the
Term
Termination from office
6. Effect of Pardon upon the Disqualification to
Hold Public Office
(Asked in 1999)
Public Officer
The President, Vice
President, the Members
of the Cabinet and their
deputies or assistants
Senator or Member of
the House of
Representatives
GENERAL RULE
Pardon will not restore the right to hold public
office. (Art. 36, Revised Penal Code)
EXCEPTIONS
When the pardons terms expressly restores such

(Art. 36, RPC);
When the reason for granting pardon is noncommission of the imputed crime. [Garcia v.
Chairman, COA (1993)]
Effect: or else he forfeits

his seat
E. Disabilities and Inhibitions of

Public Officers
Disqualifications to Hold Public Office
IN GENERAL: Individuals who lack ANY of the

qualifications prescribed by the Constitution or
by law for a public office are ineligible (i.e.
disqualified from holding such office).
Authority: The legislature has the right to

prescribe disqualifications in the same manner
that it can prescribe qualifications, provided
that the prescribed disqualifications do not
violate the Constitution.
General Constitutional Disqualifications
1. Losing candidates cannot be appointed to any
governmental office within one year after
such election. (Art. IX-B Sec. 6)
2. Elective officials during their tenure are
ineligible for appointment or designation in
ANY capacity to ANY public office or
position (Art. IX-B Sec. 7(1))
3. Appointive officials shall not hold any other
governmental position.
o Unless otherwise allowed by law or his
positions primary functions (Art. IX-B
Sec 7 (2))
o Note: There is no violation when
another office is held by a public
officer in an ex officio capacity
(where one cant receive compensation
or other honoraria anyway), as
provided by law and as required by the
primary functions of his office. [
National Amnesty Commission v. COA
(2004)]
Specific Constitutional Disqualifications

Public Officer
Disqualifications
Disqualifications
shall not hold any other
office or employment
during their tenure,
UNLESS otherwise
provided in the
Constitution, (Art. VII,
Sec. 13)
may not hold during his
term any other office or
employment in the
Government, or any
subdivision, agency or
instrumentality thereof,
including government owned or -controlled
corporations or their
subsidiaries
Members of the
Supreme Court and
other courts established
by law
Members of the
Constitutional
Commission
Ombudsman and his
Deputies
Members of
Constitutional
Commissions, the
Ombudsman and his
Deputies
Members of
Constitutional
Commissions, the
Ombudsman and his
Deputies
The Presidents spouse
and relatives by
consanguinity or affinity
within the fourth civil
degree
Shall also not be

appointed to any office
when such was created or
its emoluments were
increased during his
term. (Art. VI, Sec 13)
shall not be designated to
any agency performing
quasi-judicial or
administrative functions.
(Art. VIII, Sec. 12)
shall not hold any other
office or employment
[during their tenure].
(Art. IX-A, Sec. 2)
(Art. XI, Sec. 8)
must not have been
candidates for any
elective position in the
elections immediately
preceding their
appointment (Art IX-B,
Sec. 1; Art. IX-C, Sec. 1;
Art. IX-D, Sec. 1; Art XI,
Sec. 8)
are appointed to 7-year
term, without
reappointment (Sec. 1(2)
of Arts. IX-B, C, D; Art.
XI, Sec. 11)
shall not be appointed
during Presidents tenure
as Members of the
Constitutional
Commissions, or the
Office of the
Ombudsman, or as
Secretaries,
Undersecretaries,
chairmen or heads of
bureaus or offices,
including governmentowned-or -controlled
13
0

Public Officer
Other Disqualifications
1. Mental or physical incapacity
2. Misconduct or crime: persons convicted of
crimes involving moral turpitude are USUALLY
disqualified from holding public office.
3. Impeachment
4. Removal or suspension from office: not
presumed non-imposable when such
ineligibility is not constitutional or statutory
declared.
5. Previous tenure of office: for example, an
appointed Ombudsman is absolutely disqualified
for reappointment (Article XI, Constitution).
6. Consecutive terms limit:
i. Vice-President = 2 consecutive terms
ii. Senator = 2 consecutive terms
iii. Representative = 3 consecutive terms
iv.Elective local officials = 3 consecutive terms
(Sec. 8, Art. X, Constitution)
Public officers voluntary renunciation

of office for any length of time = an
interruption in the continuity of his
service for the full term for which he
was elected.
7.
Holding more than one office: to prevent offices

of public trust from accumulating in a single
person, and to prevent individuals from
deriving, directly or indirectly, any pecuniary
benefit by virtue of their holding of dual
positions.
Civil Liberties Union v. Executive Secretary
(1991):
Section 7, Article IX-B of the Constitution
generally prohibits elective and appointive
public officials from holding multiple offices
or employment in the government unless
they are otherwise allowed by law or by the
primary functions of their position.
This provision does NOT cover the
President, Vice-President and cabinet
members they are subject to a stricter
prohibition under Section 13 of Article VII.
To apply the exceptions found in Section 7,
Article IX-B to Section 13, Article VII would
obliterate the distinction set by the
framers of the Constitution as to the highranking officials of the Executive branch.
However, public officials holding positions
without additional compensation in exofficio capacities as provided by law and as
required by their offices primary functions
are not covered by the Section 13, Article
VII prohibition.
8.
or accept employment as officer employee,

consultant, counsel, broker, agent, trustee
or nominee in any private enterprise
regulated, supervised or licensed by their
office unless expressly allowed by law.
Section 7 of RA 6713 also generally provides
for the prohibited acts and transactions of
public officials and employees. Subsection
(b)(2) prohibits them from engaging in the
private practice of their profession during
their incumbency. As an exception, a public
official or employee can engage in the
practice of his or her profession under the
following conditions: first, the private
practice is authorized by the Constitution or
by the law; and second, the practice will
not conflict, or tend to conflict, with his or
her official functions.
Disqualifications
corporations. (Art. VIII,
Sec. 13)
Holding of office in the private sector:

Section 7 (b)(1)of RA 6713 considers unlawful
for public officials and employees during
their incumbency to own, control, manage,
9.
Relationship with the appointing power

General Rule on Nepotism: The Civil Service
Decree (PD 807) prohibits all appointments
in the national and local governments or
any branch or instrumentality thereof made
in favor of the relative of:
i. appointing authority;
ii. recommending authority;
iii. chief of the bureau office; or
iv. person
exercising
immediate
supervision over the appointee
Relative: related within the third degree of
either consanguinity or of affinity.
Exceptions to rule on nepotism:
o persons employed in a confidential
capacity
o teachers
o physicians
o members of the Armed Forces of the
Philippines
10. Under the Local Government Code (sec. 40)

i. Sentenced by final judgment for an offense
involving moral turpitude or for an offense
punishable by 1 year or more of
imprisonment, within 2 years after serving
sentence;
ii. Removed from office as a result of an
administrative case;
iii. Convicted by final judgment for violating the
oath of allegiance to the Republic;
iv.Dual citizenship;
Mercado v. Manzano (1999):
Dual citizenship is different from dual

allegiance. The former arises when, as a result
of the concurrent application of the different
laws of two or more states, a person is
simultaneously considered a national by the said
states.
Dual allegiance, on the other hand, refers to the

situation in which a person simultaneously owes,
by some positive act, loyalty to two or more
states. While dual citizenship is involuntary,
dual allegiance is the result of an individuals
volition.
13
1
[I]n including 5 in Article IV on citizenship, the

concern of the Constitutional Commission was
not with dual citizens per se but with
naturalized citizens who maintain their
allegiance to their countries of origin even after
their naturalization.
Hence, the phrase dual citizenship in R.A.
No. 7160, 40(d) and in R.A. No. 7854, 20 must
be understood as referring to dual
allegiance.
v. Fugitive from justice in criminal or nonpolitical cases here or abroad;
vi.Permanent residents in a foreign country or
those who have acquired the right to reside
abroad and continue to avail of the same
right after the effectivity of the Local
Government Code;
vii. Insane or feeble-minded.
F. Powers and Duties of Public

Officers
I. Classification of Powers and Duties
II. Source of Powers and Authority
III. Duties of Public Officers
2. As to the Obligation of the Officer to

Perform his Powers and Duties
a. Mandatory
Powers conferred on public officers are generally
construed as mandatory although the language may
be permissive, where they are for the benefit of the
public or individuals
b. Permissive
I. Classification of Powers and Duties

(De Leon, 2008)
1. As to Nature
Official duty is ministerial when it is absolute,

certain and imperative involving merely
execution of a specific duty arising from fixed
and designated facts. Where the officer or
official body has no judicial power or discretion
as to the interpretation of the law, and the
course to be pursued is fixed by law, their acts
are ministerial only.
Performance of duties of this nature may, unless
expressly prohibited, be properly delegated to
another. Thus, a ministerial act which may be
lawfully done by another officer may be
performed by him through any deputy or agent
willfully created or appointed.
Where the law expressly requires the act to be
performed by the officer in person, it cannot,
though ministerial, be delegated to another.
Statutory provisions define the time and mode

in which public officers will discharge their
duties, and those which are obviously designed
merely to secure order, uniformity, system and
dispatch in public business are generally
deemed directory.
If the act does not affect third persons and is
not clearly beneficial to the public, permissive
words will not be construed as mandatory.
3. As to the Relationship of the Officer to his

subordinates
a. Power of Control
a.Ministerial
The presumption is that the public officer was

chosen because he was deemed fit and
competent to exercise that judgment and
discretion. Unless the power to substitute
another in his place has been given to him, a
public officer cannot delegate his duties to
another.
It implies the power of an officer to manage, direct

or govern, including the power to alter or modify or
set aside what a subordinate had done in the
performance of his duties and to substitute his
judgment for that of the latter.
b. Power of Supervision
Supervisory power is the power of mere

oversight over an inferior body which does not
include any restraining authority over such
body.
A supervising officer merely sees to it that the
rules are followed, but he himself does not lay
down such rules, nor does he have the discretion
to modify or replace them.
II. Source of Powers and Authority
b. Discretionary
(De Leon, 2008)
They are such as necessarily require the

exercise of reason in the adaptation of means to
an end, and discretion in determining how or
whether the act shall be done or the course
pursued.
When the law commits to any officer the duty of
looking into facts and acting upon them, not in a
way which it specifically directs, but after a
discretion in its nature, the function is quasijudicial.
Under our political system, the source of

governmental authority is found in the people.
Directly or indirectly through their chosen
representatives, they create such offices and
agencies as they deem to be desirable for the
administration of the public functions and
declare in what manner and by what persons
they shall be exercised.
Their will, in these respects, finds its expression
in the Constitution and the laws. The right to be
13
2
a public officer, then, or to exercise the powers

and authority of a public office, must find its
source in some provision of the public law.
Nothing is better settled in the law than that a
public official exercises power, not rights. The
government itself is merely an agency through
which the will of the state is expressed and
enforced. Its officers therefore are likewise
agents entrusted with the responsibility of
discharging its functions. As such there is no
presumption that they are empowered to act.
There must be a delegation of such authority,
either express or implied. In the absence of a
valid grant, they are devoid of power. What
they do suffers from a fatal infirmity. [Villegas
v. Subido (1969)]
2. Duty to make public disclosure

statements of assets and liabilities
III. Duties of Public Officers

(De Leon, 2008)
1. Duties as Trustees for the Public
a. To obey the law

It is the duty of an officer to obey the general
laws and the laws which prescribe the duties of
his office, and a public officer has no power to
vary or waive any statutory law.
As a general rule, a public officer must obey a
law found on the statute books until its
constitutionality is judicially passed upon in a
proper proceeding.
b. To accept and continue in office

It is the duty of every person having the requisite
qualifications, when elected or appointed to a public
office, to accept it. The theory is that the public has
the right to command the services of any citizen in
any official position which it may designate.
c. To accept the burden of office
One who accepts a public office does so with the
burden, and is considered as accepting its burdens
and obligations with its benefits. He thereby
subjects himself to all constitutional and legislative
provisions relating thereto and undertakes to
perform all the duties of the office.
d. As to diligence and care
Every public officer is bound to use reasonable skill
and diligence in the performance of his official
duties, particularly where rights of individuals may
be jeopardized by his neglect.
e. As to choice and supervision of
subordinates
It is the duty of a public officer having an

appointing power to make the best available
appointment.
The degree of care required in selecting

subordinates must depend upon the nature of
the work to be performed and the
circumstances of each case.
f. Ethical duties
Every public officer is bound to perform the
duties of his office honestly, faithfully and to
the best of his ability, in such a manner as to be

above suspicion of irregularities, and to act
primarily for the benefit of the public.
As to outside activities: It is the duty of public
officers to refrain from outside activities which
interfere with the proper discharge of their
duties
of
Public officials and employees have an

obligation under the Code of Conduct and
Ethical Standards for Public Officials and
Employees
to
accomplish
and
submit
declarations under oath of, and the public has
the right to know, their assets, liabilities, net
worth and financial and business interests
including those of their spouses and of
unmarried children under 18 years of age living
in their household.
3. Transparency of transactions and access to

information
G. Rights of Public Officers

I. In General
II. Right to Compensation
III. Other Rights
I. In General
(De Leon, 2008)
1. Rights incident to public office

The rights of one elected or appointed to office are,
in general, measured by the Constitution or the law
under which he was elected or appointed.
2. Rights as a citizen
a. Protection from publication commenting on
his fitness and the like
The mere fact that one occupies a public office

does not deprive him of the protection accorded
to citizens by the Constitution and the laws.
However, by reason of the public character of
his employment or office, a public officer is, in
general, held not entitled to the same
protection from publications commenting on his
fitness and the like, as is accorded to the
ordinary citizen.
b. Engaging in certain political and business
activities
The governmental interest in maintaining a high

level service by assuring the efficiency of its
employees in the performance of their tasks may
require public employees to suspend or refrain from
certain political or business activities that are
embraced within the constitutional rights of others,
when such activities are reasonably deemed
inconsistent with their public status and duties.
13
3
II. Right to Compensation

(De Leon, 2008)
The power to fix the compensation of public

officers is not inherently and exclusively
legislative in character.
Unless the Constitution expressly or impliedly
prohibits Congress from doing so, it may
delegate the power to other government bodies
or officers.
The salary of a public officer may not, by
garnishment, attachment or order of execution,
be seized before being paid to him and,
appropriated for the payment of his debts.
The rationale behind this doctrine is obvious
consideration of public policy. The functions
and public services rendered by the State
cannot be allowed to be paralyzed or disrupted
by the diversion of public funds from their
legitimate and specific objects, as appropriated
by law. [De la Victoria v. Burgos, (1995)]
Basis of Right to Compensation
The relation between an officer and the public

is not the creation of contract, nor is the office
itself a contract. Hence, his right to
compensation is not the creation of contract. It
exists as the creation of law and belongs to him
not by force of any contract but because the
law attaches it to the office.
The right to compensation grows out of the

services rendered. After services have been
rendered, the compensation thus earned cannot
be taken away by a subsequent law.
As a general proposition, a public official is not

entitled to any compensation if he has not
rendered any service. [Acosta v. CA, (2000)]
III. Other Rights

(De Leon, 2008)
Employees in the government given temporary

appointments do not enjoy security of tenure. They
shall be given such protection as may be established
by law to prevent indiscriminate dismissals and to
see to it that their separation or replacement is
made only for justifiable reasons
c.
A Senator or Member of the House of

Representatives shall, in all offenses punishable by
not more than six years imprisonment, be privileged
from arrest while Congress is in session. No member
shall be questioned nor be held liable in any other
place for any speech or debate in the Congress or in
any committee thereof. [Sec. 11, Art. VI,
Constitution]
d.
2. Rights under the Civil Service Decree and

the New Administrative Code
a. Right to preference in promotion
b. Right to present complaints and grievances
c. Right not to be suspended or dismissed except
for cause as provided by law and after due
process
d. Right to organize
3. Next-in-Rank Rule
Right to self-organization
The right to self-organization shall not be

denied to government employees. [Sec. 2(5),
Art. IX-B, Constitution]. Government employees
in the civil service are granted the right to form
unions enjoyed by workers in the private sector
However,
the
constitutional
grant
to
government workers of the right to form labor
organizations or unions does not guarantee them
the right to bargain collectively with the
government or to engage in concerted activities
including the right to strike, which are enjoyed
by private employees. They are prohibited from
staging strikes, demonstrations, mass leaves,
walk-outs and other forms of mass actions which
will result in temporary stoppage or disruption
of public services
b.
Right to protection of temporary

employees
Right not to be removed or

suspended except for cause
provided by law
Implicit in the constitutional prohibition against

removal or suspension except for cause, is the
existence of a charge, due hearing, and the finding
of guilt by the proper authority.
1. Rights under the Constitution

a.
Freedom of members of Congress

from arrest and from being
questioned
This rule specifically applies only in cases of

promotion. It neither grants a vested right to
the holder nor imposes a ministerial duty on the
appointing authority to promote such person to
the next higher position.
One who is next-in-rank to a vacancy is given
preferential consideration for promotion to a
vacant position, but it does not necessarily
follow that he alone and no one else can be
appointed.
Reason for the rule: The preference given
assumes that employees working in an office for
longer period have gained not only superior
skills but also greater dedication to the public
service provided that the acts of the appointing
power are bona fide for the best interest of the
public service and the person chosen has the
needed qualifications.
4. Personnel Actions
13
4
Any action denoting the movement or progress

of personnel in the civil service is known as
personnel action.
It includes:
o appointment through certification
o promotion
o transfer
o reinstatement
o reemployment
o detail
o reassignment
o demotion and
o separation
5. Rights under the Revised Government

Service Insurance Act
Covered employees are entitled to retirement
benefits, separation benefits, unemployment or
involuntary separation benefits, disability benefits,
survivorship benefits, funeral benefits and life
insurance benefits.
6. Right to Reimbursement and Indemnity
When a public officer, in the due performance

of his duties, has been expressly or impliedly
required by law to incur expenses on the public
account, not covered by his salary or
commission and not attributable to his own
neglect or default, the reasonable and proper
amount thereof forms a legitimate charge
against the public for which he should be
reimbursed.
Within the same limits, the officer is entitled to
be indemnified by the public against the
consequences of acts which he has been
expressly or impliedly required to perform upon
the public account, and which are not
manifestly illegal and which he does not know to
be wrong.
7. Right to Reinstatement and Back Salary
Reinstatement means the restoration to a state

or condition from which one had been removed
or separated. One who is reinstated assumes the
position he had occupied prior to the dismissal
Back salary or wages is a form of relief that
restores the income that was lost by reason of
unlawful dismissal
For a plaintiff to succeed in seeking
reinstatement to an office, he must prove his
right to the office. Unless this right is shown,
the action must fail even if the appointment of
the successor is first in issue.
8. Rights to Property, Devices and

Inventions
Title to a public office carries with it the right,

during the incumbency of the officer, to the
insignia and property thereof.
The question whether records, discoveries,
inventions, devices, data and the like, made or
prepared by an officer while he is occupying the

office, belong to the public, must be
determined wit reference to the facts of each
case.
o where such are indispensable in the proper
conduct of the office, the officer may not
take them as his own property.
o if, not being required by law, they are
prepared by the officer apart from his
official duties and are not indispensable in
the proper conduct of the office, the officer
may acquire a property right therein.
H. Liabilities of Public Officers

I. Preventive Suspension and Back Salaries
II. Illegal Dismissal, Reinstatement and Back
Salaries
The liability of a public officer to an individual or
the public is based upon and is co-extensive with his
duty to the individual or the public. (De Leon, 2008)
Three-fold Responsibility of Public Officers (De
Leon, 2008)
A public officer is under a three-fold responsibility
for violation of duty or for wrongful act or omission:
Civil Liability: if the individual is damaged by

such violation, the official shall, in some cases,
be held liable civilly to reimburse the injured
party
Criminal Liability: if he law has attached a penal

sanction, the officer may be punished criminally
Administrative Liability: such violation may also

lead to imposition of fine, reprimand,
suspension or removal from office.
This
administrative liability is separate and distinct
from the penal and civil liabilities. (Agpalo,
2005)
Civil Liability (Agpalo, 2005)
A public officer is not liable for damages which

a person may suffer arising from the just
performance of his official duties and within the
scope of his assigned tasks. An officer who acts
within his authority is not liable for damages as
it would virtually be a charge against the
Republic, which is not amenable to judgment
for monetary claims without its consent.
Statutory basis of liability:

o Under the Administrative Code:
Sec. 38. Liability of Superior Officers. - (1) A public
officer shall not be civilly liable for acts done in the
performance of his official duties, unless there is a
clear showing of bad faith, malice or gross
negligence.
(2) Any public officer who, without just cause,
neglects to perform a duty within a period fixed by
law or regulation, or within a reasonable period if
none is fixed, shall be liable for damages to the
private party concerned without prejudice to such
other liability as may be prescribed by law.
(3) A head of a department or a superior officer
shall not be civilly liable for the wrongful acts,
omissions of duty, negligence, or misfeasance of his
subordinates, unless he has actually authorized by
written order the specific act or misconduct
complained of.
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5

Sec. 39. Liability of Subordinate Officers. -No
subordinate officer or employee shall be civilly liable
for acts done by him in good faith in the
performance of his duties. However, he shall be
liable for willful or negligent acts done by him which
are contrary to law, morals, public policy and good
customs even if he acted under orders or instructions
of his superiors.
o Under Article 27 of the Civil Code:
Art. 27. Any person suffering material or moral loss
because a public servant or employee refuses or
neglects, without just cause, to perform his official
duty may file an action for damages and other relief
against he latter, without prejudice to any
disciplinary administrative action that may be taken.
The provision contemplates a refusal or neglect
without just cause by a public servant or employee
to perform his official duty. Where there is just
cause, he may not be held liable.
o Under Article 32 of the Civil Code:
Art. 32. Any public officer or employee, or any
private individual, who directly or indirectly
obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights and
liberties of another person shall be liable to the
latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a
periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property
without due process of law;
(7) The right to a just compensation when private
property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house,
papers, and effects against unreasonable
searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The
privacy
of
communication
and
correspondence;
(12) The right to become a member of associations
or societies for purposes not contrary to law;
(13) The right to take part in a peaceable assembly
to petition the government for redress of
grievances;
(14) The right to be free from involuntary servitude
in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself
and counsel, to be informed of the nature and
cause of the accusation against him, to have a
speedy and public trial, to meet the witnesses
face to face, and to have compulsory process to
secure the attendance of witness in his behalf;
(17) Freedom from being compelled to be a witness
against one's self, or from being forced to
confess guilt, or from being induced by a
promise of immunity or reward to make such
confession, except when the person confessing

becomes a State witness;
(18) Freedom from excessive fines, or cruel and
unusual punishment, unless the same is imposed
or inflicted in accordance with a statute which
has
not
been
judicially
declared
unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article,
whether or not the defendant's act or omission
constitutes a criminal offense, the aggrieved party
has a right to commence an entirely separate and
distinct civil action for damages, and for other
relief. Such civil action shall proceed independently
of any criminal prosecution (if the latter be
instituted), and mat be proved by a preponderance
of evidence.
The indemnity shall include moral damages.
Exemplary damages may also be adjudicated.
The responsibility herein set forth is not demandable
from a judge unless his act or omission constitutes a
violation of the Penal Code or other penal statute.
This provision renders a public officer

civilly liable for damages for directly or
indirectly
obstructing,
defeating,
violating or in any manner impeding or
impairing civil liberties guaranteed by
the Constitution.
Under this provision, it is not necessary
that the public officer acted with
malice or bad faith. To be liable, it is
enough that there was a violation of
the constitutional rights of the
aggrieved party, even on the pretext of
justifiable motives or good faith in the
performance of ones duties.
Good faith is not a defense
Criminal Liability (De Leon, 2008)
The mere fact that an officer is acting in an

official capacity will not relieve him from
criminal liability.
Crimes peculiar to certain public officers:

1. Revised Penal Code
2. Anti-Graft and Corrupt Practices Act
3. Code of Conduct and Ethical Standards
4. Forfeiture of Unexplained Wealth Act
5.Civil Service Decree
6. Government Auditing Code
7. Local Government Code
8. National Internal Revenue Code
9. Omnibus Election Code
I. Preventive Suspension and Back

Salaries
Kinds of Preventive Suspension
a. preventive suspension pending investigation
The proper disciplining authority may
preventively suspend any subordinate
officer under his authority pending an
investigation, if the charge against such
13
6
b.
officer involves dishonesty, oppression or

grave misconduct or neglect in the
performance of duty or if there are reasons
to believe that the respondent is guilty of
the charges which would warrant his
removal from service (De Leon, 2008)
No compensation is due for the period of
preventive suspension pending investigation
because such is not a penalty but only a
means of enabling the disciplining authority
to conduct an unhampered investigation.
(De Leon, 2008)
preventive suspension pending appeal if the
penalty imposed by the disciplining authority is
suspension or dismissal and, after review, the
respondent is exonerated [Caniete v. Secretary
of Education, (2000)]
Employees are entitled to compensation for
the period of their suspension pending
appeal if they are found innocent. Such
suspension is actually punitive so that a
public officer should be reinstated with full
pay for the period of the suspension.
II. Illegal Dismissal, Reinstatement

and Back Salaries
Reinstatement and back salary or wages are

separate and distinct reliefs given to an illegally
dismissed official or employee.
Where an officer was unlawfully removed and
was prevented for a time by no fault of his own
from performing the duties of his office, it was
held that he might recover, and that the amount
that he had earned in other employment during
his unlawful removal should not be deducted
from his unpaid salary. He may recover the full
amount notwithstanding that during the period
of his removal, the salary has been paid to
another appointed to fill the vacancy unlawfully
created.
The no work, no pay principle does not apply
where it has been sufficiently shown that a
public official was wrongfully prevented from
entering the office and carrying out his duties
If the illegal dismissal is found to have been
made in bad faith by the superior officers then
they will be held personally accountable for
back salaries of the illegally dismissed
employee.
The award of backwages is limited to a
maximum period of 5 years and not to full back
salaries from illegal termination up to
reinstatement [David v. Gania, (2003)]
I. Immunity of Public Officers

Doctrine of Official Immunity from Liabilities for
Public Officers
Rationale: promotion of fearless, vigorous and

effective
administration
of
policies
of
government.
It is generally recognized that public officers

and employees would be unduly hampered,
deterred and intimidated in the discharge of

their duties, if those who act improperly, or
even exceed the authority given them, were not
protected to some reasonable degree by being
relieved from private liability. The threat of suit
could also deter competent people from
accepting public office.
Other public policy considerations:
o loss of valuable time caused by such actions
o unfairness of subjecting officials to personal
liability for the acts of their subordinates
o a feeling that the ballot and removal
procedures are more appropriate methods
of dealing with the misconduct in public
office.
Official Immunity Distinguished from State

Immunity
The immunity of public officials is a more

limited principle than governmental immunity
since its purpose is not directly to protect the
sovereign, but rather to do so only collaterally,
by protecting the public official in the
performance of his government function.
The doctrine of sovereign immunity principally

rested upon the tenuous ground that the king
could do no wrong. It served to protect the
impersonal body politic or government itself
from tort liability.
Official Immunity serves as a protective aegis

for public officials from tort liability for
damages arising from discretionary acts or
functions in the performance of their official
duties.
Official Immunity not Absolute
A public officer enjoys only qualified, not

absolute immunity. The protection afforded by
the doctrine generally applies only to activities
within the scope of office that are in good faith
and are not reckless, malicious or corrupt.
But acts of a public officer are protected by the

presumption of good faith. Even mistakes
concededly committed by such a public officer
in the discharge of his official duties are not
actionable as long as it is not shown that they
were motivated by malice or gross negligence
amounting to bad faith.
A public officer may be sued as such to compel

him to do an act required by law
J. De Facto Officers
I. De Facto Doctrine
II. De Facto Officer Defined
IV. Office created under an unconstitutional
statute
V. Legal Effect of Acts of De Facto Officers
VI. Liability of De Facto Officers
VII. Right to Compensation of De Facto Officer
I. De Facto Doctrine
13
7
It is the doctrine that a person who is admitted

and sworn into office by the proper authority is
deemed to be rightfully in such office until:
(a) he is ousted by judicial declaration in a
proper proceeding; or
(b) his admission thereto is declared void.
Doctrines Purpose: to ensure the orderly
functioning of government. The public cannot
afford to check the validity of the officer's title
each time they transact with him.
a.
Officer De Jure v. Officer De Facto (Asked

in 2000, 2004)
Requisites
He is legally
qualified for the
office;
II. De Facto Officer Defined
One who has the reputation of being the

officer that he assumes to be, and yet is not a
good officer in point of law. [Torres v. Ribo
(1948)]
He must have:
o acted as an officer for such length of time,
o under color of title and under such
circumstances
of
reputation
or
acquiescence by the public and public
authorities,
o as to afford a presumption of election or
appointment, and
o induce people, without inquiry, and relying on
the supposition that he is the officer he
assumes to be, to submit to or invoke his
action.
A person is a de facto officer when the duties of
his office are exercised under ANY of the
following circumstances:
1. There is no known appointment or election,
but people are induced by circumstances of
reputation or acquiescence to suppose that
he is the officer he assumes to be.
Consequently, people do not to inquire
into his authority, and they submit to him
or invoke his action;
2. He possessed public office under color of a
known and valid appointment or election,
but he failed to conform to some precedent
requirement or condition (e.g., taking an
oath or giving a bond);
3. He possessed public office under color of a
known election or appointment, but such is
VOID because:
o Hes ineligible;
o The electing or appointing body is not
empowered to do such;
o His exercise of his function was
defective or irregular;
o (Important) The public does NOT KNOW
of such ineligibility, want of power, or
defect being.
He possessed public office under color of an
election or an appointment by or pursuant to a
public, unconstitutional law, before the same
is adjudged to be such.
o What is unconstitutional is the officers
appointment to an office not legally
existing,
(not
creation
of
an
unconstitutional office). [Norton v. County
of Shelby (1886)]
De Jure
A de jure office
exists;
He is lawfully
chosen to such
office;
Basis of
Authority
He undertakes to
perform the
duties of such
office according
to laws
prescribed mode.
Right:
He has the lawful
right / title to
the office
How
ousted
Cannot be
ousted.
Validity of
official
acts
Valid, subject to
exceptions (e.g.,
acting beyond his
scope of
authority, etc.)
Rightfully
entitled to
compensation;
Rule on
Compensation
The principle "No

work, no pay" is
inapplicable to
him.
De Facto
De jure office;
He assumed
office under color
of right or
general
acquiescence by
the public;
He actually and
physically
possessed the
office in good
faith.
Reputation: He
possesses office
and performs its
duties under
color of right, but
he is not
technically
qualified to act in
all points of law
In a direct
proceeding (quo
warranto);
(collaterally)
Valid as to the
public until his
title to the office
is adjudged
insufficient.
Conditionally
entitled to
receive
compensation:
only when no de
jure officer is
declared;
He is paid only
for actual
services
rendered.
b.
Officer De Facto v. Intruder
Nature
Basis of
authority
De Facto
He becomes
officer under any
of the 4
circumstances
discussed under
Part II (above).
Color of right or
title to office
Intruder
He possesses
office and
performs official
acts without
actual or
apparent
authority.
None. Neither
lawful title nor
color of right to
13
8

De Facto
Validity of
"official"
acts
Rule on
compensation
Valid as to the
public until his
title to the office
is adjudged
insufficient
Entitled to
receive
compensation
only when no de
jure officer is
declared and only
for actual
services
rendered.
Intruder
office.
Absolutely void;
His acts can be
impeached at any
time in any
proceeding
(unless and until
he continues to
act for a long
time, creating a
presumption of
his right to act)
(De Leon, 119)
Not entitled to
compensation at
all.
An intruder / usurper may be presumed a de facto

officer with the passage of time, when the public
presumes in their minds IN GOOD FAITH that the
intruder is rightfully acting as a public officer.
IV. Office created under an

unconstitutional statute
The prevalent view is that a person appointed or
elected in accordance with a law later declared to
be unconstitutional may be considered de facto at
least before the declaration of unconstitutionality.
V. Legal Effect of Acts of De Facto

Officers
[Monroy v. CA (1967)]

i. A validly existing public office;
ii. Actual physical possession of the office in
good faith;
iii. Color of title to the office:
a. Reputation or acquiescence;
b. Known and valid appointment or
election but
the officer failed to
conform to a legal requirement
c. Known appointment or election but
void because of ineligibility of the
officer, or want of authority of the
appointing or electing authority, or
because of an irregularity in his
appointment
or
election,
such
ineligibility, want of authority or
irregularity being unknown to the
public
d. Known
appointment
or
election
pursuant to an unconstitutional law
before
declaration
of
unconstitutionality
Who are NOT considered De Facto Officers?
A judge who has accepted an appointment as

finance secretary and yet renders a decision
after his acceptance: if he has ceased to be
judge by actually accepting and entering into
some other office and has actually entered upon
the performance of the duties of the other
office, it is difficult to understand how he can
still be considered as actually occupying and
performing the duties of the office which he had
abandoned and vacated. An abandonment and
a vacation of an office is inconsistent and
repugnant to the idea of actually continuing
to perform the duties of such office; [Luna v.

Rodriguez (1917)]
A judge whose position has already been
lawfully abolished, and yet promulgates a
decision in a criminal case after the abolition
and over the fiscals objection [People v. So
(1995)]
As regards the officers themselves: A party suing

or defending in his own right as a public officer
must show that he is an officer de jure. It is not
sufficient that he be merely a de facto officer.
As regards the public and third persons: The acts
of a de facto officer are valid as to third
persons and the public until his title to office
is adjudged insufficient.
o RATIONALE: The doctrine is intended not for
the protection of the public officer, but for
the protection of the public and individuals
who get involved in the official acts of
persons discharging the duties of a public
office.
De Facto Officers Official Acts are not subject
to collateral attack
o RULE: A de facto officers and his acts
validity cannot be collaterally questioned
(in proceedings where he is not a party, or
were not instituted to determine the very
question).
o REMEDY: Quo warranto proceedings filed by:
The person claiming entitlement to the

office;
The Republic of the Philippines

(represented by the Solicitor-General
or a public prosecutor).
VI. Liabilities of De Facto Officers

(De Leon, 130-131)
A de facto officer generally has the same degree

of liability in accountability for official acts like
a de jure officer.
The de facto officer may be liable for all
imposable penalties for ANY of the following
acts:
o usurping or unlawfully holding office;
o exercising the functions of public office
without lawful right;
o ineligibility for the public office as required
by law
13
9
The de facto officer cannot excuse responsibility

for crimes committed in his official capacity by
asserting his de facto status.
VI. Abandonment of office

VII. Prescription of right to office
VIII. Removal
IX. Impeachement
X. Abolition of office
XI. Conviction of a crime
XII. Recall
VII. Right to Compensation of De

Facto Officer
GENERAL RULE
None. A de facto officer cannot sue for the recovery
of salary, fees or other emoluments attached to the
office, for the duties he has performed. His acts, as
far as he himself is concerned, are void. (63A Am.
Jur. 2d 1094-1095)
The rightful incumbent may recover from the de
facto officer the salary received by the latter during
his wrongful tenure, even though he entered into the
office in good faith and under color of title.[ Monroy
v CA (1967)
EXCEPTIONS
Where there is no de jure 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. [Monroy v. CA
[1967])
In Civil Liberties Union v. Executive Secretary

(1991), even as EO No. 284 was declared
unconstitutional because it allowed Cabinet
members to hold multiple offices in direct
contravention of the Constitution, it was held
that during their tenure in the questioned
positions, the respondents may be considered de
facto officers and as such entitled to the
emoluments of the office/s for actual service
rendered.
A de facto officer, not having good title, takes

the salaries at his risk and must account to the
de jure officer (when there is one) for whatever
salary he received during the period of his
wrongful tenure, even if he occupied the office
in good faith.
o BUT when the de jure officer assumed
another position under protest, for which
she received compensation: while her
assumption to the said position and her
acceptance
of
the
corresponding
emoluments
do
not
constitute
abandonment of her rightful office, she
cannot recover full back wages for such.
She is only entitled to back pay
differentials between the salary rates for
the lower position she assumed and the
position she is rightfully entitled to. [Gen.
Manager, Philippine Ports Authority v.
Monserate (2002)]
I. Expiration of the term or tenure of

office

This mode results in the compulsory and automatic
retirement of a public officer
III. Death or permanent disability
The death of the incumbent of an office, which

is by law to be filled by one person only,
necessarily renders the office vacant. The public
official cease to hold office upon his death and
all his rights, duties and obligations pertinent to
the office are extinguished
Permanent disability covers both physical or
mental disability.
IV. Resignation
K. Termination of Official Relation

I. Expiration of the term or tenure of office
III. Death or permanent disability
IV. Resignation
V. Acceptance of an incompatible office
Upon the expiration of the officers term, unless

he is authorized by law to hold over, his rights,
duties and authority as a public officer must
ipso facto cease
Term of office means the time during which the
officer may claim to hold the office as of right
and fixes the interval after which the several
incumbents shall succeed one another. It is a
fixed and definite period of time to hold office,
perform its functions and enjoy its privileges
and emoluments until the expiration of said
period
Tenure of office represents the period during
which the incumbent actually holds office.
Resignation is the formal renunciation or

relinquishment of a public office. It implies an
expression by the incumbent in some form,
express or implied, of the intention to
surrender, renounce and relinquish his right to
the office and its acceptance by competent and
lawful authority.
To constitute resignation of public office, there
must be an intention to relinquish a part of the
term,
accompanied
by
the
act
of
relinquishment.
A written resignation, delivered to the board or
officer authorized to receive it and fill the
vacancy thereby created, is prima facie, but not
conclusive evidence of the intention to
relinquish the office.
Acceptance by the proper authority is necessary
for a resignation to be operative and effective.
14
0
V. Acceptance of an incompatible
office
It is contrary to the policy of the law that the

same individual should undertake to perform
inconsistent and incompatible duties.
One who, while occupying one office, accepts
another incompatible with the first, ipso facto,
absolutely vacates the first office.
When Incompatible
o Incompatibility is to be found in the character
of the offices and their relation to each
other, in the subordination of one to the
other and in the nature of the functions and
duties which attach to them
o It exists where:
There is conflict in such duties and

functions, so that the performance of
the duties of one interferes with the
performance of the duties of the other
as to render it improper from
consideration of public policy for one
person to retain both
One is subordinate to te other and is

subject in some degree to its
supervisory power for obviously in such
a situation, the design that one acts as
a check on the other would be
frustrated
The Constitution of the law itself

declares the incompatibility even
though there is no inconsistency in the
nature and functions of the offices
VI. Abandonment of office

Abandonment means the voluntary relinquishment of
an office by the holder of all right, title, or claim
thereto with the intention of not reclaiming it or
terminating his possession and control thereof.
IX. Impeachment
X. Abolition of office
VII. Prescription of right to office
Under the Rules of Court, quo warranto is the

proper remedy against a public officer for is
ouster from office which should be commenced
within one year after the cause of such ouster or
the right of the plaintiff to hold such office or
position arose; otherwise, the action will be
barred
Rationale for the one year period: Title to
public office should not be subjected to
uncertainties but should be determined as
speedily as possible.
VIII. Removal
Removal entails the ouster of an incumbent

before the expiration of his term. It implies that
the office exists after the ouster.
Removal from office may be express or implied.
Impeachment has been defined as a method of

national inquest into the conduct of public men.
Its purpose is to protect the people from official
delinquencies or malfeasances. It is primarily
intended for the protection of the State, not for
the punishment of the offender.
The President, the Vice-President, the Members
of the Supreme Court, the Members of the
Constitutional
Commissions,
and
the
Ombudsman may be removed from office on
impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or
betrayal of public trust. All other public officers
and employees may be removed from office as
provided by law, but not by impeachment. (Sec.
2, Art. XI, Constitution)
The House of Representatives has the sole
power to initiate all cases of impeachment while
the Senate sits as a court for the trial of
impeachment cases. Judgment in cases of
impeachment shall not extend further than
removal from office and disqualification to hold
any office under the Republic of the Philippines,
but the party convicted shall nevertheless be
liable and subject to prosecution, trial, and
punishment, according to law. (Sec. 3, Art. XI,
Constitution)
To consider an office abolished, there must have

been an intention to do away with it wholly and
permanently.
As a general rule, Congress may abolish any
office it creates without infringing upon the
rights of the officer or employee affected. Such
power may be exercised at any time and even
while the office is occupied by a duly elected or
appointed incumbent. Absent any constitutional
prohibition, an office created by Congress may
be abolished by it during the term of the
incumbent.
The fundamental principle afforded to civil
service employees against removal except for
cause as provided by law does not protect
them against abolition of the positions held by
them in the absence of any other provision
expressly or impliedly prohibiting abolition
thereof. [Castillo v. Pajo, (1958)]
XI. Conviction of a crime
When the penalties of perpetual or temporary

absolute disqualification or penalties of
perpetual or temporary special disqualification
are imposed upon conviction of a crime,
termination of official relation results, for one
of te effects of the imposition of said penalties
is the deprivation of the public office which the
offender may have held.
14
1
Conviction means conviction in a trial court. It

contemplates a court finding guilt beyond
reasonable doubt followed by a judgment
upholding and implementing such finding.
XII. Recall
Through recall, an elective official may be removed
at any time during his term by the vote of the
people at an election called for such purpose or at a
general election.
L. The Civil Service

I. Scope
II. Appointments to the Civil Service
III. Personnel Actions
I. Scope
Civil Service Commissions (CSCs) Jurisdiction
Exclusive Jurisdiction
o Disciplinary cases
o Cases involving personnel action affecting
the Civil Service employees
Appointment through certification
Promotion
Transfer
Reinstatement
Reemployment
Detail, reassignment
Demotion
Separation
o Employment status
o Qualification standards
Recall of appointment
o Includes the authority to recall an
appointment which has been initially
approved when it is shown that the same
was issued in disregard of pertinent CSC
laws, rules and regulations.
o as opposed to Recall under Sec 69-75 of the
Local Government Code:
Recall is a mode of removal of a public

official by the people before the end of
his term of office. [Garcia v. COMELEC,
(1993)]
Review Appointees Qualifications.

The only function of the CSC is to review the
appointment in the light of the requirements of the
Civil Service Law, and when it finds the appointee to
be qualified and all other legal requirements have
been otherwise satisfied, it has no choice but to
attest to the appointment. [Lapinid v. CSC (1991)]
What it cannot do.

o It cannot order the replacement of the
appointee simply because it considers
another employee to be better qualified.
[Lapinid v. CSC (1991)]

o The CSC cannot co-manage or be a surrogate
administrator of government offices and
agencies.
o It cannot change the nature of the
appointment extended by the appointing
officer. [ Luego v. CSC (1986)]
II. Appointments to the Civil Service

SCOPE
Embraces
all
branches,
subdivisions,
instrumentalities and agencies of the Government,
including GOCCs with original charters (Art. IX-B
Sec. 2(1), Constitution)
Classes of Service
1. Career Service Entrance based on merit and
fitness
determined
by
competitive
examinations, or based on highly technical
qualifications, opportunity for advancement to
higher career positions and security of tenure.
2. Non-career Service Entrance on bases other
than those of the usual tests. Tenure limited to
a period specified by law or which is
coterminous with the appointing authority or
the duration of a particular project. (i.e.
elective officials, Department Heads and
Members of Cabinet)
Requisites:
Appoint only according to merit and fitness, to

be determined as far as practicable.
Require a competitive examination.

o Exceptions: (Positions where Appointees are
exempt from Competitive Examination
Requirements)
Policy determining in which the

officer
lays
down
principal
or
fundamental guidelines or rules; or
formulates a method of action for
government or any of its subsidiaries
Primarily Confidential denoting not

only confidence in the aptitude of the
appointee for the duties of the office
but primarily close intimacy which
ensures freedom of intercourse without
embarrassment or freedom from
misgivings or betrayals on confidential
matters of the state
(Proximity
Rule as enunciated in De los Santos v
Mallare [1950])
Highly Technical requires possession

of technical skill or training in a
superior degree. (i.e. City Legal
Officer)
NOTE: It is the nature of the position which
determines whether a position is policy determining,
primarily confidential or highly technical
III. Personnel Actions

Other Personnel Actions
Promotion is a movement from one position to

another
with
increase
in
duties
and
14
2

responsibilities as authorized by law and is
usually accompanied by an increase in pay.
o Next-in-rank Rule.
The person next in rank shall be given

PREFERENCE in promotion when the
position immediately above his is
vacated.
BUT the appointing authority still

exercises discretion and is not bound by
this rule, although he is required to
specify the special reason or reasons
for not appointing the officer next-inrank.
o Automatic Reversion Rule.
All appointments involved in a chain of

promotions
must
be
submitted
simultaneously for approval by the
Commission.
The disapproval of the appointment of

a person proposed to a higher position
invalidates the promotion of those in
the lower positions and automatically
restores them to their former positions.
However, the affected persons are

entitled to payment of salaries for
services actually rendered at a rate
fixed
in
their
promotional
appointments. (Sec. 13 of the
Omnibus
Rules
Implementing
Administrative Code)
Requisites:
1. series of promotions
2. all promotional appointments are
simultaneously submitted to the
Commission for approval
3. the Commission disapproves the
appointment of a person to a
higher position.
No commission of delinquency or
misconduct, and is not separated.
o Same effect as Executive Clemency, which
completely obliterates the adverse effects
of the administrative decision which found
him guilty of dishonesty. He is restored ipso
facto upon grant of such. Application for
reinstatement = unnecessary.
Detail is the movement of an employee from

one agency to another without the issuance of
an appointment.
o Only for a limited period.
o Only for employees occupying professional,
technical and scientific positions.
o Temporary in nature.
Reassignment. An employee may be reassigned

from one organizational unit to another in the
SAME agency.
o It is a management prerogative of the CSC
and any dept or agency embraced in the
Civil Service.
o It does not constitute removal without cause.
o Requirements:
NO reduction in rank, status or salary.
Should have a definite date or duration

(c.f. Detail). Otherwise, a floating
assignment = a diminution in status or
rank.
Reemployment. Names of persons who have

been appointed permanently to positions in the
career service and who have been separated as
a result of reduction in force and/or
reorganization, shall be entered in a list from
which selection for reemployment shall be
made.
Appointment through Certification is issued to a

person who is:
o selected from a list of qualified persons
certified by the Civil Service Commission
from an appropriate register of eligibles
o qualified
M. Accountability of Public Officers
Transfer is a movement from one position to

another which is of equivalent rank, level or
salary without break in service.
o This may be imposed as an administrative
remedy.
o If UNconsented = violates security of tenure.
o EXCEPTIONS:
Temporary Appointee
Career Executive Service Personnel

whose status and salaries are based on
ranks ( positions)
I. Impeachment
Reinstatement. It is technically the issuance of

a new appointment and is discretionary on the
part of the appointing power.
o It cannot be the subject of an application for
a writ of mandamus.
o Who may be reinstated to a position in the
same level for which he is qualified:
Any permanent appointee of a career

service position
I. Impeachment
II. Ombudsman
III. Sandiganbayan
IV. Ill-Gotten Wealth
Impeachment has been defined as a criminal

proceeding against a public officer, before a
quasi-judicial political court, instituted by
written
accusation
called
articles
of
impeachment. (Agpalo, 2005)
Its purpose is to protect the people from official
delinquencies or malfeasances. It is primarily
intended for the protection of the State, not for
the punishment of the offender. The penalties
attached to impeachment are merely incidental
to the primary intention of protecting the
people as a body politic. (De Leon, 2008)
Grounds (Sec. 2, Art. XI, Constitution)

1. culpable violation of the Constitution
2. treason
3. bribery
4. graft and corruption
14
3

5. other high crimes
6. betrayal of public trust
The acts which are impeachable grounds must

be committed in the performance of the
officials public office. (Agpalo, 2005)
No impeachment proceedings shall be initiated
against the same official more than once within
a period of one year. (Sec. 3, Art. XI,
Constitution)
o Having concluded that the initiation takes
place by the act of filing of the
impeachment complaint and referral to the
House Committee on Justice, the initial
action taken thereon, the meaning of
Section 3 (5) of Article XI becomes clear.
Once an impeachment complaint has been
initiated in the foregoing manner, another
may not be filed against the same official
within a one year period following Article
XI, Section 3(5) of the Constitution.
[Francisco,
Jr.
v.
House
of
Representatives, (2003)]
II. Ombudsman
(Agpalo, 2005)
Disciplinary Power Over Public Officers
The Office of the Ombudsman has disciplinary

authority over all elective and appointive
officials of the government and its subdivisions,
instrumentalities and agencies, including
Members of the Cabinet, local government,
government-owned or controlled corporations
and their subsidiaries. (Sec. 21, RA 6770)
The disciplinary power of the Ombudsman is not

exclusive but is shared with other disciplinary
authorities of the government.
The disciplinary power of the Ombudsman over

elective officials is concurrent with the power
vested in the officials specified in the Local
Government Code of 1991. [Hagad v. DozoDadole, (1995)]
misconduct or neglect in the performance

of duty;
(b) the charges would warrant removal from
the service; or
(c) the respondent's continued stay in office
may prejudice the case filed against him.
(Sec. 24, RA 6770)
The preventive suspension shall continue until
the case is terminated by the Office of the
Ombudsman but not more than six (6) months,
without pay, except when the delay in the
disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the
period of such delay shall not be counted in
computing the period of suspension herein
provided. (Sec. 24, RA 6770)
Prior notice and hearing is not required before
suspension may be meted out. Suspension is not
a punishment or penalty but only a preventive
measure to prevent the respondent from using
his position or office to influence or intimidate
prospective witnesses or tamper with the
records which may be vital in the prosecution of
the case against them.
(1) Judicial Review in Administrative

Proceedings
Decisions or resolutions of the Ombudsman in

administrative cases absolving the respondent of
the charge or imposing upon him the penalty of
public censure or reprimand, suspension of not
more than one month, or a fine equivalent to
one month salary, is final and unappealable.
(Agpalo, 2005)
Appeals from decisions of the Office of the
Ombudsman in administrative disciplinary cases
should be taken to the Court of Appeals under
the provisions of Rule 43. [Fabian v.
Ombudsman, (1998)]
(2) Judicial Review in Penal

Proceedings
Exceptions to Ombudsmans Disciplinary Power
The Ombudsman has no disciplinary power over

the following (Sec. 21, RA 6770):
1. Officials who may be removed only by
impeachment
2. Members of Congress
3. Members of the Judiciary
In all other cases, the decision shall become final

after the expiration of 10 days from receipt thereof
by the respondent, unless a motion for
reconsideration or a petition for review is file with
the CA pursuant to Rule 43 of the Rules of Court.
(Agpalo, 2005)
III. Sandiganbayan
However, the Office of the Ombudsman has the

power to investigate any serious misconduct in
office committed by officials removable by
impeachment, for the purpose of filing a
verified complaint for impeachment, if
warranted. (Sec. 22, RA 6770)
Power to Preventively Suspend
The Ombudsman or his Deputy may preventively

suspend any officer or employee under his
authority pending an investigation, if in his
judgment the evidence of guilt is strong, and
(a) the charge against such officer or employee
involves dishonesty, oppression or grave
Exclusive Original Jurisdiction over

(a) violations of R.A. No. 3019 and No. 1379
(b) crimes committed by public officers and
employees embraced in Title VIII of the Revised
Penal Code
(c) other offenses or felonies (whether simple or
complexed with other crimes) committed by
public officers
and employees in relation
to their office, where the penalty prescribed by
law is higher than prision correccional or
14
4

imprisonment for six (6) years, or a fine of
P6,000; and
(d) Civil and criminal cases filed pursuant to and in
connection with Executive Orders No. 1,2, 14,
and 14-a issued in 1986
In the absence of any allegation that the offense

charged was necessarily connected with the
discharge of the duties or functions of a public
officer,
the
ordinary
court,
not
the
Sandiganbayan, has jurisdiction to hear and
decide the case.
What is controlling is not whether the phrase
"committed in relation to public office" appears
in the Information. What determines the
jurisdiction of the Sandiganbayan is the specific
factual allegation in the Information that would
indicate close intimacy between the discharge
of the accused's official duties and the
commission of the offense charged in order to
qualify the crime is having been committed in
relation to public office. The relation between
the crime and the office must be direct and not
accidental, that is, the relation has to be such
that, in the legal sense, the offense cannot exist
without the office.
Officials and private individuals subject to its

jurisdiction
Under Section 4(a, b) of PD No. 1606, as

amended, the Sandiganbayan shall exercise
exclusive original jurisdiction over the cases
mentioned in (a), (b), and (c) above where one
or more
of the accused are officials
occupying the following positions in the
government, whether in a permanent, acting or
interim capacity at the time of the commission
of the offense:
(a) Officials of the executive branch occupying
the positions of regional director and
higher, otherwise classified as Grade '27'
and higher, of the Compensation and
Position Classification Act of 1989 (R.A. No.
6758), specifically including:
1) Provincial governors, vice-governors,
members
of
the
sangguniang
panlalawigan,
and
provincial
treasurers, assessors, engineers, and
other provincial department heads;
2) City mayors, vice-mayors, members of
the sangguniang panlungsod, city
treasurers, assessors, engineers, and
other city department heads;
3) Officials of the diplomatic service
occupying the
position of consul
and higher;
4) Philippine army and air force colonels,
naval captains, and all officers of
higher rank;
5) Officers of the Philippine National
Police while occupying the position of
provincial director and those holding
the rank of senior superintendent or
higher;
6) City and provincial prosecutors and
their assistants, and officials and
prosecutors in the Office of the

Ombudsman and special prosecutor;
b) Presidents, directors or trustees, or managers
of
government-owned
or
controlled
corporations,
state
universities
or
educational institutions or foundations;
(c) Members of Congress and officials thereof
classified as Grade "27" and up under the
Compensation and Position Classification
Act of 1989;
(d) Members of the judiciary without prejudice
to the provisions of the Constitution;
(e) Chairmen and members of Constitutional
Commissions, without prejudice to the
provisions of the Constitution; and
(f) All other national and local officials
classified as Grade
"27" and higher
under the Compensation and Position
Classificafion Act of 1989.
In case private individuals are charged as coprincipals, accomplices or accessories with the
public officers or employees, including those
employed in government-owned or -controlled
corporations, they shall be tried jointly with
said public officers and employees in the proper
courts which shall exercise exclusive jurisdiction
over them.
Exclusive Appellate Jurisdiction

The Sandiganbayan shall exercise exclusive appellate
jurisdiction over final judgments, resolutions or
orders of regional trial courts whether in the
exercise of their own original jurisdiction or of their
appellate jurisdiction.
IV. Ill-Gotten Wealth
Ill-gotten wealth means any asset, property,

business enterprise or material possession of any
person acquired by himself directly or indirectly
through
dummies,
nominees,
agents,
subordinates and/or business associates by any
combination or series of the following means or
similar schemes:
(1) through
misappropriation,
conversion,
misuse, or malversation of public funds or
raids on the public treasury;
(2) by receiving, directly or indirectly, any
commission, gift, share, percentage,
kickbacks or any other form of pecuniary
benefit from any person and/or entity in
connection with any government contract
or project or by reason of the office or
position of the public officer concerned;
(3) by the illegal or fraudulent conveyance or
disposition of assets belonging to the
National Government or any of its
subdivisions, agencies or instrumentalities
or
government-owned
or
controlled
corporations and their subsidiaries,
(4) by obtaining, receiving or accepting directly
or indirectly any shares of stock, equity or
any other form of interest or participation
including the promise of future employment
in any business enterprise or undertaking;
14
5
(5) by establishing agricultural, industrial or

commercial
monopolies
or
other
combinations and/or implementation of
decrees and orders intended to benefit
particular persons or special interests, or
(6) by taking undue advantage of official
position, authority, relationship, connection
or influence to unjustly enrich himself or
themselves at the expense and to the
damage and prejudice of the Filipino people
and the Republic of the Philippines. (Sec. 1,
RA 7080)
Section 2 of Republic Act No. 7080 punishes the
crime of plunder. It provides that any public
officer who, by himself or in connivance with
members of his family, relatives by affinity or
consanguinity, business associates, subordinates
or other person, amasses, accumulates or
acquires
ill-gotten
wealth
through
a
combination or series of overt or criminal acts in
the aggregate amount or total value of at least
seventy-five million pesos (P75,000,000.00),
shall be guilty of plunder and shall be punished
by life imprisonment with perpetual absolute
disqualification from holding any public office.
Any person who participated with the said
officer in the commission of plunder shall
likewise be punished. The court shall declare
any and all ill-gotten wealth and their interests
and other incomes and assets including the
properties and shares of stocks derived from the
deposit or investment thereof forfeited in favor
of the State. (Agpalo, 2005)
N. Term Limits
All elective local officials, except barangay
officials (Sec. 8, Art. X, Constitution; Sec. 43 LGC)
Term of office: 3 years from noon of June 30,

1992 or the date provided by law
All local officials first elected during the local
elections immediately following the ratification of
the 1987 Constitution shall serve until noon of June
30, 1992;
No official shall serve for more than 3

consecutive terms for the same position;
Voluntary renunciation of the office for any

length of time is not an interruption in the
continuity of his service for the full term for
which he was elected
RA 9164: Synchronized Barangay and Sangguniang
Kabataan Elections (2002)
Sec. 2. Term of Office
Term of office of barangay and sangguniang

kabataan officials: 3 years
No barangay elective official shall serve for

more than 3 consecutive terms in the same
position
o Reckoned from the 1994 barangay elections
o Voluntary renunciation of office for any length
of time shall not be considered as an
interruption
14
6
UP
L
AW
BAR REVIEWER
2012
POLITICAL
Administrative Law
EXECUTIVE COMMITTEE
COMMITTEE HEADS
OPERATIONS HEADS
LAW
Ronette Colobong
LAYOUT TEAM 2012
Cris Bernardino
Reyes
ADMINISTRATIVE LAW
Administrative Law
Administrative Law
Election Law
Local Governments
A.
B.
C.
D.
POLITICAL LAW
General Principles
Administrative Agencies
Powers of Administrative Agencies
Judicial Recourse and Review
I. Definitions
Administrative Law is that branch of modern law
under which the executive department of the
government, acting in a quasi-legislative or quasijudicial capacity, interferes with the conduct of the
individual for the purpose of promoting the wellbeing of the community (DEAN ROSCOE POUND)
Administrative Agencies are the organs of
government, other than a court and other than the
legislature, which affect the rights of private parties
either through adjudication or through rule-making.
II. Historical Considerations

Why did administrative agencies come about?
(1) Growing complexities of modern life
(2) Multiplication of number of subjects needing
government regulation; and
(3) Increased difficulty of administering laws
[Pangasinan Transportation vs Public Service
Commission (1940)]
Philippine Patent Office, Games and Amusement

Board, Board of Energy, and Insurance Commission)
3) Executive Orders/ Authorities of law
(E.g. Fact-finding Agencies)
II. When is an agency administrative?

Where its function is primarily regulatory EVEN IF it
conducts hearings and determines controversies to
carry out its regulatory duty.
On its rule-making authority, it is administrative
when it does not have discretion to determine what
the law shall be but merely prescribes details for the
enforcement of the law.
III. Types of Administrative Agencies

(1) Government grant or gratuity, special privilege
(e.g. Bureau of Lands, Phil. Veterans Admin.,
GSIS, SSS, PAO);
(2) Carrying out the actual business of government
(e.g. BIR, Customs, Immigration, Land
Registration Authority);
(3) Service for public benefit (e.g. Philpost, PNR,
MWSS, NFA, NHA);
(4) Regulation of businesses affected with public
interest (e.g. Insurance Commission, LTFRB,
NTC, HLURB);
(5) Regulation of private businesses and individuals
(e.g. SEC);
(6) Adjustment of individual controversies because
of a strong social policy involved (e.g. ECC,
NLRC, SEC, DAR, COA).
Why are administrative agencies needed?

Because the government lacks:
(1) Time
(2) Expertise and
(3) Organizational aptitude for effective and
continuing regulation of new developments in
society (STONE)
C. Powers of Administrative
Agencies
B. Administrative Agencies
I. Modes of Creation of Administrative Agencies
II. When is an agency administrative?
III. Type of Administrative Agencies
The powers of administrative agencies are:

(1) Quasi-legislative (Rule-making)
(2) Quasi-judicial (Adjudicatory) and
(3) Determinative powers
I. Modes of Creation of Administrative

Agencies
I. Quasi-Legislative (Rule Making)

Power
1) 1987 Constitution
(E.g. CSC, COMELEC, COA, CHR, Commission on
Appointments, Judicial and Bar Council and NEDA)
2) Legislative Enactments
(E.g. NLRC, SEC, PRC, Social Security Commission,
Commission on Immigration and Deportation,
I. Quasi-Legislative (Rule-Making) Power

II. Quasi-Judicial (Adjudicatory) Power
III. Fact-Finding, Investigative, Licensing and
Rate-Fixing Powers

Definition
The authority delegated by the law-making body to
the administrative agency to adopt rules and
regulations intended to carry out the provisions of a
law and implement a legislative policy.
Non-delegation doctrine
14
8
ADMINISTRATIVE LAW
Potestas delegata non delegare potest. What has
been delegated cannot be delegated.
Legislative Delegation
Requisites for a valid delegation
(1) The law must be complete in itself and must set
forth the policy to be executed
(2) The law must fix a standard, the limits of which
are sufficiently determinate or determinable,
to which the delegate must conform
What is a sufficient standard:
(1) Defines legislative policy, marks its limits, maps
out its boundaries and specifies the public
agency to apply it; and
(2) Indicates the circumstances under which the
legislative command is to be effected.
[Santiago v COMELEC (1997); ABAKADA Guro
List vs Ermita (2005)]
Forms of the sufficient standard:
(1) Express
(2) Implied [Edu vs Ericta (1970)]
(3) Embodied in other statutes on the same matter
and not necessarily in the same law being
challenged. [Chiongbian vs Orbos (1995)]
(1) Kinds of Administrative Rules and

Regulations
a. Supplementary legislation
Pertains to rules and regulations to fix details in the
execution of a policy in the law. e.g. IRRs of the
Labor Code.
b. Interpretative legislation
Pertains to rules and regulations construing or
interpreting the provisions of a statute to be
enforced and they are binding on all concerned until
they are changed, i.e. BIR Circulars.
GENERAL DISTINCTIONS
Legislative Rules
Promulgated pursuant
to its quasi-legislative
/ rule-making
functions.
Create a new law, a
new policy, with the
force and effect of
law.
Need publication.
So long as the court
finds that the
legislative rules are
within the power of
the administrative
agency to pass, as seen
in the primary law,
then the rules bind the
court. The court
cannot question the
wisdom or correctness
of the policy contained
in the rules.
FROM LEGISLATIVE RULES

Interpretative Rules
Passed pursuant to its
quasi-judicial capacity.
Merely clarify the meaning
of a pre-existing law by
inferring its implications.
Need not be published.
The court may review their
correctness of the
interpretation of the law
given by the
administrative body, and
substitute its own view of
what is correct to the
administrative body. If it
is not within the scope of
the administrative agency,
court can only invalidate
the same but not
substitute its decision or
Legislative Rules
Due process involves
whether the parties
were afforded the
opportunity to be
notified and heard
before the issuance of
the ruling.
Interpretative Rules
interpretation or give its
own set of rules.
Due process means that
the body observed the
proper procedure in
passing rules.
Restrictions on interpretative regulations: (a)

does not change the character of a ministerial
duty, (b) does not involve unlawful use of
legislative or judicial power.
Administrative interpretations: may eliminate

construction and uncertainty in doubtful cases.
When laws are susceptible of two or more
interpretations, the administrative agency
should make known its official position.
Administrative construction/ interpretation not

controlling as to the proper construction of a
statute, but generally it is given great weight,
has a very persuasive influence and may actually
be regarded by the courts as the controlling
factor.
Administrative interpretation is merely advisory;

Courts finally determine what the law means.
c. Contingent legislation
Pertains to rules and regulations made by an
administrative authority on the existence of certain
facts or things upon which the enforcement of the
law depends.
(2) Requisites for Validity

Requisites of a valid administrative rule (WRAP)
(1) Within the scope or authority of law
(2) Authorized by law
(3) Reasonableness
(4) Promulgated in accordance with prescribed
Procedure
Publication Rules
(1) Administrative rules and regulations are subject
to the publication and effectivity rules of the
Admin Code in relation to the Civil Code.
(2) EO 200 requires publication of laws in the
Official Gazette or in a newspaper of general
circulation. Publication is indispensable,
especially if the rule is general.
EXCEPTIONS:
(a) Interpretative rules
(b) Internal regulations (i.e. regulating
personnel)
(c) Letters of instructions issued by
administrative
superior
to
subordinates
(3) Effectivity: 15 days after publication, not 15
days from date of filing with the UP Law
Center.
14
9
ADMINISTRATIVE LAW
EXCEPTIONS:
(a) Different date is fixed by law or
specified in the rule.
(b) In case of imminent danger to public
health, safety and welfare.
Penal Rules
Sec. 6, 1987 Administrative Code. Omission of
Some Rules. (2) Every rule establishing an offense
or defining an act which, pursuant to law is
punishable as a crime or subject to a penalty shall in
all cases be published in full text.
(1) The law itself must declare the act as
punishable and must also define or fix the
penalty for the violation.
(2) Can administrative bodies make penal rules? NO.
Penal statutes are exclusive to the legislature
and cannot be delegated. Administrative rules
and regulations must not include, prohibit or
punish acts which the law does not even define
as a criminal act. [People vs Maceren (1977)]
(3) If a rule is penal, it must be published before it
takes effect. [People vs Que Po Lay (1954)]
II. Quasi-Judicial (Adjudicatory) Power

Definition
The power of the administrative agency to
determine questions of fact to which the legislative
policy is to apply, in accordance with the standards
laid down by the law itself
Source
Incidental to the power of regulation but is often
expressly conferred by the legislature through
specific provisions in the charter of the agency
DISTINCTIONS FROM JUDICIAL PROCEEDINGS
Kind of
Administrative
Judicial
Proceedings
Nature
of
Inquisitorial
Adversarial
Proceedings
Rules of
Liberally
Follow technical
Procedure
applied
rules in the
Rules of Court
Nature and
Decision
Decision
Extent of
limited to
includes
Decision
matters of
matters brought
general
as issue by the
concern
parties
Parties
The agency
The parties are
itself may be a
only the private
party to the
litigants
proceedings
before it
Requisites for a Valid Exercise
(1) Jurisdiction
(2) Due process
General Rule
A tribunal, board or officer exercising judicial
functions acts without jurisdiction if no authority has
been conferred to it by law to hear and decide cases
(1) Jurisdiction to hear is explicitly or by necessary
implication, conferred through the terms of
the enabling statute.
(2) Effect
of
administrative
acts
outside
jurisdictionVOID.
(1) Administrative Due Process

1. Due Process
Findings of facts by administrative bodies which
observed procedural safeguards (e.g. notice and
hearing parties, and a full consideration of evidence)
are accorded the greatest respect by courts
Cardinal Primary Rights: Ang Tibay v CIR (1950) lays
down the cardinal primary rights:
(1) Right to a hearing (Includes the right of a party
to present his own case and submit evidence in
support thereof)
(2) The tribunal must consider the evidence
presented
(3) Decision must be supported by evidence.
(4) Evidence must be substantial.
Substantial Evidence: such relevant evidence
as a reasonable mind might accept as adequate
to support a conclusion, even if other minds
equally reasonable would opine otherwise
(5) Decision must be rendered on the evidence
presented at the hearing or at least contained
in the record and disclosed to the parties
affected
(6) Independent consideration of judge (Must not
simply accept the views of a subordinate)
(7) Decision rendered in such a manner as to let the
parties know the various issues involved and
the reasons for the decision rendered.
Due process does not always entail notice

and hearing prior to the deprivation of a
right.
Hearing
may
occur
after
deprivation, as in emergency cases, in
which case, there must be a chance to
seek reconsideration. [UP Board of
Regents vs CA (1999)]
Presence of a party at a trial is not

always the essence of due process. All
that the law requires is the element of
fairness; that the parties be given notice
of trial and
(a) an opportunity to be heard
(b) in administrative proceedings, an
opportunity to seek reconsideration
(c) an opportunity to explain ones side
The law, in prescribing a process of

appeal to a higher level, contemplates
that the reviewing officer is a person
different from the one who issued the
appealed decision.
Otherwise, the
15
0
ADMINISTRATIVE LAW
review becomes a farce; it is rendered
meaningless. [Rivera vs CSC (1995)]
(2)
Is a trial necessary? NO. WON to hold an

adversarial trial is discretionary. Parties
cannot demand it as a matter of right.
[Vinta Maritime v NLRC (1978)].
The right of a party to confront and

cross-examine opposing witness is a
fundamental right which is part of due
process. If without his fault, this right is
violated, he is entitled to have the direct
examination stricken off the record.
[Bachrach Motors vs CIR (1978)]
Evidence on record must be fully

disclosed to the parties. [American InterFashion vs Office of the President (1991)]
BUT respondents in administrative cases
are not entitled to be informed of
findings of investigative committees but
only of the decision of the administrative
body. [Pefianco v Moral (2000)]
Due process is violated when:

(1) There is failure to sufficiently explain the
reason for the decision rendered; or
(2) If not supported by substantial evidence;
(3) And imputation of a violation and imposition of
a fine despite absence of due notice and
hearing. [Globe Telecom v NTC (2004)].
Self-incrimination
The right against self-incrimination may be invoked
by the respondent at the time he is called by the
complainant as a witness. However, if he voluntarily
takes the witness stand, he can be cross examined;
but he may still invoke the right when the question
calls for an answer which incriminates him for an
offense other than that charged. [People vs Ayson
(1989)]
2.
Notice and Hearing
When required:
(1) When the law specifically requires it.
(2) When it affects a persons status and liberty.
When not required:
(1) Urgent reasons.
(2) Discretion is exercised by an officer vested with
it upon an undisputed fact.
(3) If it involves the exercise of discretion and there
is no grave abuse.
(4) When rules to govern future conduct of persons
or enterprises, unless law provides otherwise.
(5) In the valid exercise of police power.
(2) Administrative Appeal and Review

Different kinds of administrative appeal and
review: (De Leon)
(1) That which inheres in the relation of
administrative superior to administrative
(3)
(4)
(5)
(6)
subordinate where determinations are made at

lower levels of the same administrative system;
That embraced in statutes which provides for a
determination to be made by a particular officer
of body subject to appeal, review, or
redetermination by another officer of body in
the same agency or in the same administrative
system;
That in which the statute attempts to make a
court a part of the administrative scheme by
providing in terms or effect that the court, on
review of the action of an administrative
agency, shall exercise powers of such extent
that they differ from ordinary judicial functions
and involve a trial de novo of matters of fact or
discretion and application of the independent
judgment of the court;
That in which the statute provides that an order
made by a division of a Commission or Board has
the same force and effect as if made by the
Commission subject to a rehearing by the full
Commission, for the rehearing is practically an
appeal to another administrative tribunal;
That in which the statute provides for an appeal
to an officer on an intermediate level with
subsequent appeal to the head of the
department or agency; and
That embraced in statutes which provide for
appeal at the highest level, namely, the
President
A party must prove that it has been affected or

aggrieved by an administrative agency in order to
entitle it to a review by an appellate administrative
body or another administrative body.
(3) Administrative Res Judicata

The doctrines of forum shopping, litis pendentia and
res judicata also apply to administrative agencies.
When it applies
The doctrine of res judicata applies only to judicial
or quasi-judicial proceedings and not to the exercise
of purely administrative functions. Administrative
proceedings are non-litigious and summary in nature;
hence, res judicata does not apply. [Nasipit Lumber
Co. vs NLRC (1989)]
Requisites
(1) The former judgment must be final;
(2) It must have been rendered by a court having
jurisdiction over the subject matter and the
parties;
(3) It must be a judgment on the merits; and
(4) There must be identity of parties, subject
matter and cause of action [Ipekdijan
Merchandising vs CTA (1963), Firestone
Ceramics vs CA (1999), DBP vs CA (2001)]
Effect
Decisions and orders of administrative bodies
rendered pursuant to their quasi-judicial authority
have, upon their finality, the force and effect of a
final judgment within the purview of the doctrine of
res judicata, which forbids the reopening of matters
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1
ADMINISTRATIVE LAW
once
judicially
authorities.
determined
by
competent
III. Fact-Finding, Investigative,

Licensing and Rate-Fixing Powers
1. Ascertainment of Fact
A statute may give to non-judicial officers:
(1) the power to declare the existence of facts
which call into operation the statutes
provisions and
(2) may grant them and their subordinate officers
the power to ascertain and determine
appropriate facts as a basis of procedure in the
enforcement of laws.
(3) Such functions are merely incidental to the
exercise of power granted by law to clear
navigable streams of unauthorized obstructions.
They can be conferred upon executive officials
provided the party affected is given the
opportunity to be heard. [Lovina vs.
Moreno(1963)]
2. Investigative powers
Administrative agencies
power to conduct
investigations and hearings, and make findings and
recommendations thereon is inherent in their
functions as administrative agencies
Findings of facts by administrative bodies which
observed procedural safeguards (e.g. notice and
hearing parties, and a full consideration of evidence)
are accorded the greatest respect by courts
3. Licensing Function
Sec. 17, 1987 Administrative Code. Licensing
Procedure. (1) When the grant, renewal, denial or
cancellation of a license is required to be preceded
by notice and hearing, the provisions concerning
contested cases shall apply insofar as practicable.
(2) Except in cases of willful violation of pertinent
laws, rules and regulations or when public security,
health, or safety requires otherwise, no license may
be withdrawn, suspended, revoked or annulled
without notice and hearing.
Sec. 18, 1987 Administrative Code. Non-expiration
of License. Where the licensee has made timely
and sufficient application for the renewal of a
license with reference to any activity of a continuing
nature, the existing license shall not expire until the
application shall have been finally determined by
the agency.
Sec. 2(10), 1987 Administrative Code. License
includes the whole or any part of any agency permit,
certificate,
passport,
clearance,
approval,
registration,
charter,
membership,
statutory
exemption or other form of permission, or regulation
of the exercise of a right or privilege.
Sec. 2(11), 1987 Administrative Code. Licensing
includes agency process involving the grant,
renewal, denial, revocation, suspension, annulment,
withdrawal, limitation, amendment, modification or

conditioning or a license.
When are notice and hearing required in

licensing? Only if it is a contested case.
Otherwise, it can be dispensed with.(e.g.
drivers licenses).
No expiry date does not mean the license is

perpetual.
A license permit is a special
privilege, a permission or authority to do what is
within its terms.
It is always revocable.
[Gonzalo Sy Trading vs Central bank (1976)]
4. Fixing of rates, wages, prices

Sec. 2(3), 1987 Administrative Code. Rate means
any charge to the public for a service open to all and
upon the same terms, including individual or joint
rates, tolls, classification or schedules thereof, as
well as communication, mileage, kilometrage and
other special rates which shall be imposed by law of
regulation to be observed and followed by any
person.
Sec. 9, 1987 Administrative Code. Public
Participation.
(2) In the fixing of rates, no rule or final order shall
be valid unless the proposed rates shall have been
published in a newspaper of general circulation at
least 2 weeks before the first hearing thereon.
Generally, the power to fix rates is a quasilegislative function. However, it becomes

judicial when the rate is applicable only to an
individual.
Can the power to fix rates be delegated to a

common carrier or other public service? NO. The
latter may propose new rates, but these will not
be effective without the approval of the
administrative agency. [KMU vs Garcia (1994)]
What are considered in the fixing of rates? (1)

the present valuation of all the property of a
public utility, and (2) the fixed assets. The
property is deemed taken and condemned by
the public at the time of filing the petition, and
the rate should go up and down with the
physical valuation of the property. [Ynchausti vs
Public Utility Commissioner (1922)]
D. Judicial Recourse and Review

I. Doctrine of Primary Administrative Jurisdiction
II. Doctrine of Exhaustion of Administrative
Remedies
III. Doctrine of Finality of Administrative Action
I. Doctrine of Primary Administrative

Jurisdiction
GENERAL RULE
Courts will not intervene if the question to be
resolved is one which requires the expertise of
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2
ADMINISTRATIVE LAW
administrative agencies and the legislative intent on
the matter is to have uniformity in the rulings.
It can only occur where there is a concurrence of
jurisdiction
between
the
court
and
the
administrative agency.
It is a question of the court yielding to the agency
because of the latters expertise, and does not
amount to ouster of the court. [Texas & Pacific
Railway v Abilene (1907)]
It is the recent jurisprudential trend to apply

the doctrine of primary jurisdiction in many
cases that demand the special competence of
administrative agencies. It may occur that the
Court has jurisdiction to take cognizance of a
particular case, which means that the matter
involved is also judicial in character. However,
if the determination of the case requires the
expertise, specialized skills and knowledge of
the proper administrative bodies because
technical matters or intricate questions of facts
are involved, then relief must first be obtained
in an administrative proceeding before a
remedy will be supplied by the courts even
though the matter is within the proper
jurisdiction of a court. [Industrial Enterprises v
CA (1990)]
Well-entrenched is the rule that courts will not
interfere in matters which are addressed to the
sound discretion of the government agency
entrusted with the regulation of activities
coming under the special and technical training
and knowledge of such agency. Administrative
agencies are given a wide latitude in the
evaluation of evidence and in the exercise of
their adjudicative functions, latitude which
includes the authority to take judicial notice of
facts
within
their
special
competence
[(Quiambao vs CA (2005)]
The doctrine of primary jurisdiction 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 regulatory
scheme, have been placed within the special
competence of an administrative body; in such
case, the judicial process is suspended pending
referral of such issues to the administrative
body for its view. And, in such cases, the court
cannot arrogate into itself the authority to
resolve a controversy, the jurisdiction over
which is initially lodged with an administrative
body of special competence. [Sherwill vs Sitio
Sto Nino (2005)]
Rationale: In this era of clogged docket courts, the

need for specialized administrative boards with the
special knowledge and capability to hear and
determine promptly disputes on technical matters
has become well nigh indispensable. Between the
power lodged in an administrative body and a court,
the unmistakable trend has been to refer it to the
former. [GMA vs ABS CBN (2005)]
Requisites:
(1) Administrative body and the regular court have
concurrent and original jurisdiction
(2) Question to be resolved requires expertise of
administrative agency
(3) Legislative intent on the matter is to have
uniformity in rulings
(4) Administrative agency is performing a quasijudicial or adjudicatory function (not rulemaking or quasi-legislative function [Smart vs
NTC (2003)]
Rationale: It is presumed that an administrative
agency, if afforded an opportunity to pass upon a
matter, would decide the same correctly, or correct
any previous error committed in its forum [Caballes
v Sison (2004)]
When the Doctrine is Inapplicable:
(1) If the agency has exclusive jurisdiction
(2) When the issue is not within the competence of
the administrative body to act on.
(3) When the issue involved is clearly a factual
question that does not require specialized skills
and knowledge for resolution to justify the
exercise of primary jurisdiction.
Effect
The case is not dismissed, but merely suspended
until after the matters within the competence of the
administrative agency are threshed out and
determined. [Vidad vs RTC (1993)]
II. Doctrine of Exhaustion of

Administrative Remedies
GENERAL RULE
Where the law has delineated the procedure by
which administrative appeal or remedy could be
effected, the same should be followed before
recourse to judicial action can be initiated. [Pascual
vs Provincial Board (1959)]
Requisites:
(1) The administrative agency is performing a quasijudicial function.
(2) Judicial review is available.
(3) The court acts in its appellate jurisdiction.
Rationale:
(1) Legal reason: The law prescribes a procedure.
(2) Practical reason: To give the agency a chance to
correct its own errors [and prevent unnecessary
and premature resort to the courts
(3) Reasons of comity: Expedience, courtesy,
convenience.
EXCEPTIONS to the Doctrine of Exhaustion of
Remedies:
(1) Purely legal questions. [Castro vs Secretary
(2001)]
(2) Steps to be taken are merely matters of form.
[Pascual vs Provincial Board (1959)]
15
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ADMINISTRATIVE LAW
(3) Administrative remedy not exclusive but merely
cumulative or concurrent to a judicial remedy.
[Pascual vs Provincial Board (1959)]
(4) Validity and urgency of judicial action or
intervention. [Paat vs CA (1997)]
(5) No other plain, speedy, adequate remedy in the
ordinary course of the law. [Paat v CA (1997)t;
Information Technology Foundn v COMELEC
(2004)]
(6) Resort to exhaustion will only be oppressive and
patently unreasonable. [Paat vs CA (1997);
Cipriano vs Marcelino (1972)]
(7) Where the administrative remedy is only
permissive or voluntary and not a prerequisite
to the institution of judicial proceedings.
[Corpuz vs Cuaderno (1962)]
(8) Application of the doctrine will only cause great
and irreparable damage which cannot be
prevented except by taking the appropriate
court action. [Paat vs CA (1997); Cipriano vs
Marcelino (1972)]
(9) When it involves the rule-making or quasilegislative functions of an administrative
agency. [Smart vs NTC (2003)]
(10) Administrative agency is in estoppel. [Republic
vs Sandiganbayan (1996)]
(11) Doctrine of qualified political agency
(12) Subject of controversy is private land in land
case proceedings. [Paat vs CA (1997)]
(13) Blatant violation of due process. [Paat vs CA
(1997); Pagara vs CA]
(14) Where there is unreasonable delay or official
inaction. [Republic vs Sandiganbayan (1996)]
(15) Administrative action is patently illegal
amounting to lack or excess of jurisdiction.
[Paat vs CA (1997)]
(16) Resort to administrative remedy will amount to
a nullification of a claim. [DAR vs Apex
Investment (2003); Paat vs CA (1997)]
(17) No administrative review provided for by law.
[Estrada vs CA (2004)]
(18) Issue of non-exhaustion of administrative
remedies rendered moot. [Estrada vs CA (2004)]
(19) In quo warranto proceedings. [Corpus vs
Cuaderno (1962)]
(20) Law expressly provides for a different review
procedure. [Samahang Magbubukid vs CA (1999)]
Effect of
Remedies:
Failure
to
Exhaust
Administrative
It does not affect jurisdiction of the court.

The only effect of non-compliance is it that will
deprive complainant of a cause of action, which is a
ground for a motion to dismiss.
But if not invoked at the proper time, this ground is
deemed waived. [Republic vs Sandiganbayan (1996)]
III. Doctrine of Finality of

Administrative Action
No resort to the courts will be allowed unless the
administrative action has been completed and there
is nothing left to be done in the administrative
structure.
The Doctrine of Finality of Administrative Action is a
broader doctrine which encompasses the Doctrine of
Exhaustion of Administrative Remedies. It is a
prerequisite for judicial review.
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4
UP
L
AW
BAR REVIEWER
2012
POLITICAL
Election Law
EXECUTIVE COMMITTEE
COMMITTEE HEADS
OPERATIONS HEADS
LAW
Ronette Colobong
LAYOUT TEAM 2012
Cris Bernardino
Reyes
ELECTION LAW
Election Law
Administrative Law
Election Law
Local Governments
POLITICAL LAW
A. Suffrage
B. Qualification and Disqualification of
Voters
C. Registration of Voters
D. Inclusion and Exclusion Proceedings
E. Political Parties
F. Candidacy
G. Campaign
H. Board of Canvassers
I. Remedies and Jurisdiction in
Election Law
J. Prosecution of Election Offenses
A. Suffrage
The right to vote in the election of officers chosen
by the people and in determination of questions
submitted to the people.
I. Scope
Election: the means by which the people choose
their officials for a definite and fixed period and to
whom they entrust for the time being the exercise of
the powers of government.
Kinds
Regular: one provided by law for the election of
officers either nation-wide or in certain subdivisions
thereof, after the expiration of the full term of the
former officers.
Special: one held to fill a vacancy in office before
the expiration of the full term for which the
incumbent was elected.
Plebiscite: election at which any proposed
amendment to, or revision of, the Constitution is
submitted to the people for their ratification.
Referendum: submission of a law pass by the
national or local legislative body to the registered
voters at an election called for the purpose for their
ratification or rejection.
Initiative: the power of the people to propose
amendments to the Constitution or to propose and
enact legislation through an election called for the
purpose. [Sec. 3a, R.A. 6735, The Initiative and
Referendum Act]
3 systems of initiative:
(1) Initiative on the Constitution: petition
proposing amendments to the Constitution.
(2) Initiative on statutes: petition proposing
to enact a national legislation.
(3) Initiative on local legislation: petition
proposing to enact a regional, provincial,
city, municipal or barangay law, resolution
or ordinance.
The constitutional provision on people's initiative to

amend the Constitution can only be implemented by
law to be passed by Congress. No such law has been
passed. R.A. No. 6735 is incomplete, inadequate, or
wanting in essential terms and conditions insofar as
initiative on amendments to the Constitution is
concerned. Note: Section 2 of Art. XVII Constitution
is limited to proposals to AMEND not to REVISE
the Constitution. [Santiago v. COMELEC (1997)]
Recall: the termination of official relationship of a
local elective official for loss of confidence prior to
the expiration of his term through the will of the
electorate.
II. Election Period

Unless otherwise fixed by the COMELEC in special
cases, the election period shall commence 90 days
before the day of the election and shall end 30 days
thereafter. [Art. IX-C, Sec. 9, Const.]
B. Qualification and
Disqualification of Voters
I. Qualifications
II. Overseas Absentee Voter
I. Qualifications
[Art. V, Sec. 1, 1987 Const.]
Citizenship:
Filipino
citizen
by
birth
or
naturalization
Age: at least 18 at the time of the election
Residency:
(3) Resident of the Philippines for at least 1
year and
(4) Resident of the place wherein they propose
to vote for at least 6 months immediately
preceding the election
Note: Any person who temporarily resides in another
city, municipality or country solely by reason of his:
(1) employment in private or public service
(2) educational activities
(3) work in the military or naval reservations
within the Philippines
(4) service in the AFP, PNP or
(5) confinement or detention in government
institutions in accordance with law shall
not be deemed to have lost his original
residence [Sec. 9, R.A. 8189, Voters
Registration Act of 1996]
It is not necessary that a person should have a house
in order to establish his residence or domicile in a
municipality. It is enough that he should live there,
provided that his stay is accompanied by his
intention to reside therein permanently. [Marcos v.
COMELEC (1995)]
Not otherwise disqualified by law: These are the 3
grounds for disqualification to register as a voter
under Sec. 11, R.A. 8189, Voters Registration Act of
1996:
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ELECTION LAW
(1) Sentenced by final judgment to suffer
imprisonment for not less than 1 year
(unless granted a plenary pardon or an
amnesty) shall automatically reacquire
right to vote upon the expiration of 5 years
after the service of sentence.
(2) Adjudged by final judgment for having
committed any crime involving disloyalty
to the duly constituted government (e.g.
rebellion, sedition, violation of the
firearms law) or any crime against national
security (unless restored to full civil and
political rights in accordance with law)
shall automatically reacquire the right to
vote upon the expiration of 5 years after
the service of sentence
(3) Insane or incompetent persons as declared
by competent authority
Registered voter: In order that a qualified elector
may vote in any election, plebiscite or referendum,
he must be registered in the Permanent List of
Voters for the city or municipality in which he
resides. [Sec. 115, B.P. 881, Omnibus Election Code]
Note: No literacy, property or other substantive
requirement shall be imposed on the exercise of
suffrage
II. Overseas Absentee Voter

1. Qualifications
(1) All Filipino citizens abroad
(2) Not otherwise disqualified by law
(3) At least 18 years of age on the day of
elections [Sec. 3f, R.A. 9189]
2. Disqualifications
(1) have lost their Filipino citizenship in
accordance with Philippine laws
(2) have expressly renounced their Philippine
citizenship and who have pledged
allegiance to a foreign country
(3) have committed and are convicted in a
final judgment by a court or tribunal of
an offense punishable by imprisonment of
not less than 1 year, including those who
have committed and been found guilty of
Disloyalty as defined under Article 137 of
the RPC
(4) immigrant or a permanent resident who is
recognized as such in the host country
unless
he/she
executes,
upon
registration, an affidavit prepared for the
purpose by the Commission declaring
that:
(a) he/she shall resume actual physical
permanent
residence
in
the
Philippines not later than 3 years
from
approval
of
his/her
registration and
(b) he/she has not applied for
citizenship in another country
Effect of failure to return: cause for the

removal of his/her name from the National
Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia.
(5) Previously
declared
insane
or
incompetent by competent authority in
the Philippines or abroad, as verified by
the Philippine embassies, consulates or
foreign
eservice
establishments
concerned. [Sec. 5, R.A. 9189]
C. Registration of Voters
I. Definition
II. System of Continuing Registration of Voters
III. Illiterate or disabled voters
IV. Election Registration Board
V. Change of residence or address
VI. Challenges to right to register
VII. Deactivation of Registration
VIII. Reactivation of Registration
IX. Certified List of Voters
X. Annulment of Book of Voters
XI. Overseas Absentee Voter
I. Definition
Act of accomplishing and filing of a sworn
application for registration by a qualified voter
before the election officer of the city or
municipality wherein he resides and including the
same in the book of registered voters upon approval
by the Election Registration Board. [Sec. 3a, R.A.
8189]
II. System of Continuing Registration

of Voters
The personal filing of application of registration of
voters shall be conducted daily in the office of the
Election Officer during regular office hours.
Period of registration:
No registration shall be conducted within
(1) 120 days before a regular election
(2) 90 days before a special election [Sec. 8,
R.A. 8189]
PALATINO VS COMELEC
G.R. No. 189868, December 15. 2009
Facts: COMELEC Resolution 8585 set the deadline for
voter registration to 31 October 2009. Petitioners
asked the SC to declare the resolution null and void,
and to require COMELEC to extend the voter
registration until 9 January 2010, the day before the
120-day period prior to the 10 May 2010 regular
elections. COMELEC argued that it is authorize under
the law to fix other dates for pre-election acts which
include voter registration and in Akbayan-Youth vs.
COMELEC, the SC denied a similar prayer for
extension of deadline for voter registration for the
14 May 2001 elections.
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Issue: WON COMELEC Resolution 8585 should be
declared void.
Ruling: Yes. By Sec. 8 R.A. 8189, Congress itself has
determined that the period of 120 days before a
regular election and 90 days before a special
election is enough time for the COMELEC to make
ALL the necessary preparations with respect to the
coming elections. COMELEC is granted the power to
fix other periods and dates for pre-election activities
only if the same cannot be reasonably held within
the period provided by law. There is no ground to
hold that the mandate of continuing voter
registration cannot be reasonably held within the
period provided by Sec. 8 of R.A. 8189.
The case is different from Akbayan-Youth vs.
COMELEC, wherein the petitioners filed their
petition with the Court and sought the conduct of a
two-day registration all within the 120-day
prohibitive period. In this case, both the dates of
filing of the petition and the extension sought are
prior to the 120-day prohibitive period.
III. Illiterate or disabled voters

Illiterate person - may register with the assistance
of the Election Officer or any member of an
accredited citizens arms
Physically disabled person application for
registration may be prepared by:
(1) any relative within the 4th civil degree of
consanguinity or affinity or
(2) by the Election Officer or
(3) any member of an accredited citizens arm
[Sec. 14, R.A. 8189]
R.A. 9369 The Poll Automation Law now defines a
disabled voter as a person with impaired capacity
to use the Automated Election System (AES) (Sec.
2, Par. 11)
IV. Election Registration Board

Composition:
(1) Chairman: Election Officer
If disqualified, COMELEC shall designate an
acting Election Officer
(2) Members:
(a) Public school official most senior in rank
(b) Local civil registrar, or in his absence,
the city or municipal treasurer. If
neither are available, any other
appointive civil service official from the
same locality as designated by the
COMELEC.
Disqualification: relation to each other or to any
incumbent city or municipal elective official within
the 4th civil degree of consanguinity or affinity. [Sec.
15, R.A. 8189]
V. Change of residence or address
Change of residence to another city or

municipality the registered voter may apply with
the Election Officer of his new residence for the
transfer of his registration records. [Sec. 12, R.A.
8189]
Change of address in the same municipality or city
voter shall immediately notify the Election Officer
in writing. [Sec. 13, R.A. 8189]
VI. Challenges to right to register

Who may challenge application for registration:
Any voter, candidate or representative of a
registered political party
Form:
(1)
(2)
(3)
(4)
In writing
State the grounds therefor
Under oath and
Attached to the application, together with
the proof of notice of hearing to the
challenger and the applicant
When: must be filed not later than the 2nd Monday

of the month in which the same is scheduled to be
heard or processed by the ERB [Sec. 18, R.A. 8189]
VII. Deactivation of Registration

(1) The board shall remove the registration
records of the following persons from the
corresponding precinct book of voters and
place the same in the inactive file:
(2) Sentenced by final judgment to suffer
imprisonment for not less than 1 year
(unless granted a plenary pardon or an
amnesty)
(3) shall automatically reacquire right to vote
upon the expiration of 5 years after the
service of sentence as certified by clerks of
courts
(4) Adjudged by final judgment for having
committed any crime involving disloyalty to
the duly constituted government (e.g.
rebellion, sedition, violation of the firearms
law) or any crime against national security
(unless restored to full civil and political
rights in accordance with law) shall
automatically reacquire the right to vote
upon the expiration of 5 years after the
service of sentence
(5) Insane or incompetent persons as declared
by competent authority
(6) Did not vote in the 2 successive preceding
regular elections (excluding SK elections)
(7) Registration has been ordered excluded by
the Court and
(8) Lost his Filipino citizenship. [Sec. 27, R.A.
8189]
VIII. Reactivation of Registration

Any voter whose registration has been deactivated
may file with the Election Officer a sworn
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ELECTION LAW
application for reactivation of his registration in the
form of an affidavit stating that the grounds for the
deactivation no longer exist.
When: Any time not later than 120 days before a
regular election and 90 days before a special
election. [Sec. 28, R.A. 8189]
IX. Certified List of Voters

The ERB shall prepare and post a certified list of
voters 90 before a regular election and 60 days
before a special election. [Sec. 30, R.A. 8189]
X. Annulment of Book of Voters

The COMELEC shall, upon verified petition of any
voter or election officer or duly registered political
party, and after notice and hearing, annul any book
of voters that is:
(1) not prepared in accordance with R.A. 8189
or the Voters Registration Act of 1996
(2) prepared through fraud, bribery, forgery,
impersonation, intimidation, force, or any
similar irregularity
(3) contains data that are statistically
improbable
No order, ruling or decision annulling a book of
voters shall be executed within 90 days before an
election. [Sec. 39, R.A. 8189]
XI. Overseas Absentee Voter

a.
Definitions
Absentee Voting: process by which qualified citizens

of the Philippines abroad exercise their right to
vote. [Sec. 3a, R.A. 9189, The Overseas Absentee
Voting Act]
Overseas Absentee Voter: citizen of the Philippines
who is qualified to register and vote under this Act,
not otherwise disqualified by law, who is abroad on
the day of elections. [Sec. 3f, R.A. 9189]
b. Coverage
Elections for president, vice-president, senators and
party-list representatives [Sec. 3f, R.A. 9189]
c. Personal Overseas Absentee Registration
Registration as an overseas absentee voter shall be
done in person. [Sec.5, R.A. 9189]
d. National Registry of Overseas Absentee
Voters
Definition: the consolidated list prepared, approved
and maintained by the COMELEC, of overseas
absentee voters whose applications for registration
as absentee voters, including those registered voters
who have applied to be certified as absentee voters,
have been approved by the Election Registered
Board. [Sec. 3e, R.A. 9189]
Grounds for cancellation/amendment of entries

therein:
(1) When the overseas absentee voter files a
letter under oath addressed to the Comelec
that he/she wishes to be removed from the
Registry of Overseas Absentee Voters, or
that his/her name be transferred to the
regular registry of voters.
(2) When an overseas absentee voters name
was ordered removed by the Comelec from
the Registry of Overseas Absentee Voters for
his/her failure to exercise his/her right to
vote under R.A. 9189 for 2 consecutive
national elections. [Sec. 9, R.A. 9189]
D. Inclusion and Exclusion

Proceedings
Exclusion Proceedings
Jurisdiction in inclusion and exclusion case: The
Municipal and Metropolitan Trial Courts shall have
original and exclusive jurisdiction over all cases of
inclusion and exclusion of voters in their respective
cities or municipalities. [Sec. 33, R.A. 8189]
Appeal: Decisions of the MTC or MeTC may be
appealed by the aggrieved party to the RTC within 5
days from receipt of notice thereof. No motion for
reconsideration shall be entertained. [Sec. 33, R.A.
8189]
Petition for Inclusion of Voters in the List:
When: any time except 105 days prior to a
regular election or 75 days prior to a special
election.
Who may file:
(1) One whose application for registration has
been disapproved by the Board of Election
Inspectors or
(2) One whose name has been stricken out from
the list [Sec. 34, R.A. 8189]
Petition for Exclusion of Voters in the List:
When: any time except 100 days prior to a
regular election or 65 days prior to a special
election.
Who may file:
(1) Any registered voter;
(2) Any representative of a political party;
(3) the Election Officer
Overseas Absentee Voter
Petition for Inclusion of Voters in the List:
When: within 5 days from receipt of the notice
of disapproval
Who may file: applicant or his authorized
representative [Sec. 6.7, R.A. 9189]
Petition for Exclusion:
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When: any time not later than 210 days before
the day of the elections
Who may file: any interested person [Sec. 6.7,
R.A. 9189]
E. Political Parties
I. Party System
II. Definitions
III. Purpose
IV. Procedure for Registration
V. Who May Not be Registered
VI. Grounds for refusal and/or cancellation of
registration
VII. Parameters in Allocation of Seats for PartyList Representatives
VIII. Effect of Change of Affiliation
I. Party System
A free and open party system shall be allowed to
evolve according to the free choice of the people.
[Art. IX-C, Sec. 6, Const.]
No votes cast in favor of a political party,
organization, coalition shall be valid, except for
those registered under the party-list system. [Art.
IX-C, Sec. 7, Const.]
II. Definitions
Party-List System: Mechanism of proportional
representation in the election of representatives to
the House of Representatives from national, regional
and sectoral parties or organizations or coalitions
registered with the COMELEC.
Political party: An organized group of citizens
advocating an ideology or platform, principles and
policies for the general conduct of government and
which, as the most immediate means of securing
their adoption, regularly nominates certain of its
leaders and members as candidates for public office.
3 kinds of Parties:
(1) National party - constituency is spread over
the geographical territory of at least a
majority of the regions.
(2) Regional party - constituency is spread over
the geographical territory of at least a
majority of the cities and provinces
comprising the region.
(3) Sectoral party organized group of citizens
belonging to any of the following sectors:
labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly,
handicapped, women, youth, veterans,
overseas workers and professionals whose
principal advocacy pertains to the special
interests and concerns of their sector.
Sectoral organization: group of citizens or a
coalition of groups of citizens who share similar
physical attributes or characteristics, employment,
interests or concerns.
Coalition: an aggrupation of duly registered

national, regional, sectoral parties or organizations
for political and/or election purposes. [Sec. 3, R.A.
7941, Party-List System Act]
III. Purpose
To enable Filipino citizens belonging to marginalized
and underrepresented sectors, organizations and
parties, and who lack well-defined political
constituencies but who could contribute to the
formulation
and
enactment
of
appropriate
legislation that will benefit the nation as a whole, to
become members of the House of Representatives.
[Sec. 2, R.A. 7941]
IV. Procedure for Registration

(1) File with the COMELEC not later than 90 days
before the election a petition verified by its
president or secretary stating its desire to
participate in the party-list system as a
national, regional or sectoral party or
organization or a coalition of such parties or
organizations
attaching
thereto
its
constitution, by-laws, platform or program of
government, list of officers, coalition
agreement and other relevant information as
the COMELEC may require
(2) COMELEC shall publish the petition in at least
2 national newspapers of general circulation
(3) COMELEC shall, after due notice and hearing,
resolve the petition within 15 days from the
date it was submitted for decision but in no
case not later than 60 days before election
[Sec. 5, R.A. 7941]
V. Who May Not be Registered

(1) Religious denominations and sects
(2) Those which seek to achieve their goals
through violence or unlawful means
(3) Those which refuse to uphold and adhere to
the Constitution
(4) Those supported by foreign governments [Art.
IX-C, Sec. 2 (5), Constitution]
VI. Grounds for refusal and/or

cancellation of registration
(1) The COMELEC may, motu propio or upon
verified complaint of any interested party,
refuse or cancel, after due notice and
hearing, the registration of any national,
regional or sectoral party, organization or
coalition on any of the following grounds:
(2) Religious sect or denomination, organization
or association, organized for religious
purposes
(3) Advocates violence or unlawful means to seek
its goal
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(4) Foreign party or organization
(5) Receives
support
from
any
foreign
government,
foreign
political
party,
foundation, organization, whether directly or
through any of its officers or members or
indirectly through third parties for partisan
election purposes
(6) Violates or fails to comply with laws, rules or
regulations relating to elections
(7) Declares untruthful statements in its petition
(8) Ceased to exist for at least 1 year
(9) Fails to participate in the last 2 preceding
elections or
(10) Fails to obtain at least 2% of the votes cast
under the party-list system in the 2 preceding
elections for the constituency in which it has
registered [Sec. 6, R.A. 7941]
VII. Parameters in Allocation of Seats

for Party-List Representatives
20% allocation the combined number of all partylist congressmen shall not exceed 20% of the total
membership of the House of Representatives,
including those elected under the party-list.
Number available to
party-list
representatives
actually obtained, is
entitled to a maximum
of 3 seats; one
qualifying and of seats
available to
legislative districts
.80
x 20 =
Number of seats
available to
party-list
representatives
2% threshold only those parties garnering a

minimum of 2% of the total votes cast for the partylist system shall be entitled to one guaranteed seat
each.
Proportional representation the additional seats
shall be computed in proportion to their total
number of votes.
3-seat limit each party, regardless of the number
of votes it actually obtained, is entitled to a
maximum of 3 seats; one qualifying and 2 additional
seats.
BANAT VS. COMELEC
GR NO. 179271, July 8. 2009
Held: In computing the allocation of additional
seats, the continued operation of the 2% threshold
for the distribution of the additional seats as found
in the second clause of Sec. 11(b) of R.A. 7941 which
provides that those garnering more than 2% of the
votes shall be entitled to additional seats in
proportion to their total number of votes is
unconstitutional. The 2% threshold frustrates the
attainment of the permissive ceiling that 20% of the
members of the HR shall consist of party-list
representatives.
There are 2 steps in the second round of seat

allocation:
1) The percentage of votes garnered by each partylist candidate is multiplied by the remaining
available seats. The whole integer of the product
corresponds to a partys share in the remaining
available seats
Formula for remaining available seats =
No. of seats available to
x Guaranteed seats
party-list representatives
of the twopercenters
Formula for percentage of votes garnered by each
party-list candidate =
No. of votes garnered by
Total no. of
each party
votes cast for
party-list
candidates
2) Assign one party-list seat to each of the parties

next in rank until all available seats are completely
distributed.
VIII. Effect of Change of Affiliation

Any elected party-list representative who changes
his political party or sectoral affiliation:
during his term of office shall forfeit his seat
within 6 months before an election shall not be

eligible
for
nomination
as
party-list
representative under his new party or
organization [Sec. 15, R.A. 7941]
IX. Nomination of Party-List

Representative
Each registered party, organization or coalition shall
submit to the COMELEC not later 45 days before the
election a list of at least 5 names from which partylist representatives shall be chosen in case it obtains
the required number of votes.
A person may be nominated:
(1) in 1 list only
(2) if he/she has given their consent in writing
(3) is not a candidate for any elective office or
(4) has not lost his bid for an elective office in
the immediately preceding election
No change of names or alteration of the order of
nominees shall be allowed after the same shall have
been submitted to the COMELEC except where the
nominee:
(1) dies
(2) withdraws in writing his nomination or
(3) becomes incapacitated in which case the
name of the substitute nominee shall be
placed last in the list
Incumbent sectoral representatives in the HR who
are nominated in the party-list system shall not be
considered resigned. [Sec. 8, R.A. 7941]
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F. Candidacy
I. Qualifications of Candidates
II. Filing of Certificates of Candidacy
I. Qualifications of Candidates
1.
Candidate, Definition
Any person who files his certificate of candidacy

within prescribed period shall only be considered as
a candidate at the start of the campaign period for
which he filed his certificate of candidacy. [Sec. 15,
R.A. 9369, Poll Automation Law]
Unlawful acts or omissions applicable to a candidate
shall take effect only upon the start of the aforesaid
campaign period. [Sec. 15, R.A. 9369]
Any registered national, regional, or sectoral party,
organization or coalition thereof that has filed a
manifestation to participate under the party-list
system which has not withdrawn or which has not
been disqualified before the start of the campaign
period. [Comelec Res. 8758, Feb. 4, 2010]
2. Qualifications
Qualifications prescribed by law are continuing
requirements and must be possessed for the duration
of the officer's active tenure [Frivaldo v. COMELEC
(1989); Labo v. COMELEC (1989)].
3.
Disqualifications
Under the Omnibus Election Code

(1) Declared incompetent or insane by competent
authority (Sec. 12)
(2) Permanent resident of or an immigrant to a
foreign country unless he has waived such
status (Sec. 68)
(3) Sentenced by final judgment for:
(a) Subversion, insurrection, rebellion
(b) Any offense for which he has been
sentenced to a penalty of more than 18
months imprisonment
(c) A crime involving moral turpitude (Sec.
12)
(4) Given money or other material consideration
to influence, induce or corrupt voters or
public officials performing electoral functions
(Sec. 68)
(5) Committed acts of terrorism to enhance his
candidacy (Sec. 68)
(6) Spent in his election campaign an amount in
excess of that allowed (Sec. 68)
(7) Solicited, received or made prohibited
contributions (Sec. 68)
(8) Engaged in election campaign or partisan
political activity outside the campaign period
and not pursuant to a political party
nomination (Sec. 80)
(9) Removed, destroyed, defaced lawful election
propaganda (Sec. 83)
(10) Engaged in prohibited forms of election
propaganda (Sec. 85)
(11) Violated election rules and regulations on
election propaganda through mass media

(Sec. 86)
(12) Coerced,
intimidated,
compelled,
or
influenced any of his subordinates, members,
or employees to aid, campaign or vote for or
against any candidate or aspirant for the
nomination or selection of candidates (Sec.
261.d)
(13) Threatened, intimidated, caused, inflicted or
produced any violence, injury, punishment,
damage, loss or disadvantage upon any
person or of the immediate members of his
family, his honor or property, or used fraud
to compel, induce or prevent the registration
of any voter, or the participation in any
campaign, or the casting of any vote, or any
promise of such registration, campaign, vote,
or omission therefrom (Sec. 261.e)
(14) Unlawful electioneering (Sec. 261.k)
(15) Violated the prohibition against release,
disbursement or expenditure of public funds
45 days before a regular election or 30 days
before a special election (Sec. 261.v)
(16) Solicited votes or undertook propaganda on
election day for or against any candidate or
any political party within the polling place or
within a 30m radius (Sec. 261.cc.6)
Under Section 40 of the LGC
(1) Sentenced by final judgment for an offense
punishable by at least 1 year imprisonment
within 2 years after serving sentence
(2) Removed from office as a result of an
administrative case
(3) Convicted by final judgment for violating
the oath of allegiance to the Republic of
the Philippines
(4) Dual citizenship
Dual citizenship as a disqualification must
refer to citizens with dual allegiance.
[Mercado v. Manzano, (1999)]
Under R.A. 9225 Citizenship Retention and
Re-acquisition Act of 2003, a Filipino who
becomes a naturalized citizen of another
country is allowed to retain his Filipino
citizenship by swearing to the supreme
authority of the Republic of the Philippines.
The act of taking an oath of allegiance is an
implicit renunciation of a naturalized
citizens foreign citizenship.
Dual citizenship is not a ground for
disqualification from running for elective
position. Like any other natural-born
Filipino, it is enough for a person with dual
citizenship who seeks public office to (1)
file his certificate of candidacy and (2)
swear to the Oath of Allegiance contained
therein. [Cordora vs. COMELEC, (February
2009)]
With respect to a person with dual
allegiance, the Court held that candidates
oath of allegiance to the Republic of the
Philippines and his Certificate of Candidacy
do not substantially comply with the
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requirement of a personal and sworn
renunciation of foreign citizenship. Section
5(2) of R.A. No. 9225 compels natural-born
Filipinos, who have been naturalized as
citizens of a foreign country, but who
reacquired or retained their Philippine
citizenship (1) to take the oath of
allegiance under Section 3 of Republic Act
No. 9225, and (2) for those seeking elective
public offices in the Philippines, to
additionally execute a personal and sworn
renunciation of any and all foreign
citizenship before an authorized public
officer prior or simultaneous to the filing of
their certificates of candidacy, to qualify as
candidates in Philippine elections. [Jacot
vs. Dal, (November 2008)]
(5) Fugitive from justice in criminal and nonpolitical cases here and abroad
(6) Insane or feeble-minded
II. Filing of Certificates of Candidacy

No person shall be eligible for any elective public
office unless he files a sworn certificate of
candidacy within the period fixed herein. [Sec. 73,
B.P. 881]
The certificate of candidacy shall be filed by the
candidate personally or by his duly authorized
representative.
When: any day from the commencement of the
election period but not later than the day before the
beginning of the campaign period.
In cases of postponement or failure of election, no
additional certificate of candidacy shall be accepted
except in cases of substitution of candidates. [Sec.
75, B.P. 881]
Filing of 2 certificates of candidacy:
(1) No person shall be eligible for more than one
office to be filled in the same election.
(2) If he files a certificate of candidacy for more
than one office he shall not be eligible for
either.
(3) Before the expiration of the period for the
filing of certificates of candidacy, the person
who has filed more than one certificate of
candidacy, may declare under oath the office for which
he desires to be eligible and
cancel the certificate of candidacy for
the other office/s [Sec. 73, B.P. 881]
(1) Effect of Filing

Any person holding a public appointive office or
position including active members of the AFP, and
other officers and employees in GOCCs, shall be
considered ipso facto resigned from his office upon
the filing of his certificate of candidacy. [Sec. 66(1),
B.P. 881]

Any person holding an elective office or position
shall not be considered resigned upon the filing of
his certificate of candidacy for the same or any
other elective office or position. [Sec. 4, Comelec
Resolution No. 8678 Guidelines on the Filing of
Certificates of Candidacy and Nomination of Official
Candidates of Registered Political Parties in
Connection with the May 10, 2010 National and Local
Elections]
NOTE: Sec. 67 B.P. 811 which deemed elective
officials automatically resigned from office upon
filing of their certificate of candidacy was repealed
by Sec. 14 R.A 9006, Fair Election Act.
QUINTO VS COMELEC (MR Ruling)
GR 189698, February 22. 2010
Held: The SC reversed its earlier ruling (1 Dec. 2009)
and upheld the constitutionality of 3 provisions in
election laws Sec. 13(3) R.A. 9369, Sec. 66 B.P. 881
and Sec. 4(a) COMELEC Resolution 8678 - that
deemed appointive officials automatically resigned
once they filed their certificates of candidacy.
Ratio: By repealing Section 67 but retaining Section
66 of B.P. 881, the legislators deemed it proper to
treat these two classes of officials differently with
respect to the effect on their tenure in the office of
the filing of the certificates of candidacy for any
position other than those occupied by them. It is not
within the power of the Court to pass upon or look
into the wisdom of this classification. Since the
classification justifying Section 14 of R.A. 9006 is
anchored upon material and significant distinctions
and all the persons belonging under the same
classification are similarly treated, the equal
protection clause of the Constitution is, thus, not
infringed.
(2) Substitution of Candidates

If after the last day for filing of the certificates of
candidacy, an official candidate of a registered
political party dies, withdraws or is disqualified for
any cause:
(1) He may be substituted by a candidate
belonging to and nominated by the same
political party.
(2) No substitute shall be allowed for any
independent candidate.
(3) The substitute must file his certificate of
candidacy not later than mid-day of the
election day
If the death, withdrawal or disqualification should
happen between the day before the election and
mid-day of the election day, certificate may be filed
with:
(1) any Board of Election Inspectors in the
political subdivision where he is a candidate
or
(2) with the COMELEC if it is a national position
[Sec. 77, B.P. 881]
Duty of COMELEC [Sec. 76, B.P. 881]
GENERAL RULE: The COMELEC shall have the
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ministerial duty to receive and acknowledge receipt
of the certificates of candidacy provided said
certificates are: under oath and contain all the
required data and in the form prescribed by the
Commission.
EXCEPTION: COMELEC may go beyond the face of
the certificate of candidacy
(1) Nuisance candidates
(2) Petition to deny due course or to cancel a
certificate of candidacy
The COMELEC has no discretion to give

or not to give due course to a
certificate of candidacy filed in due
form. While the COMELEC may look into
patent defects in the certificate, it
may not go into matters not appearing
on their face. [Abcede v. Imperial,
(1958)]
(3) Nuisance Candidates

Petition to declare a duly registered candidate as a
nuisance candidate [Sec. 5, R.A. 6646, The
Electoral Reforms Law of 1987]
Who may file: any registered candidate for the same
office
When: within 5 days from the last day for the filing
of certificates of candidacy
How: personally or through
representative with the COMELEC
duly
authorized
Grounds: certificate of candidacy has been filed (1) To put the election process in mockery or
disrepute or
(2) To cause confusion among the voters by the
similarity of the names of the registered
candidates or
(3) Clearly demonstrate that the candidate has
no bona fide intention to run for the office
for which the certificate of candidacy has
been filed and thus prevent a faithful
determination of the true will of the
electorate [Sec. 69, B.P. 881]
Proceeding: summary in nature
(4) Petition to Deny or

Certificates of Candidacy
Cancel
Who may file: Any person

When: Any time not later than 25 days from the
time of the filing of the certificate of candidacy
Exclusive ground: any material representation
contained in the certificate of candidacy is false.
Decision: Shall be decided, after due notice and
hearing, not later than 15 days before the election.
[Sec. 78, B.P. 881]
SALIC MARUHOM VS COMELEC

GR NO. 179430, July 27. 2009
Held: The false representation must pertain to a
material fact that affects the right of the candidate
to run for the election for which he filed his COC.
Such material fact refers to a candidates eligibility
or qualification for elective office like citizenship,
residence or status as a registered voter. Aside from
the requirement of materiality, the false
representation must consist of a deliberate attempt
to mislead, misinform, or hide a fact that would
otherwise render a candidate ineligible. In other
words, it must be made with the intention to
deceive the electorate as to the would-be
candidates qualifications for public office.
(5) Effect of Disqualification

Procedure
(1) Who may file: Any citizen of voting age, or
any duly registered political party,
organization or coalition of political parties
(2) Where: Law Department of the COMELEC
(3) When: Any day after the last day for filing
of certificates of candidacy, but not later
than the date of proclamation
Effect (asked in 1990, 1992, 1996, 2003)
Any candidate who has been declared by final
judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. The
fact that the candidate who obtained the highest
number of votes is later declared to be disqualified
or not eligible for the office to which he was
elected, does not necessarily entitle the candidate
who obtained the second highest number of votes to
be declared the winner of the elective office.
Any candidate who has been declared by final
judgment to be disqualified
(1) shall not be voted for and
(2) the votes cast for him shall not be counted
(3) If a candidate is not declared by final
judgment before an election to be
disqualified and he is voted for and receives
the winning number of votes in such
election
The Court or COMELEC shall continue with the trial
and hearing of the action, inquiry, or protest and
Upon motion of the complainant or any intervenor,
may during the pendency thereof, order the
suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong. [Sec. 6,
R.A. 6646, The Electoral Reforms Law of 1987]
Where a similar complaint/petition is filed:
(1) before the election and proclamation of the
respondent and the case is not resolved
before the election - the trial and hearing
of the case shall continue and referred to
the Law Department for preliminary
investigation
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(2) after the election and before the
proclamation of the respondent - the trial
and hearing of the case shall be suspended
and referred to the Law Department for
preliminary investigation
NOTE: In either case, if the evidence of guilt is
strong, the COMELEC may order the suspension
of the proclamation of respondent, and if
proclaimed, to suspend the effects of
proclamation. [Sec. 4, Resolution No. 8678]
(6) Withdrawal of Candidates

A person who has filed a certificate of candidacy
may, prior to the election, withdraw the same by
submitting to the office concerned a written
declaration under oath.
Effect of filing or withdrawal of a certificate of
candidacy: shall not affect whatever civil, criminal
or administrative liabilities which a candidate may
have incurred.
G. Campaign
I. Premature Campaigning
II. Prohibited Contributions
I. Premature Campaigning
GENERAL RULE: Any election campaign or partisan
political activity for or against any candidate outside
of the campaign period is prohibited and shall be
considered as an election offense. [Sec. 80, B.P.
881]
EXCEPTION: Political parties may hold political
conventions to nominate their official candidates
within 30 days before the start of the period for
filing a certificate of candidacy. [Sec. 15, R.A. 9369,
Poll Automation Law]
Prohibited campaigning days: It is unlawful for any
person to engage in an election campaign or partisan
political activity on:
(1) Maundy Thursday
(2) Good Friday
(3) eve of Election Day and
(4) Election Day [Sec. 3, COMELEC Resolution
8758]
PENERA VS COMELEC
G.R. No. 181613, November 25. 2009
Facts: On 11 September 2009, the SC affirmed the
COMELECs decision to disqualify Penera as
mayoralty candidate in Sta. Monica, Surigao del
Norte, for engaging in election campaign outside the
campaign period, in violation of Sec. 80 of B.P. 881.
Penera moved for reconsideration, arguing that she
was not yet a candidate at the time of the supposed
premature campaigning, since under Sec. 15 of R.A.
9369 one is not officially a candidate until the start
of the campaign period.
Issue: WON Peneras disqualification for engaging in

premature campaigning should be reconsidered.
Held: At the time the supposed premature
campaigning took place, Penera was not officially a
candidate albeit she already filed her certificate
of candidacy. Under Section 15 of R.A. 9369, a
person who files his certificate of candidacy is
considered a candidate only at the start of the
campaign period, and unlawful acts applicable to
such candidate take effect only at the start of such
campaign period. Thus, a candidate is liable for an
election offense only for acts done during the
campaign period, not before. Before the start of the
campaign period, such election offenses cannot be
committed and any partisan political activity is
lawful.
1. Election Campaign or Partisan Political

Activity
An act designed to promote the election or defeat of
a particular candidate or candidates to a public
office. [Sec. 79, B.P. 881]
Exclusions:
(1) Acts performed for the purpose of
enhancing the chances of aspirants for
nomination for candidacy to a public office
by a political party, aggroupment, or
coalition of parties.
(2) Public expressions of opinions or discussions
of probable issues in a forthcoming election
or on attributes or criticisms of probable
candidates proposed to be nominated in a
forthcoming political party convention.
[Sec. 79, B.P. 881]
Persons Prohibited from Campaigning:
(1) Members of the board of election
inspections [Sec. 173, B.P. 881]
(2) Civil service officers or employees [Art. IXB, Sec. 2 (4), Const.]
(3) Members of the military [Art. XVI, Sec. 5
(3), Const.]
(4) Foreigners, whether juridical or natural
persons.
2. Campaign Period
For President, Vice-President and Senators - 90
days before the day of the election.
For Members of the HR and elective provincial,
city and municipal officials - 45 days before the day
of the election. [Sec. 5, R.A. 7166]
3. Lawful Election Propaganda

(1) Pamphlets, leaflets, cards, decals, stickers, or
other written or printed materials not larger
than 8.5x14 inches
(2) Handwritten or printed letters urging voters to
vote for or against any political party or
candidate
(3) Cloth, paper or cardboard posters, framed or
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posted, not larger than 2x3 feet
(4) Streamers not larger than 3x8 feet are allowed
at a public meeting or rally or in announcing
the holding of such. May be displayed 5 days
before the meeting or rally and shall be
removed within 24 hours after such
(5) Paid advertisements in print or broadcast media
Bear and be identified by the

reasonably legible or audible words
political advertisement paid for
followed by the true and correct name
and address of the candidate or party
for whose benefit the election
propaganda was printed or aired. [Sec.
4.1, R.A. 9006]
If the broadcast is given free of charge

by the radio or TV station, identified by
the words "airtime for this broadcast
was provided free of charge by"
followed by the true and correct name
and address of the broadcast entity.
[Sec. 4.2, R.A. 9006]
Print,
broadcast
or
outdoor
advertisements
donated
to
the
candidate or political party shall not be
printed, published, broadcast or
exhibited
without
the
written
acceptance by said candidate or
political party.
Written acceptance
must be attached to the advertising
contract and submitted to the
COMELEC within 5 days after its
signing. [Sec. 4.3, R.A. 9006, cf. Sec.
6.3, R.A. 9006]
(6) All other forms of election propaganda not
prohibited by the Omnibus Election Code or the
Fair Election Act of 2001. [Sec. 3, R.A. 9006,
The Fair Election Act]
4. Prohibited Acts
Note: Sec. 85 Prohibited election propaganda of

B.P. 881 was repealed by Sec. 14 R.A. 9006.
5. Equal Access to Media Time and Space

Print advertisements shall not exceed 1/4 page, in
broad sheet and 1/2 page in tabloids thrice a week
per newspaper, magazine or other publications.
Bona fide candidates and registered political parties
running for nationally elective office are entitled to
not more than 120 mins of TV advertisement and 180
mins of radio advertisement whether by purchase or
by donation.
Bona fide candidates and registered political parties
running for locally elective office are entitled to not
more than 60 mins of TV advertisement and 90 mins
of radio advertisement whether by purchase or by
donation.
Broadcast stations or entities are required to submit
copies of their broadcast logs and certificates of
performance to the COMELEC for the review and
verification of the frequency, date, time and
duration of advertisement broadcast for any
candidate or political party.
All mass media entities are required to furnish the
COMELEC with a copy of all contracts for advertising,
promoting or opposing any political party or the
candidacy of any person for public office within 5
days after its signing.
No franchise or permit to operate a radio or TV
station shall be granted or issued, suspended or
cancelled during the election period.
For any foreigner to:

(1) Aid any candidate or political party, directly or
indirectly
(2) Take part or influence in any manner any
election
(3) Contribute or make any expenditure in
connection with any election campaign or
partisan political activity [Sec. 81, B.P. 881]
Any
mass
media
columnist,
commentator,
announcer, reporter, on-air correspondent or
personality who is a candidate for any elective
public office or is a campaign volunteer for or
employed or retained in any capacity by any
candidate or political party shall:
(1) be deemed resigned, if so required by their
employer or
(2) take a leave of absence from his/her work as
such during the campaign period
For any person during the campaign period to:

(1) Remove, destroy, obliterate or in any manner
deface or tamper with lawful election
propaganda
(2) Prevent the distribution of lawful election
propaganda [Sec. 83, B.P.881]
No movie, cinematograph or documentary shall be

publicly exhibited in a theater, television station or
any public forum during the campaign period which:
(1) portrays the life or biography of a candidate
(2) is portrayed by an actor or media personality
who is himself a candidate. [Sec. 6, R.A. 9006]
For any candidate, political party, organization or

any person to:
(1) Give or accept, directly or indirectly, free of
charge, transportation, food or drinks or things
of value during the five hours before and after
a public meeting, on the day preceding the
election, and on the day of the election;
(2) Give or contribute, directly or indirectly, money
or things of value for such purpose (Sec. 89,
B.P. 881)
6. Election Surveys
The measurement of opinions and perceptions of the
voters as regards a candidate's popularity,
qualifications, platforms or a matter of public
discussion in relation to the election, including
voters' preference for candidates or publicly
discussed issues during the campaign period.
Surveys affecting national candidates shall not be
16
6
ELECTION LAW
published 15 days before an election and surveys
affecting local candidates shall not be published 7
days before an election.
Exit polls may only be taken subject to the following
requirements:
(1) Pollsters shall not conduct their surveys within
50m from the polling place, whether said
survey is taken in a home, dwelling place and
other places
(2) Pollsters shall wear distinctive clothing
(3) Pollsters shall inform the voters that they may
refuse to answer and
(4) The result of the exit polls may be announced
after the closing of the polls on election day
and must clearly identify the total number of
respondents, and the places where they were
taken. Said announcement shall state that the
same is unofficial and does not represent a
trend. [Sec. 5, R.A. 9006]
7. Application for Rallies, Meetings and Other

Political Activity
(a) All applications for permits must immediately be
posted in a conspicuous place in the city or
municipal building, and the receipt thereof
acknowledged in writing.
(b) Applications must be acted upon in writing by
local authorities concerned within 3 days after
their filing. If not acted upon within said
period, deemed approved.
(c) The only justifiable ground for denial of the
application is when a prior written application
by any candidate or political party for the same
purpose has been approved.
(d) Denial of any application for said permit is
appealable to the provincial election supervisor
or to the COMELEC whose decision shall be
made within 48 hours and which shall be final
and executory. [Sec. 87, B.P. 881]
II. Prohibited Contributions

1. Definitions
Contribution: gift, donation, subscription, loan,
advance or deposit of money or anything of value, or
a contract, promise or agreement to contribute
WON legally enforceable
made for influencing the results of the elections
excludes
services
rendered
without
compensation by individuals volunteering their
time in behalf of a candidate or political party
includes the use of facilities voluntarily donated

by other persons, the money value of which can
be assessed based on the rates prevailing in the
area. [Sec. 94, B.P. 881]
Expenditures: payment of money or anything of
value or a contract, promise or agreement to make
an expenditure
for the purpose of influencing the results of the

election
includes the use of facilities personally owned

by the candidate, the money value of the use of

which can be assessed based on the rates
prevailing in the area. [Sec. 94, B.P. 881]
2. Prohibited Contributions
(1) From Public or private financial institutions.
Unless:
(a) the financial institutions are legally in
the business of lending money
(b) the loan is made in accordance with
laws and regulations AND
(c) the loan is made in the ordinary course
of business
(2) Natural and juridical persons operating a public
utility or in possession of or exploiting any
natural resources of the nation
(3) Natural and juridical persons who hold contracts
or sub-contracts to supply the government or
any of its divisions,
subdivisions or
instrumentalities, with goods or services or to
perform construction or other works
(4) Grantees of franchises, incentives, exemptions,
allocations or similar privileges or concessions
by the government or any of its divisions,
subdivisions or instrumentalities, including
GOCCs
(5) Grantees, within 1 year prior to the date of the
election, of loans or other accommodations in
excess of P100,000 by the government or any
of
its
divisions,
subdivisions
or
instrumentalities including GOCCs
(6) Educational institutions which have received
grants of public funds amounting to no less
than P100,000
(7) Officials or employees in the Civil Service, or
members of the Armed Forces of the
Philippines
(8) Foreigners and foreign corporations, including
foreign governments. [Sec. 95 and 96, B.P.
881]
3. Prohibited Fund-raising Activities

The following are prohibited if held for raising
campaign funds or for the support of any candidate
from the start of the election period up to and
including election day:
(1) Dances
(2) Lotteries
(3) Cockfights
(4) Games
(5) Boxing bouts
(6) Bingo
(7) Beauty contests
(8) Entertainments,
or
cinematographic,
theatrical or other performances
For any person or organization, civic or religious,
directly or indirectly, to solicit and/or accept from
any candidate or from his campaign manager, agent
or representative, or any person acting in their
behalf, any gift, food, transportation, contribution
or donation in cash or in kind from the start of the
election period up to and including election day
EXCEPT: normal and customary religious
stipends, tithes, or collections on Sundays
and/or other designated collection days [Sec.
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7
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97, B.P. 881]
H. Board of Canvassers
4. Limitations on Expenses
For Candidates
(1) President and VP: P10 for every voter currently
registered
(2) Other candidates: P3 for every voter currently
registered in the constituency where he filed
his certificate of candidacy
Candidates Without a Political Party:
voter
I. Composition of Board of Canvassers

II. Prohibitions on BOC
III. Canvass by the BOC
IV. Certificate of Canvass and Statement of Votes
V. Proclamation
I. Composition of Board of Canvassers

[Sec. 20, R.A. 6646]
P5 for every
Chairman
For Political Parties: P5 for every voter currently

registered in the constituency or constituencies
where it has official candidates [Sec. 13, R.A. 7166,
Act Providing for Synchronized National and Local
Elections and Electoral Reforms]
5. Statement of Contributions and Expenses

Every candidate and treasurer of the political party
shall file:
(1) in duplicate with the COMELEC
(2) the full, true and itemized statement of all
contributions and expenditures in connection
with the election
(3) within 30 days after the day of the election
Vice
Chairman
Member
Effect of failure to file statement: No person

elected to any public offices shall enter upon the
duties of his office until he has filed the statement
of contributions and expenditures
The same prohibition shall apply if

the
political
party
which
nominated the winning candidate
fails to file the statements
Province
Provincial
election
supervisor
or lawyer
in the
COMELEC
regional
office
Provincial
fiscal
Provincial
superinten
dent of
schools
City
City
election
registrar or
a lawyer of
COMELEC;
In cities
with more
than 1
election
registrar,
COMELEC
shall
designate
City fiscal
City
superinten
dent of
schools
6. Requisites of a Prohibited Donation

Who: By candidate, spouse, relative within 2nd civil
degree of consanguinity or affinity, campaign
manager, agent or representative; treasurers, agents
or representatives of political party
When: During campaign period, day before and day
of the election
Directly or indirectly:
(1) donation, contribution or gift in cash or in kind
(2) undertake or contribute to the construction or
repair of roads, bridges, school buses,
puericulture centers, medical clinics and
hospitals, churches or chapels cement
pavements, or any structure for public use or
for the use of any religious or civic
organization.
Exceptions:
(1) Normal and customary religious dues or
contributions
(2) Periodic payments for legitimate scholarships
established and school contributions habitually
made before the prohibited period [Sec. 104,
B.P. 881]
Municipality
Election
registrar or
COMELEC
representa
tive
Municipal
treasurer
Most senior
district
school
supervisor
or in his
absence, a
principal of
the school
district or
elementary
school
In case of non-availability, absence, disqualification

due to relationship, or incapacity for any cause of
any of the members, COMELEC may appoint the
following as substitutes, in the order named:
Chairman
Vice
Chairman
Province
Ranking
lawyer of
the
COMELEC
-Provincial
auditor
-Registrar
of Deeds
-Clerk of
Court
nominated
by
the
Executive
Judge of
the RTC;
-Any other
available
appointive
provincial
official
City
Ranking
lawyer of
the
COMELEC
-City
auditor or
equivalent;
-Registrar
of Deeds;
-Clerk
of
Court
nominated
by
the
Executive
Judge
of
the RTC;
-Any other
available
appointive
city official
Municipality
Ranking
lawyer of
the
COMELEC
-Municipal
Administrat
or;
-Municipal
Assessor;
-Clerk
of
Court
nominated
by
the
Executive
Judge of the
MTC;
-Any other
available
appointive
municipal
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8
ELECTION LAW
Member
Same as
for ViceChairman
Same as for
ViceChairman
official
Same as for
ViceChairman
II. Prohibitions on BOC

(1) Chairman and members shall not be related
within the 4th civil degree of consanguinity or
affinity to any of the candidates whose votes
will be canvassed by said board, or to any
member of the said board. [Sec. 222, B.P. 881]
(2) No member or substitute member shall be
transferred, assigned or detailed outside of his
official station, nor shall he leave said station
without prior authority of the COMELEC during
the period beginning election day until the
proclamation of the winning candidates. [Sec.
223, B.P. 881]
(3) No member shall feign illness to be substituted
on election day until the proclamation of the
winning candidates.
Feigning of illness
constitutes an election offense. [Sec. 224, B.P.
881]
III. Canvass by the BOC

Canvass - the process by which the results in the
election returns are tallied and totalled.
Certificates of canvass - official tabulations of votes
accomplished by district, municipal, city and
provincial canvassers based on the election returns,
which are the results of the ballot count at the
precinct level.
The BOC shall canvass the votes by

consolidating
the
electronically
transmitted results or the results
contained in the data storage devices
used in the printing of the election
returns. [Sec. 20, R.A. 9369]
IV. Certificate of Canvass and

Statement of Votes
(1) Within one hour after the canvassing, the
Chairman of the district or provincial BOC or
the city BOC of those cities which comprise
one or more legislative districts shall
electronically transmit the certificates of
canvass to:
(a) COMELEC sitting as the National BOC for
senators and party-list representatives
and
(b) Congress as the National BOC for the
president and vice president, directed
to the President of the Senate. [Sec. 20,
R.A. 9369]
(2) The certificates of canvass transmitted
electronically and digitally signed shall be
considered as official election results and shall
be used as the basis for the proclamation of a
winning candidate. [Sec. 20, R.A. 9369]
(3) 30 copies shall be distributed in accordance to

Sec. 21, R.A. 9369.
National BOC for president and vice-president
Composition: The Senate and the
Representatives in joint public session.
House
of
Functions:
(1) Upon receipt of the certificates of canvass, the
President of the Senate shall, not later than 30
days after the day of the election, open all the
certificates in the presence of the Senate and
the House of Representatives in joint public
session.
(2) Congress upon determination of the authenticity
and the due execution thereof in the manner
provided by law shall:
(3) canvass all the results for president and vicepresident and
(4) proclaim the winning candidates. [Sec. 22, R.A.
9369]
National BOC for
Representatives
Senators
and
Party-List
Composition: The chairman and members of the

COMELEC sitting en banc
Function: It shall canvass the results by
consolidating
the
certificates
of
canvass
electronically transmitted. Thereafter, the national
board shall proclaim the winning candidates for
senators and party-list representatives. [Sec. 23,
R.A. 9369]
V. Proclamation
Proclamation shall be after the canvass of election
returns, in the absence of a perfected appeal to the
COMELEC, proclaim the candidates who obtained the
highest number of votes cast in the province, city,
municipality or barangay, on the basis of the
certificates of canvass.
Failure to comply with this duty

constitutes an election offense.
[Sec. 231, B.P. 881]
When proclamation void:
(1) When it is based on incomplete returns
[Castromayor v. Comelec (1995)] or
(2) When there is yet no complete canvass. [Jamil
v. Comelec (1997)]
(3) A void proclamation is no proclamation at all,
and the proclaimed candidates assumption
into office cannot deprive the COMELEC of its
power to annul the proclamation.
Partial proclamation: Notwithstanding pendency of
any pre-proclamation controversy, COMELEC may
summarily order proclamation of other winning
candidates whose election will not be affected by
the outcome of the controversy. [Sec. 21, R.A. 7166]
Election resulting in a tie: BOC, by resolution, upon
5 days notice to all tied candidates, shall hold a
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9
ELECTION LAW
special public meeting at which the board shall
proceed to the drawing of lots of tied candidates
and shall proclaim as elected the candidates who
may be favored by luck. [Sec. 240, B.P. 881]
There is a tie when:
(1) 2 or more candidates receive an equal and
highest number of votes; or
(2) 2 or more candidates are to be elected for the
same position and 2 or more candidates
received the same number of votes for the
LAST PLACE in the number to be elected.
Proclamation of a lone candidate: Upon the
expiration of the deadline for the filing of
certificates of candidacy in a special election called
to fill a vacancy in an elective position other than
for President and VP, when there is only 1 qualified
candidate, he shall be proclaimed elected without
holding the special election upon certification by the
COMELEC that he is the only candidate for the office
and is therefore deemed elected. [Sec. 2, R.A.
8295, Law on Proclamation of Solo Candidates]
I. Remedies and Jurisdiction in

Election Law
I. Petition Not to Give Due Course to Certificate
of Candidacy
II. Petition to Declare Failure of Elections
III. Pre-Proclamation Controversy
IV. Election Protest
V. Quo Warranto
I. Petition Not to Give Due Course to

Certificate of Candidacy
Cancellation of Certificate of Candidacy
1. Grounds
(1) False material representation in the certificate
of candidacy;
(2) If the certificate filed is a substitute Certificate
of Candidacy, when it is not a proper case of
substitution under Sec. 77 of BP 881.
2. Nature of Proceedings - Summary

3.
Procedure
Who may file: any citizen of voting age, or a duly

registered political party, organization, or coalition
of political parties
When filed: Within 5 days from the last day for the
filing of certificates of candidacy
Where filed: With the Law Department of the
COMELEC
II. Petition to Declare Failure of

Elections

1. What Constitutes an Election
Plurality of votes sufficient for:
(1) a choice conditioned on the plurality of valid
votes or
(2) a valid constituency regardless of the actual
number of votes cast.
2. Failure of Elections
Grounds: in any of such cases the failure or
suspension of election must affect the result of the
election
(1) Election in any polling place has not been
held on the date fixed due to force
majeure, violence, terrorism, fraud, or
other analogous causes.
(2) Election in any polling place had been
suspended before the hour fixed for the
closing of the voting due to force majeure,
violence, terrorism, fraud, or other
analogous causes.
(3) After the voting and during the preparation
and transmission of the election returns or
in the custody or canvass thereof such
election results in a failure to elect due to
force majeure, violence, terrorism, fraud or
other analogous causes. [Sec. 6, B.P. 881]
Causes for the declaration of failure of election may
occur before or after the casting of votes or on the
day of the election. [Sec. 4, R.A. 7166]
The postponement, declaration of failure of election
and the calling of special elections shall be decided
by the COMELEC sitting en banc by a majority vote
of its members. [Sec. 4, R.A. 7166]
The COMELEC shall call for the holding or
continuation of the election not held, suspended or
which resulted in a failure to elect:
(1) upon a verified petition by any interested
party and
(2) after due notice and hearing [Sec. 6, B.P.
881]
When: on a date reasonably close to the date of the
election not held, suspended or which resulted in a
failure to elect BUT not later than 30 days after the
cessation of the cause of such postponement or
suspension of the election or failure to elect. [Sec.
6, B.P. 881]
3. Declaration of Failure of Election

It is neither an election protest nor a preproclamation controversy.
[Borja v. Comelec,
(1998)]
Jurisdiction: COMELEC, sitting en banc, may declare
a failure of election by a majority vote of its
members.
Requisites: The following conditions must concur:
(1) No voting has taken place in the precincts
concerned on the date fixed by law, or even if
17
0
ELECTION LAW
there was voting, the election nonetheless
resulted in a failure to elect; and
(2) The votes cast would affect the results of the
election.
Procedure:
(1) Petitioner files verified petition with the Law
Department of the COMELEC.
(2) Unless a shorter period is deemed necessary by
circumstances, within 24 hours, the Clerk of
Court concerned serves notices to all
interested parties, indicating therein the date
of hearing, through the fastest means
available.
(3) Unless a shorter period is deemed necessary by
the circumstances, within 2 days from receipt
of the notice of hearing, any interested party
may file an opposition with the Law
Department of the COMELEC.
(4) The COMELEC proceeds to hear the petition.
The COMELEC may delegate the hearing of the
case and the reception of evidence to any of
its officials who are members of the Philippine
Bar.
(5) The COMELEC then decides whether to grant or
deny the petition.
This lies within the
exclusive prerogative of the COMELEC.
III. Pre-Proclamation Controversy

(asked in 1987, 1988, 1996)
Any question or matter pertaining to or affecting:
(1) the proceedings of the board of canvassers, or
(2) any matter raised under Sec. 233-236 of BP 881
(see below) in relation to the preparation,
transmission,
receipt,
custody
and
appreciation of the election returns. [Sec.
241, BP 881]
1. Jurisdiction
COMELEC has exclusive jurisdiction over preproclamation cases. It may order, motu proprio or
upon written petition, the partial or total suspension
of the proclamation of any candidate-elect or annul
partially or totally any proclamation, if one has been
made. [Sec. 242, BP 881]
2. When Not Allowed

For the positions of President, VP, Senator, and
Member of the House of Representatives [Sec. 15,
R.A. 7166]
3. Nature of Proceedings
Heard summarily by the COMELEC after due notice
and hearing. This is because canvass and
proclamation should be delayed as little as possible.
4. Issues That May Be Raised

This enumeration is restrictive and exclusive:
(1) Illegal composition or proceedings of the board
of election canvassers;
(2) Canvassed election returns are either:
(a)
(b)
(c)
(d)
Incompelte
Contain material defects;
Appear to be tampered with or falsified;
Contain discrepancies in the same returns
or in other authentic copies;
(3) The election returns were:
(a) Prepared under duress, threats, coercion,
intimidation or
(b) Obviously manufactured or not authentic
(4) Substituted
or
fraudulent
returns
in
controverted polling places were canvassed,
the results of which materially affected the
standing of the aggrieved candidate(s).
(6) Manifest errors in the Certificates of Canvass or
Election Returns [Sec. 15, R.A. 7166; Chavez v.
COMELEC]
5. Issues That Cannot Be Raised

(1) Appreciation of ballots, as this is performed by
the BEI at the precinct level and is not part of
the proceedings of the BOC [Sanchez v.
Comelec, (1987)]
(2) Technical examination of the signatures and
thumb marks of voters [Matalam v. Comelec
(1997)]
(3) Prayer for re-opening of ballot boxes [Alfonso v.
Comelec, (1997)]
(4) Padding of the Registry List of Voters of a
municipality, massive fraud and terrorism
[Ututalum v. Comelec (1990)]
(5) Challenges directed against the Board of
Election Inspectors [Ututalum v. Comele
(supra)]
(6) Fraud, terrorism and other illegal electoral
practices. These are properly within the office
of election contests over which electoral
tribunals have sole, exclusive jurisdiction.
[Loong v. Comelec, (1992)]
6. Procedure
a. Questions involving the composition or
proceedings of the board of canvassers, or
correction of manifest errors
Where: Either in the Board of Canvassers or directly
with the COMELEC. [Sec. 17, R.A. 7166]
When:
(1) a petition involves the illegal composition or
proceedings of the board, must be filed
immediately when the board begins to act as
such [Laodeno v. Comelec], or at the time of
the appointment of the member whose
capacity to sit as such is objected to if it
comes after the canvassing of the board, or
immediately at the point where the
proceedings are or begin to be illegal.
Otherwise, by participating in the proceedings,
the petitioner is deemed to have acquiesced in
the composition of the BOC.
(2) If the petition is for correction, it must be filed
not later than 5 days following the date of
proclamation, and must implead all candidates
who may be adversely affected thereby. [Sec.
5(b), Rule 27, COMELEC Rules of Procedure]
17
1
ELECTION LAW
b. Matters relating to the preparation,
transmission, receipt, custody and appreciation
of the election returns and certificates of canvass
Where: Only with the Board of Canvassers
When: At the time the questioned return is
presented for inclusion in the canvass.
Who: Any candidate, political party or coalition of
political parties
Note: Non-compliance with any of the steps above
is fatal to the pre-proclamation petition.
7. Effect of Filing of Pre-Proclamation

Controversy
(1) The period to file an election contest shall be
suspended during the pendency of the preproclamation contest in the COMELEC or the
Supreme Court.
(2) The right of the prevailing party in the preproclamation contest to the execution of
COMELECs decision does not bar the losing
party from filing an election contest.
(3) Despite the pendency of a pre-proclamation
contest, the COMELEC may order the
proclamation of other winning candidates
whose election will not be affected by the
outcome of the controversy.
8. Effect of Proclamation of Winning

Candidate
GENERAL RULE: A pre-proclamation controversy
shall no longer be viable after the proclamation and
assumption into office by the candidate whose
election is contested. The remedy is an election
protest before the proper forum.
EXCEPTIONS: The prevailing candidate may still be
unseated even though he has been proclaimed and
installed in office if:
(1) The opponent is adjudged the true winner of the
election by final judgment of court in an
election contest;
(2) The prevailing party is declared ineligible or
disqualified by final judgment of a court in a
quo warranto case; or
(3) The incumbent is removed from office for
cause.
9. Petition to Annul or Suspend Proclamation

The filing of the petition suspends the running of the
period to file an election protest. [Alangdeo v.
Comelec, (1989)]
No law provides for a reglementary period within
which to file a petition for the annulment of an
election if there is as yet no proclamation. [Loong
v. Comelec (supra)]
IV. Election Protest

Election protest - is a contest between the defeated
and winning candidates on the ground of frauds or
irregularities in the casting and counting of the
ballots, or in the preparation of the returns. It raises
the question of who actually obtained the plurality
of the legal votes and therefore is entitled to hold
the office. [Samad v. Comelec, (1993)]
An election contest consists of either an election
protest or a quo warranto which, although two
distinct remedies, would have one objective in view:
to dislodge the winning candidate from office.
In an election protest, the protestee may be ousted
and the protestant seated in the office vacated.
GENERAL RULE: As a general rule, the filing of an
election protest or a petition for quo warranto
precludes the subsequent filing of a preproclamation controversy, or amounts to the
abandonment of one earlier filed, thus depriving the
COMELEC of the authority to inquire into and pass
upon the title of the protestee or the validity of his
proclamation. The reason is that once the
competent tribunal has acquired jurisdiction of an
election protest or a petition for quo warranto, all
questions relative thereto will have to be decided in
the case itself and not in another proceeding. This
procedure will prevent confusion and conflict of
authority. Conformably, we have ruled in a number
of cases that after a proclamation has been made, a
pre-proclamation case before the COMELEC is no
longer viable. [Samad v. Comelec, (1993)]
EXCEPTIONS: The rule admits of exceptions,
however, as where:
(1) the board of canvassers was improperly
constituted;
(2) quo warranto was not the proper remedy;
(3) what was filed was not really a petition for
quo warranto or an election protest but a
petition to annul a proclamation;
(4) the filing of a quo warranto petition or an
election protest was expressly made
without prejudice to the pre-proclamation
controversy or was made ad cautelam; and
(5) the proclamation was null and void. [Samad
v. Comelec, (1993)]
Who may file: A candidate who has duly filed a
certificate of candidacy and has been voted for.
When: within ten days after the proclamation of the
results of the election.
Who has jurisdiction:
(1) Comelec over all contests relating to the
elections, returns and qualifications of all
elective regional, provincial and city
officials [Sec. 250. BP 881]
(2) RTC - over contests involving municipal
17
2
ELECTION LAW
(3) MeTC or MTC over election contests
involving barangay officials [Sec. 252. BP
881]
complainant may file the complaint with the fiscal

or the Department of Justice, if warranted. [Sec.
265, B.P. 881]
Effect of filing petition to annual or to suspend the

proclamation. - The filing with the Commission of a
petition to annual or to suspend the proclamation of
any candidate shall suspend the running of the
period within which to file an election protest or quo
warranto proceedings. [Sec. 248. BP 881]
I. Jurisdiction over Election Offenses
V. Quo Warranto
II. Preferential Disposition of Election

Offenses
A petition for quo warranto under the Omnibus

Election Code raises in issue the disloyalty or
ineligibility of the winning candidate. It is a
proceeding to unseat the respondent from office but
not necessarily to install the petitioner in his place.
[Samad v. Comelec, (1993)]
In a quo warranto proceeding, the petitioner is not
occupying the position in dispute. Moreover, under
the Omnibus Election Code, quo warranto is proper
only for the purpose of questioning the election of a
candidate on the ground of disloyalty or ineligibility.
[Samad v. Comelec, (1993)]
It is a proceeding to unseat the ineligible person
from office but not to install the protestant in his
place. In this sense, it is strictly speaking, not a
contest where the parties strive for supremacy.
While the respondent may be unseated, the
petitioner will not be seated.
Who may file: Any voter
When: within ten days after the proclamation of the
results of the election.
Who has jurisdiction:
(1) Comelec over petitions for quo warranto
involving regional, provincial and city
(2) RTC - over petitions for quo warranto
involving municipal officials [Sec. 253. BP
881]
(3) MeTC or MTC over petitions for quo
warranto involving barangay officials [Sec.
253. BP 881]
J. Prosecution of Election Offenses

I. Jurisdiction over Election Offenses
II. Preferential Disposition of Election Offenses
III. Election Offenses
IV. Arrests in Connection with Election Campaign
V. Prescription
VI. Prohibited Acts under RA 9369
The COMELEC has the exclusive power to investigate
and prosecute cases involving violations of election
laws. [Sec. 2 (6), Art. IX-C, 1987 Const]
However, it may validly delegate the power to the
Provincial Prosecutor or to the Ombudsman.
In the event that the COMELEC fails to act on any
complaint within 4 months from its filing, the
RTCs have exclusive original jurisdiction to try and

decide any criminal actions or proceedings for
violation of election laws. [Sec. 268, B.P. 881]
(1) The investigating officer shall resolve the case

within 5 days from submission.
(2) The courts shall give preference to election
cases over all other cases except petitions for
writ of habeas corpus.
III. Election Offenses

1. Registration
(1) Failure of the Board of Election Inspectors to
post the list of voters in each precinct. [Sec.
9, R.A. 7166];
(2) Change or alteration or transfer of a voter's
precinct assignment in the permanent list of
voters without the express written consent of
the voter [Sec. 4, R.A. 8189]
2. Certificate of Candidacy
(1) Continued misrepresentation or holding out as
a candidate of a disqualified candidate or one
declared by final and executory judgment to
be a nuisance candidate [Sec. 27f, R.A. 6646]
(2) Knowingly
inducing
or
abetting
such
misrepresentation of a disqualified or
nuisance candidate [Sec. 27f, R.A. 6646];
(3) Coercing, bribing, threatening, harassing,
intimidating, terrorizing, or actually causing,
inflicting or producing violence, injury,
punishment, torture, damage, loss or
disadvantage to discourage any other person or
persons from filing a certificate of candidacy in
order to eliminate all other potential
candidates from running in a special election
[Sec. 5, R.A. 8295]
3. Election Campaign
(1) Appointment or use of special policemen,
special agents or the like during the campaign
period [Sec. 261m, B.P. 881]
(2) Use of armored land, water or aircraft during
the campaign period [Sec. 261r, B.P. 881]
(3) Unlawful electioneering [Sec. 261k, B.P. 881]
17
3
ELECTION LAW
(4) Acting as bodyguards or security in the case of

policemen and provincial guards during the
campaign period [Sec. 261t, B.P. 881]
service within the election period without the

prior approval of the COMELEC [Sec. 261h, B.P.
881]
(5) Removal,
destruction,
obliteration,
or
tampering of lawful election propaganda, or
preventing the distribution thereof [Sec. 83,
B.P. 881 vis--vis Sec. 262, B.P. 881]
(3) Intervening of public officers and employees in

the civil service in any partisan political
activity [Sec. 261i, B.P. 881]
4. Voting
(4) Use of public funds for an election campaign

[Sec. 261o, B.P. 881]
(1) Vote-buying and vote-selling [Sec. 261a, B.P.

881]
(5) Illegal release of prisoners before and after

election [Sec. 261n, B.P. 881]
(2) Conspiracy to bribe voters [Sec. 261b, B.P.

881]: A disputable presumption of a conspiracy
to bribe voters is created when there is proof
that at least 1 voter in different precincts
representing at least 20% of the total precincts
in any municipality, city or province has been
offered, promised or given money, valuable
consideration or other expenditure by a
candidate's
relatives,
leaders
and/or
sympathizers for the purpose of promoting the
election of such candidate. [Sec. 28, R.A.
6646]
(6) Release, disbursement or expenditure of public

funds during the prohibited period [Sec. 261v,
B.P. 881]
(3) Coercion of subordinates to vote for or against

any candidate [Sec. 261d, B.P. 881]
(4) Dismissal of employees, laborers, or tenants for
refusing or failing to vote for any candidate
[Sec. 261d(2), B.P. 881]
(5) Being a flying voter [Sec. 261z (2), B.P. 881]
5. Counting of Votes
(1) Tampering, increasing, decreasing votes, or
refusal to correct tampered votes after proper
verification and hearing by any member of the
board of election inspectors [Sec. 27b, R.A.
6646]
A special election offense to be

known as electoral sabotage and the
penalty to be imposed shall be life
imprisonment. [Sec. 42, RA 9369]
(2) Refusal to issue to duly accredited watchers the
certificate of votes cast and the announcement
of the election, by any member of the board of
election inspectors [Sec. 27c, R.A. 6646]
(7) Construction of public works, etc. during the

prohibited period [Sec. 261w, B.P. 881]
(8) Suspension of elective local officials during the
election period without prior approval of the
COMELEC [Sec. 261x, B.P. 881]
8. Coercion, Intimidation, Violence

(1) Coercion of election officials and employees
(2) Threats, intimidation, terrorism, use of
fraudulent devices or other forms of coercion
[Sec. 261e, B.P. 881]
(3) Use of undue influence [Sec. 261j, B.P. 881]
(4) Carrying deadly weapons within the prohibited
area [Sec. 261p, B.P. 881]
(5) Carrying firearms outside residence or place of
business [Sec. 261q, B.P. 881]
(6) Organization or maintenance of reaction forces,
strike forces, or similar forces during the
election period [Sec. 261u, B.P. 881]
9. Other Prohibitions
6. Canvassing
(1) Unauthorized printing of official ballots and

election returns with printing establishments
that are not under contract with the COMELEC
[Sec. 27a, R.A. 6646
]
(2) Wagering upon the results of elections [Sec.
261c, B.P. 881]
Any chairperson of the board of canvassers who fails

to give notice of meeting to other members of the
board, candidate or political party as required [Sec.
27e, R.A. 6646]
(3) Sale, etc. of intoxicating liquor on the day fixed

by law for the registration of voters in the
polling place, or the day before the election or
on election day [Sec. 261dd (1), B.P. 881]
7. Acts of Government or Public Officers
(4) Opening booths or stalls within 30 meters of any

polling place [Sec, 261dd (2), B.P. 881]
(1) Appointment of new employees, creation of new

positions, promotion, or giving salary increases
within the election period [Sec. 261g, B.P. 881]
(2) Transfer of officers and employees in the civil
(5) Holding fairs, cockfights, etc. on election day

[Sec. 261dd (3), B.P. 881]
(6) Refusal to carry election mail during the
17
4
ELECTION LAW
election period [Sec. 261dd (4), B.P. 881]. In
addition to the prescribed penalty, such
refusal constitutes a ground for cancellation or
revocation of certificate of public convenience
or franchise.
such as counting machine, memory

pack/diskette, memory pack receiver
and computer set
(2) Interfering with, impeding, absconding for
purpose of gain, preventing the installation or
use of computer counting devices and the
processing,
storage,
generation
and
transmission of election results, data or
information
(7) Discrimination in the sale of air time [Sec. 261dd

(5), B.P. 881] In addition to the prescribed
penalty, such refusal constitutes a ground for
cancellation or revocation of the franchise.
NOTE: Good faith is not a defense, as election
offenses are generally mala prohibita.
(3) Gaining or causing access to using, altering,

destroying or disclosing any computer data,
program, system software, network, or any
computer-related devices, facilities, hardware
or
equipment,
whether
classified
or
declassified
10. Penalties
For individuals
(1) Imprisonment of not less than 1 year but not
more than 6 years, without probation [Sec.
264, B.P. 881]
(2) Disqualification to hold public office
(3) Deprivation of the right of suffrage
(4) Refusal of the citizens' arm to present for

perusal its copy of election return to the board
of canvassers
(5) Presentation by the citizens' arm of tampered or
spurious election returns
For a Foreigner
(1) Imprisonment of not less than 1 year but not
more than 6 years (without probation);
(2) Deportation after service of sentence
(6) Refusal or failure to provide the dominant

majority and dominant minority parties or the
citizens'' arm their copy of election returns and
For a Political Party

Payment of a fine not less than P10,000 after a
criminal conviction
Persons Required by Law to Keep Prisoners in
their Custody:
For prisoners illegally released from any penitentiary
or jail during the prohibited period, where such
prisoners commit any act of intimidation, terrorism
or interference in the election, prison mayor in its
maximum period. [Sec. 264, B.P. 881]
(7) The failure to post the voters' list within the

specified time, duration and in the designated
location shall constitute an election offense on
the part the election officer concerned."
PENALTY
(1) imprisonment of 8 years and one day to 12 years
without possibility of parole
(2) perpetual disqualification to hold public and any
non-elective public office and
IV. Arrests in Connection with

Election Campaign
Only upon a warrant of arrest issued by a competent
judge after all the requirements of the Constitution
have been strictly complied with
V. Prescription
5 years from the date of their commission. If the
discovery of the offense be made in an election
contest proceeding, the period of prescription shall
commence on the date on which the judgment in
such proceedings becomes final and executory.
[Sec. 267, B.P. 881]
VI. Prohibited Acts Under R.A. 9369

(1) Utilizing without authorization, tampering with,
damaging, destroying or stealing:
(a) Official ballots, election returns, and
certificates of canvass of votes used in
the system; and
(b) Electronic devices or their components,
peripherals or supplies used in the AES
(3) deprivation of the right of suffrage.

Exception: Those convicted of the crime of electoral
sabotage, which includes acts or offenses committed
in any of the following instances:
National elective office:
When the tampering, increase and/or decrease

of votes perpetrated or the refusal to credit the
correct votes or to deduct tampered votes
is/are committed in the election of a national

elective office which is voted upon nationwide
and
the tampering, increase and/ or decrease votes

refusal to credit the correct votes or to deduct
tampered votes, shall adversely affect the
results of the election to the said national office
to the extent that losing candidate/s is /are
made to appear the winner/s;
Regardless of the elective office involved, when

the tampering, increase and/or decrease of
votes committed or the refusal to credit the
correct votes or to deduct tampered votes
perpetrated
17
5
ELECTION LAW
is accomplished in a single election document

or in the transposition of the figure / results
from one election document to another and
involved in the said tampering increase and/or
decrease or refusal to credit correct votes or
deduct tampered votes exceed 5,000 votes, and
that the same adversely affects the true results
of the election
Any and all other forms or tampering increase/s

and/ or decrease/s of votes perpetuated or in cases
of refusal to credit the correct votes or deduct the
tampered votes, where the total votes involved
exceed 10,000 votes
PENALTY - Any and all other persons or individuals
determined to be in conspiracy or in connivance with
the members of the BEIs or BOCs involved, shall be
meted the same penalty of life imprisonment.
17
6
UP
L
AW
BAR REVIEWER
2012
POLITICAL
Local Governments
EXECUTIVE COMMITTEE
COMMITTEE HEADS
OPERATIONS HEADS
LAW
Ronette Colobong
LAYOUT TEAM 2012
Cris Bernardino
Reyes
LOCAL GOVERNMENTS
Local Governments
Administrative Law
Election Law
Local Governments
A.
B.
C.
D.
POLITICAL LAW
Public Corporations
Municipal Corporations
Principles of Local Autonomy
Powers of Local Government Units
(LGUs)
A. Public Corporations
1. Concept
2. Classifications
1. Concept
Distinguished from Government-Owned or
Controlled Corporations (GOCCs)
As to purpose
A municipal corporation in its strict sense is the
body politic constituted by the inhabitants of a city
or town for the purpose of local government thereof.
It is the body politic established by law particularly
as an agency of the State to assist in the civil
government of the country chiefly to regulate the
local and internal affairs of the city or town that is
incorporated.
Non-municipal corporations, on the other hand, are
public corporations created as agencies of the State
for limited purposes to take charge merely of some
public or state work other than community
government. [National Waterworks & Sewerage
Authority v. NWSA Consolidated Unions (1964)]
As to personality
(The National Coconut Corporation) was given a
corporate power separate and distinct from our
government, for it was made subject to the
provisions of our Corporation Law in so far as its
corporate existence and the powers that it may
exercise are concerned. [Bacani v. National Coconut
Corporation (1956)]
It is an independent agency of the government
although it is placed, for administrative purposes,
under the Department of Public Works and
Communications. It has continuous succession under
its corporate name and may sue and be sued in
court. It has corporate powers to be exercised by its
board of directors; it has its own assets and
liabilities; and it may charge rates for its services.
[National Waterworks & Sewerage Authority v.
NWSA Consolidated Unions (1964)]
The mere fact that the Government happens to be a
majority stockholder does not make it a public
corporation.
[Bacani
v.
National
Coconut
Corporation (1956)]
By becoming a stockholder in the National Coal
Company, the Government divested itself of its
sovereign character so far as respects the
transactions of the corporation. Unlike the

Government, the corporation may be sued without
its consent, and is subject to taxation. Yet the
National Coal Company remains an agency or
instrumentality of government. [Bacani v. National
Coconut Corporation (1956)]
Nature and Status
Definition
A Local Government Unit (LGU) is a political
subdivision of the State which is constituted by law
and possessed of substantial control over its own
affairs. Remaining to be an intra sovereign
subdivision of a sovereign nation, but not intended
to be an imperium in imperio, the LGU is
autonomous in the sense that it is given more
powers, authority, responsibilities and resources.
[Alvarez vs Guingona (1996)]
Local government is
municipal corporation
interchangeable
with
2. Classifications
Municipal
Corporation
vs.
Quasi-municipal
corporation
A municipal corporation exists by virtue of, and is
governed by, its charter. A quasi-municipal
corporation operates directly as an agency of the
state to help in the administration of public
functions. [Singco (1955)]
B. Municipal Corporations
1. Elements
2. Nature and Functions
3. Requisites for Creation, Conversion, Division,
Merger or Dissolution
LGC Sec. 14. Beginning of Corporate Existence
The election and qualification of
(1) chief executive AND
(2) majority of the members of the Sanggunian
UNLESS some other time is fixed therefore by the
law or ordinance creating it.
Note: Art.14 applies when the law creating it is
SILENT as to the beginning of its corporate
existence.
1. Elements
Elements of a Municipal Corporation
(1) A LEGAL creation or incorporation
(2) A CORPORATE NAME by which the artificial
or legal entity is known and in which all
corporate acts are done
(3) INHABITANTS constituting the population
who are invested with the political and
corporate powers which are executed
through duly constituted officers and agents
(4) A place or TERRITORY within which the
local civil government and corporate
functions are exercised.
178
LOCAL GOVERNMENTS
2. Nature and Functions

Dual Nature
Every local government unit created or recognized
under this Code is a body politic and corporate
endowed with powers to be exercised by it in
conformity with law. As such, it shall exercise
powers as a political subdivision of the National
Government and as a corporate entity representing
the inhabitants of its territory. [Sec. 15, LGC]
The obligations of the old City of Manila survives the
cession of the Philippines to the U.S. because of the
corporate nature of the city. [Villas vs Manila
(1921)]
As a body politic with governmental functions, the
LGU has the duty to ensure the quality of the
environment (Sec. 16, LGC). It cannot claim
exemption from PD 158 which imposes the same
duty. [Republic vs Davao (2002)]
Sec. 15. Political and Corporate Nature of LGUs
Local government unit created or recognized under
this Code is a
(1) Body politic AND
(2) Corporate endowed with powers to be
exercised by it in conformity with law
Exercise of power (as a):
(1) Political subdivision of the national
government AND
(2) Corporate
entity
representing
the
inhabitants of its territory
Implications
A municipal corporation performs twin functions.
Firstly, it serves as an instrumentality of the State in
carrying out the functions of a government.
Secondly, it acts as an agency of the community in
the administration of local affairs. It is in the latter
character that it is a separate entity acting for its
own purposes and not a subdivision of the state.
[Lidasan v COMELEC (1967)]
The holding of a town fiesta is a proprietary
function, though not for profit, for which a
municipality is liable for damages to 3rd persons ex
contractu or ex delicto. [Torio v Fontanilla (1978)]
Difference Between the Political Nature and
Corporate Nature of LGUs
Political/Governmental
Corporate/Municipal
Political subdivision of Corporate
entity
national government
representing inhabitants
of its territory
Includes the legislative, Includes those which are
judicial,
public
and ministerial, private and
political
corporate
LGU cannot be held Can be held liable ex
liable except:
contractu or ex delicto
(1) If statute provides
otherwise
(2) Art. 2189, Civil Code
Political/Governmental
Examples:
(1) Regulations against
fire, disease
(2) Preservation
of
public peace
(3) Maintenance
of
municipal plaza
(4) Establishment
of
schools,
post
offices, etc.
Corporate/Municipal
Examples:
(1) Municipal
waterworks
(2) Slaughterhouses
(3) Markets
(4) Stables
(5) Bathing
establishments
(6) Wharves
(7) Fisheries
(8) Maintenance
of
parks, golf courses,
cemeteries, airports
3. Requisites for Creation,

Conversion, Division, Merger or
Dissolution
Creation/Conversion
[Art. X, 1987 Consti]
a. General Provisions
No province, city, municipality, or barangay may be
created, divided, merged, abolished, or its boundary
substantially altered, except:
in accordance with the criteria established in

the Local Government Code and
subject to approval by a majority of the votes

cast in a plebiscite in the political units directly
affected. [Sec. 10, LGC]
Local government units may:
(1) group themselves,
(2) consolidate or coordinate their efforts, services,
and resources
for purposes:
(1) commonly beneficial to them
(2) in accordance with law. [Sec. 13, LGC]
The President shall provide for regional development
councils or other similar bodies composed of local
government officials, regional heads of departments
and other government offices, and representatives
from non-governmental organizations within the
regions:
(1) for purposes of administrative decentralization
(2) to strengthen the autonomy of the units therein
and
(3) to accelerate the economic and social growth
and development of the units in the region.
[Sec. 14, LGC]
b.
Specific Requirements
Metropolitan Political Subdivisions

The Congress may, by law, create special
metropolitan political subdivisions, subject to a
plebiscite as set forth in Section 10 hereof.
The component cities and municipalities shall:
(1) retain their basic autonomy and
(2) be entitled to their own local executive and
legislative assemblies.
179
LOCAL GOVERNMENTS
The jurisdiction of the metropolitan authority that
will thereby be created shall be limited to basic
services requiring coordination. [Sec. 11, LGC]
within its territorial jurisdiction,

subject to such limitations and requirements
prescribed in this Code. [Sec. 6, LGC]
Highly Urbanized Cities and Independent Component

Cities
Cities that are highly urbanized, as determined by
law, and component cities whose charters prohibit
their voters from voting for provincial elective
officials, shall be independent of the province.
The authority to create municipal corporations is

essentially legislative in nature. [Pelaez v. Auditor
General (1965)]
The voters of component cities within a province,

whose charters contain no such prohibition, shall not
be deprived of their right to vote for elective
provincial officials. [Sec.12, LGC]
Autonomous Regions
There shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of
provinces, cities, municipalities, and geographical
areas sharing common and distinctive historical and
cultural heritage, economic and social structures,
and other relevant characteristics within the
framework of this Constitution and the national
sovereignty as well as territorial integrity of the
Republic of the Philippines. [Sec. 15, LGC]
The President shall exercise general supervision over
autonomous regions to ensure that laws are
faithfully executed. [Sec. 16, LGC]
All powers, functions, and responsibilities not
granted by this Constitution or by law to the
autonomous regions shall be vested in the National
Government. [Sec. 17, LGC]
The Congress shall enact an organic act for each
autonomous region with the assistance and
participation of the regional consultative commission
composed of representatives appointed by the
President from a list of nominees from multi-sectoral
bodies.
The organic act shall define the basic structure of
government for the region consisting of the
executive department and legislative assembly, both
of which shall be elective and representative of the
constituent political units.
The organic acts shall likewise provide for special
courts with personal, family, and property law
jurisdiction consistent with the provisions of this
Constitution and national laws. [Sec.18, LGC]
Authority to Create Local Government

Units
c.
A local government unit may be
created, divided, merged, abolished, or its

boundaries substantially altered either
- by law enacted by Congress in the case of a
province, city, municipality, or any other
political subdivision, OR
- by ordinance passed by the sangguniang
panlalawigan or sangguniang panlungsod
concerned in the case of a barangay located
The enactment of a LGC is not a condition sine qua

non for the creation of a municipality, and before
the enactment of such code, the power remains
plenary except that the creation should be approved
by the people concerned in a plebiscite called for
the purpose. [Torralba v. Sibagat (1987)]
The SC held that sec. 19 of RA 9054 insofar as it
grants ARMM Regional Assembly the power to create
provinces and cities is void. (Constitution allows
delegation of creating municipalities and barangays
only.) [Bai Sema v. COMELEC (2008)]
Creations under Sec. 68, Admin Code
The alleged power of the President to create
municipalities under Sec. 68 of the Admin Code
amounts to an undue delegation of legislative power.
The authority to create municipal corporations is
essentially legislative in nature. The power of
control of the President over executive departments,
bureaus or offices implies no more than the
authority to assume directly the functions thereof or
to interfere in the exercise of discretion by its
officials. It does not include the authority either to
abolish or create such. [Pelaez v. Auditor General
(1965)]
Effect if created under Sec 68, Admin Code: The
municipality is non-existent. It cannot be a party to
any civil action [Mun. of Kapalong v. Moya (1988)]
De Facto Corporations
De facto municipal corporation: There is defect in
creation; legal existence has been recognized and
acquiesced publicly and officially.
Requisites: (LACA)
(1) valid law authorizing incorporation;
(2) attempt in good faith to organize it;
(3) colorable compliance with law; and
(4) assumption of corporate powers.
There can be no color of authority in an
unconstitutional statute. An unconstitutional act
confers no rights, imposes no duties, affords no
protection, and creates no office. However, even if
the EO was invalid, it does not mean that the acts
done by the municipality of Balabagan in the
exercise of its corporate powers are a nullity. This is
because the existence of the EO is an operative fact
which cannot justly be ignored. [Malabanan v
Benito (1969)]
The Municipality of Sinacban2 possesses legal
personality. Where a municipality created as such by
2
Sinacban was created by EO 258 of then President Elpidio

Quirino, pursuant to Sec. 68 of the Revised Administrative
Code of 1917.
180
LOCAL GOVERNMENTS
executive order is later impliedly recognized and its
acts are accorded legal validity, its creation can no
longer be questioned.
3
Sinacban has attained de jure status by virtue of

the Ordinance appended to the 1987 Constitution,
apportioning legislative districts throughout the
country, which considered Sinacban part of the
Second District of Misamis Occidental. Above all,
Sec. 442(d) of the LGC of 1991 must be deemed to
have cured any defect in the creation of Sinacban.
Since Sinacban had attained de facto status at the
time the 1987 Constitution took effect on February
2, 1987, it is not subject to the plebiscite
requirement. This requirement applies only to new
municipalities created for the first time under the
Constitution.
Attack Against Validity of Incorporation
When the inquiry is focused on the legal existence of
a body politic, the action is reversed to the state in
a proceeding for quo warranto or any other direct
proceeding. Collateral attacks shall not lie.
Proceeding must be: (RST)
(1) Brought in the name of the Republic of the
Philippines
(2) Commenced by the Sol Gen or the fiscal
when directed by the president
(3) Timely raised [Municipality of San Narciso v
Mendez (1994)]
The municipality can still be considered to have
attained at least a status closely approximating that
of a de facto corporation despite the invalidity of
the EO creating it. This is because the State itself
recognized the continued existence of San Andres
when it classified it as a 5th class municipality. And,
more importantly, Sec. 442(d) of the LGC cured
whatever defect there was in its creation.
[Municipality of San Narciso v. Mendez]
Municipal Corporation by Prescription
Existence is presumed where the community has
claimed and exercised corporate functions with the
knowledge and acquiescence of the legislature, and
without interruption or objection for a period long
enough to afford title by prescription. [Martin,
Public Corporations (1977)]
The municipality was created under a void law (Sec.
68, Admin Code). But it should be considered a de
jure personality because it existed 1 year before the
Pelaez case, and various governmental acts indicate
the States recognition of its existence. [Mun. of
Candijay v. CA (1995)]
3
De jure: by virtue of the ordinance appended to the 1987

Constitution; Sec. 442 (d), LGC curative.
Sec. 442(d), LGC: Municipalities existing as of the date of
the effectivity of this Code shall continue to exist and
operate as such. Existing municipal districts organized
pursuant to presidential issuances or executive orders and
which have their respective set of elective municipal
officials holding office at the time of the effectivity of this
Code shall henceforth be considered as regular
municipalities.
d.
Requirements
(1) In accordance with the criteria established
in the LGC
(2) Majority of the votes cast in a plebiscite in
the political units directly affected.
Purpose of plebiscite: to prevent gerrymandering

(i.e. the practice of creating legislative districts to
favor a particular candidate or party) and creation
or abolition of units for purely political purposes.
Criteria [Sec. 7, LGC]
As a general rule, the creation of a local government
unit or its conversion from one level to another level
shall be based on verifiable indicators of viability
and projected capacity to provide services, to wit:
(IPL)
(1) Income. - must be sufficient, based on
acceptable standards, to provide for all
essential government facilities and services
and special functions commensurate with
the size of its population.
(2) Population. - total number of inhabitants
within the territorial jurisdiction of the
local government unit concerned.
(3) Land Area. - must be:
Contiguous, unless it comprises two or

more islands OR is separated by a LGU
independent of the others;
Properly identified by metes and

bounds with technical descriptions; and
Sufficient to provide for such basic

services and facilities to meet the
requirements of its populace.
Compliance attested to by:
(1) Department of Finance (DOF)
(2) National Statistics Office (NSO)
(3) Lands Management Bureau (LMB) of the
Department of Environment and Natural
Resources (DENR).
Illustrations
The requirement on metes and bounds was meant
merely as a tool in the establishment of LGUs. So
long as the territorial jurisdiction of a city may be
reasonably ascertained, the intent behind the law
(i.e., the determination of the territorial jurisdiction
over which governmental powers may be exercised)
has been sufficiently served. A cadastral type
description is not necessary. [Mariano v. COMELEC
(1995)]
NOTES: The ruling in Mariano is an exception
to the general rule of proper identification
because of its peculiar facts: (1) the
legislature
deliberately
omitted
the
description in metes and bounds because of
the pending litigation between Makati and
Taguig over Fort Bonifacio; (2) RA 7854
provided that the territory of the City of
Makati will be the same as that of the
Municipality of Makati, thus making the
territorial
jurisdiction
of
Makati
ascertainable (subject, of course, to the
result of the unsettled boundary dispute).
181
LOCAL GOVERNMENTS
Compliance with population OR land area, in
addition to income, is sufficient to satisfy the
requirements in the creation of a city. [Samson v.
Aguirre (1999)]
Internal Revenue Allocations (IRAs) form part of the
income of LGUs. The funds generated from local
taxes, IRAs and national wealth utilization proceeds
accrue to the general fund of the LGU and are used
to finance its operations subject to specified modes
of spending the same as provided for in the LGC and
its implementing rules and regulations.
As such, for purposes of budget preparation, which
budget should reflect the estimates of the income of
the LGU, among others, the IRAs and the share in
the national wealth utilization proceeds are
considered items of income. [Alvarez v. Guingona
(1996)]
NOTES:
For provinces and cities, the income requirement
must be satisfied; and EITHER population OR
territory.
In the creation of barangays, there is no minimum
requirement for area and income.
As to the income requirement, average annual
income shall include the income accruing to the
general fund, exclusive of special funds, transfers,
and non-recurring income.
Plebiscite
No creation, division, merger, abolition, or
substantial alteration of boundaries of local
government units shall take effect unless there is:
(1) Law or ordinance
(2) Approved by a majority of the votes cast in a
plebiscite called for the purpose in the political
unit or units directly affected.
(3) Said plebiscite shall be conducted by the
commission on elections (COMELEC) within 120
days from the date of effectivity of the law or
ordinance effecting such action, unless said law
or ordinance fixes another date. [Sec. 10, LGC]
Illustrations
When the law states that the plebiscite shall be
conducted in the political units directly
affected, it means that the residents of the
political entity who would be economically
dislocated by the separation of a portion thereof
have the right to vote in said plebiscite. What is
contemplated by the phrase political units directly
affected is the plurality of political units which
would participate in the plebiscite. [Padilla v.
COMELEC (1992)]
The downgrading of Santiago City from an
independent component city to a component city
falls within the meaning of creation, division,
merger, abolition, or substantial alteration of
boundaries; hence, ratification in a plebiscite is
necessary. There is material change in the political

and economic rights of the LGUs directly affected as
well as the budget preparation, which budget should
reflect the estimates of people therein. It is
therefore but reasonable to require the consent of
the people to be affected.
Effects of downgrading: (ART)
(1) the city mayor will be placed under the
Administrative supervision of the governor;
(2) resolutions and ordinances will have to be
Reviewed by the provincial board;
(3) Taxes will have to be shared with the
province. [Miranda v. Aguirre (1999)]
The creation of a separate congressional district of
Mandaluyong is not a subject separate and distinct
from the subject of its conversion into a highlyurbanized city but is a natural and logical
consequence of its conversionThe Court found no
need for the people of San Juan to participate in the
plebiscite. They had nothing to do with the change
of status of neighboring Madaluyong. [Tobias v.
Abalos (1994)]
Beginning of Corporate Existence

When a new local government unit is created, its
corporate existence
shall commence upon the election and

qualification of its chief executive and a
majority of the members of its sanggunian,
unless some other time is fixed therefor by the

law or ordinance creating it. [Sec. 14, LGC]
Summary: Creation of Specific LGUs 4

See Annex A.
Division and Merger; Abolition

Division and Merger
Division and merger of existing local government
units shall comply with the same requirements
herein prescribed for their creation:
Provided, however, That such division shall not

reduce the income, population, or land area of
the local government unit or units concerned to
less than the minimum requirements prescribed
in this Code:
Provided, further, That the income classification

of the original local government unit or units
shall not fall below its current classification
prior to such division.
The income classification of local government units
shall be updated within six (6) months from the
effectivity of this Code to reflect the changes in
their financial position resulting from the increased
revenues as provided herein. [Sec. 8, LGC]
Effects of Merger
(1) Legal existence of LGU to be annexed is
dissolved
4
For creation of specific LGUs, please check LGC 385386,

441442, 449450, 460461
182
LOCAL GOVERNMENTS
(2) Laws and ordinance of the annexing LGU
prevails
(3) The right of office in the annexed LGU is
terminated
(4) Title to property is acquired by the
annexing LGU
(5) Debts are assumed by the annexing LGU
[Martin, supra]
Effects of division
(1) The legal existence of the original
municipality is extinguished
(2) Property, rights and powers are acquired by
the dividing LGUs [Martin, supra]
Abolition
A local government unit may be abolished:
when its income, population, or land area has

been irreversibly reduced to less than the
minimum standards prescribed for its creation
under Book III of this Code, as certified by the
national agencies mentioned in Section 7 hereof
to Congress or to the sangguniang concerned, as
the case may be.
The law or ordinance abolishing a local government
unit shall specify the province, city, municipality, or
barangay with which the local government unit
sought to be abolished will be incorporated or
merged. [Sec. 9, LGC]
When there is no dissolution
(1) Non-user or surrender of charter
(2) Failure to elect municipal officers
(3) Change of sovereignty
(4) Change of name
C. Principles of Local Autonomy

1.
2.
3.
4.
State Policy, Principles of Decentralization

Local Autonomy
Decentralization
Devolution
1. State Policy, Principles of

Decentralization
Art. X, 1987 Constitution
Sec. 2. The territorial and political subdivisions shall
enjoy local autonomy.
The Congress shall enact a local government code
which shall
(1) provide for a more responsive and accountable
local government structure instituted through a
system of decentralization with effective
mechanisms
of
recall,
initiative,
and
referendum,
(2) allocate among the different local government
units their powers, responsibilities, and
resources,
(3) and provide for the qualifications, election,
appointment and removal, term, salaries,
powers and functions and duties of local
officials,

(4) and all other matters relating to the
organization and operation of the local units.
[Sec. 3, LGC]
The President of the Philippines shall exercise
general supervision over local governments.
Provinces with respect to component cities and
municipalities, and cities and municipalities with
respect to component barangays shall ensure that
the acts of their component units are within the
scope of their prescribed powers and functions. [Sec.
4, LGC]
Each LGU shall have the power to create its own
sources of revenues and to levy taxes, fees and
charges,
(1) subject to such guidelines and limitations as the
Congress may provide,
(2) consistent with the basic policy of local
autonomy.
Such taxes, fees, and charges shall accrue
exclusively to the local governments. [Sec. 5, LGC]
Local Government Code (RA 7160)
It is likewise the policy of the State to require all
national agencies and offices to conduct periodic
consultations with:
(1) appropriate local government units,
(2) nongovernmental and people's organizations,
(3) and other concerned sectors of the community
before any project or program is implemented
in their respective jurisdictions. [Sec. 2(c), LGC]
2. Local Autonomy
The principle of local autonomy under the 1987
Constitution
simply
means
decentralization
(discussed below). [Basco vs PAGCOR (1991)]
Illustrations
The CSC cannot declare the provision upon
recommendation of the local chief executive
concerned as merely directory. Such provision is in
consonance with local autonomy. [San Juan vs CSC
(1991)]
An A.O. may not compel LGUs to reduce their total
expenditures. Supervising officials may not lay down
or modify the rules. These rules were made in
furtherance of local autonomy. [Pimentel vs Aguirre
(2000)]
HOWEVER, the Constitution did not intend, for the
sake of local autonomy, to deprive the legislature of
all authority over LGUs, in particular, concerning
discipline. [Ganzon vs CA (1991)]
3. Decentralization
NOTE: Decentralization is a means to achieve local
autonomy.
Autonomy is either (1) decentralization
administration or (2) decentralization of power.
of
183
LOCAL GOVERNMENTS
There is decentralization of administration when
the central government delegates administrative
powers to political subdivisions in order to broaden
the base of government power.
Purpose: to relieve the central government of the
burden of managing local affairs and enable it to
concentrate on national concerns.
The President exercises "general supervision" over
them, but only to "ensure that local affairs are
administered according to law." He has no control
over their acts in the sense that he can substitute
their judgments with his own. [Limbona v. Mangelin
(1989)]
Cf. Decentralization of power is the abdication of
political power in favor of LGUs declared to be
autonomous. There is self-immolation where
autonomous government is accountable, not to the
central government, but to its constituents. (Note:
not allowed by our Constitution.)
Sec. 1 of AO 372 (Adoption of Economy Measures in
Government for FY 1998), insofar as it directs
LGUs to reduce expenditures by at least 25%, is a
valid exercise of the Presidents power of general
supervision over LGUs as it is advisory only.
Supervisory power, when contrasted with control, is
the power of mere oversight over an inferior body;
it does not include any restraining authority over
such body. [Pimentel v. Aguirre, supra]
4. Devolution (asked in 1999)

Refers to the act by which the national government
confers power and authority upon the various local
government units to perform specific functions and
responsibilities [Sec. 17, LGC]; the transfer of power
and authority from the National Government to LGUs
to enable them to perform specific functions and
responsibilities. [Art. 24, IRR of the LGC]
D. Powers of Local Government

Units (LGUs)
1. Police Power (General Welfare Clause)
2. Eminent Domain
3. Taxing Power
4. Closure and Opening of Roads
5. Legislative Power
6. Corporate Powers
7. Liability of LGUs
8. Settlement of Boundary Disputes
9. Succession of Elective Officials
10. Discipline of Local Officials
11. Recall
Powers in General
Sources of Powers of LGUs
(1) 1987 Consti., Sec. 25, Art. II; Sec. 5-7, Art.
X
(2) Statutes, e.g. LGC
(3) Charter (particularly of cities)

(4) Doctrine of the right of self-government,
but applies only in States which adhere to
the doctrine
Classification of Powers of LGUs
(1) Express, Implied, Inherent
(2) Public or Governmental,
Proprietary
(3) Intramural, Extramural
(4) Mandatory,
Directory;
Discretionary
Private
or
Ministerial,
Execution of Powers
Where statute prescribes the manner of exercise,
the procedure must be followed.
Where statute is silent, LGUs have discretion to
select reasonable means and methods of exercise.
Power to generate and apply resources
Local government units shall have the power and
authority to:
(1) Generate and apply resources
(2) Establish an organization responsible for
implementation of development plans,
program objectives, and priorities
(3) Own sources of revenues (Sec.5, Art. X,
Constitution; Sec.18 LGC) which include:
(a) Power to create own sources
(b) Levy taxes, fees and charges
Shall accrue exclusively for their

own use and disposition
Limitation: guidelines Congress

may provide
(c) Just share in national taxes (Sec.6,
Art. X, Constitution; Sec.18 LGC)
Determined by law
Automatically
and
directly
released
(d) Equitable share in utilization and
development of national wealth (Sec.7,
Art. X, Constitution; Sec.18 LGC)
Within
respective
territorial
jurisdictions
In the manner provided by law
Sharing with inhabitants by way of

direct benefits
(e) Acquire, develop, lease, encumber,
alienate, or otherwise dispose of
property (Sec.18 LGC)
Real or personal property
Made in a proprietary capacity

(f) Apply resources and assets (Sec.18
LGC)
Purpose: productive, development,

or welfare purposes
In
the
exercise
of
their
governmental
or
proprietary
powers and functions [Sec.18,
LGC]
1. Police Power (General Welfare

Clause)
Preservation of peace and order within respective
regions [Sec.21, Art. X, Constitution]
184
LOCAL GOVERNMENTS
(1) Responsibilities of local police agencies
(2) Local police shall be organized, maintained,
supervised and utilized in accordance with
applicable laws.
Defense and security of regions [Sec.21, Art. X,
Constitution]
(1) Responsibility of National Government
General
(1)
(2)
(3)
Welfare Clause [Sec.16 LGC]

Powers expressly granted
Powers necessarily implied
Powers necessary, appropriate or incidental
for efficient and effective governance
(4) Powers essential to the promotion of
general welfare
(5) Shall ensure and support:
(a) Preservation and enrichment of culture
(b) Promotion of health and safety
(c) Enhancement of the right of the people
to a balance ecology
(d) Development of self reliant scientific
and technological capabilities
(e) Improvement of public morals
(f) Economic prosperity and social justice
(g) Promotion of full employment among
residents
(h) Maintenance of peace and order
(i) Preservation of the comfort and
convenience of inhabitants
Nature
The police power of a municipal corporation extends
to all the great public needs, and, in a broad sense
includes all legislation and almost every function of
the municipal government. Public purpose is not
unconstitutional merely because it incidentally
benefits a limited number of persons. The drift is
towards social welfare legislation geared towards
state policies to provide adequate social services,
the promotion of general welfare and social justice
[Binay v Domingo (1991)]
To constitute public use:
The public in general should have equal or
common rights to use the land or facility
involved on the same terms
The number of users is not the yardstick in
determining whether property is properly
reserved for public use or public benefit
[Republic v. Gonzales]
2 Branches of the GWC
The General Welfare Clause has 2 branches:
(1) the general legislative power which
authorizes municipal councils to enact
ordinances and make regulations not
repugnant to law as may be necessary to
carry into effect and discharge the powers
and duties conferred upon it by law;
(2) The police power, which authorizes the
municipality to enact ordinances as may be
proper and necessary for the health and
safety, prosperity, morals, peace, good
order, comfort and convenience of the
municipality and its inhabitants, and for the
protection of their property.
Ordinances imposing the licenses and permits for any

business establishments, for purposes of regulation
enacted by the municipal council of Makati, falls
under the 1st branch. [Rural Bank of Makati, Inc v
Municipality of Makati (2004)]
Limitations
(1) The General Welfare Clause cannot be used
to justify an act that is not specifically
authorized by law.
(2) Powers of the LGUs under the general
welfare clause [Sec.16, LGC]
(a) Powers expressly granted to the LGU
(b) Power necessarily implied therefrom
(c) Powers necessary, appropriate, or
incidental for its efficient and effective
governance
(3) For ordinance to be valid exercise of police
power [Tatel v. Mun. of Virac (1992)]:
(a) Not contrary to the Constitution and/or
statute
(b) Not unfair or oppressive
(c) Must not be partial or discriminatory
(d) Not prohibit but may regulate trade
(e) General and consistent with public
policy
(f) Not unreasonable
Illustrations: Police Power Applies
A municipal ordinance prescribing the
zonification
and
classification
of
merchandise and foodstuff sold in the
public market [Eboa v Municipality of Daet
(1950)]
A proclamation reserving parcels of the public
domain for street widening and parking
space purposes [Republic v Gonzales]
Condemnation and demolition of buildings
found to be in a dangerous or ruinous
condition within the authority provided for
by municipal ordinances [Chua Huat vs CA
(1991)]
Regulation and operation of tricycles-for-hire
and to grant franchises for the operation
thereof. However, this power is still subject
to the guidelines prescribed by the DOTC.
Moreover, the newly delegated powers
pertain to the franchising and regulatory
powers therefore exercised by the LTFRB.
[LTO vs City of Butuan (2000)]
The declaration of an area as a commercial
zone through a municipal ordinance.
Corollary thereto, the state may interfere
with personal liberty with property,
business, and occupations. [Patalinhug vs
CA (1994)]
Demolition of stalls causing traffic and
deteriorated sanitation [Villanueva vs
Castaneda (1987)]
185
LOCAL GOVERNMENTS
Deny an application for permit or avoid the
injury to the health of residents.
[Technology Developers vs CA (1991)]
Provide for burial assistance to the poor.
[Binay vs Domingo, supra]
Abatement of a public nuisance because
stored inflammable materials created a
danger to the people within the
neighbourhood [Tatel vs Mun. of Virac
(1992)]
Rescind contracts [Tamin vs CA (1994)]
Enforcement of fishery laws in municipal
waters including the conservation of
mangroves. [Tano vs Socrates (1997)]
Illustrations: Police Power Does Not Apply
The LGU has no power to prohibit the
operation of night clubs, a lawful trade or
pursuit of occupation. It may only regulate.
[De La Cruz vs Paras (1983)]
Anxiety, uncertainty and restiveness among
stallholders and traders cannot be a ground
to revoke the mayors permit. The General
Welfare claim is too amorphous. [Greater
Balanga vs Mun. of Balanga (1994)]
Butuan city board passes an ordinance
requiring that the sale of tickets to movies,
exhibitions or other performances to
children between 7-12 years of age should
be at half price. The said ordinance was
declared void. The theater operators are
merely
conducting
their
legitimate
business. There is nothing immoral or
injurious in charging the same price for
both children and adults. In fact, no person
is under compulsion to purchase a ticket.
[Balacuit v CFI (1988)]
The power of the municipal government to
issue fishing privileges is only for revenue
purposes. BUT the power of the LLDA to
grant permits is for the purpose of
effectively regulating and monitoring
activities in the lake region and is in the
nature of police power. [Laguna Lake
Development Authority v. CA (1995)]
2. Eminent Domain [Sec. 19, LGC]

Eminent Domain -- It is the ultimate right of the
sovereign power to appropriate not only public but
private property of citizens within the territorial
sovereignty to public purpose [Charles River Bridge
vs. Warren Bridge, (1837)]
Requisites for a Valid Exercise of Eminent Domain
(COP-JO)
(1) Through the Chief Executive of LGU
(2) Acting pursuant to an ordinance
(3) For the purposes of:
Public use or welfare

For the benefit or the poor and the
landless
(4) Payment of just compensation
Amount determined by proper court
Based on fair market value at the time

of the taking
(5) Valid and definite offer made
Right by the State to immediately take possession:

(1) Upon filing of expropriation proceedings
(2) Upon deposit with proper court of at least 15%
of the fair market value of the property
Offer to buy private property for public use or
purpose shall be in WRITING. It shall specify the
property sought to be acquired, the reasons for the
acquisition, and the price offered.
If the owners accept the offer in its entirety, a
contract of sale shall be executed and payment
made.
If the owner/s are willing to sell their property but
at a price higher than that offered to them, the local
chief executive shall call them to a conference for
the purpose of reaching an agreement on the selling
price. The chairman of the appropriation or finance
committee of the Sanggunian, or in his absence, any
member of the Sanggunian duly chosen as its
representative, shall participate in the conference.
When an agreement is reached by the parties, a
contract of sale shall be drawn and executed.
The contract of sale shall be supported by the
following documents:
(1) Resolution of the Sanggunian authorizing
the local chief executive to enter into a
contract of sale. The resolution shall
specify the terms and conditions to be
embodied in the contract.
(2) Ordinance
appropriating
the
amount
specified in the contract, and
(3) Certification of the local treasurer as to
availability of funds together with a
statement that such fund shall not be
disturbed or spent for any purpose other
than to pay for the purchase of the property
involved. [Article 35 IRR of LGC]
Illustrations of Eminent Domain
There is no need to get DAR approval before
expropriation [Camarines Sur vs CA (1993)]
There must be genuine necessity of a public
character. There is no genuine necessity if
another road more ideal is available.
[Meycauyan vs IAC (1988)]
The ordinance which requires cemeteries to
set aside a portion of their lots to paupers is
not an exercise of police power, but a
taking without compensation. [QC vs Ericta
(1983)]
186
LOCAL GOVERNMENTS
Eminent domain may be exercised over
easements (property rights), not just lands
or personal property. [NPC vs Jocson (1992)]
Necessity does not contemplate the economic
relief of a few families devoid of any other
public advantage [Manila vs Arellano
(1950)]
Eminent domain requires an ordinance, not
just a resolution. Res judicata does not
apply to expropriation cases [Paranaque vs
VM Realty (1998)]
Just compensation shall be determined at the
time of taking, NOT at the time of filing
complaint Although the general rule in
determining just compensation in eminent
domain is the value of the property as of
the date of filing of the complaint, the rule
admits of an exception: where the SC fixed
the value of the property as of the date it
was taken and not at the date of the
commencement of the expropriation
proceedings. Finally, while sec.4, Rule 67 of
the Rules of Court provides that just
compensation shall be determined at the
time of the filing of the complaint for
expropriation, such law cannot prevail over
the Local Government Code, which is
substantive law. [Cebu vs Apolonio (2002)]
It
is possible that the purpose for

expropriation is changed after such is
granted. [Republic vs CA (2002)]
Immediate Entry by the LGU

Requisites:
(1) Filing of complaint for expropriation
sufficient in form and substance
(2) The deposit of the amount equivalent to
15% of the fair market value of the property
to be expropriated based on the current tax
declaration [Bardilion v Masili (2003)]
Upon compliance with the requirements for
immediate entry, the issuance of a writ of possession
becomes ministerial. No hearing is required for the
issuance of the writ. The LGC did not put a time
limit as to when a LGU may immediately take
possession of the property. As long as the
expropriation proceedings have been commenced
and the deposit made, the LGU cannot be barred
from praying for the issuance of writ of possession.
[City of Iloilo v Legaspi (2004)]
Socialized Housing
The UDHA and the Expropriation by the LGUs i.e.
Sec.9 of the Urban Land and Housing Act, which
speaks of PRIORITIES in acquisition) should be read in
connection with Sec.10 (MODES of acquisition).
If the land sought to be expropriated is located in
urban areas and fall under the UDHA, the LGU must
allege compliance with Secs. 9 and 10 for their suit
to prosper. Otherwise, it would be premature.

Jurisprudence
Under the Urban Land and Housing Act, there is a
priority in expropriation of which the properties of
the government or any of its subdivision rank number
one and privately owned properties ranked last.
Also, the said act provides that expropriation should
be the last alternative, giving way to other modes of
acquisition like community mortgage and swapping.
Otherwise it would be deprivation of property.
[Filstream International Inc v CA (1998)]
The UDHA introduced a limitation on the size of the
land sought to be expropriated for socialized
housing. It exempted small property owners. The
elements of small property owners are:
(1) Those owners of real property which
consists of residential lands with an area of
not more than 300 sq. meters in highly
urbanized cities (800 in other urban cities);
and
(2) They do not own real property other than
the same. [City of Mandaluyong v Aguilar
(2001)]
3. Taxing Power [Sec. 18, LGC]

Sources of LGU funds: (O-TIU)
(1) Own sources of revenues
(2) Taxes, fees and charges: which shall accrue
exclusively for their use and disposition and
which shall be retained by them
(3) Just share in national taxes which shall be
automatically and directly released to them
without need for any further action
(Internal Revenue Allotments)
(4) Equitable share in the proceeds from the
utilization and development of the national
wealth
and
resources
within
their
respective territorial jurisdictions including
sharing the same with the inhabitants by
way of direct benefits
Fundamental principles governing the exercise of
the taxing and other revenue-raising powers of
LGUs [Sec. 130, LGC] (PE-PUB)
(1) Taxation shall be uniform in each LGU;
(2) Taxes, fees, charges and other impositions
shall be equitable and based as far as
practicable on the taxpayers ability to
pay; levied and collected only for public
purposes;
not
unjust,
excessive,
oppressive, or confiscatory; not contrary
to law, public policy, national economic
policy, or in restraint of trade;
(3) The collection of local taxes, fees, charges
and other imposition shall in no case be
left to any private person;
(4) The revenue shall inure solely to the
benefit of, and be subject to disposition
by, the LGU, unless otherwise specifically
provided herein; and
(5) Each LGU shall, as far as practicable, evolve
a progressive system of taxation.
Common Limitations on the Taxing Powers of LGUs
[Sec. 133, LGC]
187
LOCAL GOVERNMENTS
(1) Income tax (except when levied on banks
and financial institutions)
(2) Documentary stamp tax
(3) Estate tax
(4) Customs duties, registration fees of vessels
and all other kinds of customs fees and
charges
(5) Taxes, fees and charges and other
impositions upon goods carried in or out of,
or
passing
through,
the
territorial
jurisdiction of local government units in the
guise of charges for wharfage, tolls for
bridges or otherwise, or other taxes, fees or
charges in any form whatsoever upon such
goods or merchandise
(6) Taxes, fees or charges on agricultural and
aquatic products when sold by marginal
farmers or fishermen
(7) Taxes on business enterprises certified by
the BOI as pioneer or non-pioneer for a
period of 6 and 4 years, respectively, from
date of registration
(8) Excise taxes
(9) Percentage taxes or VAT
(10) Taxes
on
the
gross
receipts
of
transportation contractors and persons
engaged in the transportation of passengers
or freight, and common carriers
(11) Taxes on premiums paid by way of
reinsurance or retrocession
(12) Taxes, fees, charges for the registration of
motor vehicles and for the issuance of all
kinds of licenses or permits for the driving
thereof, except tricycles
(13) Taxes, fees, or other charges in Phil.
products actually exported, except as
otherwise provided therein
(14) Taxes, fees or charges, on Countryside and
Barangay Enterprises and cooperatives duly
registered under RA 6810 and the
Cooperative Code
(15) Taxes, fees, or charges of any kind on the
National Government, its agencies and
instrumentalities
Fundamental principles governing the financial
affairs, transactions and operations of LGUs [Sec.
305, LGC]
(1) No money shall be paid out of the local
treasury except in pursuance of an
appropriations ordinance or law;
(2) Local government funds and monies shall be
spent solely for public purposes;
(3) Local revenue is generated only from
sources expressly authorized by law or
ordinance, and collection thereof shall at
all times be acknowledged properly;
(4) All monies officially received by a local
government officer in any capacity or on
any occasion shall be accounted for as local
funds, unless otherwise provided by law;
(5) Trust funds in the local treasury shall not be
paid out except in fulfillment of the
purpose for which the trust was created or
the funds received;
(6) Every officer of the LGU whose duties
permit or require the possession or custody

of local funds shall be properly bonded, and
such officer shall be accountable and
responsible for said funds and for the
safekeeping thereof in conformity with the
provisions of law;
(7) Local governments shall formulate sound
financial plans, and the local budgets shall
be based on functions, activities, and
projects, in terms of expected results;
(8) Local budgets shall operationalize approved
local development plans;
(9) LGUs shall ensure that their respective
budgets incorporate the requirements of
their component units and provide for
equitable allocation of resources among
these component units;
(10) National planning shall be based on local
planning to ensure that the needs and
aspirations of the people as articulated by
the local government units in their
respective local development plans are
considered in the formulation of budgets of
national line agencies or offices;
(11) Fiscal responsibility shall be shared by all
those exercising authority over the financial
affairs, transactions, and operations of the
local government units; and
(12) The LGU shall endeavor to have a balanced
budget in each fiscal year of operation
Jurisprudence
Sec. 234 withdrew all exemptions from real property
taxes, even GOCCs when the beneficial use of the
property has been granted to a taxable person for
consideration or otherwise. MCIAA is a GOCC and an
instrumentality, therefore, RPT exemption granted
under its charter is withdrawn [MCIAA vs Marcos
(1997)]
Tax exemption of property owned by the Republic
refers to properties owned by the Government and
by its agencies which do not have separate and
distinct personalities (unincorporated entities). The
properties of NDC belong to the Government. [NDC
vs Cebu, (1992)]
LGUs, in addition to administrative autonomy, also
enjoy fiscal autonomy. LGUs have the power to
create their own sources and revenue, in addition to
their equitable share in the national taxes as well as
the power to allocate resources in accordance with
their own priorities. A basic feature of local fiscal
autonomy is the automatic release of the shares of
the LGUs in the national internal revenue. This is
mandated by no less than the constitution. Any
retention is prohibited. [Pimentel v Aguirre (2000)]
4. Closure and Opening of Roads [Sec.

21, LGC]
What roads are subject, those within jurisdiction
of LGU
(1) Local road
(2) Alley
(3) Park
(4) Square
188
LOCAL GOVERNMENTS
Permanently close or open
(1) Ordinance: Vote of at least 2/3 of all
members of the Sanggunian
(2) When necessary, an adequate substitute for
the public facility should be provided
(3) Make provision for public safety
(4) If permanently withdrawn from public use
(5) May be used or conveyed for any purpose
for which other real property belonging in
LGU may be lawfully used or conveyed
(6) Freedom park: must have provision for
relocation to new site
Temporary close or open
(1) Ordinance
(2) May be done:
During actual emergency
Fiesta celebrations
Public rallies
Agricultural or industrial fairs
Undertaking of public works and

highways, telecommunications, and
waterworks projects
(3) Duration specified in written order by local
chief executive
(4) If for athletic, cultural, or civic activities:
must be officially sponsored, recognized, or
approved by LGU.
Temporary closure and regulation of any local
street, road, thoroughfare, or any other public
place
By any city, municipality, or barangay
Where shopping malls, Sunday, flea or night
markets, or shopping areas may be
established
Where goods, merchandise, foodstuffs,
commodities, or articles of commerce may
be sold
Illustrations
A public street is property for public use hence,
outside the commerce of man. It may not be the
subject of lease or other contract. Such leases are
null and void for being contrary to law. The right of
the public to use the city street may not be
bargained away through contract. The authorization
given for the use of the city street as a vending area
for stallholders who were granted licenses by the
City Government contravenes the general law that
reserves city streets and roads for public use. It may
not infringe upon the vested right of the public to
use city streets for the purpose they were intended
to serve. [Dacanay vs Asistio (1992)]
The provincial council has the authority to
determine whether or not a certain property (in this
case a provincial road) is still necessary for public
use [Cabrera vs CA (1991)]
The power of the LGU to enact zoning ordinances for
the general welfare prevails over the deed of
restrictions. [Sangalang vs IAC(1989)]

The closure of roads under police power is not
eminent domain. No grant of damages is awarded.
[Cabrera vs CA (1991)]
Effect: The determination of the location of the
camino vecinal through an ordinance will defeat the
testimonies of witnesses as to the location of said
passageway. [Pilapil vs CA (1992)]
The MMDA does not have police power, but the LGUs
do. There should have been an ordinance by the LGU
to effect an opening of roads. [MMDA vs Bel Air
(2000)]
5. Legislative Power [Secs. 48-59,

LGC]
Exercised by:
(1) Sangguniang panlalawigan for the province
(2) Sangguniang panlungsod for the city
(3) Sangguniang bayan for the municipality
(4) Sangguniang barangay for the barangay
[Sec. 48, LGC]
Presided by:
(1) Vice-governor or vice-mayor or punong
barangay will vote only in case of a tie
because he is not a member of the
Sanggunian. [Perez vs Dela Cruz (1969)]
(2) The incumbent local chief executive acting
as the chief executive may not preside over
the sessions of the Sanggunian. Why? To
ensure better delivery of public services
and provide a system of checks and
balances between the executive and
legislative. [Gamboa vs Aguirre, supra]
In case of inability of the above: members present
and constituting a quorum shall elect from among
themselves a temporary presiding officer who shall
certify within 10 days from the passage of the
ordinances enacted and resolutions adopted by the
sanggunian in the session over which he temporarily
presided [Sec. 49, LGC]
Internal Rules of Procedure
Adopted/update on the 1st regular session
following election of its members- within 90
days
Provides for:
Organization of the Sanggunian and the
election of its officers
Standing Committees
Creation (Including the committees
on appropriations, women and
family, human rights, youth and
sports development, environmental
protection, and cooperatives; the
general
jurisdiction
of
each
committee
Election of the chairman and
members of each committee
Order and calendar of business for each
session
Legislative process
189
LOCAL GOVERNMENTS
-
Parliamentary procedures (including

the conduct of members during
sessions)
Discipline of members for disorderly
behavior
and
absences
(without
justifiable cause for 4 consecutive
sessions)
Penalty:
censure,
reprimand,
or
exclusion from the session, suspension
for not more than 60 days or expulsion
Suspension or expulsion: requires
concurrence of at least 2/3 vote of
all Sanggunian members
A member convicted by final
judgment to imprisonment of at
least 1 year for any crime involving
moral
turpitude
shall
be
automatically expelled from the
Sanggunian
Other rules as the Sanggunian may
adopt [Sec. 50, LGC]
Quorum
Majority of all members of the Sanggunian who have
been elected and qualified
If a question of quorum is raised: the presiding
officer shall immediately proceed to call the roll of
the members and announce the results.
If there is NO quorum:
(1) The presiding officer may declare a recess
until such time as a quorum is constituted
OR a majority of the members present may
adjourn from day to day and may compel
the immediate attendance of any member
absent without justifiable cause by
arresting the absent member and present
him at the session
(2) No business shall be transacted [Sec. 53,
LGC]
Sessions
Regular sessions: fixed by resolution on 1st day of the
session immediately following the election of its
members
Minimum numbers of regular sessions: once a
week (panlalawigan, panlungsod, bayan)
and twice a month for the Sangguniang
Barangay
Special session: may be called by the local chief
executive or by a majority of the members of the
Sanggunian-cause: when public interest demands
Written notice: served personally at the
members usual place of residence at least
24 hours before the session
Unless otherwise concurred in by 2/3 vote of
the Sangguniang members present, there
being a quorum, no other matters may be
considered except those stated in the
notice
Sessions are open to the public, UNLESS a closeddoor session is ordered by:
(1) an affirmative vote of a majority of the
members present (there being a quorum)
(2) In the public interest or for reasons of

secrecy, decency or morality
190
No 2 sessions may be held in a single day.

Each sanggunian shall keep a journal and record of
its proceedings which may be published upon
resolution of the Sanggunian concerned [Sec. 52,
LGC]
How many votes required
GENERAL RULE: Majority
constituting a quorum
of
the
members
Exception: When the enactment itself specifies the

number of votes required, such requirement will
govern over the general rule specified in the charter
or the LGC, when such enactment is to be amended.
Why? Because the municipal authorities are in a
better position to determine the votes required.
[Casino vs CA (1991)]
Approval, Veto and Review of Ordinances
Every ordinance shall be presented to the governor
or mayor, as the case may be
Approves: affix his signature on each and
every page
Disapproves: veto it and return the same with
his objections to the Sanggunian
Override: 2/3 vote of all its members
making the ordinance effective even
without the approval of the local chief
executive concerned
Veto communicated to the Sanggunian
within 15 days in the case of a
province, and 10 days in the case of a
city or a municipality; otherwise, the
ordinance shall be deemed approved
Veto power: The local chief executive may veto any
ordinance on the ground that it is ultra vires or
prejudicial to the public welfare, stating his reasons
for writing
Right to veto may be exercised only once
Local chief executive (except the punong
barangay) has the power to veto any
particular item or items of an
Appropriations ordinance
Ordinance or resolution adopting a
local development plan and public
investment program
Ordinance directing the payment of
money or creating liability
In such a case, the veto shall not affect the
item/s which are not objected to. The
vetoed item/s shall not take effect unless
the sanggunian overrides the veto;
otherwise, the item/s in the appropriations
ordinance
of
the
previous
year
corresponding to those vetoed, if any, shall
be deemed reenacted.
Review of
Ordinances
(Component)
City
or
Municipal
Within 3 days after approval, the secretary shall

forward to the Sangguniang Panlalawigan for review,
LOCAL GOVERNMENTS
copies of approved ordinances and the resolutions
approving the local development plans and public
investment programs formulated by the local
development councils
Within 30 days after the receipt of copies, the

Sangguniang Panlalawigan shall examine the
documents or transmit them to the provincial
attorney, or if there be none, to the provincial
prosecutor for examination.
The provincial attorney or prosecutor shall, within

10 days from receipt, inform the Sanggunian in
writing of his comments or recommendations.
If the sangguniang panlalawigan finds that such an

ordinance or resolution is beyond the power
conferred, it shall declare such ordinance or
resolution invalid in whole or in part. The
sangguniang panlalawigan shall enter its action in
the minutes and shall advise the corresponding city
or municipal authorities of the action it has taken.
If no action has been taken by the sangguniang

panlalawigan within 30 days after submission, the
ordinance or resolution shall be presumed consistent
with the law and therefore valid.
Any attempt to enforce any ordinance or any
resolution approving the local development plan and
public investment program, after the disapproval,
shall be sufficient ground for the suspension or
dismissal of the official or employee. [Sec. 58, LGC]
Review of Barangay Ordinances by Sangguniang
Panlungsod or Bayan [Sec. 57, LGC]
Ordinance enacted by the Sangguniang barangay
shall upon approval by the majority of all its
members, be signed by the punong barangay.
Within 10 days after its enactment, the sangguniang

barangay shall furnish copies of all barangay
ordinances to the sangguniang panlungsod or
sangguniang bayan concerned for review.
No action for 30 days from receipt: ordinance shall

be deemed approved
If the sangguniang panlungsod or sangguniang bayan

finds the barangay ordinances inconsistent with law
or city or municipal ordinances, the sanggunian
concerned shall, within 30 days from receipt, return
the same with its comments and recommendations
to the sangguniang barangay for adjustment,
amendment, or modification
Effectivity: suspended until such time as the revision

called for is effected
Summary of review of ordinances

See Annex B.

Effectivity of Ordinances or Resolutions
GENERAL RULE: the same shall take effect after 10
days from the date a copy is posted
EXCEPTION: unless otherwise stated in the
ordinance or the resolution approving the local
development and public investment program
Ordinances with penal sanctions: gist shall
be published in a newspaper of general
circulation within the province where the
local legislative body concerned belongs
Absence of any newspaper: posting shall be
made in all municipalities and cities of the
province where the sanggunian of origin is
situated.
Highly
urbanized
and
independent
component cities: the main features of the
ordinance or resolution in addition to being
posted, shall be published in a local
newspaper of general circulation within the
city
Absence of local newspaper: any newspaper
of general circulation [Sec. 59, LGC]
Full disclosure of Financial and Business Interests
of Sanggunian Members
Every sanggunian member shall, upon assumption of
office, make a full disclosure of:
(1) His business and financial interests
(2) Professional relationship or any relation by
affinity or consanguinity within the fourth
civil degree which he may have with any
person, firm, or entity affected by any
ordinance or resolution which relationship
may result in conflict of interest including:
(a) Ownership of stock or capital, or
investment, in the entity or firm to
which the ordinance or resolution may
apply
(b) Contracts or agreements with any
person or entity which the ordinance or
resolution under consideration may
affect conflict of interest. [Sec. 51,
LGC]
Conflict of interest: One where it may be
reasonably deduced that a member of a sanggunian
may not act in the public interest due to some
private, pecuniary, or other personal considerations
that may tend to affect his judgment to the
prejudice of the service or the public
Jurisprudence
The LGC does not mandate that no other business
may be transacted on the first regular session except
to take up the matter of adopting or updating rules.
All that the law requires is that on the 1st regular
session, the sanggunian concerned shall adopt or
update its existing rules or procedures. Until the
completion of the adopted or updated rules, the
rules of the previous year may be used. [Malonzo v
Zamora (1999)]
Disclosure shall:
Be made in writing and submitted to the
secretary of the sanggunian
191
LOCAL GOVERNMENTS
Form part of the record of the proceedings
and shall be made in the following manner:
Made before the member participates
in the deliberations on the ordinance or
resolution under consideration
If the member did not participate
during the deliberations, the
disclosure shall be made before
voting on the ordinance or
resolution on second and third
readings
Made when a member takes a position
or makes a privilege speech on a
matter that may affect the business
interest, financial connections, or
professional relationship
Updated rules, the rules of the previous year may be
used.
The signature of the mayor is not a mere ministerial
act, but involves the exercise of discretion on the
part of the local chief executive. [Delos Reyes v
Incidents of Law-Making (Legislative) Power
Posting and Publication of:
(1) Tax ordinances and Revenue measures
Within 10 days after approval
Certified true copies of all provincial,

city, or municipal tax ordinances or
revenue measures
Published in full for 3 consecutive days
In a newspaper of local circulation

Where no such newspaper: posted
in at least 2 conspicuous and
publicly accessible places [Sec.
188, LGC]
(2) Ordinance with penal sanctions
At prominent places in the provincial

capitol, city, municipal or barangay
hall
Minimum period: 3 consecutive weeks
Publication in a newspaper of a general

circulation w/in territorial jurisdiction,
except barangay ordinances
Effectivity: unless otherwise provided

on the day following its publication or
at the end of period of posting,
whichever is later
Violation by public officer or employee

May be meted administrative
disciplinary action
Without prejudice to filing of
appropriate civil or criminal action
Duty of Secretary of Sanggunian:

Shall transmit official copies to the
chief executive of Official Gazette
Within 7 days following approval of
ordinance
Purpose for publication
If with penal sanction: for archival
and reference purposes [Sec. 511,
LGC]
Judicial Intervention
Actions involving the validity of a local government
ordinance:
Prosecutor or attorney of the LGU involved

shall be notified and entitled to be heard;
Alleged to be unconstitutional: Solicitor
General shall also be notified and entitled
to be heard. [Sec. 4, Rule 63]
The failure of the SolGen to appear in the lower
court to defend the constitutionality of an ordinance
is not fatal to the case. The determination of the
question of WON the SolGen should be required to
appear in any action involving the validity of any
treaty, law, executive order, rule or regulation is a
matter left to the discretion of the Court. Inasmuch
as the said requirement is not mandatory, but
discretionary, noncompliance therewith affected
neither the jurisdiction of the trial court nor the
validity
of
the
proceedings.
[Homeowners
Association of the Phil. Inc. v Municipal Board of
Manila (1968)]
Requisites for Valid Ordinance

For an ordinance to be valid exercise of police
power, it must:
(1) Not be contrary to the Constitution and/or
statute
(2) Not be unfair or oppressive
(3) Must not be partial or discriminatory
(4) Not prohibit but may regulate trade
(5) Be General and consistent with public policy
(6) Not be unreasonable [Tatel v. Mun. of Virac
(1992)]
Local Initiative and Referendum

Definition
NOTE: Both a resolution and an ordinance may be
the proper subjects of an initiative or a referendum.
[Garcia v COMELEC (1994)]
(Based on LGC Sec. 120-127 and RA 6735: AN ACT
PROVIDING FOR A SYSTEM OF INITIATIVE AND
REFERENDUM)
Initiative: legalprocess whereby the registered
voters of a LGU may directly propose, enact, or
amend any ordinance.
Referendum: legal process whereby the registered
voters of the LGUs may approve, amend or reject
any ordinance enacted by the sanggunian.
Who may exercise all registered voters of the
provinces, cities, municipalities and barangays
Requirements
Referendum or initiative affecting a resolution or
ordinance passed by the legislative assembly of a
province or city:
(1) petition must be signed by at least 10% of
the registered voters in the province or
city,
(2) of which every legislative district must be
represented by at least 3% of the registered
voters therein;
192
LOCAL GOVERNMENTS
(3) Provided, however, that if the province or
city is composed only of 1 legislative
district, then at least each municipality in a
province or each barangay in a city should
be represented by at least 3% of the
registered voters therein.
Referendum or initiative on an ordinance passed in a
municipality: petition must be signed by at least
10% of the registered voters in the municipality, of
which every barangay is represented by at least 3%
of the registered voters therein
Referendum or initiative on a barangay resolution
or ordinance: must be signed by at least 10% of the
registered voters in said barangay
Procedure
Not less than 1,000 registered voters in case of
provinces and cities, 100 in case of municipalities,
and 50 in case of barangays, may file a petition with
the local legislative body, respectively, proposing
the adoption, enactment, repeal, or amendment, of
any law, ordinance or resolution
If no favorable action thereon is made by local

legislative body within 30 days from its presentation,
the proponents through their duly authorized and
registered representative may invoke their power of
initiative, giving notice thereof to the local
legislative body concerned
2 or more propositions may be submitted in an

initiative
Proponents shall have 90 days in case of provinces

and cities, 60 days in case of municipalities, and 30
days in case of barangays, from notice to collect the
required number of signatures
The petition shall be signed before the Election

Registrar, or his designated representative, in the
presence of a representative of the proponent, and a
representative of the regional assemblies and local
legislative bodies concerned in a public place in the
LGU
If the required number of signatures is obtained, the

COMELEC shall then set a date for the initiative for
approval of the proposition within 60 days from the
date of certification by the COMELEC in case of
provinces and cities, 45 days in case of
municipalities, and 30 days in case of barangays
[Sec. 122, LGC]
Effectivity of Local Propositions

If the proposition is approved by a majority of the
votes cast, it shall take effect 15 days after
certification by the COMELEC. [Sec. 123, LGC]
Limitations on Initiatives
(1) The power of local initiative shall not be
exercised more than once a year.
(2) Initiative shall extend only to subjects or

matters which are within the legal powers
of the local legislative bodies to enact.
(3) If at any time before the initiative is held,
the local legislative body shall adopt in toto
the proposition presented, the initiative
shall be cancelled. However, those against
such action may, if they so desire, apply for
initiative in the manner herein provided.
[Sec. 124, LGC]
Limitations Upon Local Legislative Bodies

Any proposition or ordinance or resolution approved
through the system of initiative and referendum as
herein provided shall:
(1) not be repealed, modified or amended, by
the local legislative body concerned within
6 months from the date therefrom, and
(2) may be amended, modified or repealed by
the local legislative body within 3 years by
a vote of 3/4 of all its members:
Provided, however, that in case of barangays, the
period shall be 18 months after the approval. [Sec.
125, LGC]
Local Referendum Any local legislative body may
submit to the registered voters of autonomous
region, provinces, cities, municipalities and
barangays for the approval or rejection, any
ordinance or resolution duly enacted or approved.
A local referendum shall be held under the control
and direction of the COMELEC within 60 days in case
of provinces and cities, 45 days in case of
municipalities and 30 days in case of barangays. The
COMELEC shall certify and proclaim the results of
the said referendum [Sec. 126, LGC]
Courts are not precluded from declaring null and
void any proposition approved for violation of the
Constitution or want of capacity of the local
legislative body to enact the said measure. [Sec.
127, LGC]
Jurisprudence
193
LOCAL GOVERNMENTS
A resolution may be the subject of an initiative or

referendum. [Garcia vs COMELEC (1994)]
justified from its inherent power to administer what

it owns privately. [NAWASA v Dator (1967)]
Initiative: power of the people to propose bills and

laws, and to enact or reject them at the polls
independent of the legislative assembly.
If the property is owned by the municipality in its

public and governmental capacity, the property is
public and Congress has absolute control over it; if
the property is owned in its private or proprietary
capacity, then it is patrimonial and Congress has no
absolute control. In which case, the municipality
cannot be deprived of it without due process and
payment of just compensation. [Province of
Zamboanga v City of Zamboanga (1968)]
Referendum is the right reserved to the people to

adopt or reject any act or measure which has been
passed by a legislative body and which in most cases
would without action on the part of electors become
law.
These law-making powers belong to the people and
the COMELEC only exercises administration and
supervision of the process. Hence, COMELEC cannot
control or change the substance or the content of
the legislation.
COMELEC should have prepared for an initiative, not
a referendum. [SBMA v. COMELEC (1996)]
6. Corporate Powers
Every LGU, as a corporation has the following
powers: (SC-PCSO)
(1) To have continuous succession in its
corporate name
(2) To sue and be sued
(3) To have and use a corporate seal
(4) To acquire and convey real or personal
property
(5) To enter into contracts
(6) To exercise such other powers as are
granted to corporations [Sec. 22, LGC]
Limitations: as provided in LGC and other laws
Corporate Seal
LGUs may continue using, modify, or change their
existing corporate seals.
Authority to Negotiate and Secure Grants

Who may negotiate: Local Chief Executive (upon
authority of Sanggunian)
What are negotiated
(1) Financial grants or donations in kind in
support of basic services or facilities
(2) From local and foreign assistance agencies
Approval by national agency concerned
General rule: No necessity of securing clearance
from national agency
Exception: IF with national security implications
Shall be approved by national agency
concerned
Failure to act on request for approval within
30 days from receipt: deemed approved
Reporting duty: local chief executive shall report to
both Houses of Congress and the President
(1) Nature
(2) Amount
(3) Terms
(4) Within 30 days upon signing of grant
agreement or deed of donation [Sec. 23,
LGC]
Ultra Vires Contracts
Newly established LGUs or those without corporate

seals
(1) May create own corporate seals
(2) Registered with the DILG
A public street is property for public use hence,

outside the commerce of man. It may not be the
subject of lease or other contract. Such leases are
null and void for being contrary to law. [Dacanay vs
Asistio (1992)]
Change of corporate seal shall be registered with the

DILG.
7. Liability of LGUs
Requisites
Specific Provisions making LGUs Liable
Requisites of Contracts entered into by local chief

executive on behalf of LGU
(1) Prior authorization by Sanggunian
(2) Legible copy of contract posted at a
conspicuous place in the
Provincial capitol or
City, municipal or barangay hall
LGUs and their officials are not exempt from liability

for death or injury to persons or damage to
property. [Sec. 24, LGC]
Jurisprudence
The authority of a municipality to fix and collect
rents for water supplied by its waterworks system is
expressly granted by law. However, even without
these provisions the authority of the municipality to
fix and collect fees from its waterworks would be
When a member of a city or municipal police force

refuses or fails to render aid or protection to any
person in case of danger to life or property, such
peace officer shall be primarily liable for damages,
and the city or municipality shall be subsidiarily
responsible therefor. [Art. 34, CC]
The obligation imposed by Article 2176 is
demandable not only for ones own acts or
194
LOCAL GOVERNMENTS
omissions, but also for those of persons for whom
one is responsible. X X X The State is responsible in
like manner when it acts through a special agent;
but not when the damage has been caused by the
official to whom the task done properly pertains, in
which case what is provided in Article 2176 shall be
applicable. [Art. 2180(6), CC]
Provinces, cities and municipalities shall be liable
for damages for the death of, or injuries suffered by,
any person by reason of the defective condition of
roads, streets, bridges, public buildings, and other
public works under their control or supervision. [Art.
2189, CC]
Liability for Torts, Violation of the Law and

Contracts
WHEN LGU
CASE
If LGU fails to perform a
governmental function
(e.g., maintenance of
roads under Art. 2189,
CC or rendering aid and
protection under Art. 34,
CC)
If engaged in
proprietary functions,
IS LIABLE
DEFENSE
Exercise of due diligence
in the selection and
supervision is not a
defense.
Defense of due diligence

in the selection and
supervision
available
only if the function
involved is a corporate
function.
RATIO:
because
this
defense is available only
to private employers.
WHEN LGU IS NOT LIABLE
If damage resulted from an act of LGU in the
performance of governmental functions
Illustrations
On Contract
RULE: The LGU is liable only for contracts that are
intra vires.
The Doctrine of Implied Municipal Liability provides
that an LGU may become obligated upon an implied
contract to pay reasonable value of the benefits
accepted by it as to which it has the general power
to contract [Cebu vs IAC, 147 SCRA 447]
BUT the LGU may not be estopped in order to
validate a contract which the LGU is not authorized
to make EVEN IF it has accepted the benefits
thereunder [San Diego vs Mun. Of Naujan, 107 Phil
112]
A private individual who deals with a LGU is imputed
with constructive knowledge of the extent of the
power or authority of the LGU to enter into
contracts. Thus, ordinarily, the doctrine of estoppel
does not lie against the LGU.
On Tort
If in the performance of a governmental
function, the LGU is NOT liable
The prosecution of crimes, even if

injury occurs [Palafox vs Ilocos Norte
(1958)]
If in the performance of a proprietary

function, the LGU is liable
The improper grant of a ferry service
franchise [Mendoza vs de Leon (1916)]
NOTE: Municipal corporations liability to private
persons for the wrongful exercise of the corporate
powers is the same as that of a private corporation
or individual [Mendoza vs de Leon (1916)]
Deaths caused by a collapsed stage in a town fiesta
[Torio vs Fontanilla (1978)]
Back pay or wages of employees illegally dismissed,
including those involving primary governmental
functions (e.g. policemen) [Guillergan v Ganzon
(1966)]
By Express Provision of Law
(1) Article 2189, CC
When a person falls in an open manhole in the city
streets. [Manila vs Teotico (198)]
When a person steps on a rusted nail in a flooded
public market. [Jimenez vs Manila, 150 SCRA 510]
When accidents are caused by defective roads even
if the road does not belong to the LGU as long as it
exercises control or supervision over said road.
[Guilatco vs Dagupan, 171 SCRA 382]
Damages suffered through accidents in national
roads under the control and supervision of an LGU
(cause is unsafe road conditions, especially when
there is gross negligence). [Municipality of San Juan
v. CA (2005)]
Also exemplary damages may be granted when
public officials acted with gross negligence. [Quezon
City v Dacara (2005)]
(2) Article 2180, CC
When the State acts through a special agent [Merritt
vs Government, 34 Phil 311]
On Violation of Law
When the Mayor refused to abide by a TRO issued by
the court, he may be held in contempt. [Moday v CA
(1997)]
When the LGU does not pay the statutory minimum
wage (mandated by law) even if there is lack of
funds. [Racho vs Ilagan, Isabela (198)]
Personal Liability of Public Official

RULE: The public official is personally liable if he
acts beyond the scope of his powers OR if he acts
with bad faith
Illustrations
195
LOCAL GOVERNMENTS
Mayor exceeding authority in vetoing a resolution
passed by the Sanggunian [Pilar v Sangguniang Bayan
ng Dasol (1984)]
- [Note that under CC27, a public servant is
personally liable for damages for his refusal
or neglect to perform his official duty]
When the officials incorrectly ordered the
construction of a drug rehabilitation center [Angeles
vs CA, 21 SCRA 90]
When officials illegally dismiss an employee [Rama
vs CA, 148 SCRA 49]
When the official defies an order of reinstatement of
an illegally dismissed employee [Correa vs CFI, 92
SCRA 312]
The Mayor pays for the back salaries of
an
illegally
dismissed
employee
[Nemenzo vs Sabillano, 25 SCRA 1]
The Governor pays for moral damages
for refusing the reinstatement of an
employee [San Luis vs CA (1989]
A public officer, whether judicial, quasi-judicial or
executive, is not personally liable to one injured in
consequence of an act performed within the scope
of his official authority, and in line of his official
duty. [Tuzon v. CA (1992)]
The holding of a town fiesta is a proprietary
function, though not for profit, for which a
municipality is liable for damages to 3rd persons ex
contractu or ex delicto;
that under the principle of respondeat
superior the principal is liable for the
negligence of its agents acting within the
scope of their assigned tasks; and
that the municipal councilors have a
personality distinct and separate from the
municipality [Torio v. Fontanilla (1978)]
Hence, as a rule they are not co-responsible in an
action for damages for tort or negligence unless they
acted in bad faith or have directly participated in
the commission of the wrongful act.
8. Settlement of Boundary Disputes

(Asked in 2005)
Boundary disputewhen a portion or the whole of
the territorial area of an LGU is claimed by two or
more LGUs.
Policy: Boundary disputes between or among LGUs
shall, as much as possible, be settled amicably. [Sec.
118-119, LGC]
Jurisdictional Responsibility for Settlement of

Boundary Dispute
If the LGUs involved
are:
two or more barangays
in the same city or
Boundary disputes shall

be referred for
settlement to:
sangguniang panlungsod
or sangguniang bayan
municipality
two
or
more
municipalities within the
same province
municipalities
or
component
cities
of
different provinces
concerned.
sangguniang
panlalawigan concerned.
a component city or
municipality on the one
hand and a highly
urbanized city on the
other; or two or more
highly urbanized cities,
jointly
referred
for
settlement
to
the
respective sanggunians
of the parties.
jointly referred to the

sanggunians
of
the
provinces concerned.
In the event the sanggunian fails to effect an

amicable settlement within sixty (60) days from the
date the dispute was referred thereto, it shall issue
a certification to that effect.
Thereafter, the dispute shall be formally tried by
the sanggunian concerned which shall decide the
issue within sixty (60) days from the date of the
certification referred to above.
Appeal
Within the time and manner prescribed by the Rules
of Court, any party may elevate the decision of the
sanggunian concerned to the proper Regional Trial
Court having jurisdiction over the area in dispute.
The Regional Trial Court shall decide the appeal
within one (1) year from the filing thereof. Pending
final resolution of the disputed area prior to the
dispute shall be maintained and continued for all
legal purposes. [Sec. 119, LGC]
Maintenance of the Status Quo

Pending final resolution of the dispute: status of the
affected area prior to the dispute shall be
maintained and continued for all purposes. [Sec. 18,
IRR of the LGC]
The power of provincial boards to settle boundary
disputes is limited to implementing the law creating
a municipality. Thus, provincial boards do not have
the authority to approve agreements which in effect
amend the boundary stated in the creating statute
[Municipality of Jimenez v. Baz (1996)]
The conduct of plebiscites, to determine whether or
not a barangay is to be created, should be suspended
or cancelled in view of a pending boundary dispute
between two local governments. Precisely because
territorial jurisdiction is an issue raised in the
pending boundary dispute, until and unless such
issue is resolved with finality, to define the
territorial jurisdiction of the proposed barangays
would only be an exercise in futility. [City of Pasig v.
COMELEC (1999)]
9. Succession of Elective Officials
196
LOCAL GOVERNMENTS
Rules on Succession
a. Successors in permanent vacancies in office of
local chief executive
Permanent vacancy entails that an elective local
official: (DR VaReReQI)
(1) fills a higher vacant office;
(2) refuses to assume office;
(3) fails to qualify;
(4) dies;
(5) is removed from office;
(6) voluntarily resigns; or
(7) is otherwise permanently incapacitated to
discharge the functions of his office. [Sec.
44, LGC: (Asked in 1995, 1996, 2002, 2008)]
Office where
Permanent Vacancy
Occurs
Governor
Mayor
Office
of
the
governor or [and]
vice-governor,
mayor or [and] vicemayor
Office of the Punong

Barangay
Who Succeeds into Office

Vice-governor
Vice-mayor
Highest
ranking
sanggunian member;
In case of his permanent
inability, the 2nd highest
ranking sanggunian member;
Subsequent vacancies are
filled automatically by the
other sanggunian members
according to their ranking.
Highest
ranking
sanggunian
barangay
member;
In case of his permanent
inability, the 2nd highest
ranking sanggunian member.
A tie between/among the highest ranking sanggunian

members is resolved by drawing of lots.
Office where
Permanent Vacancy
Occurs
Member of Sangguniang
Panlungsod
of
component cities and
the Sangguniang Bayan
Member
of
the
Sangguniang Barangay
Representation of the
youth and the barangay
in the sanggunian
Who Succeeds into

Office
Person appointed by the
governor
mayor,
upon
recommendation of the
Sangguniang
Barangay
concerned
Official next in rank of
the
organization
concerned [Sec. 45, LGC
(Asked in 1996, 2002)]
GENERAL RULE: The appointee under Sec. 45 must

be a nominee of the political party under which the
sanggunian member (whose elevation to the position
next higher in rank created the vacancy) had been
elected.
Conditions sine qua non: There must be a
nomination and certificate of membership from the
highest official of the political party or else the
appointment is:
(1) null and void ab initio; and
(2) a ground for administrative action against
the responsible official.
If sanggunian member who caused vacancy does not
belong to any political party, the local chief
executive shall appoint a qualified person, upon
recommendation of the sanggunian.
The appointee under Sec. 45 serves the unexpired
term of the vacant office.
Exception: Sangguniang barangay.
Successors under Sec. 44, LGC serve only for the

unexpired terms of their predecessors.
If the vacancy pertains to barangay or youth

representation in the sanggunian, the vacancy is
automatically filled by the official next in rank of
the organization concerned.
The ranking in the sanggunian is based on the

immediately preceding local election:
c. Temporary vacancy in the office of the local

chief executive.
Votes obtained by the winning candidate

Total number of registered voters in each district
Examples of local chief executives temporary

incapacity to perform duties for physical/legal
reasons:
(1) leave of absence;
(2) travel abroad;
(3) suspension from office. [Sec. 46, LGC]
(Asked in 2002)
b.
Permanent vacancies in the sanggunian
If automatic succession as provided in Sec. 44 does

not apply, vacancy is to be filled in by appointment
made as follows:
Office where
Permanent Vacancy
Occurs
Member of Sanggunian
Panlalawigan
or
Sangguniang Panlungsod
of
highly
urbanized
cities and ICCs
Who Succeeds into

Office
President, through the
Executive Secretary
GENERAL RULE: Vice-governor, city/ municipal vicemayor, or the highest ranking sangguniang barangay
member shall automatically exercise the powers and
perform the duties and functions of the local chief
executive.
EXCEPTION: The power to appoint/suspend/dismiss
employees can be exercised only if the period of
temporary incapacity exceeds 30 working days.
197
LOCAL GOVERNMENTS
If the local chief executive is traveling within the
country but outside his territorial jurisdiction for a
period not exceeding 3 consecutive days, he may
designate in writing the officer-in-charge.
GENERAL RULE: The local chief executive cannot
authorize any local official to assume the
powers/duties/functions of his office, other than the
vice-governor, city/municipal vice-mayor, or highest
ranking sangguniang barangay member.
The authorization shall specify the powers and
functions that the officer-in-charge shall exercise.
EXCEPTION: The power to appoint, suspend and
dismiss employees.
GENERAL RULE: If the local chief executive
fails/refuses to issue the authorization, the vicegovernor, city/municipal vice-mayor, or highest
ranking sangguniang barangay member has right to
assume the powers, duties, and functions of the
office on the 4th day of absence.
EXCEPTION: The power to appoint/ suspend/dismiss
employees.
Office where
Temporary Vacancy
Occurs
Governor
Mayor
Punong barangay
Local chief executive
traveling within the
country but outside
his
territorial
jurisdiction for
a
period not exceeding
three
consecutive
days
Who Temporarily Succeeds

into Office
Vice-governor
(automatically)
Vice-mayor (automatically)
Highest ranking sanggunian
member (automatically)
1) Person designated in
writing by the said local
chief executive
Authorization
shall
specify the powers and
functions that the designate
will exercise, except the
power to appoint, suspend,
or dismiss employees
2) Vice-governor,
vicemayor
or
highest
Sangguniang
Barangay
member, if the local chief
executive fails or refuses to
designate
In this case, assumption
into office shall be on the
4th day of absence of the
local
chief
executive
(automatically)
Jurisprudence
The LGC is silent on the mode of succession when
there is a temporary vacancy in the office of the
vice-governor. In this case, there was a vacancy
when the vice-governor automatically assumed the
governorship pending the determination of who is
the local chief executive. Because of such
circumstances, the President, through the Secretary
of Local Government, may make the temporary

appointment. [Menzon v. Petilla (1991)]
A vice-governor who is concurrently an acting
governor is actually a quasi-governor. Being the
acting governor, the vice-governor can no longer
continue to simultaneously exercise the duties of the
latter office, since the nature of the duties of the
governor hinders him from discharging his duties for
such office. Hence, there is an inability on the
part of the regular presiding officer, the vicegovernor, to preside during the sanggunian sessions,
which calls for the election of a temporary presiding
officer. [Gamboa v. Aguirre (1999)]
The governor has the power to fill a vacancy in the
Sangguniang Bayan caused by a member not
belonging to any political party. It is the same
manner as where the member belonged to a political
party. Where there is no political party to make the
nomination, the Sanggunian where the vacancy
occurs must be considered authority for making the
recommendation. The appointing authority is limited
to the appointment of those recommended to his
office. The recommendation is a condition sine qua
non for the validity of the appointment. [Farias v.
Barba (1996)]
d.
Termination of the Temporary Incapacity
Upon submission to the sanggunian of a written

declaration that he has reported back to office
If the temporary incapacity is due to legal causes, he
must also submit the necessary documents showing
that the legal causes no longer exist.
e.
Approval of Leaves of Absence.
LOCAL OFFICIAL
governors;
mayors of
1)highly urbanized
cities or
2)independent
component cities
vice-governors;
city/municipal
vicemayors
city/municipal mayors of
component
cities/municipalities
sanggunian
panlalawigan,
panlungsod and bayan
members;
its employees
punong barangays
sangguniang barangay
members
LOA APPROVED BY:

The President or his duly
authorized
representative
The local chief executive

The governor
The Vice-governor or
city/municipal vicemayor
The city/municipal
mayor
The punong barangay
If the application for LOA is not acted upon within 5

working days after receipt, the application is
deemed approved. [Sec. 47, LGC]
198
LOCAL GOVERNMENTS
10. Discipline of Local Officials

Elective Officials
Administrative Action
AO 23, as amended by AO 159 (1994) and AO 66
(1999): Prescribing the Rules and Procedures on the
Investigation of Administrative Disciplinary Cases
Coverage: administrative disciplinary charges
against:
(1) the governors, and members of the
sangguniang panlalawigan;
(2) the mayors, vice mayors, and members of
the sangguniang panlungsod of highly
urbanized cities, independent component
cities, and component cities; and
(3) the mayors, vice mayors, and members of
the sangguniang panlungsod or bayan of
cities or municipalities in Metropolitan
Manila
Disciplining Authority The President, who may act
through the Executive Secretary
May still constitute a Special Investigating
Committee in lieu of the DILG Secretary;
Nothing shall prevent the President from
assuming jurisdiction at any stage of the
proceedings over cases to be preliminarily
investigated by the DILG; in such an event,
the same shall immediately be forwarded to
the Special Investigating Committee after it
may have been constituted by the
Disciplining Authority.
Investigating Authority DILG Secretary
(1) may constitute an Investigating Committee
in the DILG for the conduct of investigation
Grounds
Grounds for administrative action (discipline,
suspension, removal): MAD-VAD-CO
(1) Disloyalty to the Republic of the
Philippines;
(2) Culpable violation of the Constitution;
(3) Dishonesty, oppression, misconduct in
office, gross negligence, or dereliction of
duty;
(4) Commission of any offense involving moral
turpitude or any offense punishable by at
least prision mayor, which is from 6 years
and 1 day to 12 years imprisonment;
(5) Abuse of authority;
(6) Unauthorized absence for 15 consecutive
working days in case of local chief
executives and 4 consecutive sessions in the
case of members of the sanggunian;
(7) Application for, or acquisition of, foreign
citizenship or residence of the status of an
immigrant of another country; and
(8) Such other grounds as may be provided by
the Local Government Code of 1991;
Republic Act No. 6713; Republic Act No.
3019; Administrative Code of 1987; Revised
Penal Code; and all other

general and special laws.
applicable
How Initiated
(1) by any private individual or any government
officer or employee by filing a sworn
written complaint (verified)
(2) by the Office of the President or any
government agency duly authorized by law
to ensure that LGUs act within their
prescribed powers and functions
Elective Official against
whom Administrative
Complaint is Filed
Provincial or city official
Municipal official
Barangay official
Where to File
Complaint
Office of the President
Sangguniang
Panlalawigan
Sangguniang Panlungsod
or Sangguniang Bayan
Jurisprudence
Supervision and discipline. The President is not
devoid of disciplinary powers because he merely has
supervisory powers under the Constitution.
Supervision is not incompatible with disciplining
authority. [Ganzon vs CA (1991)]
Valid delegation. Under AO 23, the delegation of the
power to investigate to the Sec of Interior is valid.
What cannot be delegated is the power to discipline.
[Joson vs Torres, 290 SCRA 279]
Prejudicial
question?
The
administrative
investigation can proceed even during the pendency
of an appeal of audit findings to the Commission on
Audit [Salalima vs Guingona, 257 SCRA 55]
Jurisdiction
Power of Tribunals
(1) The Ombudsman (Asked in 1999, 2003)
The Ombudsman and the Office of the President
have
concurrent
jurisdiction
to
conduct
administrative investigations over local elective
officials. The LGC did not withdraw the power of the
Ombudsman under RA 6770. [Hagad v. Gozo-Dadole
(1993)]
Preventive Suspension
under RA 6770
1. the evidence of guilt
is strong; AND
2. that any of the ff. are
present:
a. the charge against
the officer or
employee should
involve dishonesty,
oppression or grave
misconduct or
neglect in the
performance of
duty;
b. the charges should
warrant removal
Preventive Suspension
under the LGC
1. there is reasonable
ground to believe
that the respondent
has committed the
act or acts
complained of
2. the evidence of
culpability is strong
3. the gravity of the
offense so warrants;
or
4. the continuance in
office of the
respondent could
influence the
199
LOCAL GOVERNMENTS
from office; or
c. the respondents
continued stay in
office would
prejudice the case
filed against him
Maximum period: 6 mos.
witnesses or pose a
threat to the safety
and integrity of the
records and other
evidence
Maximum period: 60 days
It is not only the Ombudsman, but also his Deputy,

who may sign an order preventively suspending
officials. Also, the length of the period of suspension
within the limits provided by law and the evaluation
of the strength of the evidence both lie in the
discretion of the Ombudsman. It is immaterial that
no evidence has been adduced to prove that the
official may influence possible witnesses or may
tamper with the public records. It is sufficient that
there exists such a possibility. [Castillo-Co v.
Barbers (1998)]
(2) The Courts
RA 3019: The term office in Sec. 13 of RA 3019
(pertaining to mandatory preventive suspension)
applies to any office which the officer might
currently be holding and not necessarily the
particular office in relation to which the official is
charged. The imposition of the suspension, though
mandatory, is not automatic or self-operative. A precondition is the existence of a valid Information,
determined at a pre-suspension hearing. [Segovia v.
(3) Sandiganbayan
PD 1606, as amended by RA 8249
It is the officials grade that determines his or her
salary, and not the other way around. An officials
grade is not a matter of proof but a matter of law
which the court must take judicial notice. Under
Sec. 444(d) of the LGC, the municipal mayor shall
receive
a
minimum
monthly
compensation
corresponding to SG 27. Thus, the cases filed against
the petitioner are within the exclusive jurisdiction of
the Sandiganbayan. [Llorente v. Sandiganbayan
(2000)]
If the law states that a certain officer is within the
jurisdiction of the Sandiganbayan, the fact that the
officer's SG is below 27 does not divest jurisdiction.
[Inding v. Sandiganbayan (2004)]
RA 8249 provides that as long as one of the accused
is an official of the executive branch occupying the
position otherwise classified as SG 27 and higher, the
Sandiganbayan
exercises
exclusive
original
jurisdiction. To vest Sandiganbayan with jurisdiction,
public office must be an element of the crime OR
that without the public office, the crime could not
have been committed. [Rodriguez v. Sandiganbayan
(2004)]
Preventive Suspension [Sec. 63, LGC]

(Asked in 1990, 1996)
Sole Objective: to prevent the accused official from
hampering the investigation with his influence and
authority over possible witnesses and keep him off
the records and other evidence. [Ganzon v. CA,

(1991)]
200
[cf. suspension as a penalty]

It may be imposed by the Disciplining Authority in
cases where the respondent is an elective official:
Local Elective Official of:
provinces
highly urbanized cities
independent
component
cities
municipalities
component city
barangay
Who may impose:

President, through
the DILG Secretary
Provincial Governor
Mayor
The governor shall, upon the direct

Disciplining Authority, preventively
elective official of a component city,
formal administrative investigation by
the President.
order of the
suspend an
who is under
the Office of
When imposed: May be imposed at any time after

the issues are joined (after respondent has answered
the complaint)
BUT no preventive suspension shall be imposed
within 90 days immediately prior to any local
election. If the preventive suspension has been
imposed prior to the 90-day period immediately
preceding a local election, it shall be deemed
automatically lifted upon the start of the period.
Grounds for Preventive Suspension:
(1) when the evidence of guilt is strong and,
(2) given the gravity of the offense, there is a
great probability that the continuance in
office of the respondent could influence the
witnesses or pose a threat to the safety and
integrity of the records and other evidence
Period: Any single preventive suspension of local
elective officials shall not extend beyond 60 days;
Provided that, in the event that several
administrative cases are filed against an elective
official:
he cannot be preventively suspended for more
than 90 days within a single year
on the same ground or grounds existing and
known at the time of the first suspension.
Expiration: the suspended elective official shall be
deemed reinstated in office without prejudice to the
continuation of the proceedings against him [which
shall be terminated within 120 days from formal
notice of the case]. HOWEVER, if the delay in the
proceeding of the case is due to his fault, or
request, other than the appeal duly filed, the
duration of such delay shall not be counted in
computing the time of termination of the case. [Sec.
63 (c)]
Compensation: officer shall receive no salary or
compensation during such suspension; BUT, upon
subsequent exoneration and reinstatement, he shall
LOCAL GOVERNMENTS
be paid his full salary or compensation, including
such emoluments accruing during such suspension.
[Sec. 64, LGC]
The provincial governor is authorized to preventively
suspend the municipal mayor any time after the
issues have been joined and any of the following
grounds were shown to exist:
(1) When there is reasonable ground to
believe that the respondent has
committed the act or acts complained
of
(2) When the evidence of culpability is
strong
(3) When the gravity of the offense so
warrants
(4) When the continuance in office of the
respondent
could
influence
the
witnesses or pose a threat to the safety
and integrity of the records and other
evidence.
There is nothing improper in suspending an
officer before the charges are heard and before
he is given an opportunity to prove his
innocence. Preventive suspension is allowed so
that respondent may not hamper the normal
course of the investigation through the use of
his influence and authority over possible
witnesses. When a local government official
believes that he has been wrongfully
suspended, the proper procedure is to exhaust
administrative remedies, i.e. seek relief from
the DILG Secretary, and not to file a case in
court. [Espiritu v. Melgar (1992)]
Piecemeal suspensions should not be issued. If
there are several administrative cases against a
public official, these cases should be
consolidated for the purpose of ordering
preventive suspension, instead of issuing an
order of suspension for each case. Elective local
officials should be given the benefit of
simultaneous service of suspension. [Ganzon v.
CA (1991)]
NOTE: The ruling in this case as to simultaneous
service of suspension is more of an exception
than the rule, because of the following
circumstances:
Three separate orders of 60-day

preventive suspension were issued
against Ganzon
Another order of preventive suspension

was issued before the SC promulgated
the decision ruling that suspension
should not be issued piecemeal
The simultaneous service of suspension

will lessen the harsh effects of
whatever ill motive may be behind the
successive suspension orders issued
Rights of the Respondent Official: Full opportunity
to:
(1) Appear and defend himself in person or by
counsel

(2) Confront and cross-examine the witnesses
against him
(3) Require attendance of witnesses and the
production of documentary evidence in his
favor through subpoena or subpoena duces
tecum. [Sec. 65, LGC]
Due process. The petitioner has the right to a
formal investigation under AO 23. Where the Sec
denied the motion for a formal investigation and
decided the case on the basis of position papers, the
right of the petitioner was violated. [Joson vs
Torres, 290 SCRA 279]
Form and Notice of Decision
(1) Shall be terminated within 90 days from
start thereof.
(2) Office of the President or Sanggunian
concerned to render decision
Within 30 days from end of

investigation
In writing
Stating clearly facts and reasons

(3) Furnish copies to respondent and interested
parties. [Sec. 66(a), LGC]
NOTE: Any abuse of the exercise of the power of
preventive suspension shall be penalized as abuse of
authority. [Nachura]
Penalty of Suspension
Limitations: The penalty of suspension:
(1) shall not exceed the unexpired term of the
respondent
(2) shall not exceed a period of 6 months for
every administrative offense
(3) shall not be a bar to the candidacy of the
respondent so suspended as long as he
meets the qualifications required for the
office. [Sec. 66, LGC]
When the respondent has been meted 2 or more
penalties of suspension for 2 or more administrative
offenses, such penalties shall be served successively
[AO No. 159, Amending AO 23, Prescribing the Rules
and
Procedures
on
the
Investigation
of
Administrative Disciplinary Cases Against Elective
Local Officials, 1994]
Removal
An elective local official may be removed by order of
the proper court. [Sec. 60, LGC]
The penalty of removal from office as a result of
administrative investigation shall be considered a
bar to the candidacy of the respondent for any
elective position. [Sec. 66(c), LGC]
[cf. effect of penalty of suspension]
Proper court order
Local legislative bodies and/or the Office of the
President cannot validly impose the penalty of
dismissal or removal from service on erring local
elective officials. It is clear from Sec. 60 of LGC that
an elective local official may be removed from office
201
LOCAL GOVERNMENTS
on the grounds enumerated above only by order of
the proper court.
An appeal shall not prevent a decision from

becoming final or executory.
Art. 124 (b), Rule XIX of the Rules and Regulations

Implementing the LGC, which states that an
elective local official may be removed from office by
order of the proper court or the Disciplining
Authority whichever first acquires jurisdiction to
the exclusion of the other is void for being
repugnant to Sec. 60, LGC.
But if its appointive, the OP may remove. [Pablico
v. Villapando (2002)]
If respondent wins the appeal, he shall be

considered as having been placed under preventive
suspension during the pendency of the appeal.
Petitioners contest the administrative action as

being violative of Sec. 60, which mandates that an
elective local official may be removed from office
only by order of the court, since the duration of the
suspension being 12-20 months exceeded their
remaining terms. The suspension was allegedly
tantamount to a removal.
An administrative offense means every act or
conduct or omission which amounts to, or
constitutes, any of the grounds for disciplinary
action. The offenses for which suspension may be
imposed are enumerated in Section 60.
Assuming for the moment that the Office of the
President is correct in its decisions in each of the
subject four administrative cases:
It committed no grave abuse of discretion in
imposing the penalty of suspension, although the
aggregate thereof exceeded six months and the
unexpired portion of the petitioners term of office.
What is important is that the suspension imposed for
each administrative offense did not exceed six
months. [Salalima v. Guingona (1996)]
Administrative Appeal
Within 30 days from receipt of decisions:
Decisions of:
Sangguniang
Panlungsod of
component cities
Sangguniang Bayan
Sangguniang
Panlalawigan
Sangguniang
Panlungsod of:
- highly urbanized
cities
- independent
component cities
May be appealed
before:
Sangguniang
Panlalawigan
If the appeal results in an exoneration, he shall be

paid his salary and other emoluments during the
pendency of appeal. [Sec. 68, LGC]
Sec. 68 of the LGC merely provides that an appeal
shall not prevent a decision from becoming final or
executory. As worded, there is room to construe
the provision as giving discretion to the reviewing
officials to stay the execution of the appealed
decision. [Berces v. Guingona (1995)]
The phrase final or executory in Secs. 67 and 68
simply means that administrative appeal will not
prevent the enforcement of the decision. [Mendoza
vs Lacsina (2003)]
Effect of Re-election (Asked in 2000)
Re-election renders the administrative complaint
against the local official moot and academic. A
public official cannot be removed for administrative
misconduct committed during a prior term, since the
re-election to office operates as a condonation of
the officers previous misconduct to the extent of
cutting off the right to remove him therefore. But
this rule is applicable only to administrative cases,
not to criminal cases. [Aguinaldo v. Santos (1992)]
Doctrine of Condonation
When re-election considered a condonation: if the
proceedings are abated due to elections. In this
case, there is no final determination of misconduct
[Malinao v. Reyes (1996)]
Subsequent re-election cannot be deemed a
condonation if there was already a final
determination of his guilt before the re-election
[Reyes v. COMELEC (1996)]
Appointive Officials
The appointing authority is generally the disciplining
authority.
final and executory; may

not be appealed [Sec.
67, LGC]
Disciplinary Jurisdiction [Sec. 87, LGC]

Except as otherwise provided by law, the local chief
executive may impose:
(1) Removal from service (cf. elective officials)
(2) Demotion in rank
(3) Suspension for not more than 1 year w/o
pay
If not more than 30 daysnot

appealable
If more than 30 daysappealable to the

CSC
(4) Fine not exceeding 6 months salary
(5) Reprimand
(6) Or otherwise discipline subordinate officials
and employees under his jurisdiction.
202
LOCAL GOVERNMENTS
No remedy of appeal if the decision of the
administrative case exonerated the office or
employee. Party adversely affected in PD 807 or
The Philippine Civil Service Law only refers to the
government employee against which the case is
filed. [Mendez vs. CSC (1991)]
The City Treasurer has authority to discipline his
subordinates.
The power to discipline is specifically granted by the
Revised Administrative Code to heads of
departments, agencies and instrumentalities,
provinces and cities.
The power to commence administrative proceedings
against subordinate officers is granted by the
Omnibus Rules to the secretary of department, head
of office, head of LGU, chief of agency, regional
director, or person with sworn written complaint.
The City Treasurer may also motu proprio institute
disciplinary proceedings against subordinates.
These rules must be reconciled with the LGC, which
gives the mayor the authority to institute
administrative and judicial proceedings against any
official or employee of the city. In cases involving
employees of the city treasurers office, the mayor
must file his complaint with the treasurers office or
with the DOF. [Garcia vs. Pajaro (2002)]
[Sangguniang Bayan of San Andres v. CA (1998)]:
(Asked in 2000)
Requisites to constitute
resignation:
(1) Intention to relinquish
a part of the term
(2) Act of relinquishment
(3) Acceptance by the
proper authority
Essential elements of
abandonment:
(1) Intent to abandon
(2) Overt act by which
the intention is to
be carried into
effect
Removal
In interpreting its own rules as it did, the CSC was
acting within its constitutionally delegated power to
interpret its own rules. The CSC, by ruling that the
employee took an automatic leave of absence, was
merely interpreting its own rule on requirement of
approved leave. [City Government of Makati City v.
CSC (2002)]
11. Recall
(Asked in 2002)
Recall is a mode of removal of a public official by
the people before the end of his term of office.
[Garcia v. COMELEC, (1993)]
Who has the power of recall: Power of recall for
loss of confidence is exercised by the registered
voters of the LGU. [Sec. 69, LGC]
Effectivity: Upon the election and proclamation of a
successor in the person of the candidate receiving
the highest number of votes cast during the election
on recall. Thus, if the official sought to be recalled

receives the highest number of votes, confidence in
him is affirmed and he shall continue in office. [Sec.
72, LGC]
Prohibition on resignation: An Elective local official
sought to be recalled is not allowed to resign while
the recall process is in progress. [Sec. 73, LGC]
Expenses: The Annual General Appropriations Act
contains a provision for a contingency fund at the
disposal of the COMELEC. [Sec. 75, LGC]
RA 9244: An Act Eliminating the Preparatory Recall
Assembly as a Mode of Instituting Recall of Elective
Local Government Officials, Amending for the
Purpose sec. 70-71 of the LGC of 1991.
Sec. 70. Initiation of the Recall Process (PCPVA)
Petition of a registered voter in the LGU concerned,
supported by a percentage of registered voters
during the election in which the local official sought
to be recalled was elected.
(Percentage decreases as population of people in
area increases. Also, the supporting voters must all
sign the petition)
Within 15 days after filing, the COMELEC must

certify the sufficiency of the required number of
signatures. Failure to obtain the required number
automatically nullifies the petition.
Within 3 days from certification of sufficiency,

COMELEC provides the official with a copy of the
petition and causes its publication for 3 weeks (once
a week) in a national newspaper and a local
newspaper of general circulation. Petition must also
be posted for 10 to 20 days at conspicuous places.
PROTEST SHOULD BE FILED AT THIS POINT and ruled
with finality 15 days after filing.
COMELEC verifies and authenticates the signatures.
COMELEC announces acceptance of candidates

Election on Recall
COMELEC sets election within 30 days upon
completion
of
previous
section
in
barangay/city/municipality proceedings (45 days in
case of provinces).
Officials sought to be recalled are automatically
candidate. [Sec. 71, LGC]
Jurisprudence
A petition for recall that is signed only by the
petitioner but does not bear the names of the
citizens who have allegedly lost confidence in the
official should be dismissed. [Angobung vs Comelec
(1997)]
Whether or not the electorate of the municipality
has lost confidence in their incumbent mayor is a
203
LOCAL GOVERNMENTS
political question. Loss of confidence is the formal
withdrawal by the electorate of their trust in a
persons ability to discharge his office previously
bestowed on him by the same electorate. [Evardone
v. COMELEC (1991)]
Recall is a mode of removal of a public official by
the people before the end of his term of office. The
peoples prerogative to remove a public official is an
incident of their sovereign power and in the absence
of constitutional restraint, the power is implied in
all governmental operations. Such power has been
held to be indispensable for the proper
administration of public affairs. [Garcia v. COMELEC
(1993)]
The Liga ng mga Barangay and the Preparatory
Recall Assembly are entirely different entities even
if they may have the same members. [Malonzo vs
Comelec (1997)]
NOTE: Under RA 9244, the Congress removed the
Preparatory Recall Assembly as a mode of recall.
A Regular local election is necessary in order to
replace the local elective official who is sought to be
recalled. This does not include SK elections. [Paras
v. COMELEC (1996)]
Limitations on the Holding of Recalls
Any elective official may be the subject of a recall
election only once during his term of office for loss
of confidence.
12. Term Limits

(Asked in 1995, 2001, 2005, 2006, 2008)
All elective local officials, except barangay
officials [Sec. 8, Art. X; Sec. 43 LGC]
Term of office: 3 years from noon of June 30, 1992
or the date provided by law
All local officials first elected during the local
elections immediately following the ratification of
the 1987 Constitution shall serve until noon of June
30, 1992;
No official shall serve for more than 3 consecutive
terms for the same position;
Voluntary renunciation of the office for any length of
time is not an interruption in the continuity of his
service for the full term for which he was elected
Barangay officials and members of the Sangguniang
Kabataan
Term of office: 3 years
After the regular election of barangay officials on
the second Monday of May 1994 [Sec. 43, LGC]
Existing sub-provinces converted into regular
provinces
No recall shall take place:

(1) Within 1 year from the date of assumption
of office of the official concerned
Rationale: to provide a reasonable basis for
judging the performance of an elective
local official
New legislative districts continue to be represented

in Congress by the duly-elected representatives of
the original districts out of which the new provinces
or districts were created until their own
representatives are elected in the next regular
congressional elections and qualified
(2) Within 1 year immediately preceding a

regular local election
Rationale: a recall election is potentially
disruptive of the normal working of the LGU
necessitating additional expenses [Sec. 74,
LGC]
Vacancy in the offices occupied by incumbent

elected officials or resulting from expiration of their
terms of office in case of a negative vote in the
plebiscite results:
by appointment of the President;
appointees shall hold office until their
successors are elected in the regular local
elections following the plebiscite
Note:
Recall, as used in par. b, sec. 74 prescribing the 1year limitation, refers to the election itself (not
the process of initiating the recall proceedings). The
purpose of the 1-year limitation from assumption is
to prevent premature action without having
sufficient time to evaluate the officials
performance.
As long as the election is held outside the 1-year
period, the preliminary proceedings to initiate recall
can be held even before the end of 1 year from
assumption.
The 1-year period before regular local election does
not include the campaign period. [Claudio v.
COMELEC (2000)]
After conversion of the newly-created province,

President shall appoint:
(1) Governor
(2) Vice-governor
(3) Members of the sangguniang panlalawigan
who shall hold office until their successors are
elected in the next regular local elections and
qualified. [Sec. 462 LGC]
Qualified appointive officials and employees in the
career service of the subprovinces at the time of
their conversion into regular provinces shall continue
in office in accordance with civil service law, rules
and regulations.
204
LOCAL GOVERNMENTS
RA 9164: Synchronized Barangay and Sangguniang
Kabataan Elections (2002)
Term of office of barangay
kabataan officials: 3 years
and
sangguniang
No barangay elective official shall serve for more

than 3 consecutive terms in the same position
Reckoned from the 1994 barangay elections
Voluntary renunciation of office for any length
of time shall not be considered as an
interruption [Sec. 2]
RA 9006 Fair Election Act (2001)
An elective official running for any office other than
the one which he is holding in a permanent capacity,
is no longer considered ipso facto resigned from his
office upon the filing of his certificate of candidacy.
[Sec. 14]
Note: Sec. 14 of RA 9006 expressly repealed Sec. 67
of BP 881 or the Omnibus Election Code which states
that any elective official, whether national or local,
running for any office other than the one which he is
holding in a permanent capacity, except for
President and Vice-President, shall be considered
ipso facto resigned from his office upon the filing of
his certificate of candidacy.
Section 14 of RA 9006 did not repeal Section 66 of
the Omnibus election Code, leaving intact Section 66
thereof which imposes a limitation to appointive
officials and considers them ipso facto resigned from
office upon filing of their certificate of candidacy
By the repeal of Section 67, an elective official who
runs for office other than the one which he is
holding is no longer considered ipso facto resigned
therefrom
upon
filing
his
certificate
of
candidacy. Elective officials continue in public
office even as they campaign for reelection or
election for another elective position. On the other
hand, Section 66 has been retained; thus, the
limitation on appointive officials remains - they are
still considered ipso facto resigned from their offices
upon the filing of their certificates of candidacy.
Substantial distinctions clearly exist between
elective officials and appointive officials. The
former occupy their office by virtue of the mandate
of the electorate. They are elected to an office for
a definite term and may be removed therefrom only
upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of
their designation thereto by an appointing
authority. Some appointive officials hold their office
in a permanent capacity and are entitled to security
of tenure while others serve at the pleasure of the
appointing authority.
Another substantial distinction between the two sets
of officials is that under Section 55, Chapter 8, Title
I, Subsection A. Civil Service Commission, Book V of
the Administrative Code of 1987 (Executive Order
No. 292), appointive officials, as officers and
employees in the civil service, are strictly prohibited
from engaging in any partisan political activity or

take part in any election except to vote. Under the
same provision, elective officials, or officers or
employees holding political offices, are obviously
expressly allowed to take part in political and
electoral activities.
By repealing Section 67 but retaining Section 66 of
the Omnibus Election Code, the legislators deemed
it proper to treat these two classes of officials
differently with respect to the effect on their tenure
in the office of the filing of the certificates of
candidacy for any position other than those occupied
by them.
Since the classification justifying Section 14 of Rep.
Act
No.
9006, i.e.,
elected
officials vis-avis appointive officials, is anchored upon material
and significant distinctions and all the persons
belonging under the same classification are similarly
treated, the equal protection clause of the
Constitution is, thus, not infringed. [Farias v.
Executive Secretary (2003)]
What constitutes term of office?
The Constitution contemplates service by local
officials for three consecutive terms as a result of an
election. The term limits for elective local officials
must be taken to refer to:
(1) the right to be elected and
(2) the right to serve in the same elective
position.
Consequently, it is not enough that an individual has
fully served three consecutive terms in an elective
local office.
He must also have been elected to the same position
for the same number of times before the
disqualification can apply. [Borja v. COMELEC
(1998)]
Effect of judicial declaration that the officials
proclamation is void: His assumption of office in
1995 cannot be deemed to have been by reason of a
valid election. Also, he did not fully serve the 199598 mayoral term by reason of involuntary
relinquishment of office as he was ordered to vacate
his post before the expiration of the term. Although
he served the greater portion of the said term, he
should not be considered disqualified because he did
not serve three full consecutive terms. [Lonzanida
v. COMELEC (1999)]
Effect of Recall Elections: An official has served for
three consecutive terms. He was elected in the
recall election for the term of his predecessor.
There was no violation of the 3-term rule.
The Constitution does not require that the
interruption be a full term of 3 years. The clear
intent of the framers of the law is that interruption
for any length of time is sufficient to break an
elective local officials continuity of service.
[Socrates v. COMELEC (2002)]
205
LOCAL GOVERNMENTS
Effect of Conversion of the LGU: The mayor of a
municipality held his post for three terms. During his
last term, the municipality became a city and he was
declared hold-over mayor by the charter. The said
mayor should not be allowed to run again. If he
were allowed to do so, he would have served the
same people for a term more than what is allowed
by law [Latasa v. COMELEC (2003)]
Effect of Preventive Suspension: Strict adherence
to the intent of the three-term limit rule demands
that preventive suspension should not be considered
an interruption that allows an elective officials stay
in office beyond three terms.
A preventive
suspension cannot simply be a term interruption
because the suspended official continues to stay in
office although he is barred from exercising the
functions and prerogatives of the office within the
suspension period. The best indicator of the
suspended officials continuity in office is the
absence of a permanent replacement and the lack of
the authority to appoint one since no vacancy exists.
To allow a preventively suspended elective official
to run for a fourth and prohibited term is to close
our eyes to this reality and to allow a constitutional
violation through sophistry by equating the
temporary inability to discharge the functions of
office with the interruption of term that the
constitutional provision contemplates. [Aldovino v.
COMELEC, G.R. No. 182867, November 25, 2008]
206
LOCAL GOVERNMENTS
Annex A
Requirements
Province
LGC 460-461
Average
annual
income, as certified
by the DOF, of not
less than P20,000,000
based
on
1991
constant prices
City
RA 9009 (2001)
Average
annual
by the DOF, of at
least P100,000,000 for
the last 2 consecutive
years based on 2000
constant prices
Population
250,000 inhabitants
150,000 inhabitants
Municipality
LGC 441-442
Average
annual
by
the
provincial
treasurer, of at least
P2,500,000 for the
last two consecutive
years based on 1991
constant prices
25,000 inhabitants
Territory
contiguous territory
of at least 2,000km2
of at least 100km2
of at least 50km2
territory need not be

contiguous
if
it
comprises 2 or more
islands or is separated
by a chartered city or
cities which do not
contribute to the
income
of
the
province
Same as CITY.
Territory need not be

contiguous
if
it
comprises 2 or more
islands
By an Act of Congress
Approval must be by
majority of the votes
cast;
except
otherwise provided in
the Act of Congress,
the plebiscite shall be
held within 120 days
from effectivity of the
law
or
ordinance
effecting such action
By law or by an
ordinance
of
the
sangguniang
panlalawigan
or
panlungsod; In case of
the
creation
of
barangays
by
the
sangguniang
panlalawigan,
the
recommendation
of
the
sangguniang
bayan concerned shall
be necessary
By an Act of Congress,
to
enhance
the
delivery
of
basic
services in indigenous
cultural communities
Approval must be by
cast; plebiscite shall
be held within such
period of time as may
be determined by the
law
or
ordinance
creating
said
barangay.
Income
Manner of
Creation
requirement on land
area shall not apply
where
the
city
proposed
to
be
created is composed
of 1 or more islands;
the territory need not
be contiguous if it
comprises 2 or more
islands
Plebiscite
(in LGUs
directly
affected)
Approval must be by
cast;
except
law
or
ordinance
Approval must be by
cast;
except
law
or
ordinance
Barangay
LGC 385-386
No
minimum
requirement
for
income
2,000 inhabitants
5,000 inhabitants, in
cities
and
municipalities within
MM
and
other
metropolitan political
subdivisions or highly
urbanized cities
No
minimum
requirement for area
207
LOCAL GOVERNMENTS
Annex B
Reviewed by
Furnish copies of ordinances
or resolution within
Period to examine
documents
Ground to invalidate
ordinance or resolution
Component City or Municipality

Ordinances and Resolutions
Sangguniang panlalawigan
3 days after approval of ordinance or
resolution approving the local development
plans and public investment programs
formulated by the local development
councils
30 days after receipt of copies, after which
the ordinance or resolution is presumed
valid if no action is taken.
Within 30 days, it may also be transmitted
to the provincial attorney or prosecutor for
examination; said atty. or prosecutor shall
give his written recommendations within 10
days from receipt of document
Ordinance or resolution is beyond the power
conferred upon the Sanggunian concerned
Barangay Ordinances
Sangguniang
panlungsod
or
sangguniang bayan
10 days after enactment of ALL
ordinances
30 days after receipt of copies,

after which ordinance is presumed
valid if no action is taken
Ordinance is inconsistent with law

and city or municipal ordinances
In such case, the sangguniang
barangay may adjust, amend or
modify the ordinance within 30
days from receipt from the
sangguniang
panlungsod
or
sangguniang bayan
208
UP
L
AW
BAR REVIEWER
2012
POLITICAL

EXECUTIVE COMMITTEE
COMMITTEE HEADS
OPERATIONS HEADS
LAW
Ronette Colobong
LAYOUT TEAM 2012
Cris Bernardino
Reyes
PUBLIC INTERNATIONAL LAW

Administrative Law
Election Law
Local Governments
POLITICAL LAW
Concepts
International and National Law
Sources
Subjects
Diplomatic and Consular Law
Treaties
Nationality and Statelessness
Treatment of Aliens
International Human Rights Law
International Humanitarian Law
(IHL) and Neutrality
K. Law of the Sea
L. International Environment Law
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
A. Concepts
1. Obligations Erga Omnes
2. Jus Cogens
3. Concept of Aeguo Et Bono
Formal Sources vs. Material Sources
Formal sources consist of the methods and
procedures for the creation of rules of general
application which are legally binding upon States.
Material sources, upon the other hand, are the
substantive evidence of the existence of the norms.
directly offended, but of all states (i.e. outlawing

acts of genocide or aggression).
2. Jus Cogens
Definition
A jus cogens or peremptory norm is a norm which
States cannot derogate or deviate from in their
agreements. It is a mandatory norm and stands on a
higher category than a jus dispositivum norm which
States can set aside or modify by agreement.
Illustrations
The prohibition against the use of force

under the UN Chater [Nicaragua Case]
Law on genocide
Principle of self-determination
Principle of racial non-discrimination
Crimes against humanity
Prohibition against slavery and slave trade
Piracy [Brownlie; Magallona]
3. Concept of Aequo Et Bono

Ex Aequo et Bono the court may apply this
standard of what is equitable and good to decide a
case when the parties to the dispute so agree.
Lex lata vs. Lex ferenda

Lex lata what the law is
Judgment will not be on the basis of the sources of

international law listed in Art. 38(1), ICJ Statute,
but on grounds of fairness and justice. The Court
may have to rely on its understanding of the broader
context of equity and outside the accepted norms of
law under Art. 38(1), ICJ Statute.
Lex ferenda what jurists think the law should be or

will become
This may mean simply that the Court may reach fair
compromise in balancing the interests of the parties.
1. Obligations Erga Omnes
B. International and National Law
Material sources supply the substance of the rule,

while formal sources confer upon it the force of law.
Erga Omnes Norms

International obligations of such character and
importance that:
(1) their violation by any state allows any other
state to invoke the violator's liability,
(2) even if only one state or only a few incurred
direct material damage.
It usually has to do with issues on standing.
Illustrations
Outlawing of acts of aggression and of

genocide
Principles and rules concerning the basic

rights of the human person, including
protection from slavery and racial
discrimination [Barcelona Traction Case]
In the Barcelona Traction Light and Power Co. Case,
the grant of standing to sue because of violations of
an erga omnes obligation is premised on the idea
that the maintenance of some norms are of interest
to the entire world community, their violation being
an injury to the interest, not only of the state
Municipal Law deals with the conduct or status of

individuals, corporations, and other private entities
within states. PIL may be distinguished therefrom in
that it prescribes rules and processes that govern the
relations of states with each other, and the rights of
other entities insofar as they implicate the
community of states (note: whom it governs). (vs.
PIL, Asked 1 time in the Bar)
Relationship between PIL and Municipal

Law
Although distinct, PIL and Municipal are interrelated:
(1) The role of international law within the
national legal order norms or principles of
international law may be incorporated or
transformed into national law and applied
or
enforced
within
the
territorial
jurisdiction of a State as part of the law of
the land.
(a) Incorporation
norms
of
international law are deemed part
of national law
210

(b) Transformation defines the
requisite act which must be
fulfilled before they become part
of national law
(2) The role of national law in the
international legal regulation a State
cannot invoke its own national law to resist
an international claim or excuse itself from
breach of duty under international law
[Polish Nationals in Danzig Case; VICLOT]
Below are the four theoretical views on how they
are related [CARTER AND TRIMBLE]:
Monist View
International and municipal legal systems are
fundamentally part of one legal order. This view
considers international law to be superior, with
municipal law being a mere subset of international
law.
Thus, international norms are applicable within
municipal system seven without some positive act of
the State.
Dualist View
International law and municipal law are separate
systems.
Only those problems affecting international relations
are within the scope of international law.
Thus, before an international norm can have an
effect within a municipal legal system, that norm
must be transformed, or adopted into the municipal
system through a positive act by a State organ.
(Exception: Customary International Law and
General Principles of International Law)
Monist-Naturalist View
PIL is superior to municipal law, and that both
systems are but a part of a higher system of natural
law.
Coordinationist View
International law and municipal law operate in
different spheres, but municipal law is (generally)
obliged to be in conformity with international law.
C. Sources
1.
2.
3.
4.
5.
Treaty as Source of Law

Customary International Law
General Principle of Law
Subsidiary Source: Judicial Decisions
Subsidiary Source: Publicists
Primary Sources
(1) International Conventions, whether general
or particular, establishing rules expressly
recognized by the contracting states
(Treaties);
(2) International Custom, as evidence of a

general custom accepted as law;
(3) General Principles of Law recognized by
civilized nations; [Article 38, ICJ Statute]
Subsidiary Sources
(1) Judicial Decisions; and
(2) Teachings of the most highly qualified
publicists of the various nations (Art. 38,
ICJ Statute).
(a) Treaties,
Customs
and
General
Principles (Primary Sources) create law,
while
court
decisions
publicists
teachings constitute evidence of what
is the law.
(b) With respect to the three primary
sources, the order the enumeration
does not provide a hierarchy in all
cases.
Thus, although treaties are mentioned first, they are
not ipso facto superior to customs and general
principles.
1. Treaty as Source of Law

A 'treaty' means an international agreement
concluded between States in written form and
governed by international law, whether embodied in
a single instrument or in two or more related
instruments and whatever its particular designation"
[Art.2(1), Vienna Convention on the Law of Treaties
(VCLOT)]
Under the VCLOT, the term treaty includes all
agreements between states, regardless of how they
are called. Thus, for purposes of international law,
treaties, executive agreements, exchanges of notes,
etc. are all treaties.
Note, however, that Philippine law makes a
distinction between treaties and executive
agreements.
Although they are equally binding,
only treaties require the concurrence of the Senate
to be effective. [Sec. 21, Art. VII, 1987 Constitution]
Pacta sunt servanda: A state party to a treaty is
bound to comply with the obligations it assumed
under such treaty in good faith. [Art.26, VCLOT]
Pacta tertiis nec nocet nec prosunt: Treaty
Obligation is based on consent. No state may be
bound by a treaty obligation unless it has so
consented. [Art. 34, VCLOT]
As a general rule, treaties do not bind non-parties to
the treaty.
Treaties shall be further discussed on the Chapter
on the Law of Treaties.
2. Customary International Law

Norms of international law are those that result from
a general and consistent practice of states which
211
they follow under a sense of legal obligation. For

custom to exist, it requires the concurrence of 2
elements:
(1) State Practice and
(2) Opinio juris.
Custom may be:
General
binding upon all or most
states or
Particular
binding between
only two or among a few states.
Unlike treaties, customary norms are legally binding

upon states regardless of whether they consent,
subject to the Persistent Objector rule.
In cases it has decided, the ICJ has indeed

recognized the possibility of regional custom
(Asylum Case) and of bilateral custom. [Right of
Passage over Indian Territory Case]
Elements
State Practice
For custom to exist, the customary practice must be
both consistent and general.
(1) Consistency requires substantial uniformity,
and not necessarily complete uniformity in
practice.
(2) Generality likewise does not require
universality.
The absence of protest could be considered evidence
of the binding nature of customary practice.
[Akehurst]
Acts Evidencing State Practice
(1) Diplomatic correspondence
(2) Policy statements
(3) Press releases
(4) Opinions of official legal advisers
(5) Official manuals on legal decisions
(executive
decisions
and
practices;
government comments on drafts by the ILC)
(6) International and national judicial decisions
(7) Recitals in treaties and international
instruments
(8) Practice of international organs [Harris]
UN General Assembly Resolutions are generally just
recommendations. They have no binding effect
under the Charter, save in limited fields like
budgetary concerns. However, such resolutions may
nonetheless be an evidence of state practice that is
relevant in the development of custom.
Opinio juris sive necessitatis

Refers to the belief on the part of States that a
particular practice is required by law, and not
because of courtesy or political expediency. It is the
existence of opinio juris that distinguishes binding
custom from mere usage, from comity, and from
courtesy or protocol.
Opinio juris means that general practice embodied in
a rule must have been done out of a recognition
that it is a legal norm and therefore obligatory.
[North Sea Continental Shelf Case, ICJ Reports,
1969]
Note: It is not a maxim, it is an element required
in order for custom to come into fruition.
Scope
No particular length of time is required for the

formation of customary norms. What becomes
necessary is such length of time as to make manifest
the existence of the two elements of custom.
[Magallona]
Norms or Principles of Customary International
Law as Identified by the Philippine Supreme Court
as forming part of Philippine Law
(1) Rules and principles of land warfare and of
humanitarian law under the Hague
Convention and the Geneva Convention
[Kuroda v. Jalandoni (1949)]
(2) Pacta sunt servanda [La Chemise Lacoste v.
Fernandez (1984)]
(3) Human Rights as defined under the
Universal Declaration of Human Rights
[Reyes v. Bagatsing (1983)]
(4) The principle of restrictive sovereign
immunity [Sanders v. Veridiano (1988)]
(5) The principle in diplomatic law that the
receiving State has the special duty to
protect the premises of the diplomatic
mission of the sending State [Reyes v.
Bagatsing (1983)]
(6) The right of a citizen to return to his own
country [Marcos v. Manglapus (1989)]
(7) The principle that a foreign army allowed
to march through friendly country or to be
stationed in it, by permission of its
government or sovereign, is exempt from
criminal jurisdiction of the place. [Raquiza
v. Bradford (1945)]
(8) The principle that judicial acts not of a
political complexion of a de facto
government established by the military
occupant in an enemy territory, is valid
under international law. [Montebon v.
Director of Prisons (1947)]
(9) The principle that private property seized
and used by the enemy in times of war
under circumstances not constituting valid
requisition does not become enemy
property and its private ownership is
retained, the enemy having acquired only
its temporary use. [Noceda v. Escobar
(1950)]
(10) The principle that a State has the right to
protect itself and its revenues, a right not
limited to its own territory but extending to
the high seas [Asaali v. Commissioner
(1968)]
Principle of Persistent Objector
When a State has continuously objected to a new
customary norm at the time when it is yet in the
212

process of formation, by such persistent objection
the norm will not be applicable as against that
State. [Magallona]
The ten-mile rule [in the delimitation of territorial
waters cross bays] would appear to be inapplicable
as against Norway, inasmuch as she has always
opposed any attempt to apply it to the Norwegian
coast. [Anglo-Norwegian Fisheries Case]
Duality of Norms
It is possible for a norm of international law to exist
both as a customary norm and a conventional norm
(ex. The Prohibition against the Use of Force). Such
norms are said to be of dual character.
Norms of dual character come into being through any
of the following ways:
(1) A treaty provision may simply restate a
customary norm (as is true of many of the
provisions in the VCLOT;
(2) A treaty provision may constitute evidence
of custom;
(3) A treaty provision may crystallize into a
customary norm.
For a treaty provision to crystallize into custom, the
provision must be norm-creating. The treaty must be
law-making, creating legal obligations which are not
dissolved by their fulfillment.
The number of parties, the explicit acceptance of
rules of law, and, in some cases, the declaratory
nature of the provisions produce a strong lawcreating effect at least as great as the general
practice considered sufficient to support a
customary rule. [Brownlie]
The customary norm retains a separate identity even
if its content is identical with that of a treaty norm.
Thus, a state that cannot hold a state responsibility
for a breach of a treaty obligation can still hold the
erring state responsible for the breach of the
identical customary norm. [Nicaragua vs. US Case]
3. General Principles of Law

Refer to those general principles in municipal law
(particularly those of private law) that may be
appropriated to apply to the relations of states.
[Oppenheim]
Unlike custom, it does not require to be supported
by state practice that is consistent and virtually
uniform; it being sufficient that such principle is
found in a number of legal jurisdictions. [Roque]
Illustrations
Principles in Roman Law estoppel, res

judicata, res inter alios acta, prescription.
When Thailand did not object to, and has in
fact benefited from, the Treaty of 1904 for
50 years, it is deemed to have accepted
said treaty. It is thereby precluded from
questioning Annex I thereof, which showed

that the Temple of Preah Vihear was within
Cambodian territory [Temple of Preah
Vihear Case]
Procedural
Rules
the
use
of
circumstantial evidence, hearsay evidence
(press reports).
Press reports can be used to corroborate the

existence of a fact; and, when they demonstrate
matters of public knowledge which have received
extensive press coverage, they can be used to prove
a fact to the satisfaction of the court [Nicaragua vs.
US Case, 62-63]
Circumstantial evidence is admitted as indirect
evidence in all systems of law and its use is
recognized by international decisions. Such
circumstantial evidence, however, must consist of a
series of facts or events that lead to a single
conclusion. [Corfu Channel Case]
Substantive duty to make reparations,

principle of reciprocity, pacta sunt
servanda, separate corporate personality
[Barcelona Traction Case]
The Standard of Full Reparations: Every breach

of an engagement (international obligation) entails
the obligation to make reparation. The amount of
reparation required is that amount which is
necessary to bring the injured party back to the
situation had the wrong not occurred [Chorzow
Factory Case]
Jurisdictional Principles The power of a

tribunal to determine the extent of its own
jurisdiction
(competence
de
la
competence).
Note: International tribunals have not been

consistent in their manner of determining whether a
principle in municipal law constitutes a general
principle. In some instances they have examined
different legal systems; in others, they merely
declared a principle in municipal law as constituting
a general principle of international law.
4. Subsidiary Source: Judicial

Decisions
Preliminary note: International law does not follow
the rule on stare decisis. Art. 59 of the ICJ State
(which Art.38(1)(d) makes reference to) expressly
limits the effect of a decision only to the parties to
the case.
Be that as it may, decisions of international tribunals
exercise considerable influence as impartial and
well-considered statements of the law by (qualified)
jurists made in light of actual problems. Decisions of
international tribunals constitute evidence of the
state of the law. [Brownlie]
213
5. Subsidiary Source: Publicists
A State is a quintessential example of a subject of

international law.
Writings of highly qualified publicists likewise

constitute evidence the state of the law.
By contrast, an Object of International Law is the

person or thing in respect of which rights are held
and obligations are assumed by the subject. It is,
therefore, not directly governed by the rules of
international law. Its rights may be asserted and its
responsibilities imposed indirectly, through the
instrumentality of an intermediate agency (the
subject). For example, individuals are objects in
respect of which human rights obligations are
imposed upon States. When an individuals human
rights is violated by another State, the aggrieved
persons State of nationality may espouse his
claim and invoke the erring states responsibility
(see: Discussion on Diplomatic Protection in Chapter
5, Part V).
The problem, though, is that some publicists may be

expressing not what the law is (lex lata), but what
they think the law should be or will be (lex
ferenda).
Other Sources
(1) Ex Aequo et Bono the court may apply
this standard of what is equitable and
good to decide a case when the parties to
the dispute so agree.
(2) Equity refers to the application of
standards of justice that are not contained
in the letter of existing law. It has often
been applied in cases involving territorial
disputes and maritime delimitations.
(3) Unilateral
Declarations
declarations
made by way of unilateral acts, concerning
legal or factual situations, may have the
effect of creating legal obligations.
Nothing in the nature of a quid pro quo, nor
any subsequent acceptance, nor even any
reaction from other states is required for
such declaration to take effect.
Verily, unilateral declarations bind the
State that makes them.
Eastern Greenland case: The ICJ held that Denmark
not only had a superior claim over the contested
territory, but that Norway was further bound by the
Ihlen Declaration not to oppose Denmarks claim.
The Ihlen Declaration is a statement made by the
Norwegian Foreign Minister, Nils Claus Ihlen, on the
topic of Denmark's sovereignty over Greenland,
which Mr. Ihlen declared verbally to the Danish
Minister that the plans of the Royal [Danish]
Government respecting Danish sovereignty over the
whole of Greenland would be met with no
difficulties on the part of Norway."
Also in the Nuclear Test cases, France declared that
it would cease atmospheric nuclear tests. This
signaled that there had ceased to be a dispute, since
it had bound itself to do what Australia and New
Zealand wanted.
D. Subjects
1. States
2. International Organizations
3. Individuals
Subjects of International Law refer to entities:
(1) capable of possessing international rights
and duties; and
(2) having the capacity to maintain these rights
by
bringing
international
claims
[Reparations for Injuries Advisory Opinion
(1949)]
Notwithstanding this distinction, both subjects and

objects are considered actors in international law.
They are:
1. States
States remain the most important actors in
international law. It possesses objective or erga
omnes personality, not merely by virtue of
recognition on the part of particular states.
Objective
(general)
international
personality exists wherever the rights and
obligations of an entity are conferred by
general international law, e.g. states
Special
(particular)
international
personality exists where an entity is
established by particular States for special
purposes
A state is defined as a group of people, more or less
numerous, permanently living in a definite territory,
under an independent government organized for
political ends and capable of entering into legal
relations with other states [Art. 1, Montevideo
Convention on the Rights and Duties of States
(1933)]
Requisite Elements
a. People
The term people refers to an aggregate of
individuals of both sexes who live together as a
community despite racial or cultural differences.
Although no minimum number is provided, they
should be permanent, and sufficient to maintain and
perpetuate themselves.
b. Territory
State territory is that defined portion of the surface
of the globe which is subjected to the sovereignty of
the State. [Oppenheim]
A state must exercise control over a certain area. It
need not be exactly defined by metes and bounds,
so long as there exists a reasonable certainty of
identifying it. No minimum land area is required.
214
an effective government is not always

strictly necessary (BROWLIE).
Modes of acquiring territorial sovereignty

(1) Occupation of a territory not subject to the
sovereignty of any other state (original); this
refers not to mere discovery but effective
exercise of sovereignty over a territory which is
terra nullius
The requirement of effective government is

not strictly applied when the State, already
long-existing, happens to undergo a period
of civil strife or internal chaos due to
natural disaster or invasion.
Effective occupation means continued display

of authority which involves 2 elements each of
which must be shown to exist: (a) the intention
and will to act as sovereign, and (b) some actual
exercise or display of such authority. [Eastern
Greenland Case]
Animus occupandi must be demonstrated and
evidenced by some administrative or political
acts in relation to the territory in question and
such acts must be under titre de souverain (title
of sovereignty).
To constitute effective occupation, exercise of
sovereignty
must
be
peaceful,
actual,
continuous and sufficient to confer valid title to
sovereignty.
(2) Cession the transfer of territory from one
state to another by treaty (derivative); only
bilateral mode of acquisition
The validity of cession depends on the valid title
of the ceding state; the cessionary state cannot
have more rights than what the ceding state
possessed. [Magallona]
(3) Prescription title is acquired by through
continuous and undisturbed exercise of
sovereignty over a period of time (derivative)
Requisites:
(a) Possession that must be exercised titre
de souverain
(b) Peaceful and uninterrupted
(c) Public
(d) Endure for a certain length of time
[Johnson]
(4) Accession or accretion the natural process of
land formation resulting in the increase of
territory (original)
c. Government
Government is the physical manifestation of a state.
Government must be organized, exercising control
over and capable of maintaining law and order
within its territory.
Note: Under the Rules on Succession of States, even
changes of entire governments do not affect the
identity and personality of the state. Once statehood
is established, neither invasion nor disorder alone
can remove its character as a state. [Brownlie]
i.
Effective Government
Although an effective government is the
best evidence of the existence of a State,
Thus, with the collapse of their

governments, Afghanistan and Somalia were
deemed failed states, but they remained
states.
Further, some states were deemed states
even before their governments were "very
well organized" (ex. Poland, Burundi, and
Rwanda).
ii.
Governments de facto & de jure

A government de jure is a government
from law, that is, one with a color of
legitimacy.
A government de facto is one that governs
without a mandate of law. So long as it is
in place, it may command obedience from
the inhabitants of the occupied area.
The de facto ruler may suspend laws and
enact new ones.
The establishment of a de facto government
does not by itself abolish all laws and
structures established by the deposed
government.
Only laws of political nature affecting
political relations are suspended ipso
facto; laws that enforce public order and
regulate social and commercial life remain
in effect unless they are changed by the de
facto sovereign.
Conversely, the re-establishment of the de
jure government does not void the acts of
the preceding de facto government.
Three kinds of de facto government:
Government de facto in the strict legal

sense is that which usurps either by
force or the will of the majority the
legal government and maintains and
control against it;
Government by paramount force is

that which results from the occupation
of a state or a part thereof by invading
forces in time of war; and
Government
established
as
an
independent
government
by
inhabitants of a country who rise in
insurrection against the parent state.
d. Independence or Sovereignty
(Asked 1 time in the Bar)
215

Refers to the capacity to enter into relations with
other states. A state must be free from outside
control in conducting foreign and internal affairs.
It has, however, been advanced that the fact that a

State may be acting under the direction of another
State is not of concern to international law.
[Salonga]
The practice of states has been to ignoreso far as
the issue of statehood is concernedvarious forms of
political and emotional blackmail and interference
directed against the weaker members of the
community."
Thus, it is sufficient for a State to possess external
appearance of capacity to enter into international
relation. [Brownlie]
Recognition
Act by which a state acknowledges the existence of
another state, government or belligerent community
and indicates willingness to deal with the entity as
such under international law.
As a public act of state, recognition is an optional
and political act and there is no legal duty in this
regard.
Legal functions of recognition
The typical act of recognition has 2 legal functions:
(1) The determination of statehood as a
question of law which may have evidential
effect before a tribunal, and
(2) A condition of the establishment of formal,
optional, and bilateral relations, including
diplomatic relations and the conclusion of
treaties; also described by some jurists as
constitutive
Declaratory View vs. Constitutive View (Asked 1
time in the Bar).
The Declaratory View (Prevailing
recognition
is
a
mere
acknowledgement of an existing
fact, legal personality having
conferred by operation of law.
View) posits that

declaration
or
state of law and
been previously
The Constitutive View (Minority View) posits that

the political act of recognition is a precondition to
the existence of legal rights of a state. In its logical
extreme, this is to say that the very personality of a
state depends on the political decision of other
states. [Brownlie]
Important Doctrines:
Wilson/Tobar Doctrine (Asked 1 time in the

Bar) precludes recognition of government
established by revolution, civil war, coup detat
or other forms of internal violence until freely
elected representatives of the people have
organized a constitutional government [US
President Woodrow Wilson, 1913 and Ecuadorian
FM, 1907]
Stimson Doctrine precludes recognition of any
government established as a result of external

aggression [US Sec. of State Henry Stimson
(1932)]
Estrada Doctrine (Asked 1 time in the Bar)
dealing or not dealing with the government
established through a political upheaval is not a
judgment on the legitimacy of the said
government [Mexican Minister Genaro Estrada
(1930)]
Effects of recognition:
(1) Diplomatic relations
(2) Right to sue in courts of recognizing state
(3) Right to possession of properties of
predecessor in the recognizing state
(4) All acts of the recognized state or
government are validated retroactively,
preventing the recognizing state from
passing upon their legality in its own court.
2. International Organizations
The status and powers of an IO is determined by
agreement and not by general or customary
international law.
IOs are considered subjects of international law if
their legal personality is established by their
constituent instrument (charter).
Further, its constituent rights and duties, or
capacities and immunities, are limited to those set
forth in the treaty creating the international
organization. Thus, legal personality in this context
is a relative concept. [Magallona]
Preconditions for International Personality

(1) It must constitute a permanent association
of states, with lawful objects, equipped
with organs;
(2) There must be a distinction, in terms of
legal powers and purposes, between the
organization [and] its member states; and
(3) It must have legal powers that it may
exercise on the international plane and not
solely within the national systems of one or
more states.
Capacity to Bring a Claim for Reparation

An IO such as the United Nations (UN) must be
deemed to have such powers which, though not
expressly granted in its Charter, are conferred upon
it by necessary implication as being essential to the
performance of its duties.
Thus, though the UN Charter did not expressly clothe
the UN with the capacity to bring an international
claim for reparations, the UN nevertheless possessed
functional personality. [Reparations for Injuries
Advisory Opinion, 147]
IOs are deemed to have powers not expressly
granted in their charters where these unstated
powers are either
216

(1) implicitly bestowed in their charters or
(2) necessary to effect powers expressly
granted.

his physical safety and the preservation of his honor
and reputation.
Upon the principle of exterritoriality, his quarters,
archives, property and means of transportation are
inviolate.
3. Individuals
While States are have traditionally been deemed to
be subject of international law, individuals have
likewise become in some degree subjects of that
law. However, individuals may assume the status of
subjects of international law only on the basis of
agreement by states and in specific context, not in
accordance with general or customary IL.
Illustrations
Art. 187(c), (d) and (e), UNCLOS: The

jurisdiction of the Sea-Bed Disputes
Chamber of the ITLOS extends to disputes
between parties to contracts relating to the
exploitation of the Area. Parties to such
contracts may be natural or juridical
persons.
Claims Settlement Declaration of 1981

between US and Iran: Direct access to the
Iran-US Claims Tribunal is given to
individuals for the settlement of their
claims involving more than $250,000 either
against Iran or the US.
Mixed Claims Tribunals established in the

Treaties of Peace concluded at the end of
WW I: Individuals enjoyed locus standi in
actions against States relating to contracts,
debts, and property adversely affected by
the war.
London Agreement of the International

Military Tribunal at Nuremberg: In crimes
against peace, war crimes and crimes
against humanity, international law imposes
duties and liabilities upon individuals as
well as upon States.
Art. VI of the Convention on the Prevention

and Punishment of the Crime of Genocide:
Parties charged with genocide refers to
individuals whose responsibility is thus
under international law.
(Please refer to the Chapter on Human Rights)
E. Diplomatic and Consular Law

1. Agents of Diplomatic Intercourse
2. Diplomatic Immunities and Privileges
3. Consular Relations
Diplomatic Intercourse, also referred to as the
Right of Legation, is the right of the State to send
and receive diplomatic missions, which enables
States to carry on friendly intercourse.
1. Agents of Diplomatic Intercourse

Head of State
The head of State represents the sovereignty of the
State, and enjoys the right to special protection for
He is immune from criminal and civil jurisdiction,

except when he himself is the plaintiff, and is not
subject to tax or exchange or currency restrictions.
The Foreign Office

The body entrusted with the conduct of actual dayto-day foreign affairs.
It is headed by a Secretary or a Minister who, in
proper cases, may make binding declarations on
behalf of his government. [Legal Status of Eastern
Greenland Case]
The Diplomatic Corps

Refers to the collectivity of all diplomatic envoys
accredited to a State.
It is composed of:
(1) Head of Mission classified into: (a)
Ambassadors or nuncios accredited to
Heads of State, and other heads of mission
of equivalent rank; (b) Envoys, Ministers
and Internuncios accredited to Heads of
State; (c) Charges daffaires accredited to
Ministers of Foreign Affairs.
(2) Diplomatic Staff those engaged in
diplomatic activities and are accorded
diplomatic rank.
(3) Administrative and Technical Staff those
employed in the administrative and
technical service of the mission.
(4) Service Staff those engaged in the
domestic service of the mission [Nachura]
In the Philippines, the President appoints (Sec. 16,
Art.VII, Constitution), sends and instructs the
diplomatic and consular representatives.
Functions and Duties
The main functions of a diplomatic mission are the
following:
(1) Represent the sending State in the receiving
State;
(2) Protect in the receiving State the interests
of the sending State and its nationals,
within the limits allowed by international
law;
(3) Negotiate with the government of the
receiving State;
(4) Ascertain, by all lawful means, the
conditions and developments in the
receiving State and reporting the same to
the sending State;
(5) Promote friendly relations between the
sending State and receiving State, and
developing their economic, cultural and
scientific relations [Art. 3(1), VCDR]
217

(6) If diplomatic relation is severed, entrust the
protection of its nationals to the diplomatic
mission of a third State acceptable to the
receiving State [Art. 45, VCDR]
(7) May protect the interest of a third State by
agreement with the receiving State, if there
is no diplomatic relations between the third
State and the receiving State [Art. 46,
VCDR]
2. Diplomatic Immunities and

Privileges
Theoretical basis of diplomatic privileges and
immunities
(1) Extraterritoriality theory the premises of
the diplomatic mission represent a sort of
extension of the territory of the sending
State
(2) Representational theory the diplomatic
mission personifies the sending State
(3) Functional necessity theory privileges and
immunities are necessary to enable the
diplomatic mission to perform its functions
Personal Inviolability
Personal inviolability consist of 2 aspects:
(1) The duty of the receiving State to refrain
from exercising its sovereign rights, in
particular law enforcement rights against
the diplomat; and
(2) The duty to treat him with due respect and
protect his person, freedom or dignity from
physical interference by other persons.
The receiving State shall treat him with due respect
and take all steps to prevent any attack on his
person, freedom or dignity. [Art. 29, VCDR]
The diplomatic representative shall not be liable to
any form of arrest or detention.
In the Hostage Case, however the ICJ held the
diplomatic envoy, however, may be arrested
temporarily in case of urgent danger, such as when
he commits an act of violence which makes it
necessary to put him under restraint for the purpose
of preventing similar acts [Case Concerning the US
Diplomatic and Consular Staff in Tehran, ICJ
Reports, 1980]
Inviolability of Premises and Archives

Consist of 2 elements:
(1) The duty of the receiving State to refrain
from entering the premises, except with the
consent of the head of the mission; and
(2) The special duty of the receiving state to
protect the premises against any intrusion
or damage and to prevent any disturbance
of the peace of the mission or impairment
of its dignity.

Note: The principle of inviolability continues to
apply even if diplomatic relations are broken off, or
if a mission is permanently or temporarily recalled.
In that case, the receiving state must respect and
protect the premises of the mission, together with
its property and archives. [Art. 45, VCDR]
What does the premises of the mission include?
In the first place, it means the buildings or parts of
the buildings and the land ancillary thereto,
irrespective of ownership, used for the purposes of
the mission including the residence of the head of
the mission.
The mission need not be the owner of the
premises The expression premises of the mission
includes the buildings for the purposes of the
mission, whether they are owned by the Sending
state or by a third party acting for its account or are
leased and are rented. [ILC Yearbook, vol II, p.95,
1958]
The premises occupied by a diplomatic mission,
including the private residence of the diplomatic
agent, are inviolable. [Art. 30, VCDR]
Such premises cannot be entered or searched, and
neither can the goods, records and archives be
detained by local authorities even under lawful
process.
The envoy must consent to such entry, except in
extreme cases of necessity (ex. When there is
imminent danger that a crime of violence is to be
perpetrated in the premises; when the premises are
on fire).
The service of writs, summons, orders or processes
within the premises of mission or residence of the
envoy is prohibited.
Even if a criminal takes refuge within the premises,
the peace officers cannot break into such premises
to apprehend the same.
The fugitive should, however, be surrendered upon
demand by local authorities, except when the right
of asylum exists.
Right of Official Communication

The envoy is entitled to fully
communicate with his government.
and
freely
(1) The receiving state shall permit and protect

free communication on the part of the
mission for all official purposes.
(2) The mission may employ all appropriate
means to send and receive messages by any
of the usual modes of communication or by
diplomatic courier, which shall enjoy
inviolability;
(3) The official correspondence of the mission
is inviolable; and
(4) The diplomatic bag shall not be opened or
detained. [Art. 27, VCDR]
218
Immunity from Local Jurisdiction
Exemption from Taxes and Customs Duties
As to criminal jurisdiction - A diplomatic agent

enjoys immunity from criminal jurisdiction of the
receiving State. [Art. 31, VCDR]
Exemption from taxation has 2 aspects, one,

pertaining to the sending state and another,
pertaining to the diplomatic agent.
He may not be arrested, prosecuted, prosecuted or

punished for any offense he may commit, unless his
immunity is waived.
(1) As to the sending state exemption applies

to premises of the mission whether owned
or leased, with respect to all national,
regional or municipal dues and taxes. [Art
23, VCDR]
This privilege, however, only exempts a diplomatic

agent from local jurisdiction; it does not import
immunity from legal liability.
As to civil and administrative jurisdiction - The
diplomatic agent also enjoys immunity from the civil
and administrative jurisdiction of the receiving
State, even with respect to his private life. [Art. 31,
VCDR]
BUT there are exceptions:
(1) A real action relating to private immovable
property situated in the territory of the
receiving state, unless he holds it in behalf
of the sending state for the purposes of the
mission.
(2) An action relating to succession in which
the diplomatic agent involved as executor,
administrator, heir or legatee as a private
person and not on behalf of the sending
state.
(3) An action relating to any professional or
commercial activity exercised by the
diplomatic agent in the receiving state
outside his official functions. [Art. 31(1),
VCDR]
His properties are not subject to garnishment,
seizure for debt, execution and the like.
The diplomatic agent also cannot be compelled to
testify, not even by deposition, before any judicial
or administrative tribunal in the receiving State
without the consent of his government.
Who are the persons entitled to immunity from
jurisdiction?
(1) diplomatic agent
(2) Members of the family of the diplomatic
agent forming part of his household, who
are not nationals of the receiving State
(3) As to criminal jurisdiction, members of the
administrative and technical staff of the
diplomatic mission, as well as members of
their families forming part of their
respective households, who are not
nationals of or permanent residents in the
receiving state. But as to civil and
administrative jurisdiction, immunity shall
not extend to acts performed outside the
course of their duties; and
(4) Members of the service staff of the
diplomatic mission, who are not nationals of
or permanent residents in the receiving
state, with respect to acts performed in
the course of their duties. [Art. 37, VCDR]
(2) As to Diplomatic agents - are exempt from

all dues and taxes, whether personal or
real, national, regional or municipal. [Art.
34, VCDR]
He is also exempt from all customs duties
of articles for the official use of the
mission and those for the personal use of
the envoy or members of the family
forming part of his household, including
articles intended for his establishment.
Baggage and effects are entitled to free
entry and are usually exempt from
inspection.
Exception to Tax Exemption:
As to sending state: Exemption does NOT include
dues or taxes which represent payment for specific
services rendered. [Art. 23(1), VCDR]
As to diplomatic agents:
(1) Indirect taxes incorporated in the price of
goods purchased or services availed
(2) Dues and taxes on private immovable
property situated in the receiving State
(3) Estate, succession or inheritance taxes
levied by the receiving State
(4) Dues and taxes on private income sourced
within the receiving State
(5) Capital taxes on investments in commercial
ventures in the receiving State
(6) Charges levied for specific services
rendered
(7) Registration, court or record fees, mortgage
dues and stamp duty, with respect to
immovable property. [Art. 34, VCDR}
Who are entitled to exemption from taxation in
addition to the diplomatic agent?
(1) Members of the family of the diplomatic
agent forming part of his household, who
are not nationals of the receiving State
(2) Members of the administrative and
technical staff of the diplomatic mission, as
well as members of their families forming
part of their respective households, who are
not nationals of or permanent residents in
the receiving state.
(3) Members of the service staff of the
diplomatic mission, who are not nationals of
or permanent residents in the receiving
state, with respect to emoluments they
receive by reason of their employment
219

(4) Private servants of members of the mission
if they are not nationals or permanent
residents of the receiving state, with
respect to emoluments they receive by
reason of their employment. [Art. 37,
VCDR]
Duration of Immunities and Privileges
These privileges are enjoyed by the envoy from the
moment he enters the territory of the receiving
State, and shall cease when he leaves the country.
With respect to official acts, immunity shall continue
indefinitely.
Waiver of Immunities
Diplomatic privileges may be waived. Such waiver
may be made only by the government of the sending
State if it concerns the immunities of the head of
the mission. In other cases, the waiver may be made
either by the government or by the chief of the
mission.
3. Consular Relations
Consuls are State agents residing abroad for various
purposes but mainly
(1) in the interest of commerce and navigation,
(2) issuance of visa (permit to visit his
country), and
(3) such other functions as are designed to
protect nationals of the appointing State.
Ranks
Consul General: heads several consular districts, or
one exceptionally large consular district.
Consul: in charge of a small district or town or port.
Vice Consul: assists the consul.

(5) Issuing passports and travel documents to
nationals of the sending state and visas and
travel documents to persons wishing to
travel to the sending state;
(6) Acting as notary, civil registrar and similar
administrative capacities; and
(7) Exercising rights of supervision and
inspection pertaining to the sending state as
flag state and state of registry of aircraft.
Necessary Documents
The following documents are necessary for the
assumption of Consular functions:
(1) Letters Patent(letter de provision) the
letter of appointment or commission which
is transmitted by the sending state to the
Secretary of Foreign Affairs of the country
where the consul is to serve.
(2) Exequatur the authorization given to the
consul by the sovereign of the receiving
State, allowing him to exercise his function
within the territory.
Immunities and Privileges

(1) Freedom of communication;
(a) The receiving state shall permit and
protect freedom of information on the
part of the consular post for all official
purposes;
(b) In
communicating
with
the
government, the diplomatic missions
and other consular posts of the sending
state, the consular post may employ
all appropriate means, including
diplomatic or consular bags and
messages in code or cipher;
(c) The official correspondence of the
consular post shall be inviolable;
(d) The consular bag shall neither be
opened nor detained.
Consular agent: one entrusted with the performance

of certain functions by the consul.
BUT, may the receiving state request that

the consular bag be opened?
Functions
YES, if the authorities have serious reasons

to believe that the bag contains something
other than correspondence, documents or
articles intend exclusively for official
use.
If the request is accepted the bag may be
opened in the presence of the authorized
representative of the sending state.
Consular functions include the following:

(1) Protecting the interests of the sending state
in the territory of the receiving state;
(2) Protecting and assisting the nationals of the
sending state;
(3) Furthering the development of commercial,
economic, cultural and scientific relations
between the sending state and the
receiving state and promoting friendly
relations between them;
(4) Ascertaining by all lawful means the
conditions and developments in the
commercial, economic, and cultural and
scientific life of the receiving state,
reporting thereon to the government of the
sending state, and giving information to
persons interested;
If the request is refused the bag shall be

returned to its place of origin. [Art. 35,
VCCR]
(2) Inviolability of archives;
(a) Inviolability is unconditional. They
shall be inviolable at all times and
wherever they may be. [Art. 33, VCCR]
(3) Inviolability of premises;
220

What is the scope of the inviolability of
consular premises?
(a) Authorities of the receiving state shall
not enter that part of the consular
premises exclusively used for consular
work, except with the consent of the
head of the consular post, his
designee, or the head of the
diplomatic mission; but consent of the
consular head may be assumed in
case of fire or other disaster requiring
prompt protective action;
(b) The receiving state has the special
duty to take all appropriate steps to
protect the consular premises against
intrusion or damage and to prevent
any disturbance of peace of the
consular post or impairment of its
dignity
(c) Consular premises, their furnishings,
the property of the consular post and
its means of transport shall be immune
from any form of requisition for
purposes of national defense or public
utility.
(d) In case of consular premises, their
furnishings, the property of the
consular post and its means of
transport are expropriated for national
defense or public utility, all possible
steps shall be taken to avoid
impending the performance of consular
functions, and prompt, adequate and
effective compensation shall be paid
to the sending state. [Art. 31, VCCR]
Consular premises the buildings or parts
of buildings and the land ancillary thereto,
irrespective of ownership, used exclusively
for the purposes of consular post.
(4) Exemption from local jurisdiction for
offenses committed in the discharge of
official functions, but not for other offense
except for minor infractions;
(5) Exemption from testifying on official
communications or on matters pertaining to
consular functions;
(6) Exemption from taxes, customs duties,
military or jury service.
judicial authority, or in the execution

of a final judicial decision. [Sec. 41,
VCCR]
Are consular officers and employees
entitled
to
immunity
from
the
jurisdiction of administrative and judicial
authorities in the receiving state?
YES, but this immunity shall not apply to a
civil action either:
(a) arising out of a contract by a
consular officer or employee,
which he did not conclude
expressly or impliedly as an agent
of the sending state; or
(b) by a third party for damage arising
from an accident caused by
vehicle, vessel or aircraft in the
receiving state. [Art. 43, VCCR]
F. Treaties
1.
2.
3.
4.
5.
Definition
Requisites for Validity
Treaty-Making Process
Invalid Treaties
Grounds for Termination
1. Definition
A 'treaty' is:
(1) an international agreement
(2) concluded between States
(3) in written form and
(4) governed by international law,
(5) whether embodied in a single instrument or
in two or more related instruments and
(6) whatever
its
particular
designation
[Art.2(1), VCLOT]
Under the VCLOT, the term treaty includes all
agreements between states, regardless of how they
are called. Thus, for purposes of international law,
treaties, executive agreements, exchanges of notes,
etc. are all treaties. Note, however, that Philippine
law makes a distinction between treaties and
executive agreements.
Both are equally binding,
but only treaties require the concurrence of the
Senate to be effective.
Treaty
(7) Personal inviolability of consular officials

Scope of personal inviolability of consular
officials
(a) They are not liable to arrest or
detention pending trial, except in case
of a grave crime and pursuant to a
decision of a competent judicial
authority.
(b) They shall not be committed to prison
nor be subject to any other form of
restriction to personal freedom,
except in the case of grave crime
pursuant to a decision of competent
Subject
Matter
1. Political
Issues
2. Changes in
national
policy
3. Involves
international
agreements
of a
permanent
character
Executive
Agreements
1. Transitory
effectivity
2. Adjusts details
to carry out
wellestablished
national
policies and
traditions
3. Temporary
4. Implements
treaties,
statutes,
221

Treaty
Ratification
Requires
ratification
by
the 2/3 of the
Senate to be
valid
and
effective (Art.
VII, Sec. 21)
Executive
Agreements
policies
Does not require
concurrence
by
Senate
to
be
binding
Expression of Consent to be bound by the

Treaty (Article 11, VCLOT)
Consent to be bound by the terms of a treaty may be
expressed through:
(1) Signature, when the negotiator
authorized to sign the treaty;
2. Requisites for Validity

a. Treaty Making Capacity
Possessed by all states as an attribute of
sovereignty. International organizations also possess
treaty-making capacity, although limited by the
organizations purpose.
b. Competence of the Representative/Organ

Making the Treaty
Generally exercised by the head of state.
Full Powers refers to the authority of a person to
sign a treaty or convention on behalf of a state.
Plenipotentiary - Persons other than the head of
state, head of government or foreign minister must
produce such instrument in order to sign a treaty
binding their government. Such a person is called a
plenipotentiary.
c. Parties Must Freely Give Consent

If consent was given erroneously, or it was induced
by fraud, the treaty shall be voidable.
d. Object and Subject Matter Must be Lawful

e. Ratification in Accordance with the
Constitutional Process of the Parties
Concerned
is
Art. 12(1), VCLOT. Signature alone would be

sufficient to bind the state to the obligations under
the treaty if
(a) the treaty provides that signature shall have
that effect;
(b) it is otherwise established that the negotiating
States agreed that signature should have that
effect; or
(c) if the State can be shown to have had the
intention to be bound by the signature (look at
full powers of its representative)
(2) Ratification, the formal consent to the
treaty given by the Head of State,
sometimes in conjunction with the
legislature; or
Under international law, ratification is
necessary when
(a) the treaty provides for such consent to
be expressed by means of ratification;
(b) it is otherwise established that the
negotiating
States
agreed
that
ratification should be required;
(c) the representative of the State has
signed the treaty subject to ratification
(Art.14(1), VCLOT), that is, when the
intent was to make it subject to
ratification.
(3) Exchange of instruments Constituting the
Treaty
(4) Acceptance
3. The Treaty-Making Process
(5) Approval
Negotiation
State representatives discuss
provisions of the treaty.
It means that the stage where the definitive text of

the treaty is established as the correct and authentic
one.
the
terms
and
Adoption (Article 9, VCLOT)

It means that the form and content have been
settled by the negotiating States. It is preparatory to
the authentication of the text of the treaty and to
its signature.
Authentication of the Text (Article 10,

VCLOT)
(6) Accession - The method by which a State,

under certain conditions, becomes a party
to a treaty of which it is not a signatory and
in the negotiation of which it did not take
part
(7) By any other means agreed by the parties
Doctrine of Transformation
In Philippine Law, treaties have to be transformed in
order to be part of Philippine law.
A treaty is transformed when a treaty is ratified
after it has been concurred in by the Senate [Sec.
21, Art.VII, Constitution]
222

After ratification, a treaty shall be deemed as if
legislated by our Legislature.
La Chemise Lacoste v. Fernandez: Lacoste, a
French corporation, sued local counterfeiters before
Philippine
courts.
When
the
counterfeiters
challenged its legal personality to sue before
Philippine courts, the Court held that the Philippines
has ratified international conventions for the
protection of intellectual property, and it would
frustrate the object of these conventions if Lacoste
is barred from filing its claims directly in Philippine
courts.
Registration with the UN

Philippine Law
In the Philippines, the negotiation of treaties and
their ratification are executive functions, subject to
concurrence of the Senate. Under Sec. 21, Art. VII,
(Treaty Clause) of the Constitution, treaties must
receive the concurrence of the Senate before they
may be effective.
Amendment or Modification of Treaty
GENERAL RULE: Consent of all parties is required.
EXCEPTION: If the treaty itself so allows, two States
may modify a provision only insofar as their
relationship inter se.
Reservations
Definition: A unilateral statement made by a state
upon entering a treaty whereby it purports to
exclude or modify the legal effect of certain
provision/s of the treaty in their application to the
reserving state (Art.19. VCLOT).
Exceptions: A reservation shall not operate to
modify or exclude the provisions of a treaty:
(1) Where the treaty expressly prohibits
reservations in general;
(2) Where the treaty expressly prohibits that
specific reservation being made; or
(3) Where the reservation is incompatible with
treatys object and purpose [Reservation to
the
Genocide
Conventions
Advisory
Opinion]
4. Invalid Treaties
(1) If the treaty violates a jus cogens norm of
international law (void);
(2) If the conclusion of a treaty is procured by
threat or use of force (void);
(3) Error of fact, provided that such fact formed an
essential basis of a states consent to be bound;
(4) If the representative of a state was corrupted to
consent by another negotiating state;
(5) If consent was obtained through fraudulent
conduct of another negotiating state;
(6) If the representative consented in violation of
specific restrictions on authority, provided:
the restriction was notified to the other

negotiating States
prior to the representative expressing such

consent;
(7) If consent was given in violation of provisions of
internal law regarding competence to conclude
treaties that is manifest and of fundamental
importance.
5. Grounds for Termination

(1) Expiration of the term, or withdrawal of a party
in accordance with the treaty;
(2) Extinction of a party to the treaty, when the
treaty rights and obligations would not devolve
upon the successor-state;
(3) Mutual agreement of parties;
(4) Denunciation or desistance by a party;
(5) Supervening impossibility of performance;
(6) Conclusion of a subsequent inconsistent treaty;
(7) Loss of subject matter;
(8) Material breach or violation of treaty
(9) Fundamental Change of Circumstance (Rebus
sic stantibus) [Art.62, VCLOT]
A contracting state may unilaterally withdraw
from a treaty when a vital or fundamental
change of circumstance occurs such that the
foundation upon which its consent to be bound
initially rested has disappeared.
Requisites:
(a) Change is so substantial that the foundation
of the treaty has altogether disappeared
(b) Change was unforeseen or unforeseeable at
the time of the treatys perfection
(c) Change was not caused by the party
invoking the doctrine
(d) Doctrine was invoked within a reasonable
time
(e) Treatys duration is indefinite
(f) Doctrine cannot operate retroactively (it
must not adversely affect provisions which
have already been complied with prior to
the vital change)
(10) Outbreak of war between the parties, unless
the treaty relates to the conduct of war (ex.
The Four Geneva Conventions).
(11) Severance of diplomatic relations (if such
relationship is indispensable for the treatys
application).
(12) Jus Cogens Application: Emergence of a new
peremptory norm of general international law
which renders void any existing, conflicting
treaty.
G. Nationality and Statelessness

1. Nationality
2. Statelessness
1. Nationality
Definition (Cruz): The tie that binds an individual to
his state, from which he can claim protection and
whose laws he is obliged to obey.
223

Membership in a political community with all its
concomitant rights and obligations.
Why important in international law: An individual
ordinarily can participate in international relations
only through the instrumentality of the state to
which he belongs, as when his government asserts a
claim on his behalf for injuries suffered by him in a
foreign jurisdiction. This remedy would not be
available to a stateless individual.
Acquisition
By birth
(1) Jus soli nationality of the state where he
is born
(2) Jus sanguinis nationality of his parents
By naturalization a process by which a foreigner
acquires, voluntarily or by operation of law, the
nationality of another state
2 Types of Naturalization
(1) Direct
by individual proceedings, usually

judicial, under general naturalization
laws
by special act of legislature
by collective change of nationality as a

result of cession or subrogation
(naturalization en masse)
by adoption (in some cases)

(2) Derivative usually subject to stringent
restrictions and conditions
on the wife of the naturalized husband
on the minor children of the

naturalized parent
on the alien woman upon marriage to a

national
An alien woman married to a Filipino shall acquire
his citizenship only if she herself might be lawfully
naturalized. [Yao vs. Commissioner of Immigration]
Multiple Nationality acquired as the result of the
concurrent application to an individual of the
conflicting municipal laws of two or more states
claiming him as their national
Illustrations
A child born in the United States of Filipino

parents would be an American national
under jus soli and a Filipino national under
jus sanguinis
A woman marrying a foreigner may retain

her own nationality under the laws of her
state while also acquiring the nationality of
her husband under the laws of his state
Doctrine of indelible allegiance - an

individual may be compelled to retain his
original nationality notwithstanding that he
has already renounced or forfeited it under
the laws of a second state whose nationality
he has acquired
A state conferring honorary citizenship upon

an individual
Hague Convention of 1930 on Conflict of

Nationality Laws: Any question as to whether a
person possesses the nationality of a particular state
shall be determined in accordance with the law of
that state. These laws shall be recognized by other
states so long as they are consistent with
international conventions, international customs and
the principles of law generally recognized with
regard to nationality.
Principle of effective nationality within a third
state, a person having more than one nationality
shall be treated as if he had only one. The third
state shall recognize conclusively in its territory
either the nationality of the country in which he is
habitually and principally present or the nationality
of the country with which he appears to be in fact
most closely connected.
The courts of third States...seek to resolve the
conflict by having recourse to international criteria
and their prevailing tendency is to prefer the real
and effective nationality. [Nottebohm Case,
Leichtenstein vs. Guatemala]
Loss of Nationality
Voluntary
(1) Renunciation (express or implied)
(2) Request for release
Involuntary
(1) Forfeiture
as
a
result
of
some
disqualification or prohibited act
(2) Substitution of one nationality for another
2. Statelessness
Definition (Cruz): The condition or status of an
individual who is born without any nationality or who
loses his nationality without retaining or acquiring
another.
Covenant Relating to the Status of Stateless
Persons: A stateless person is entitled to, among
others, the right to religion and religious instruction,
access to courts, elementary education, public relief
and assistance and rationing of products in short
supply, as well as treatment of no less favourable
than that accorded to aliens.
H. Treatment of Aliens
1. Extradition
GENERAL RULE: An alien cannot claim a preferred
position vis-a-vis the national of the state.
International standard of justice the standard of
the reasonable state and calls for compliance with
the ordinary norms of official conduct observed in
civilized jurisdictions
224
Doctrine of State Responsibility: A state may be

held responsible for
(1) an international delinquency
(2) directly or indirectly imputable to it
(3) which causes injury to the national of
another state
Any person extradited, whether he be a national of

the requesting state, of the state of refuge or of
another state.
Liability 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.
In the absence of special agreement, the offense

must have been committed within the territory or
against the interests of the demanding state.
Conditions for the enforcement of the doctrine of

state responsibility:
(1) Exhaustion of local administrative remedies
(2) Must be represented in the international
claim for damages by his own state
Calvo clause a stipulation by virtue of which an
alien waives or restricts his right to appeal to his
own state in connection with any claim arising from
a contract with a foreign state and limits himself to
the remedies available under the laws of that state
The propriety of governmental acts should be put to
the test of international standards. The treatment of
an alien, in order to constitute an international
delinquency, should amount to an outrage, to bad
faith, to willful neglect of duty, or to an
insufficiency of governmental action so far short of
international standards that every reasonable and
impartial man would readily recognize its
insufficiency. [Neer Claim (1926)]
1. Extradition
Definition (Cruz): The surrender of a person by one
state to another state where he is wanted for
prosecution or, if already convicted, for punishment.
PD 1086: The removal of an accused from the
Philippines with the object of placing him at the
disposal of foreign authorities to enable the
requesting state or government to hold him in
connection with any criminal investigation directed
against him in connection with any criminal
investigation directed against him or the execution
of a penalty imposed on him under the penal or
criminal law of the requesting state or government.
Basis: Treaty between the state of refuge and the
state of origin.
Fundamental Principles
Extradition is based on the consent of the state of
the state of asylum as expressed in a treaty or
manifested as an act of goodwill.
Principle of speciality a fugitive who is extradited
may be tried only for the crime specified in the
request for extradition and included in the list of
offenses in the extradition.
Political and religious offenders are generally not

subject to extradition.
Rule of double criminality: The act for which the

extradition is sought must be punishable in both the
requesting and requested states.
Procedure
If the surrender of a fugitive is sought, a request for
his extradition is presented through diplomatic
channels to the state of refuge, with the necessary
papers for identification.
Upon a receipt of the request, the state of refuge
will conduct a judicial investigation to ascertain if
the crime is covered by the extradition treaty and if
there is a prima facie case against the fugitive
according to its own laws.
If there is, a warrant of surrender will be drawn and
the fugitive will be delivered to the state of origin.
The evaluation process partakes of the nature of a
criminal investigation, having consequences which
will result in deprivation of liberty of the
prospective extradite. A favorable action in an
extradition request exposes a person to eventual
extradition to a foreign country, thus exhibiting the
penal
aspect
of
the
process.
The evaluation process itself is like a preliminary
investigation since both procedures may have the
same result the arrest and imprisonment of the
respondent. The basic rights of notice and hearing
are applicable in criminal, civil and administrative
proceedings. Non-observance of these rights will
invalidate the proceedings. Individuals are entitled
to be notified of any pending case affecting their
interests, and upon notice, may claim the right to
appear therein and present their side. [Secretary of
Justice vs. Lantion]
Distinguished from Deportation

Deportation is the expulsion of an alien who is
considered undesirable by the local state, usually
but not necessarily to his own state. It is usually a
unilateral act of the local state and is made in its
own interests.
I. International Human Rights Law

1. Universal Declaration of Human Rights
2. International Covenant on Civil and Political
Rights (ICCPR)
3. International Covenant on Economic, Social
and Cultural Rights (ICESCR)
225
binding as part of international law (Juan Carillo

Salcedo, Human Rights, Universal Declaration).
Definition of Human Rights

Human rights are those fundamental and inalienable
rights which are essential for life as a human being.
They pertain to rights of an individual as a human
being which are recognized by the international
community as a whole through their protection and
promotion under contemporary international law.
Classification of Human Rights

First generation consists of civil and political
rights;
Second generation consists of economic, social
and cultural rights;
Third generation refers to right to development,
right to peace, and right to environment.
Obligatory
Force under
International
Law
Derogation/
Restriction,
when allowed
First
generation
strictly (or
objectively)
obligatory,
whatever the
economic or
other
conditions of
the states
obligated
may only be
derogated in a
public
emergency
Second
generation
relatively
obligatory: States
are required to
progressively
achieve the full
realization
of
these rights to
the maximum of
their
available
resources
may be restricted
for the general
welfare, with or
without
an
emergency that
threatens
the
independence or
security of a State
Party.
1. Universal Declaration of Human

Rights
The UDHR is the first comprehensive catalogue of
human rights proclaimed by an international
organization.
It must be noted, however, that the UDHR is not a
treaty.
It has no obligatory character because it was
adopted by the UN GA as Resolution 217A (III). As a
resolution, it is merely recommendatory.
Despite this, the UNDHR is considered a normative
instrument that creates binding obligations for all
States because of the consensus evidenced by the
practice of States that the Declaration is now
The UDHR embodies both first and second generation

rights. The civil and political rights enumerated
include:
(1) The right to life, liberty, privacy and
security of person;
(2) Prohibition against slavery;
(3) The right not to be subjected to arbitrary
arrest, detention or exile;
(4) The right to fair trial and presumption of
innocence;
(5) The right to a nationality;
(6) The right to freedom of thought, conscience
and religion;
(7) The right to freedom of opinion and
expression;
(8) Right to peaceful assembly and association;
(9) The right to take part in the government of
his country.
Economic, social and cultural rights enumerated in
the UDHR include:
(1) The right to social security;
(2) The right to work and protection against
unemployment;
(3) The right to equal pay for equal work;
(4) The right to form and join trade unions;
(5) The right to rest and leisure.
2. International Covenant on Civil and

Political Rights (ICCPR)
The ICCPR is an international covenant and is binding
on the respective State Parties.
It embodies the first generation of human rights,
although it lists more rights than the UDHR:
(1) The right to own property;
(2) The right to seek in other countries asylum
from prosecution;
(3) The right of members of ethnic, religious or
linguistic groups not to be denied to enjoy
their own culture, to profess and practice
their own religion, or to use their own
language;
(4) The right to compensation in case of
unlawful arrest;
(5) The right to legal assistance in criminal
prosecution;
(6) The right against self-incrimination;
(7) Protection against double jeopardy;
(8) Right to review by higher tribunal in case of
criminal conviction;
(9) Right of every child to nationality;
(10) Right to protection of a child as required by
his status as a minor;
(11) Right of persons below 18 years old not to
be sentenced to death for crimes;
(12) Right against the carrying out of death
sentence on the part of a pregnant woman.
Obligations of State Parties
226

(1) Under the ICCPR, State Parties undertake to
respect and to ensure to all individuals
within their territory the rights enumerated
therein, without distinction of any kind,
such as race, color, sec, language, religion,
political or other opinion, national or social
origin, birth or other status.
(2) State Parties are required to take the
necessary steps to adopt legislative or other
measures that are necessary to give effect
to the rights recognized in the ICCPR.
(3) State Parties must ensure that any person
whose rights or freedoms are violate have
an effective remedy, notwithstanding that
the violation has been committed by
persons action in an official capacity.
(4) State Parties must ensure that any person
claiming such remedy shall have his right
thereto determined by competent judicial,
administrative or legislative authority, and
that they shall enforce the remedy when
granted.
3. International Covenant on
Economic, Social and Cultural Rights
(ICESCR)
The ICESCR, like the ICCPR, is an international
covenant and is binding on the respective State
Parties.
It embodies the second generation of human rights,
although it lists more rights than the UDHR:
(1) Right to health;
(2) Right to strike;
(3) Right to be free from hunger;
(4) Rights to enjoy the benefits of scientific
progress;
(5) Freedom for scientific research and
creativity.
Obligations of State Parties
State Parties are required to undertake the
necessary steps to the maximum of its available
resources, with a view to achieving progressively the
full realization of the rights enumerated in the
covenant by all appropriate means.
Note unlike the ICCPR, the states under the ICESCR
merely agree to take steps to the maximum of its
available resources.
Common Provisions in the ICCPR and the ICESCR
and differences
The common provisions of the two Covenants deal
with collective rights, namely:
(1) The right of self-determination of peoples;
(2) the right of peoples to freely dispose of
their natural wealth and resources;
(3) the right not of peoples not to be deprived
of their own means of subsistence
Note these rights are not covered by the UDHR.
J. International Humanitarian Law
(IHL) and Neutrality

1.
2.
3.
4.
Categories of Armed Conflicts

Core International Obligations of States in IHL
Principles of IHL
Law on Neutrality
IHL is the branch of public international law which

governs armed conflicts to the end that the use of
violence is limited and that human suffering is
mitigated or reduced by regulating or limiting the
means of military operations and by protecting those
who do not or no longer participate in the hostilities.
IHL has Two Branches: (1) Law of The Hague, which
establishes the rights and obligations of belligerents
in the conduct of military operations, and limits the
means of harming the enemy; and the (2) Law of
Geneva, which is designed to safeguard military
personnel who are no longer taking par in the
fighting and people not actively engaged in
hostilities
(i.e.
civilians)
(INTERNATIONAL
COMMITTEE OF THE RED CROSS [ICRC]).
Note: The two branches draw their names from the
cities where each was initially codified. With the
adoption of the Additional Protocols of 1977, which
combine both branches, that distinction is now of
merely historical and instructive value (ICRC).
1. Categories of Armed Conflicts

International Armed Conflicts
Definition of Armed Conflict
An Armed Conflict exists when there is resort to the
use of force
(1) between two states (international armed
conflict), or
(2) between government authorities and an
organized armed group, or
(3) between such groups within the same
territory (non-international armed conflict)
[Prosecutor vs. Tadic]
Note: Wars of National Liberation have been
classified as international armed conflicts (ICRC)
Mere internal disturbances and tensions, or riots or
isolated or sporadic acts of armed violence does not
amount to an armed conflict (Tadic)
Note: Cases of this type are governed by the
provisions of human rights law and the relevant
domestic laws.
Internal or Non-International Armed Conflict

Conventions is the only provision applicable to noninternational armed conflicts.
It defines the following obligations:
(1) Persons taking no active part in the
hostilities, including
(a) members of the armed forces who have
laid down their arms and
227

(b) those placed hors de combat, shall in
all instances be treated humanely
without
any
adverse
distinction
founded on race, color, religion or
faith, sex, birth or wealth, or any other
similar criteria.
(2) With respect to the persons mentioned
above, the following acts shall remain
prohibited:
(a) Violence to life and person, in
particular, murder of all kinds,
mutilation,
cruel
treatment
and
torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in
particular humiliating and degrading
treatment;
(d) The passing of sentences and the
carrying out of executions without
previous judgment pronounced by a
regularly constituted court, affording
all the judicial guarantees which are
recognized as indispensable by civilized
peoples.
(3) The wounded and the sick shall be collected
and cared for.
The application of provisions above does not affect
the legal status of the parties to the conflict. Hence,
an insurgent or a rebel group does not assume
belligerency status.
Article 3 is indifferent to the legal character of such
group.
It must be noted that Article 3 is to be applied as a
minimum.
Common Article 3 and Protocol II

Protocol II develops and supplements common
Article 3 (Art. 1, Protocol II).
It applies to:
(1) all armed conflicts which take place in the
territory of a State Party,
(2) between its armed forces and dissident
armed forces or other organized groups
(3) which,
under
responsible
command,
exercise such control over a part of its
territory
(4) as to enable to carry out sustained and
concerted military operations and to
implement the Protocol.
Application of Article 3 and Protocol II
The rules in Article 3 are recognized as customary
norms of international law, and therefore applicable
to all States. However, Protocol II is a treaty and
binding only States that are parties to it.
Its rules, however, may still develop into customary
norms binding on all states, by the general practice
of states coupled with their acceptance of them as
law (opinio juris).
Control-of-Territory
The test of whether a dissident armed force has
control of territory is when such armed force can (1)
carry out sustained and concerted military
operations, and whether it has (2) the capacity to
comply with the provisions of the Protocol.
In a non-international armed conflict where the
dissident armed forces do not exercise such control
over territory, Article 3, and not Protocol II may be
applicable. The result is that this situation may give
rise to two categories of non-international armed
conflicts: one where only Article 3 applies, and the
other where both Article 3 and Protocol II apply.
War of National Liberation

An armed conflict may be of such nature in which
peoples are fighting against colonial domination and
alien occupation and against racist regimes in the
exercise of their right to self-determination.
This
conflict,
however,
is
considered
an
international armed conflict under Art. 1, par. 3 and
4 of Protocol I.
Article 2 common to the four Geneva conventions
provides that all cases of declared war or any other
armed conflict which may arise between two or
more of the High Contracting Parties, even if the
state of war is not recognized by one of them.
Hence, the Geneva conventions and Protocol I
govern wars of national liberation.
Wars by peoples against racist, colonial and alien
domination "for the implementation of their right to
self-determination and independence is legitimate
and in full accord with principles of international
law," and that any attempt to suppress such struggle
is unlawful (Resolution 3103 [XXVIII]).
When peoples subjected to alien domination resort
to forcible action in order to exercise their right to
self-determination, they "are entitled to seek and to
receive support in accordance with the purposes and
principles of the Charter (1970 Resolution 2625
[XXV])
2. Core International Obligations of

States in IHL
3. Principles of IHL
Definition of Concepts and Phrases
Combatants
Combatants are members of the armed forces of a
Party to a conflict. [Art. 3(2), Protocol 1]
They have the right to participate directly and
indirectly in hostilities. [Art 43(2) Protocol 1]
228

In fact, only combatants are allowed to engage in
hostilities.
According to one commentator, a combatant is
allowed to use force, even to kill, and will not be
held personally responsible for his acts, as he would
be where he to the same as a normal citizen
[Gasser]
Hors de combat
Under Art. 41(2) of Protocol I, a person is hors de
combat if he:
(1) Is in the power of an adverse party to the
conflict;
(2) He clearly expresses an intention to
surrender; or
(3) He has been rendered unconscious or is
otherwise incapacitated by wounds or
sickness, and is therefore incapable of
defending himself, provided that in any of
these cases, he abstains from any hostile
act and does not attempt to escape.
Persons hors de combat shall be protected and
treated humanely without any adverse distinction.
Their right to life and physical and moral integrity
shall be respected
Protected Persons
Protected persons are those who enjoy or are
entitled to protection under the Geneva
Conventions.
Categories of protected persons include:
(1) The wounded, the sick, and shipwrecked;
(2) Prisoners of War
(3) Civilians
For purposes of protection, civilians are further
classified as:
(1) Civilians who are victims of conflict in
countries involved
(2) Civilians in territories of the enemy;
(3) Civilians in occupied territories;
(4) Civilians internees
Treatment of Civilians
Fundamental Principles of IHL
(1) Parties to an armed conflict, together with
their armed forces, do not have unlimited
choice of methods or means of warfare.
They are prohibited from employing
weapons or means of warfare that cause
unnecessary damage or excessive suffering.
(2) Parties to an armed conflict shall, at all
times,
distinguish
between
civilian
population and the combatants (Principle of
Distinction). Civilians shall be spared from
military attacks which shall be directed only
against military objectives.

(3) Persons hors de combat are those who have
been injured in the course of hostile battle
action and are no longer able to directly
take part in hostilities. They shall be
protected and treated humanely without
any adverse distinction. Their right to life
and physical and moral integrity shall be
respected.
(4) It is prohibited to kill or injure an enemy
who is hors de combat or who surrenders.
(5) The wounded and the sick shall be
protected and cared for by the party to the
conflict which has them in its power.
Protection shall also apply to medical
personnel, establishments, transports and
material.
(6) Combatants and civilian who are captured
by authority of the party to a dispute are
entitled to respect for their right to life,
dignity, conviction, and other personal
rights. They shall be protected against acts
of violence or reprisals. (Legality of the
Threat or Use of Nuclear Weapons, Advisory
Opinion by the ICJ)
Prisoners of War
Article 4, Geneva Convention: Prisoners of war are
persons belonging to one of the following categories:
(1) Members of the armed forces of a Party to
the conflict, including militias or volunteer
corps
(2) Militias or volunteer corps operating in or
outside their own territory, even if such
territory is occupied provided:
(a) They are being commanded by a person
responsible for his subordinates
(b) Have
a
fixed
distinctive
sign
recognizable at a distance
(c) Carries arms openly
(d) Conducts
their
operations
in
accordance with the laws and customs
of war
(3) Members of regular armed forces who
profess allegiance to a government or
authority not recognized by the Detaining
Power
(4) Civilians who accompany the armed forces,
provided
that
they
have
received
authorization from the armed forces which
they accompany
(5) Members of crews of merchant marine and
the crews of civil aircraft of the Parties to
the conflict
(6) Inhabitants of a non-occupied territory who
on
the
approach
of
the
enemy
spontaneously take up arms to resist the
invading forces, without having had time to
form themselves into regular armed units,
provided they carry arms openly and
respect the laws and customs of war
(7) Persons belonging to the armed forces of
the occupied territory
229
4. Law on Neutrality
Neutrality is the legal status of a State in times of
war, by which it adopts impartiality in relation to
the belligerents with their recognition.
The Hague Convention Respecting the Rights and
Duties of Neutral Powers (Oct. 18, 1907) governs the
status of neutrality by the following rules:
(1) The territory of the neutral Power is
inviolable;
(2) Belligerents are forbidden to move troops
or munitions of war and supplies across the
territory of a neutral Power;
(3) A neutral power is forbidden to allow
belligerents to use its territory for moving
troops,
establishing
communication
facilities, or forming corps of combatants.
(4) Troops of belligerent armies received by a
neutral Power in its territory shall be
interned by away from the theatre of war;
(5) The neutral Power may supply them with
food, clothing or relief required by
humanity;
(6) If the neutral Power receives escaped
prisoners of war, it shall leave them at
liberty. It may assign them a place of
residence if it allows them to remain in its
territory;
(7) The neutral power may authorize the
passage into its territory of the sick and
wounded if the means of transport bringing
them does not carry personnel or materials
of war
The Third Geneva Convention (Prisoners of War)
allows neutral Powers to cooperate with the parties
to the armed conflict in making arrangements for
the accommodation in the formers territory of the
sick and wounded prisoners of war.
Interned persons among the civilian population, in
particular the children, the pregnant women, the
mothers with infants and young children, wounded
and sick, may be accommodated in a neutral state in
the course of hostilities, by agreement between the
parties to the conflict.
Protecting Power
A protecting power is a State or an organization
not taking part in the hostilities,
which may be a neutral state,
designated by one party to an armed

conflict with the consent of the other
to safeguard or protect its humanitarian

interests in the conflict, the performance
of which IHL defines specific rights and
duties.
K. Law of the Sea

1.
2.
3.
4.
Baselines
Archipelagic States
Internal Waters
Territorial Sea
5. Exclusive Economic Zone

6. Continental Shelf
7. Tribunal of the Law of the Sea
The Law of the Sea (LOS) is the body of treaty rules
and customary norms governing the use of the sea,
the exploitation of its resources, and the exercise of
jurisdiction over maritime regimes. [Magallona]
It is the branch of PIL which regulates the relations
of states with respect to the use of the oceans.
1. Baselines
Definition
The line from which a breadth of the territorial sea
and other maritime zones, such as the contiguous
zone and the exclusive economic zone is
measured.
Its purpose is to determine the starting point to
begin measuring maritime zones boundary of the
coastal state. (See Appendix 1)
Normal baseline the territorial sea is the lowwater line along the coast as marked on large-scale
charts officially recognized by the coastal state.
[Art. 5, UN Convention on the Law of the Sea, or
UNCLOS]
Straight baseline where the coastline is deeply
indented or cut into, or if there is a fringe of islands
along the coast in its immediate vicinity, the method
of straight lines joining the appropriate points may
be employed in drawing the baseline from which the
breadth of the territorial sea is measured [Art. 7,
UNCLOS]
2. Archipelagic States
Definition
It is a state made up of wholly one or more
archipelagos. It may include other islands.
An archipelago is a group of islands, including parts
of islands, interconnecting waters and other natural
features which are so closely related that such
islands, waters and natural features form an intrinsic
geographical, economic and political entity, or
which historically have been regarded as such.
Straight Archipelagic Baselines

Baselines of archipelagic states
Straight baselines join the outermost points of the
outermost islands and drying reefs of an archipelago,
provided that within such baselines are included the
main islands and an area in which the ratio of the
water to the area of the land, including atolls, is
between 1 to 1 and 9 to 1. Such are called straight
archipelagic baselines.
Two Kinds of Archipelagos
230

1.
2.
Coastal situated close to a mainland and may

be considered part thereof, i.e. Norway
Mid-ocean situated in the ocean at such
distance from the coasts of firm land, i.e.
Indonesia (note: The Archipelagic State
provisions apply only to mid-ocean archipelagos
composed of islands, and NOT to a partly
continental state.)
Territorial sea and other maritime zones the

breadth of the territorial sea, the contiguous zone,
and the EEZ is measured from the straight
archipelagic baselines.
Archipelagic Waters
Archipelagic waters these are the waters enclosed
by the straight archipelagic baselines, regardless of
their depth or distance from the coast.
It is subject to the sovereignty of the archipelagic
state, but subject to the right of innocent passage
for the ships of all states.
Archipelagic Sea Lanes Passage

Other Rights with Respect to Archipelagic Waters
(1) Rights under existing agreement on the
part of third states should be respected by
the archipelagic state.
(2) Within its archipelagic waters, the
archipelagic
state
shall
recognize
traditional fishing rights and other
legitimate
activities
of
immediately
adjacent neighboring states.
(3) The archipelagic state shall respect existing
submarine cables laid by other states and
passing through its waters without making
a landfall.
(4) Right of archipelagic sea lanes passage: It
is the right of foreign ships and aircraft to
have
continuous,
expeditious,
and
unobstructed passage in sea lanes and air
routes through or over archipelagic waters
and the adjacent territorial sea of the
archipelagic state.
Note: the archipelagic state designates the sea lanes
as proposals to the competent international
organization. It is the International Marine
Organization (IMO) which adopts them through Art.
53(9) of the UNCLOS which states that the
Organization may adopt only sea lanes and traffic
separation schemes as may be agreed with the
archipelagic state, after which such state may
designate, prescribe or substitute them.
Special Issue: Under Art. 1 of the 1987 Constitution,
the archipelagic waters of the Philippines are
characterized as forming part of the internal waters
of the Philippines. However, under the UNCLOS,
archipelagic waters consist mainly of the waters
around, between, and connecting the islands of the
archipelago, regardless of breadth or dimension.
Thus, conversion from internal waters under the

Constitution into archipelagic waters under the
UNCLOS gravely derogates the sovereignty of the
Philippine state. Remember that sovereignty over
internal waters precludes the right of innocent
passage and other rights pertaining to archipelagic
waters under the UNCLOS.
3. Internal Waters
Definition
These are waters of lakes, rivers, and bays landward
of the baseline of the territorial sea.
However, in case of archipelagic states, waters
landward of the baseline other than those rivers,
bays and lakes, are archipelagic waters.
Internal waters are treated as part of a State's land
territory, and is subject to the full exercise of
sovereignty. Thus, the coastal state may designate
which waters to open and which to close to foreign
shipping.
4. Territorial Sea
Definition
These waters stretch up to 12 miles from the
baseline on the seaward direction.
They are subject to the jurisdiction of the coastal
state, which jurisdiction almost approximates that
which is exercised over land territory.
Except that the coastal state must respect the rights
to (1) innocent passage and, in the case of certain
straits, to (2) transit passage. (Asked 1 time in the
Bar)
Innocent passage navigation through the
territorial sea w/o entering internal waters, going to
internal waters, or coming from internal waters and
making for the high seas.
It must (a) involve only acts that are required by
navigation or by distress, and (b) not prejudice the
peace, security, or good order of the coastal state.
Transit passage the right to exercise freedom of
navigation and overflight solely for the purpose of
continuous and expeditious transit through the
straights used for international navigation.
The right cannot be unilaterally suspended by the
coastal state.
INNOCENT PASSAGE
Pertains to navigation of
ships only
Requires submarines and
other
underwater
vehicles to navigate on
the surface and show
TRANSIT PASSAGE
Includes the right of
overflight
Submarines are allowed
to navigate in normal
mode i.e. submerged
231

INNOCENT PASSAGE
their flag.
Can be suspended, but
under the condition that
it does not discriminate
among foreign ships, and
such
suspension
is
essential
for
the
protection
of
its
security, and suspension
is effective only after
having
been
duly
published
(Art.
25,
UNCLOS)
In the designation of sea
lanes
and
traffic
separation schemes, the
coastal state shall only
take into account the
recommendations of the
competent international
organization.
TRANSIT PASSAGE
Cannot be suspended

right to participate, on equitable basis, in the
exploitation of the surplus of the living resources in
the EEZ of coastal states of the same subregion or
region.
Note: a coastal state whose economy is
overwhelmingly dependent on the exploitation of its
EEZ is not required to share its resources.
Designation of sea lanes

and traffic separation
schemes is subject to
adoption by competent
international
organization upon the
proposal and agreement
of states bordering the
straits.
5. Exclusive Economic Zone

A coastal state may establish an EEZ that may
stretch up to 200 miles from its baselines.
Within this zone, a State may regulate nonliving and
living resources, other economic resources, artificial
installations, scientific research, and pollution
control.
Under the UNCLOS, states have the sovereign right
to exploit the resources of this zone, but shall share
that part of the catch that is beyond its capacity to
harvest.
Resources covered by sovereign rights of coastal
states in the EEZ include living and non-living
resources in the waters of the seabed and its subsoil.
Coastal states have the primary responsibility to
utilize, manage and conserve the living resources
within their EEZ, i.e. ensuring that living resources
are not endangered by overexploitation, and the
duty to promote optimum utilization of living
resources by determining allowable catch.
If after determining the maximum allowable catch,
the coastal state does not have the capacity to
harvest the entire catch, it shall give other states
access to the surplus by means of arrangements
allowable under the UNCLOS.
Note however that the UNLCOS does not specify the
method for determining allowable catch. Hence,
states may establish illusory levels.
Geographically disadvantaged states (those who
have no EEZ of their own or those coastal states
whose geographical situations make them dependent
on the exploitation of the living resources of the EEZ
of other states) and land-locked states have the
The coastal state has jurisdiction over the

(1) establishment and use of artificial islands,
installations and structures,
(2) scientific research,
(3) the preservation and protection of marine
environment.
Under Art. 58 of the UNCLOS, all states enjoy the
freedom of navigation, overflight, and laying of
submarine cables and pipelines in the EEZ of coastal
states.
The coastal state has the right to enforce all laws
and regulations enacted to conserve and manage
the living resources in its EEZ. It may board and
inspect a ship, arrest a ship and its crew and
institute judicial proceedings against them.
Note: In detention of foreign vessels, the coastal
state has the duty to promptly notify the flag state
of the action taken.
Conflicts regarding the attribution of rights and
jurisdiction in the EEZ must be resolved on the basis
of equity and in the light of all relevant
circumstances, taking into account the respective
importance of the interests involved to the parties
as well as to the international community as a
whole. [Art. 59, UNCLOS]
6. Continental Shelf
Extended Continental Shelf
Definition
It is the seabed and subsoil of the submarine areas
extending beyond the territorial sea of the coastal
state throughout the natural prolongation of its
lands territory up to
(1) the outer edge of the continental margin,
or
(2) a distance of 200 nautical miles from the
baselines of the territorial sea where the
outer edge of the continental margin does
not extend up to that distance.
Continental margin the submerged prolongation
of the land mass of the continental state, consisting
of the continental shelf proper, the continental
slope, and the continental rise
Limits of the Continental Shelf

Juridical or Legal Continental Shelf: 0-200 nautical
miles from baselines
232

Extended Continental Shelf: 200-350 nautical miles
from baselines depending on geomorphological or
geological data and information
state as to
living
resources
When the continental shelf extends beyond 200

nautical miles, the coastal state shall establish its
outer limits.
7. Tribunal of the Law of the Sea
At any rate, the continental shelf shall not extend

beyond 350 nautical miles from the baseline of the
territorial sea, or 100 nautical miles from the 2500meter isobath (or the point where the waters are
2500 meters deep).
Rights of the Coastal

Continental Shelf
State
over
the
of such
resources
living
233
Settlement of Disputes
Peaceful Settlement of Disputes

Under par. 3, Art. 2 of the UN Charter, States have
the duty to settle disputes by peaceful means. This
obligation extends to State Parties of the UNCLOS,
underscoring the right of the parties to resort to
peaceful means of their own choice on which they
can agree any time.
The continental shelf does not form part of the

territory of the coastal state.
Compulsory Settlement of Disputes
It only has sovereign rights with respect to the

exploration and exploitation of its natural resources,
including the mineral and other non-living resources
of the seabed and subsoil together with living
organisms belonging to the sedentary species.*
Where no successful settlement can be achieved, or

if the parties are unable to agree on the means of
settlement of a dispute concerning the application
of UNCLOS, such dispute may be governed by the
principle of compulsory settlement, where
procedures entail binding decisions.
For example, the coastal state has the exclusive

right to authorize and regulate oil-drilling on its
continental shelf.
These rights are exclusive in the sense that when
the coastal state does not explore its continental
shelf or exploit its resources, no one may undertake
these activities without the coastal states consent.
Compulsory Procedures that States Parties Can

Choose From:
(1) International Tribunal for the Law of the
Sea*;
(2) International Court of Justice;
(3) Arbitral Tribunal*;
(4) Special Arbitral Tribunal*;
Note: In instances where the continental margin is

more than 200 nautical miles from the baselines, and
hence extends beyond the EEZ, the coastal state has
the exclusive right to exploit mineral and non-living
resources in the excess area.
The choice of the State Parties must be expressed in

a written declaration, which is revocable and
replaceable.
Rights with Respect to Continental Shelf vs.

EEZ
The court or Tribunal has jurisdiction over:

(1) any dispute submitted to it concerning the
application or interpretation of UNCLOS
(2) any dispute concerning the interpretation
or
application
of
an
international
agreement:
(a) related to the purposes of the UNCLOS
(b) when such dispute is submitted to it in
accordance with that agreement.
Duty to
manage
and
conserve
living
resources
Rights of
the coastal
state as to
natural
resources
Rights of
the coastal
Continental Shelf
No duty
Relate to mineral
and other nonliving resources
of the seabed and
the subsoil
Apply only to
sedentary species
EEZ
Coastal state is
obliged
to
manage
and
conserve
living
resources in the
EEZ
Have to do with
natural resources
of both waters
superadjacent to
the seabed and
those
of
the
seabed
and
subsoil
Do not pertain to
sedentary species
Jurisdiction of Court or Tribunal
Composition of the International Tribunal for the

Law of the Sea (ITLOS)
It is composed of 21 independent members elected
from among persons enjoying the highest reputation
for fairness and integrity and of recognized
competence in the field of the law of the sea.
The composition shall also be representative of the
worlds principal legal systems and of equitable
geographical distribution.
Jurisdiction of ITLOS
*
Sedentary species are organisms which, at the harvestable

state, are either immobile on or under the seabed, or are
unable to move except in constant physical contact with
the seabed or subsoil.
As established under the UNCLOS.

Its jurisdiction covers all disputes submitted to it in
accordance with the UNCLOS. It also includes
matters submitted to it under any other agreement.
Applicable Laws in Settlement of Disputes by

the ITLOS
The Tribunal shall apply the UNLCOS and other rules
of international law not incompatible with the
UNCLOS.
It may also decide a case ex aequo et bono (what is
equitable and just) if the parties so agree.
L. International Environment Law

Definition (Magallona)
The branch of public international law comprising
those substantive, procedural, and institutional rules
which have as their primary objective the protection
of the environment
Sustainable development development that

meets the needs of the present without
compromising the ability of future generations to
meet their own needs (Case Concerning the
Gabcikovo-Nagymaros Project)
US vs. Canada (Trail Smelter Case): No state

has the right to use or permit the use of its territory
in such a manner as to cause injury by fumes in or to
the territory of another or the properties or persons
therein, when the case is of serious consequence and
the injury is established by clear and convincing
evidence
Principle 21 of Stockholm Declaration

States have, in accordance with the Charter of the
United Nations and the principles of international
law, the sovereign right to exploit their own
resources pursuant to their own environmental
policies, and the responsibility to ensure that
activities within their jurisdiction or control do not
cause damage to the environment of other States or
of areas beyond the limits of national jurisdiction.
Principle
of
Common
but
Differentiated
Responsibility (Principle 7, Rio Declaration): States
shall cooperate in a spirit of global partnership to
conserve, protect and restore the health and
integrity of the Earth's ecosystem. In view of the
different contributions to global environmental
degradation, States have common but differentiated
responsibilities.
The
developed
countries
acknowledge the responsibility that they bear in the
international pursuit to sustainable development in
view of the pressures their societies place on the
global environment and of the technologies and
financial resources they command.
Precautionary Principle (Principle 15, Rio
Declaration): In order to protect the environment,
the precautionary approach shall be widely applied

by States according to their capabilities. Where
there are threats of serious or irreversible damage,
lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to
prevent environmental degradation.
234

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Prof. Concepcion L. Jardeleza

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POLITICAL LAW TEAM 2012

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2012 UP Law Bar Reviewer

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3. Loss of Citizenship ..................... 59

L. Eminent Domain ......................... 98

M. Contracts Clause ...................... 102

J. Right to Information .................... 95

S. Self-Incrimination Clause ............ 114

Law on Public Officers

G. Rights of Public Officers ............. 133

I. Impeachment .......................... 143

VIII. Reactivation of Registration ......158

N. Term Limits ............................ 146

D. Inclusion and Exclusion Proceedings

A. Suffrage ................................. 156

E. Political Parties ........................ 160

Public International Law

A. Concepts ................................ 210

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unwritten constitution, and the power of

I. Definition, Nature and Concepts

(2) The European continental type - where there

Rigid v. flexible - A constitution is classified as

Note: A constitution's stability depends upon other

III. Amendments and Revisions

POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

People, through the power of

Both amendments and revisions

Table of Cases re: Constitutional Amendments

Resolution calling for the

Marcos declared Martial

POLITICAL LAW REVIEWER

Martial Law lifted.

1987 Constitution ratified

Peoples Initiative of PGMA

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IV. Self-Executing and Non-SelfExecuting Provisions

a constitutional provision is self-executing if

May be changed by Congress by law

(3) Armed Forces of the Philippines (Section 4)

May not be appointed or designated to a

POLITICAL LAW REVIEWER

POLITICAL LAW REVIEWER

Ceding the Turtle and Mangsee Islands.

II. State Immunity

*Image taken from:

Archipelagic Doctrine - The basic concept of an

(1) "archipelago, with all the island and waters

POLITICAL LAW REVIEWER

Money Claims arising from contract

Act No. 3083. An Act Defining the Conditions under

Sec. 8. The President of the Philippines, at the

Art 2189, CC: Provinces, cities and municipalities

POLITICAL LAW REVIEWER

Suit against Public Officers The doctrine of state

does not first consent to be sued. Liability is not