Political law Part 1

*COMPONENTS OF POLITICAL LAW

1. Political Law itself. That 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;
2. Constitutional law. The study of the maintenance of the proper balance between authority as represented by
the three inherent powers of the State and liberty as guaranteed by the Bill of Rights;
3. Administrative law. That branch of public law which fixes the organization of government, determines the
competence of the administrative authorities who execute the law, and indicates to the individual remedies for
the violation of his rights;
4. Law on Municipal Corporations. Essentially a study of local governments;
5. Law of Public Officers;
6. Election Laws;
7. Public International Law. This deals with the conduct of States and international organizations, their
relations with persons, natural or juridical. (American Third Restatement)

ACADEMIC FREEDOM

*What is Academic freedom?

Academic freedom of educational institutions has been defined as 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 welfare calls for some restraint.
It has a wide sphere of autonomy certainly extending to the choice of students. Said constitutional
provision is not to be construed in a niggardly manner or in a grudging fashion. That would be to
frustrate its purpose and nullify its intent (Garcia v. The Faculty Admission Committee, et al., supra;
Tangonan v. Pano, et al., supra.)

*Is academic freedom recognized in the Constitution?

Sec. 5(2), Art. XIV:
―Academic freedom shall be enjoyed in all institutions of higher learning.‖
*Does the State have the power to regulate educational institutions in connection with academic
freedom?
Yes. Section 4[1], Article XIV of the Constitution recognizes the State‘s power to regulate
educational institutions:

The State recognizes the complementary roles of public and private institutions in the educational
system and shall exercise reasonable supervision and regulation of all educational institutions.

As may be gleaned from the above provision, such power to regulate is subject to the requirement
of reasonableness. Moreover, the Constitution allows merely the regulation and supervision of
educational institutions, not the deprivation of their rights. (Miriam College Foundation, Inc. v. Court
of Appeals, 348 SCRA 265, 288, Dec. 15, 2000, 1st Div. [Kapunan]) (Sandoval notes)

*Does every citizen have a constitutional right to select a profession or course of study? Yes.
Sec. 5(3), Art. XIV:
―Every citizen has a right to select a profession or course of study, subject to fair, reasonable, and
equitable admission and academic requirements.‖
*Does the admission of students result to a contractual obligation on the part of institutions of
learning to afford its students a fair opportunity to complete the course they seek to pursue? Yes.

While it is true that an institution of learning has a contractual obligation to afford its students a
fair opportunity to complete the course they seek to pursue (Licup, et al. v. University of San Carlos
[USC], et al., supra.), since a contract creates reciprocal rights and obligations, the obligation of the
school to educate a student would imply a corresponding obligation on the part of the student to
study and obey the rules and regulations of the school (Capitol Medical Center, Inc., et al. v. Court of
Appeals, et al., supra.).

(Consequently)

When a student commits a serious breach of discipline or failed to maintain the required
academic standard, he forfeits his contractual right. In this connection, this Court recognizes the

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expertise of educational institutions in the various fields of learning. Thus, they are afforded ample
discretion to formulate reasonable rules and regulations in the admission of students (Yap Chin Fah,
et al. v. Court of Appeals, et al., G.R. No. 90063, December 12, 1989), including setting of academic
standards. Within the parameters thereof, they are competent to determine who are entitled to
admission and re-admission. (University of San Agustin, Inc. v. Court of Appeals, 230 SCRA 761,
774-775, March 7, 1994 [Nocon])

*What are the essential freedoms subsumed in the term ―academic freedom‖?

The essential freedoms subsumed in the term ―academic freedom‖ encompasses the
freedom to determine for itself on academic grounds:

(1) Who may teach,

(2) What may be taught,
(3) How it shall be taught, and
(4) Who may be admitted to study. (Isabelo, Jr. v. Perpetual Help College of Rizal, Inc., 227
SCRA 591, 595 [1993]; Ateneo de Manila University v. Capulong, 222 SCRA 643, 660 [1993]; Garcia v.
The Faculty Admission Committee, Loyola School of Theology, 68 SCRA 277, 285 [1975]. The above
formulation was made by Justice Felix Frankfurter in his concurring opinion in Sweezy v. New
Hampshire, 354 U.S. 234, 263)

*Has the Supreme Court cited with approval the above formulation? Yes.

In Ateneo de Manila University v. Capulong (G.R. No. 99327, 27 May 1993), this Court cited
with approval the formulation made by Justice Felix Frankfurter of the essential freedoms subsumed in
the term ―academic freedom‖ encompassing not only ―the freedom to determine x x x on academic
grounds who may teach, what may be taught (and) how it shall be taught,‖ but likewise ―who may be
admitted to study.‖

*What are some of the instances where the court sanctioned an invocation of academic freedom?

We have thus sanctioned its invocation by a school in rejecting

(1) students who are academically delinquent (Tangonan v. Pano, 137 SCRA 245 [1985]), or

(2) a laywoman seeking admission to a seminary (Garcia v. Loyola School of Theology, 68 SCRA
277 [1975]), or

(3) students violating ―School Rules on Discipline.‖ (Ateneo de Manila University v. Capulong,
supra.) (Isabelo, Jr. v. Perpetual Help College of Rizal, Inc., 227 SCRA 595-597, Nov. 8,
1993, En Banc [Vitug]) (Sandoval notes)

(4) *May a university validly revoke a degree or honor it has conferred to a student after the
graduation of the latter after finding that such degree or honor was obtained through
fraud? Yes.

In Garcia v. Faculty Admission Committee, Loyola School of Theology (68 SCRA 277
[1975]), the SC pointed out that academic freedom of institutions of higher learning is a freedom
granted to ―institutions of higher learning‖ which is thus given a ―wide sphere of authority
certainly extending to the choice of students.‖ If such institution of higher learning can
decide who can and who cannot study in it, it certainly can also determine on whom it can
confer the honor and distinction of being its graduates.

Where it is shown that the conferment of an honor or distinction was obtained

through fraud, a university has the right to revoke or withdraw the honor or distinction it
has thus conferred. This freedom of a university does not terminate upon the ―graduation‖ of a
student, for it is precisely the ―graduation‖ of such a student that is in question. (UP Board of
Regents v. Hon. Court of Appeals and Arokiaswamy William Margaret Celine, G.R. No.
134625, Aug. 31, 1999, 2nd Div. [Mendoza]) (Sandoval notes)

Based on the above formulation, to where the right of the school to discipline its students finds its
basis? (Miriam College Foundation, Inc. v. Court of Appeals,)

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 The right of the school to discipline its students is at once apparent in the third freedom, i.e,(1)
―how it shall be taught.‖ A school certainly cannot function in an atmosphere of anarchy (Angeles v.
Sison, 112 SCRA 26, 37 [1982]).

Moreover, 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 (2) ―what to
teach.‖

Incidentally, the school not only has the right but the duty to develop discipline in its students.
The Constitution no less imposes such duty.

[All educational institutions] shall inculcate patriotism and nationalism, foster love of humanity,
respect for human rights, appreciation of the role of national heroes in the historical development of the
country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral
character and personal discipline, encourage critical and creative thinking, broaden scientific and
technological knowledge, and promote vocational efficiency (Section 3[2], Article XIV, Constitution).

Finally, nowhere in the above formulation is the right to discipline more evident than in (3) ―who
may be admitted to study.‖ If a school has the freedom to determine whom to admit, logic dictates that
it also has the right to determine whom to exclude or expel, as well as upon whom to impose lesser
sanctions such as suspension and the withholding of graduation privileges. (Miriam College Foundation,
Inc. v. Court of Appeals, 348 SCRA 265, Dec. 15, 2000, 1st Div. [Kapunan]) (Sandoval notes excerpts)

CONSTITUTION

DEFINED. That body of rules and maxims in accordance with which the powers of sovereignty are habitually
exercised. (This was asked in the 2012 Bar exam.)

Structure of the 1987 Constitution:

Article I – National Territory

Article II – Declaration of Principles and State Policies
Article III – Bill of Rights
Article IV – Citizenship
Article V – Suffrage
Article VI – Legislative Department
Article VII – Executive Department
Article VIII – Judicial Department
Article IX – Constitutional Commissions
Article X – Local Government
Article XI – Accountability of Public Officers
Article XII – National Economy and Patrimony
Article XIII – Social Justice and Human Rights
Article XIV – Education, Science and Technology, Arts, Cultures and Sports
Article XV – The Family
Article XVI – General Provisions
Article XVII – Amendments or Revisions
Article XVIII – Transitory Provisions

Is the Preamble a source of substantive right? What is its purpose?

1. The Preamble is not considered a source of substantive right since its purpose is only to introduce
the Constitution;

2. It serves to indicate the authors of the Constitution;

N.B: when you are asked of who are the authors of the 1987 Constitution, remember that it is the
sovereign Filipino people who are the authors of the 1987 Constitution and not the framers thereof.

3. In addition, it also enumerates the primary aims and expresses the aspirations of the framers in
drafting the Constitution and

4. It is also useful as an aid in the construction and interpretation of the text of the Constitution.
[Cruz]

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What is the purpose of the Constitution?

1. To prescribe the permanent framework of a system of government;

2. To assign to the several departments their respective powers and duties;
3. To establish certain first fixed principles on which the government is founded

Classification:

a. Written or unwritten;

Written – one the provisions of which have been reduced to writing and embodied in one or more
instruments at a particular time.

b. Enacted (Conventional) or Evolved (Cumulative);

Conventional – enacted deliberately and consciously by a constituent body or ruler at a certain time and
place

c. Rigid or Flexible

Rigid – one which can be amended through a formal and difficult process.

N.B. : The rigidity of the Philippine Constitution is demonstrated by our experience in the case of The
Province of North Cotabato vs. The Government of the Republic of the Philippines Peace Panel on
Ancestral Domain (2008).

Essential parts of a good written Constitution:

a. Constitution of Liberty. The series of prescriptions setting forth the (1) fundamental civil and political rights
of the citizens and (2) imposing limitations on the powers of government as a means of securing the
enjoyment of those rights, e.g. Bill of Rights;

b. Constitution of Government. The series of provisions (1) outlining the organization of the government, (2)
enumerating its powers, (3) laying down certain rules relative to its administration, and (4) defining the
electorate, e.g. Arts. VI (Legislative Department), VII (Executive Department), VIII (Judicial Department),
and IX (Constitutional Commissions).

c. Constitution of Sovereignty. The provisions pointing out the mode or procedure in accordance with which
formal changes in the fundamental law may be brought about, e.g. Art. XVII (Amendments or Revisions).

What is the Principle of Supremacy of the Constitution?

The Constitution is the basic and paramount law to which all other laws must conform and to
which all persons, including the highest officials of the land, must defer. No act shall be valid, however
noble its intentions, if it conflicts with the Constitution. The Constitution must ever remain supreme. All
must bow to the mandate of this law. [Cruz]

An example is the case of Villavicencio vs. Lukban:

The Mayor of Manila was not sustained by the SC when he ―deported‖ some 170 women
of ill-repute to Davao, for the admittedly commendable purpose of ridding the city of serious
moral and health problems. ―…these women despite their being in a sense lepers of society are
nevertheless not chattels but Philippine citizens protected by the same constitutional
guarantees as are other citizens…‖

Cyber-crime law, Reproductive Health law, PDAF, DAP, etc., all of these have to comply with the
Constitution.

Shall the supremacy of the Constitution be upheld as against a treaty especially in view of pacta
sunt servanda?

It depends on which court is deciding:

1. International court – it will uphold treaty obligation in general;

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 2. Domestic court – it will uphold local laws (such as the Constitution).

Specific situation of conflict between Treaty and the Constitution

A27, VCLT: ―A party may not invoke the provisions of internal law as justification for its failure to
perform a treaty.‖ Under dualist theory, unconstitutionality of a treaty is purely domestic matter. State
faces risk of international sanction.

GATT-WTO imposes to its members an obligation to allow cross-border practice of the legal
profession between and among the members. As a member of GATT-WTO, may the Philippines
validly deviate from its treaty obligation to allow foreigners to practice the legal profession before
Philippine courts?

Yes, the Philippines may validly deviate from its treaty obligation under the GATT-WTO. This is
sanctioned by A46, VCLT, which provides that when constitutional violation is manifest and concerns a
rule of internal law of fundamental importance, state may deviate from treaty obligation. The
constitutional provision to the effect that the practice of all professions in the Philippines shall be limited
to Filipino citizens is a rule of internal law of fundamental importance. (Sec. 14, 2 nd par., Art. XII
[National Economy and Patrimony]: ―The practice of all professions in the Philippines shall be limited to
Filipino citizens, save in cases prescribed by law.‖)

AMENDMENT OR REVISION OF THE CONSTITUTION

ARTICLE XVII

*Now, take note that Article XVII of the Constitution is actually your Constitution of
Sovereignty, which is one of the essential parts of a good written constitution.

*In relation to that, take note that every citizen is an individual repository of sovereignty. As so
said by Justice Laurel, an enfranchised citizen is a particle of popular sovereignty and is the ultimate
source of established authority. What is the implication of this? It is the people who have the ultimate
authority to ordain the constitution and to ratify any formal change in that constitution.

AMENDMENT. Isolated or piecemeal change in the Constitution. (Amendment is the generic term used to
denote change in the Constitution)

REVISION. Revamp or the rewriting of the entire instrument.

*What are the distinctions between Amendment and Revision? Lambino vs. Comelec

In Revision,

a. 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;
b. There is also a revision if the change alters the substantial entirety of the Constitution;
c. Revision generally affects several provisions of the Constitution;

Whereas in amendment,

a. Amendment broadly refers to a change that adds, reduces, deletes, without altering the basic
principle involved;
b. Amendment generally affects only the specific provision being amended.

*What is the two-part test in determining whether a proposal involves an amendment or revision?
Lambino vs. Comelec

First, QUANTITATIVE TEST, which asks whether the proposed change is so extensive in its
provisions as to change directly the ―substance entirety‖ of the Constitution by the deletion or alteration
of numerous provisions. The court examines only the number of provisions affected and does not consider
the degree of the change. [How many provisions will be affected by the proposed change? Quantity.]

Second, QUALITATIVE TEST, which 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.‖ [What kind of change is sought to be
effected by the proposal?]

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 *What was the Lambino Petition all about?

So applying these tests, a proposal, like that of the Lambino petition, involving a change in the
form of government from presidential to parliamentary and a shift from bicameral to a unicameral
legislature, constitutes a revision because first, by applying the quantitative test, numerous provisions
will be affected particularly the entirety of Article VI dealing with the Legislative department, the
entirety of Article VII dealing with Executive department, and other provisions. Second, by applying
the qualitative test, the kind of change which is sought to be effected will “accomplish such far-
reaching changes in the nature of our basic governmental plan as to amount to a revision.‖

Why?

In a presidential form of government, the doctrine of separation of powers is observed. On the

other hand, in a parliamentary government, instead of separation of powers, there is the fusion or union of
the executive and the legislative branches in the parliament.

In a parliamentary government, the one who elects the Prime Minister is not the people but the
members of Parliament. So the Prime Minister is directly accountable to Parliament, not to the people.
Unlike in a presidential form of government where the President is elected by the people at large so the
President is not directly accountable to Congress. He is directly accountable to the people.

What, and how many, are the steps in the amendatory process?

1. Proposal. (Secs. 1-3, Art. XVII). The adoption of the suggested change in the Constitution. Who may
propose amendment?

i. CONGRESS, by a vote of ¾ of all its members. (Majority of authorities: Voting separately, i.e. ¾ of the
Senate and ¾ of the HOR.);
ii. CONSTITUTIONAL CONVENTION, which may be called into existence either:
a. by a 2/3 vote of all the members of Congress, or
b. by a majority vote of all the members of Congress with the question of whether or not to call a
Convention to be resolved by the people in a plebiscite (Sec. 3, Art. XVII)
iii. PEOPLE, through the power of initiative (Sec. 2. Art. XVII) Requisite: A petition of 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.

The choice of method of proposal, whether made directly by Congress or through a Constitutional
Convention, is within the full discretion of the legislature. (Occena vs. Comelec)

What is 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.

What are the three systems of initiative?

i. Initiative on the Constitution, which refers to a petition proposing amendments to the Constitution;
ii. Initiative on Statutes, which refers to a petition proposing to enact a national legislation;
iii. Initiative on Local legislation, which refers to a petition proposing to enact a regional, provincial,
city, municipal, or barangay law, resolution, or ordinance. (Sec. 2(a), RA 6735).

What is Indirect Initiative? It is exercise of initiative by the people through a proposition sent to
Congress or the local legislative body for action (Sec. 2(b), RA 6735).

Has Congress enacted an enabling law for an initiative to amend the Constitution?

YES. R.A. 6735 (An Act Providing for a System of Initiative and Referendum) which was
declared (in Santiago vs. Comelec) inadequate to cover the system of initiative to amend the Constitution
since the law does not provide for the contents of a petition for initiative on the Constitution, and
this inadequacy cannot be cured by empowering the Comelec to promulgate IRR. However, in
Lambino vs. Comelec, the Court noted that the majority of the justices (10 justices actually) had voted to

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 declare RA 6735 sufficient and adequate for a people‘s initiative, thereby effectively abandoning the
ruling in Santiago vs. Comelec. [This is according to Justice Nachura in his reading of the Lambino case.]

So what were the considerations in declaring the Lambino petition as invalid?

Let us lay down first the predicate. The essence of amendments directly proposed by the people
through initiative upon a petition is that the entire proposal on its face is a petition of the people. Thus,
two essential elements must be present: (1) The people must author and sign the entire proposal; no
agent or representative can sign in their behalf; (2) As an initiative upon a petition, the proposal
must be embodied in the petition. The rationale for these requisites is that the signature requirement
would be meaningless if the person supplying the signature has not first seen what it is that he is signing,
and more importantly, a loose interpretation of the subscription requirement would pose a significant
potential for fraud.

[So in proposing an amendment of that Constitution, which can be likened to ―editing‖ an

instrument, it is supposed to be the author, and not someone else like an agent or representative, who
should affirm the proposed amendment by signing the entire proposal.]

In Lambino, the great majority of the 6.3 million people who signed the signature sheets did not
see the full text of the proposed changes before signing; they were not apprised of the nature and effect of
the proposed amendments. Failure to comply with these requirements was fatal to the validity of the
initiative petition. (Lambino vs. Comelec).

Does initiative apply to a revision of the Constitution?

[Moreover], People‘s initiative applies only to an amendment, not a revision, of the Constitution.
A people‘s initiative can only propose amendments to the Constitution, inasmuch as the Constitution
itself limits initiatives to amendments as shown by the deliberations of the Constitutional Commission.
The Lambino initiative constituted a revision because it proposed to change the form of government from
presidential to parliamentary and the bicameral to unicameral legislature. Thus, the people‘s initiative as a
mode to effect these proposed amendments was invalid. (Lambino vs. Comelec)

2. RATIFICATION. (Sec. 4, Art. XVII)

The proposed amendment shall become part of the Constitution when ratified by a majority of
the votes cast in a plebiscite held not earlier than 60 days nor later than 90 days after the approval of
the proposal by Congress or the Constitutional Convention, or after the certification by the Commission
on Elections of the sufficiency of the petition for initiative under Sec. 2, Art. XVII.

What is the Doctrine of Proper Submission?

Because the Constitution itself prescribes the time frame within which the plebiscite is to be held
(held not earlier than 60 days nor later than 90 days after the approval of the proposal), there can no
longer be a question on whether the time given to the people to determine the merits and demerits of the
proposed amendment is adequate.

Is a proposal properly submitted if the plebiscite be held on the same day as regular elections?

YES. Plebiscite may be held on the same day as regular elections. [Gonzales vs. Comelec;
Occena vs. Comelec; Almario vs. Alba]

Is the submission of amendments for ratification proper if it be done on a piecemeal basis? NO.
Tolentino vs. Comelec

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 have to be given a ―proper
frame of reference‖ in arriving at their decision. Thus, submission for ratification of piecemeal
amendments by the Constitutional Convention (which is tasked to revise the Constitution) was disallowed
since the people had, at that time, no idea yet of what the rest of the revised Constitution would be.

THE DOCTRINE OF STATE IMMUNITY FROM SUIT

This is also known as the Royal Prerogative of Dishonesty because with this doctrine, the State is
able to defeat legitimate claims from it by private parties by an invocation that the State may not be sued
without its consent.

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 What is the basis of this doctrine? Republic vs. Villasor.

There can be no legal right against the authority which makes the law on which the right depends.

Section 3 of Article XVI states that the State may not be sued without its consent. That is the
doctrine of state immunity from suit enshrined in the Constitution.

May the State validly invoke this doctrine even if it is not expressly provided in the Constitution?
Yes. USA vs Guinto:

Even if it is not expressly provided in the constitution that the state may not be sued without
its consent, still we would be bound by that doctrine because among the generally accepted principles
of international is the doctrine that the state may not be sued without its consent. This doctrine in turn
has automatically become incorporated in our laws because in Section 2, Article II, it is stated there that
the Philippines adopts the generally accepted principles of international law as part of the law of
the land. That being the case, even if it is not expressly provided in Section 3 of Article XVI that the state
may not be sued without its consent, still we would be bound by that doctrine because it is a generally
accepted principle of international law which has become automatically part of our laws by virtue of our
adherence to the doctrine of incorporation.

STATE IMMUNITY OF FOREIGN STATES

Does this doctrine apply as well to foreign governments? Yes.

In other words, can you sue a foreign state or a foreign government before our courts? No. You
cannot sue unless that foreign government waives its immunity from suit.

What is the justification for that, for extending the application of this doctrine of state immunity
from suit to foreign governments?

The justification can be found in that other principle of international law – the doctrine of
sovereign equality of all states as expressed in that latin maxim par in parem non habet imperium.
All states are sovereign equals. An equal may not assume jurisdiction over another equal. To do otherwise
would unduly vex the peace of nations. This is another generally accepted principle of international law
and by the doctrine of incorporation it is automatically incorporated in our laws.

In international law, ―immunity‖ is commonly understood as an exemption of the state and

its organs from the judicial jurisdiction of another state. This is anchored on the principle of the
sovereign equality of states under which one state cannot assert jurisdiction over another in violation of
the maxim par in parem non habet imperium (Jusmag Philippines vs. NLRC, 1994).

How is this immunity from suit of the state waived?

There are two ways. The immunity may be waived

1. expressly (express consent) or express waiver

2. impliedly (implied consent), or implied waiver.

Express waiver, how is this done?

Through a general law or a special law waiving state immunity from suit.

Can a lawyer of the government validly waive state immunity from suit? Republic vs. Purisima. Who
may validly do so?

A mere lawyer of the government may not validly waive this immunity from suit of the state.

The express consent of the State to be sued must be embodied in a duly enacted statute and may
not be given by a mere counsel of the government (Republic vs. Purisima). Only Congress may give
express consent or waiver of state immunity from suit, through the enactment of it of either a general law
or a special law waiving state immunity from suit. That is among the plenary powers of Congress – to
waive the immunity from suit of the state.

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 Example of general law which is an express waiver of state immunity from suit:

Act no. 3083, which applies to money claims arising from contract with the government whether
express or implied, which could serve as a basis of civil action between private parties. However, Act No.
3083 must be correlated with Commonwealth Act No. 327 as amended by PD 1445, which is the General
Auditing Law. Under this law, any money claim arising from contract with the government, before
the claimant is allowed to sue the government, he is first required to file the claim in the
Commission on Audit. And it is only after the claim is rejected or refused payment by the COA that
the claimant may go to court to sue.

Before what court will the claimant sue?

As clarified by Justice Vitug in the case of Department of Agriculture vs. NLRC, before the
Supreme Court on certiorari, because under the Constitution, decisions of COA are reviewable by the SC
by way of certiorari.

Examples of special laws which are express waiver of state immunity

Article 2180 of the NCC. The state may be held liable for damages when acting through a
special agent.

Article 2189 of the NCC. Tiotico vs City of Manila. The one that fell into a manhole.
―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 control or supervision.‖

Section 22 of LGC. Corporate powers. ―Every LGU, as a corporation, shall have the following
powers (6):

(2) To sue and be sued;

Charters of government corporations: GSIS, SSS, Landbank, PCSO

IMPLIED WAIVER OF STATE IMMUNITY/IMPLIED CONSENT

First, when the state itself commences litigation against a private party thereby it opens itself to a
possible counterclaim (Froilan vs. Pan Oriental Shipping). Otherwise it will be the height of unfairness
where it may sue a person and he cannot even file a counterclaim against it.

Is there implied waiver of immunity if the government was not asking for affirmative relief but had
intervened only for the purpose of resisting the claim?

No. Lim vs. Brownell.

Second, when the state enters into a contract with a private party on the theory that whenever the
state enters into a contract with a private party, it is deemed to have gone down into the level of a private
party and therefore it is deemed to have waived its immunity from suit. However, this was the old rule.
Beginning however with that case of:

USA vs. Ruiz, 1985 (Acta Jure Imperii, when state enters into a contract in its governmental capacity, no
implied consent)

The Restrictive Doctrine of State Immunity

Not every contract entered into by the state is deemed to be a waiver of its immunity from
suit because one has to distinguish between acta jure imperii and acta jure gestiones. If the contract
was entered into by the state in its sovereign or governmental capacity, acta jure imperii, there is no
waiver of state immunity from suit so that the suit against the state should be dismissed. There is waiver
of state immunity from suit if the contract was entered into by the state in its commercial or proprietary
capacity only, acta jure gestiones. This is now known as the restrictive doctrine of state immunity, the
doctrine that is now followed in our jurisdiction.

(USA vs. Ruiz)

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 This case happened at a time when the RP-US Military Bases Agreement was still in effect.
Remember that we used to have a military bases agreement with the US and under that agreement there
were several places in the Philippines then were under the Americans. Here, there was a contract there in
Subic entered into between a private contractor and the Subic naval authorities for the construction of a
wharf which said contractor has done but he was not paid. Because of that what he did was he filed a
collection suit against the Subic naval authorities before the regular courts. The Subic naval authorities
filed a motion to dismiss the suit filed against them invoking state immunity from suit because
according to them since they were sued in their official capacity as Subic naval authorities, then that is
deemed to be a suit against the American government itself. And since the US government did not give its
consent to be sued, so the suit should now be dismissed.

But then the private contractor countered and said that here the state entered into a
contract. Remember that whenever the state enters into a contract with a private entity or individual, it is
deemed to have waived its immunity from suit. It is deemed to have gone down into the level of a private
individual and therefore it is deemed to have waived its immunity. Obviously, the private contractor in
that case was relying on the old rule that whenever the state enters into a contract with a private party, it
is deemed to have gone down into the level of a private individual and therefore it is deemed to have
waived its immunity from suit.

Should that motion to dismiss filed by the Subic naval authorities invoking state immunity from
suit be granted or denied?

The SC said in this case, what was the contract all about? The contract was for the construction
of a wharf in Subic. Now what was the purpose of that wharf? The wharf is to be used for the defense
of American forces in the Philippines as well as for the defense of the Philippine state itself. What
kind of function is that? The defense of the state is a governmental/sovereign function of the highest
order. So that contract was entered into by the state in its sovereign capacity, acta jure imperii, and
therefore was there waiver? There was no waiver and so the suit against the Subic naval authorities
should be dismissed on those considerations.

Was it not unfair? It must have caused that private contractor fortune in building that wharf. In
the first place, who will use the wharf? American naval vessels. Obviously that was unfair.

May the private contractor in that case validly invoke Act No. 3083 which applies to money claims
arising from contract with the government?

No. Act No. 3083 is an act of the Philippine Congress. Our Congress may not validly waive the
immunity from suit of a foreign government. Only the American Congress can waive that. Not even the
private contractor may validly invoke Act No. 3083.

What is really the legal remedy available to the private contractor for him to be able to collect?

The remedy there actually becomes one of international law. What the private contractor may
validly do there is to convince the Department of Foreign Affairs to take up his claim against the
American government. This will have to be decided now on a state to state basis. This is no longer a
matter of municipal law. This is now an area of concern of international law. The doctrine of sovereign
equality of states will come into play. [all of the foregoing were taken from Sandoval lectures/notes]

US vs. Guinto, 1990 (Acta Jure Gestiones, when state enters into a business contract, state may be sued)

This happened also when the RP-US Military Bases Agreement was still in effect. Among the
places under the Americans then was Camp John Hay in Baguio City. Inside Camp John Hay at that
time was a cafeteria operated by the American authorities in Camp John Hay. Now the cafeteria
caters not only to the American service men in Camp John Hay but it caters as well to outsiders
and visitors. In other words that cafeteria was being run as a business enterprise by the American
authorities in Camp John Hay. Now you have this Filipino cook employed in that cafeteria so there
was an employment contract. One day, he was caught by his American supervisor mixing the soup
with his urine. So he was removed as a cook because of that incident. Then he went to the Labor
Arbiter and filed an illegal termination case against the American authorities in Camp John Hay.
What the American authorities did was they filed a motion to dismiss that illegal termination case
filed against them by the Filipino cook invoking state immunity from suit. Said the American
authorities, since we were sued in our official capacities as Camp John Hay authorities, so this is deemed
to be a suit against the American government itself. And since the US government did not give its consent
to be sued, so the suit should now be dismissed. So eventually that case have to be elevated to the SC.

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 Should that motion to dismiss that illegal termination case filed against the American authorities in
Camp John Hay be granted or denied?

Why should it be granted? This employment contract was in connection with the operation of that
cafeteria. That cafeteria was being run as a business enterprise by the American authorities in Camp
John Hay. It caters not only to the American service men in Camp John Hay but it caters as well to
outsiders and visitors. When the state enters into a contract in its commercial or proprietary
capacity, was there waiver? There is. What was involved there was acta jure gestiones. So why
should that motion to dismiss be granted? That‘s why our SC did not agree that that motion to dismiss the
illegal termination case be granted on those considerations.

An Indonesian official entered into a maintenance agreement to maintain specified equipment at

the embassy of Indonesia in the Philippines. The agreement referred to Philippine law for purposes
of any dispute settlement. Did this constitute a waiver of diplomatic immunity?

NO. The SC held that this did not constitute a waiver of diplomatic immunity. Submission to
local jurisdiction must be clear and unequivocal. (Indonesia vs. Vinzon, 2003) [2013 Bar exam]
Why? This is because waiver of diplomatic immunity is actually in derogation of sovereignty. It is not to
be lightly inferred.

Suits against Government Agencies

a. Incorporated: If the charter provides that the agency can sue and be sued, then suit will lie, including one
for tort. The provision in the charter constitutes express consent on the part of the State to be sued;

b. Unincorporated: Inquire into principal functions of the agency

i. If governmental: No suit without consent. But even in the exercise of proprietary functions incident
to its primarily governmental functions, an unincorporated agency still cannot be sued without its
consent.

ii. 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.

SUABILITY vs. LIABILITY

One has to distinguish between suability of state and liability of the state. The two are not the
same. Suability is just a matter of state waiving its immunity from suit. Liability on the other hand is a
matter of the applicable law and the circumstances of each case. So that when the state allows one to sue
it, that is suability, the state does not automatically concede liability. It merely gives the claimant an
opportunity that he may hold the state liable. The state may raise possible legal defenses to avoid liability.

Municipality of San Fernando, La Union vs. Judge Fermi

This case involved a dump truck owned by the Municipality of San Fernando, driven by the
official driver. The dump truck was hauling gravel for the repair of municipal roads. Then it figured
in a collision with a passenger jeepney. So that one of the passengers of the jeepney died. Now the
heirs of the victim sued the municipality for damages because of that incident. The municipality
filed a motion to dismiss invoking state immunity from suit. Take note however that the charter of the
municipality expressly provides that it may sue and be sued. The problem in that case was the judge
instead of first resolving the motion to dismiss filed by the municipality invoking state immunity
from suit, the judge proceeded with the trial of that case and rendered a decision holding the
municipality liable for damages since its charter provides that it may sue and be sued. So the case
had to be elevated to the SC.

The SC clarified that we have to distinguish between suability of the state and liability of the
state. These are two different concepts.

Suability is just a matter of state waiving its immunity from suit. Liability on the other hand
is a matter of the applicable law and the circumstances of each case. So that when the state allows
one to sue it, the state does not automatically concede liability. It merely gives the claimant an
opportunity that he may hold the state liable. The state may raise possible legal defenses to avoid
liability.

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 Now in this case, the SC said, was there a valid defense that may be invoked by the municipality
to evade liability? The SC said there was. What defense was that? When the accident occurred what
function was the municipality engaged in? The dump truck was hauling gravel for the repair of municipal
roads. What kind of function is that? The repair of municipal roads is a governmental function. So
this will be a case of damnum absque injuria – damage without injury. So, may the heirs sue the
municipality? Yes because the charter expressly provides that it may sue and be sued. But does it
necessarily follow that the heirs may validly hold the municipality liable for damages? It does not follow
because there is here a valid defense that may be invoked by the municipality to evade liability. And what
defense was that? When the accident occurred the municipality was engaged in the performance of a
governmental function. Remember that the dump truck was hauling gravel for the repair of municipal
roads. The repair of municipal roads is a governmental function. So this will be a case of damnum absque
injuria – damage without injury.

What if the dump truck was hauling lumber for the repair of the public market? Will that make a
difference in your answer?

Yes. You have to understand the nature of a public market. A public market is actually a business
enterprise of a local government. So, may the heirs sue the municipality? Yes because the charter of the
municipality expressly provides that it may sue and be sued. May the heirs validly hold the municipality
liable for damages under the changed circumstances? Yes because this time there is no more valid defense
that the municipality may invoke to avoid or evade liability. Because when the accident occurred, it was
not engaged in the performance of a governmental function. A public market is actually a business
enterprise of a local government.

What about celebration of a town fiesta? Is that a governmental function of a local government?
Torio vs. Fontanilla.

This involved the collapse of a stage during a town fiesta, so there were those who were injured.
The municipality is liable for damages. The celebration of a town fiesta is not a governmental function of
a local government. That is proprietary.

In the matter of execution to satisfy the judgment against the state, can you garnish government
funds deposited in a bank to satisfy the judgment against the state and in your favor? Can you levy
on government property, sell them at public auction to satisfy the judgment against the state and in
your favor? Can you validly do those?

You cannot. You will paralyze the operations of government that way. In other words, what did
the SC say, the waiver of state immunity from suit extends only up to the rendition of the judgment
against the state. When it comes to execution to satisfy the judgment against the state, that will
require another waiver. Remember that before public funds may be spent, there must be a
corresponding appropriation therefor. So what is the remedy available to you now? Make the necessary
representation (―lobby‖) with the legislative authority for that authority to enact the necessary
appropriations measure to satisfy the judgment.

What if despite your representation, no appropriations were enacted to satisfy the judgment in
your favor?

Municipality of Makati vs. IAC

Mandamus. The court held that the proper remedy there really is mandamus. But how is that?
Because you know very well that the duty to appropriate is discretionary and the role of mandamus is to
compel the performance of a ministerial duty. The SC said, it is true that the duty to appropriate is
discretionary and therefore may not be compelled by mandamus. But in this case since there was
already a judgment rendered by the court against the government and in favor of the private
claimant, which judgment already attained finality, the government must be the first one to respect
and obey the decisions of its courts. And because of that what otherwise was a discretionary duty to
appropriate in effect had been converted into a ministerial one which may now be compelled by
mandamus. That is the ratio decidendi of that ruling.

Suits against public officials

Lansang vs. CA.

The court had an occasion to summarize the rule with respect to suits against public officials. The
doctrine of state immunity from suit applies to complaints filed against public officials for acts done

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in the performance of their duties. If one sues a public official for acts done in the performance of their
duties, the plaintiff is deemed to have sued the state itself and therefore the suit should be dismissed
invoking state immunity from suit. Because in that case, the public official merely acts as an agent of the
state so that when you sue the agent you are deemed to have sued the principal.

[More often, the one that will be sued will not be the state itself, will not be the government itself,
because the plaintiff knows that the state will invoke state immunity from suit. That‘s why more often the
one who will be sued will not be the state or the government itself but rather the public official concerned.

When do you consider a suit against a public official a suit against the state itself and therefore
should be dismissed invoking state immunity from suit?

The rule is that the suit must be regarded as one against the state where the satisfaction of
the judgment against the public official concerned will require the state itself to perform a positive
act such as appropriation of the amount necessary to pay the damages awarded to the plaintiff. But
this rule does not apply where the public official is charged in his official capacity for acts that are
unlawful and injurious to the rights of others. Public officials are not exempt in their personal capacity
from liability arising from acts committed in bad faith.

In Republic vs. Sandoval, regarding the Mendiola massacre, the SC said, as early as 1954, this
court has pronounced that an officer cannot shelter himself by the plea that he is a public agent
acting under the color of his office when his acts are wholly without authority. Until recently in 1991
in Chavez vs. Sandiganbayan, this doctrine still found application this court saying that immunity
from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged
status not claimed by any other official of the Republic.

That‘s why in this case of Republic vs. Sandoval, during the time of Pres. Cory Aquino, you have
that group of farmers who marched along Mendiola on their way to Malacanang. Now the rally became
unruly so that it was dispersed violently by the police and military officials assigned in the rally causing
several deaths and injuries. That‘s why the incident came to b e known as the Mendiola massacre. After
that, the next day there was that big indignation rally to condemn that incident and no less than Pres.
Aquino herself appeared in that indignation rally. So she now created a task force that will investigate the
causes of the so called Mendiola massacre. The finding of the task force was this: although initially the
police and military officials assigned in that rally performed their powers and functions in accordance
with law, however when during the dispersal operations, they trained their guns directly against the
demonstrators thereby causing those deaths and injuries. They exceeded their authority.

That‘s what the SC said in that case, they alone should be held personally liable therefor. So this
is not really a suit against the state. Properly speaking, this is a suit against the individual police and
military officials assigned in that rally. Public officials are not exempt in their personal capacity from
liability arising from acts committed in bad faith. And then finally the SC said, neither does the rule
apply where the public official is clearly being sued not in his official capacity but in his personal
capacity although the acts complained of may have been committed while he occupied a public
position. (Lansang vs. CA) [Sandoval lecture]

Amigable vs. Cuenca, Ministerio vs. CFI of Cebu

This doctrine of state immunity from suit cannot serve as instrument for perpetrating an
injustice on a citizen. It is just as important if not more so that there be fidelity to legal norms on the part
of officialdom if the rule of law were to be maintained.

[But this ruling should not be invoked indiscriminately. In these cases, there was this land owner.
One day he was surprised. His land is being bulldozed by the government to be converted into a road. His
plants were destroyed. He was not even informed. And the poor fellow waited, in fact he waited several
years. After several years, he filed a case against the government. Actually it was a simple suit for the
payment of the value of his property that was taken away from him under those circumstances. When he
filed the case against the government, the government promptly filed a motion to dismiss invoking state
immunity from suit.

Under those circumstances, the court had to make this ruling that this doctrine of governmental
immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen. It is just as
important if not more so that there be fidelity to legal norms on the part of officialdom if the rule of law
were to be maintained. In the first place said the SC, had the government followed its own rules before it
should have entered that property? What it should have done was to file that expropriation case under

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 Rule 67 which the government did not even do here. Whose rule is that? Is it not that of the government?]
(Sandoval lecture)

THE NATIONAL TERRITORY

Article I

―The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil,
the insular shelves, and other submarine areas. The waters around, between and connecting the islands
of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of
the Philippines.‖

Give examples of the significance of territory.

a. It is one of the elements of state;

b. Occupation of a substantial portion of the national territory is one of the minimum conditions for
rebels to attain belligerency

Can you have a national territory even if it is not articulated in a document such as the
Constitution? What if a state has a definition of its national territory, did it have a territory in that
sense?

Yes. You can have a national territory even if it is not articulated in a document such as the
Constitution. In other words, a state does not have to articulate its national territory in its constitution
before it is said that it can have a national territory.

N.B: forms of acquiring territory under international law; concept of occupation, coupled with
effectiveness (Island of Palmas case) but the occupation to be effective under international law, must be
exercised over a territory which is terra nullius, which means it does not belong to anyone (Western
Sahara case).

In international law, what fundamental right pertaining to territory does every state have?

The right to territorial integrity and jurisdiction. (property and jurisdiction)

As a requirement under the Montevideo Convention, a state must have reasonably stable political
community and this must be in control of a certain area. (Brownlie, 2008)

Components of territory:

1. Terrestrial domain;
2. Maritime and fluvial domain;
3. Aerial and space domain.

What is the archipelago doctrine of national territory?

This is a doctrine based on the principle that an archipelago, which consists of a number of
islands separated by bodies of water, should be treated as one integral unit.

Under this doctrine, the Philippine archipelago is considered as one integrated unit instead of
being divided into more than 7000 islands. It is the integration of a group of islands to the sea and their
oneness so that together they can constitute one unit, one country, and one state.

The second sentence of Sec. 1, Art. I, articulates this doctrine. ―The waters around, between and
connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the
internal waters of the Philippines.‖ [2009 Bar exam]

What is the main purpose of this doctrine?

The main purpose is to protect the territorial interests of an archipelago.

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Straight Baseline Method:

Imaginary straight lines are drawn joining the outermost points of outermost islands of the
archipelago, enclosing an area the ratio of which should not be more than 9:1 (water to land); provided
that the drawing of baselines shall not depart to any appreciable extent, from the general configuration of
the archipelago. The waters within the baselines shall be considered internal waters; while the breadth of
the territorial sea shall then be measured from the baselines.

Magallona vs. Ermita, Constitutionality of RA 9522 (Baseline Law)

[2013 Bar exam]

Republic Act No. 9522 (An Act to Amend Certain Provisions of RA 3046, as Amended by RA
5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purposes).

In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating the maritime baselines
of the Philippines as an archipelagic State. This law followed the framing of the Convention on the
Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I), codifying, among others, the sovereign
right of States parties over their ―territorial sea,‖ the breadth of which, however, was left undetermined.
Attempts to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved
futile. Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for legislation
passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the
drawing of baselines around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522 to make RA 3046 compliant
with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III), which the
Philippines ratified on 27 February 1984. Among others, UNCLOS III prescribes the water-land ratio,
length, and contour of baselines of archipelagic States like the Philippines and sets the deadline for
the filing of application for the extended continental shelf. Complying with these requirements, RA
9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago
and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal,
as ―regimes of islands‖ whose islands generate their own applicable maritime zones.

RA 9522 adjusted the country‘s archipelagic baselines and classifying the baseline regime of
nearby territories. The constitutionality of RA 9522 is assailed on two principal grounds:

(1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine
state‘s sovereign power, in violation of Article 1 of the 1987 Constitution, embodying the terms of the
Treaty of Paris and ancillary treaties, and

(2) RA 9522 opens the country‘s waters landward of the baselines to maritime passage by all
vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the
country‘s nuclear-free policy, and damaging marine resources, in violation of relevant constitutional
provisions. In addition, petitioners contend that RA 9522‘s treatment of the KIG as ―regime of islands‖
not only results in the loss of a large maritime area but also prejudices the livelihood of subsistence
fishermen. To buttress their argument of territorial diminution, petitioners facially attack RA 9522 for
what it excluded and included – its failure to reference either the Treaty of Paris or Sabah and its use of
UNCLOS III‘s framework of regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.

RA 9522 is constitutional.

RA 9522 is a Statutory Tool

to Demarcate the Country’s
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory

Petitioners submit that RA 9522 ―dismembers a large portion of the national territory‖21 because
it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related
treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987
Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory
provision denying the Philippines sovereign control over waters, beyond the territorial sea recognized at
the time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that
from the Treaty of Paris‘ technical description, Philippine sovereignty over territorial waters extends

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hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area delineated
in the Treaty of Paris.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral
treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12
nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive
economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III
delimits. UNCLOS III was the culmination of decades-long negotiations among United Nations members
to codify norms regulating the conduct of States in the world‘s oceans and submarine areas, recognizing
coastal and archipelagic States‘ graduated authority over a limited span of waters and submarine lands
along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties
to mark-out specific basepoints along their coasts from which baselines are drawn, either straight
or contoured, to serve as geographic starting points to measure the breadth of the maritime zones
and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any
clearer:

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf. – The breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf shall be measured from
archipelagic baselines drawn in accordance with article 47. (Emphasis supplied)

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties
to delimit with precision the extent of their maritime zones and continental shelves. In turn, this
gives notice to the rest of the international community of the scope of the maritime space and submarine
areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over
territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws
in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the
exclusive economic zone (Article 56) and continental shelf (Article 77).

Even under petitioners‘ theory that the Philippine territory embraces the islands and all the
waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines
would still have to be drawn in accordance with RA 9522 because this is the only way to draw the
baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other
portions of the rectangular area delineated in the Treaty of Paris, but from the ―outermost islands and
drying reefs of the archipelago.‖24

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or,
as petitioners claim, diminution of territory. Under traditional international law typology, States
acquire (or conversely, lose) territory through occupation, accretion, cession and prescription, 25 not by
executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the
treaty‘s terms to delimit maritime zones and continental shelves. Territorial claims to land features are
outside UNCLOS III, and are instead governed by the rules on general international law.

RA 9522’s Use of the Framework

of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines’ Claim of Sovereignty Over these Areas

Petitioners next submit that RA 9522‘s use of UNCLOS III‘s regime of islands framework to
draw the baselines, and to measure the breadth of the applicable maritime zones of the KIG, ―weakens our
territorial claim‖ over that area.27 Petitioners add that the KIG‘s (and Scarborough Shoal‘s) exclusion
from the Philippine archipelagic baselines results in the loss of ―about 15,000 square nautical miles of
territorial waters,‖ prejudicing the livelihood of subsistence fishermen. 28 A comparison of the
configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space
encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional
deliberations, vis-à-vis the Philippines‘ obligations under UNCLOS III, belie this view.

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522
merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522
skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with
UNCLOS III‘s limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the

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KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This
undeniable cartographic fact takes the wind out of petitioners‘ argument branding RA 9522 as a statutory
renunciation of the Philippines‘ claim over the KIG, assuming that baselines are relevant for this purpose.

Petitioners‘ assertion of loss of ―about 15,000 square nautical miles of territorial waters‖ under
RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the
location of basepoints, increased the Philippines‘ total maritime space (covering its internal waters,
territorial sea and exclusive economic zone) by 145,216 square nautical miles.

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522
even extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of
course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will
have to be a delineation of maritime boundaries in accordance with UNCLOS III.

Further, petitioners‘ argument that the KIG now lies outside Philippine territory because the
baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law
commits to text the Philippines‘ continued claim of sovereignty and jurisdiction over the KIG and the
Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the Philippines likewise
exercises sovereignty and jurisdiction shall be determined as ―Regime of Islands‖ under the
Republic of the Philippines consistent with Article 121 of the United Nations Convention on the
Law of the Sea (UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of
two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that ―[t]he drawing of such
baselines shall not depart to any appreciable extent from the general configuration of the archipelago.‖
Second, Article 47 (2) of UNCLOS III requires that ―the length of the baselines shall not exceed 100
nautical miles,‖ save for three per cent (3%) of the total number of baselines which can reach up to 125
nautical miles.

Although the Philippines has consistently claimed sovereignty over the KIG and the Scarborough
Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest
shoreline of the Philippine archipelago, such that any straight baseline loped around them from the nearest
basepoint will inevitably ―depart to an appreciable extent from the general configuration of the
archipelago.‖

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to
emphasize the foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the world call the Spratlys
and the Scarborough Shoal are outside our archipelagic baseline because if we put them inside
our baselines we might be accused of violating the provision of international law which states:
“The drawing of such baseline shall not depart to any appreciable extent from the general
configuration of the archipelago.” So sa loob ng ating baseline, dapat magkalapit ang mga
islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin
although we are still allowed by international law to claim them as our own.

This is called contested islands outside our configuration. We see that our archipelago is
defined by the orange line which [we] call archipelagic baseline. Ngayon, tingnan ninyo ang
maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is
Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin
ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na sila
magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it should
follow the natural configuration of the archipelago. (Emphasis supplied)

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 Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III‘s limits. The
need to shorten this baseline, and in addition, to optimize the location of basepoints using current
maps, became imperative as discussed by respondents:

[T]he amendment of the baselines law was necessary to enable the Philippines to draw
the outer limits of its maritime zones including the extended continental shelf in the manner
provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446,
the baselines suffer from some technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil
Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article
47(2) of the [UNCLOS III], which states that ―The length of such baselines shall not exceed 100
nautical miles, except that up to 3 per cent of the total number of baselines enclosing any
archipelago may exceed that length, up to a maximum length of 125 nautical miles.‖
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted
from the baselines system. This will enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly along the west coasts of
Luzon down to Palawan were later found to be located either inland or on water, not on low-water
line and drying reefs as prescribed by Article 47.

Hence, far from surrendering the Philippines‘ claim over the KIG and the Scarborough
Shoal, Congress‘ decision to classify the KIG and the Scarborough Shoal as ―‗Regime[s] of Islands‘
under the Republic of the Philippines consistent with Article 121‖ of UNCLOS III manifests the
Philippine State‘s responsible observance of its pacta sunt servanda obligation under UNCLOS III.
Under Article 121 of UNCLOS III, any ―naturally formed area of land, surrounded by water, which is
above water at high tide,‖ such as portions of the KIG, qualifies under the category of ―regime of
islands,‖ whose islands generate their own applicable maritime zones.

Statutory Claim Over Sabah under

RA 5446 Retained

Petitioners‘ argument for the invalidity of RA 9522 for its failure to textualize the Philippines‘
claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not
repeal, keeps open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of the baselines of
the territorial sea around the territory of Sabah, situated in North Borneo, over which the
Republic of the Philippines has acquired dominion and sovereignty. (Emphasis supplied)

UNCLOS III and RA 9522 not

Incompatible with the Constitution’s
Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the law
unconstitutionally ―converts‖ internal waters into archipelagic waters, hence subjecting these waters to
the right of innocent and sea lanes passage under UNCLOS III, including overflight. Petitioners
extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and maritime
pollution hazards, in violation of the Constitution.

Whether referred to as Philippine ―internal waters‖ under Article I of the Constitution or as

―archipelagic waters‖ under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the
body of water lying landward of the baselines, including the air space over it and the submarine areas
underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters
and of their bed and subsoil. –

1. The sovereignty of an archipelagic State extends to the waters enclosed by

the archipelagic baselines drawn in accordance with article 47, described as
archipelagic waters, regardless of their depth or distance from the coast.

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 2. This sovereignty extends to the air space over the archipelagic waters, as
well as to their bed and subsoil, and the resources contained therein.
xxxx

4. The regime of archipelagic sea lanes passage established in this Part shall not
in other respects affect the status of the archipelagic waters, including the sea
lanes, or the exercise by the archipelagic State of its sovereignty over such
waters and their air space, bed and subsoil, and the resources contained
therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and international
law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the
interest of maintaining unimpeded, expeditious international navigation, consistent with the international
law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass legislation designating
routes within the archipelagic waters to regulate innocent and sea lanes passage. Indeed, bills drawing
nautical highways for sea lanes passage are now pending in Congress.

In the absence of municipal legislation, international law norms, now codified in UNCLOS III,
operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the
treaty‘s limitations and conditions for their exercise. Significantly, the right of innocent passage is a
customary international law, thus automatically incorporated in the corpus of Philippine law. No
modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking retaliatory measures
from the international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of
innocent passage and sea lanes passage does not place them in lesser footing vis-à-vis continental coastal
States which are subject, in their territorial sea, to the right of innocent passage and the right of transit
passage through international straits. The imposition of these passage rights through archipelagic
waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to
claim all the waters landward of their baselines, regardless of their depth or distance from the coast,
as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of
archipelagic States‘ archipelago and the waters enclosed by their baselines as one cohesive entity
prevents the treatment of their islands as separate islands under UNCLOS III. Separate islands
generate their own maritime zones, placing the waters between islands separated by more than 24 nautical
miles beyond the States‘ territorial sovereignty, subjecting these waters to the rights of other States under
UNCLOS III.

Petitioners‘ invocation of non-executory constitutional provisions in Article II (Declaration of

Principles and State Policies) must also fail. Our present state of jurisprudence considers the provisions in
Article II as mere legislative guides, which, absent enabling legislation, ―do not embody judicially
enforceable constitutional rights x x x.‖ Article II provisions serve as guides in formulating and
interpreting implementing legislation, as well as in interpreting executory provisions of the Constitution.
Although Oposa v. Factoran treated the right to a healthful and balanced ecology under Section 16 of
Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional
violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII,
Section 2, paragraph 2) and subsistence fishermen (Article XIII, Section 7), are not violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic
zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such
zone. Such a maritime delineation binds the international community since the delineation is in strict
observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space – the exclusive economic zone – in waters previously part of the high seas.
UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this
zone up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of
other States that attached to this zone beyond the territorial sea before UNCLOS III.

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 RA 9522 and the Philippines’ Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not
bound to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find
petitioners‘ reading plausible. Nevertheless, the prerogative of choosing this option belongs to Congress,
not to this Court. Moreover, the luxury of choosing this option comes at a very steep price. Absent an
UNCLOS III compliant baselines law, an archipelagic State like the Philippines will find itself devoid of
internationally acceptable baselines from where the breadth of its maritime zones and continental shelf is
measured. This is recipe for a two-fronted disaster: first, it sends an open invitation to the seafaring
powers to freely enter and exploit the resources in the waters and submarine areas around our archipelago;
and second, it weakens the country‘s case in any international dispute over Philippine maritime space.
These are consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and
adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the
breadth of the Philippines‘ maritime zones and continental shelf. RA 9522 is therefore a most vital
step on the part of the Philippines in safeguarding its maritime zones, consistent with the
Constitution and our national interest.

FUNDAMENTAL PRINCIPLES AND STATE POLICIES

ARTICLE II

Are the principles in Article II of the Constitution self-executing principles?

The principles in Article II are not intended to be self-executing principles ready for enforcement
through courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial
review, and by the legislature in its enactment of laws [Tanada vs. Angara, 1997]

Does disregarding of these provisions give rise to a cause of action before the courts?

No. The disregard of such provisions does not give rise to any cause of action before the courts.
[Pamatong vs. Comelec, 2004] Generally, the provisions of Article II of the 1987 Constitution do not
confer rights as they are merely declaration of principles and policies. (EXCEPTION) However, the right
to a balanced and healthful ecology enunciated in Article II, Section 16 gives rise to a cause of
action that may be enforced by any citizen. (Oposa vs. Factoran)

What state policy is involved in Pamatong vs. Comelec?

Section 26, Art. II: ―The state shall guarantee equal access to opportunities for public service,
and prohibit political dynasties as may be defined by law.‖

This provision does not contain a judicially enforceable constitutional right and merely specifies a
guideline for legislative action. It is not intended to compel the State to enact positive measures that
would accommodate as many as possible into public office. The privilege may be subjected to limitations
such as the provision of the Omnibus Election Code on nuisance candidates. [Pamatong vs. Comelec]

A. Republicanism

Section 1 of Article II indicates the democratic and representative nature of our government by
providing that ―[T]he Philippines is a democratic and republican State. Sovereignty resides in the people
and all government authority emanates from them.‖

Ours is a democratic government, understood as participatory democracy; contemplates instances

where the people would act directly and not through their representatives (Tolentino vs. Comelec, 2004).
But how is this possible? ―An enfranchised citizen is a particle of popular sovereignty and is the ultimate
source of established authority.‖ – Justice Laurel.

A republic is a representative government, a government run by and for the people. It is not a
pure democracy where the people govern themselves directly. [Cruz] It is ―a government of laws and not
of men.‖

The two most distinguishing features of republicanism are representation and renovation. This
is the selection by the citizenry of a corps of public functionaries who derive their mandate from the

Page 20 of 186
 people and act on their behalf, serving for a limited period only, after which they are replaced or retained
at the option of their principal.

Manifestations of Republicanism:

a. Ours is a government of laws and not of men. [Villavicencio vs. Lukban]

b. Rule of the majority. [Plurality in elections]
c. Accountability of public officials.
d. Bill of Rights
e. Legislature cannot pass irrepealable laws
f. Separation of powers

THE DOCTRINE OF INCORPORATION

Section 2, Art. II

Every State is, by reason of its membership in the family of nations, bound by the generally
accepted principles of international law (customary international law), which are considered to be
automatically part of its own laws.

By virtue of this doctrine, our courts have applied the rules of international law in a number of
cases even if such rules had not previously been subject of statutory enactments, because these generally
accepted principles of international law are automatically part of our own laws. [Kuroda vs. Jalandoni,
1949]

This doctrine is affirmed in Sec. 2, Art. II.

Kuroda vs. Jalandoni. The petitioner was challenging the jurisdiction of the military
commission trying him on the ground that the Philippines was not covered by the Hague Convention for
being not a signatory thereto. The SC ruled that we were bound by that convention because it embodied
generally accepted principles of international law binding upon all States by reason of their membership
in the family of nations. [Cruz]

The phrase ―generally accepted principles of international law‖ refers to norms of general or
customary international law which are binding on all states.

Examples:

a) renunciation of war as an instrument of national policy;

b) sovereign immunity;
c) a person‘s right to life, liberty, or property;
d) pacta sunt servanda. [Pharmaceutical and Health Care Ass‘n of the Phils. vs. Duque]

DOCTRINE OF TRANSFORMATION

The transformation method requires that an international law principle be transformed into
domestic law through a constitutional mechanism, such as local legislation. Here, generally accepted
principles of international law are localized through legislation [Agustin vs. Edu, 1949]

Which should prevail in case of conflict between a rule of international law and the provisions of
the constitution or statute of the local state?

Efforts should first be exerted to harmonize them, so as to give effect to both.

In a situation, however, where the conflict is irreconcilable and a choice has to be made
between a rule of international law and municipal law, jurisprudence dictates that municipal law
should be upheld by the municipal courts . . . [f]or the reason that such courts are organs of
municipal law and are accordingly bound by it in all circumstances . . . ― [Secretary of Justice vs.
Lantion]

Treaties in relation to statutory law.

Guerrero’s Transport Services, Inc. vs. Blaylock Transportation Services Employees

Association-Kilusan (1976) tells us that ―[a] treaty has two (2) aspects – as an international
agreement between states and as municipal law for the people of each state to observe‖.

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 As municipal law, Abbas vs. Comelec (1989), a treaty ―would not be superior to . . . an
enactment of the Congress of the Philippines, rather it would be in the same class as the latter.‖
Abbas employs the later-in-time principle or les posterior derogat priori.

The Retail Trade Nationalization Law was passed in the exercise of police power which
cannot be bargained away through the medium of a treaty or contract. [Ichong vs. Hernandez]

On the basis of separation of powers and the rule-making powers of the SC, respectively.
The high tribunal also noted that courts are organs of municipal law and are accordingly bound by
it in all circumstances. [Gonzales vs. Hechanova; In Re: Garcia, 2 SCRA 984]

However, as applied in most countries, the doctrine of incorporation dictates that rules of
international law are given equal standing with, and are not superior to, national legislative
enactments.

The fact that international law has been made part of the law of the land does not by any
means imply primacy of international law over national law in the municipal sphere. [Philip
Morris, Inc. vs. CA, 1993]

As municipal law, Abbas vs. Comelec (1989), a treaty ―would not be superior to . . . an
enactment of the Congress of the Philippines, rather it would be in the same class as the latter.‖
Abbas employs the later-in-time principle or les posterior derogat priori. Its obiter holds:

Assuming for the sake of argument that the Tripoli Agreement is a

binding treaty or international agreement, it would then constitute part of the law
of the land. But as internal law it would not be superior to RA 6734, an enactment
of the Congress of the Philippines, rather it would be in the same class as the
latter…Thus, if at all, RA 6734 would be amendatory of the Tripoli Agreement,
being a subsequent law . . .‖

So, what are the two ways by which international law can become part of the sphere of domestic
law?

1. Incorporation method; and

2. Transformation method (Treaty clause, accdg. To Dean Merlin M. Magallona)

Supremacy of Civilian Authority

―Civilian authority is, at all times, supreme over the military…‖ To bolster this, the President,
who is a civilian official, is made the commander-in-chief of all the armed forces of the Philippines.

Manifestations of this principle:

1. The installation of the President, the highest civilian authority, as the commander-in-chief of the
armed forces of the Philippines (Sec. 18, Art. VII);
2. The requirement that members of the AFP swear to uphold and defend the Constitution, which is the
fundamental law of the civil government (Sec. 5(1), Art. XVI)

IBP vs. Zamora, 2000

Former Pres. Estrada through an LOI ordered the deployment of Marines to conduct joint
visibility patrols together with the PNP, a civilian authority, in shopping malls in Metro Manila. One of
the arguments raised to assail the constitutionality of said directive is that it violated the principle of
supremacy of civilian authority over the military. The LOI was eventually declared as constitutional since
the PNP, which is civilian in character, was not really made under the control of the Philippine Marines
for purposes of those joint visibility patrols. In fact, the command still comes from the PNP Director-
General.

The President issued Letter of Instruction (LOI) ordering the deployment of members of the Philippine
Marines in the metropolis to conduct joint visibility patrols with members of the Philippine National
Police in various shopping malls. Will this not violate the civilian supremacy clause under Section 3,
Article II of the Constitution? Does this not amount to an "insidious incursion" of the military in the task
of law enforcement in violation of Section 5(4), Article XVI of the Constitution?

Page 22 of 186
 The deployment of the Marines does not constitute a breach of the civilian supremacy clause.
The calling of the marines in this case constitutes permissible use of military assets for civilian law
enforcement. x x x The limited participation of the Marines is evident in the provisions of the LOI itself,
which sufficiently provides the metes and bounds of the Marines' authority. It is noteworthy that the
local police forces are the ones in charge of the visibility patrols at all times, the real authority
belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine
Marines joint visibility patrols. Under the LOI, the police forces are tasked to brief or orient the soldiers
on police patrol procedures. It is their responsibility to direct and manage the deployment of the Marines.
It is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support
to these soldiers. In view of the foregoing, it cannot be properly argued that military authority is supreme
over civilian authority.

Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian
character of the police force. Neither does it amount to an ―insidious incursion‖ of the military in the task
of law enforcement in violation of Section 5[4], Article XVI of the Constitution.

In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his
alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in
derogation of the aforecited provision. The real authority in these operations, as stated in the LOI, is
lodged with the head of a civilian institution, the PNP, and not with the military. Such being the case, it
does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he does not
exercise any authority or control over the same. Since none of the Marines was incorporated or enlisted
as members of the PNP, there can be no appointment to a civilian position to speak of. Hence, the
deployment of the Marines in the joint visibility patrols does not destroy the civilian character of the PNP.

Considering the above circumstances, the Marines render nothing more than assistance required
in conducting the patrols. As such, there can be no ―insidious incursion‖ of the military in civilian affairs
nor can there be a violation of the civilian supremacy clause in the Constitution.

It is worth mentioning that military assistance to civilian authorities in various forms persists in
Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the
military in the implementation and execution of certain traditionally ―civil‖ functions. x x x [S]ome of the
multifarious activities wherein military aid has been rendered, exemplifying the activities that bring both the
civilian and the military together in a relationship of cooperation, are:

1. Elections;
2. Administration of the Philippine National Red Cross;
3. Relief and rescue operations during calamities and disasters;
4. Amateur sports promotion and development;
5. Development of the culture and the arts;
6. Conservation of natural resources;
7. Implementation of the agrarian reform program;
8. Enforcement of customs laws;
9. Composite civilian-military law enforcement activities;
10. Conduct of licensure examinations;
11. Conduct of nationwide tests for elementary and high school students;
12. Anti-drug enforcement activities;
13. Sanitary inspections;
14. Conduct of census work;
15. Administration of the Civil Aeronautics Board;
16. Assistance in installation of weather forecasting devices;
17. Peace and order policy formulation in local government units.

This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken,
executive practice, long pursued to the knowledge of Congress and, yet, never before questioned. What we have
here is mutual support and cooperation between the military and civilian authorities, not derogation of civilian
supremacy.

In the United States, where a long tradition of suspicion and hostility towards the use of military force for
domestic purposes has persisted and whose Constitution, unlike ours, does not expressly provide for the power to
call, the use of military personnel by civilian law enforcement officers is allowed under circumstances similar to
those surrounding the present deployment of the Philippine Marines. (IBP v. Hon. Ronaldo B. Zamora, G.R. No.
141284, Aug. 15, 2000, En Banc [Kapunan]) (Sandoval notes)

Page 23 of 186
Defense of the State

Sec. 4, Art. II: ―The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may
be required, under conditions provided by law, to render personal military or civil service.‖

If Congress enacts a law that makes military service for women merely voluntary, is that law
constitutional? [2009 Bar exam]

Suggested answer: The law is unconstitutional because all citizens, men and women, without
distinction may be required to render personal military service.

Alternative answer: The law is constitutional because of substantial differences between men and
women.

Is the state entitled to self-defense even if it is not articulated in the constitution?

Yes because every state has an inherent right to existence and self-preservation. This is
recognized in international law.

Basis: inherent right of every State to existence and self-preservation. Right to existence and self-defense
is actually one of the rights of State under Public International law.

S – Sovereignty and Independence

P – Property and Jurisdiction
E – Existence and Self-defense
E – Equality
D – Diplomatic intercourse

―in the last analysis, what justifies compulsory military service is the defense of the State…‖
Jacobson vs. Massachusetts.

The military or civil service that may be required of the citizens by law must be personal.

Corollarily, may the State through Congress declare an offensive war?

No, for Congress is empowered to declare not war but the ―existence of a state of war.‖

May the right to bear arms be claimed as a constitutional right during a state of war?

The right to bear arms is a statutory, not a constitutional right. The license to carry firearm is
neither a property nor a property right.

SEPARATION OF CHURCH AND STATE

―The separation of Church and State shall be inviolable.‖ Sec. 6, Art. II. This is reinforced by:

1. The ―establishment clause‖ – ―no law shall be made respecting an establishment of religion or
prohibiting the free exercise thereof.‖ (Sec. 5, Art. III);
2. Religious sect cannot be registered as political party. [Sec. 2(5), Art. IX-C];
3. No sectoral representative from the religious sector. [Sec. 5(2), Art. VI];
4. Prohibition against appropriation for sectarian benefit. [Sec. 29(2), Art. VI]

Rationale: ―Strong fences make good neighbors.‖

―render unto Caesar the things that are Caesar‘s and unto God the things that are God‘s.‖

Discuss the constitutional scheme on separation of church and state.

Under our constitutional scheme, it is not the task of the State to favor any religion by protecting
it against an attack by another religion. Vis-à-vis religious differences, the State enjoys no banquet of
option. [INC vs. CA, 1996]

[H]owever, the command that church and State be separate is not to be interpreted to mean
hostility to religion (Aglipay vs. Ruiz, 1937)

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 Do you agree that a union of Church and State ―tends to destroy government and to degrade
religion‖?

PROMOTION OF HEALTH AND ECOLOGY

The State shall protect and promote the right to health of the people and instill health
consciousness among them. [Sec. 15, Art. II] The State shall protect and advance the right of the people to
a balanced and healthful ecology in accord with the rhythm and harmony of nature. [Sec. 16, Art. II]

Oposa vs. Factoran. Petitioners, minors duly joined by their respective parents, had a valid cause
of action in questioning the continued grant of Timber License Agreements (TLAs) for commercial
logging purposes, because the cause focuses on a fundamental legal right: the right to a balanced and
healthful ecology.

What is the doctrine of intergenerational responsibility?

Petitioners minors assert that they represent their generation as well as generations yet unborn.
We find no difficulty in ruling that they can, for themselves, for others of their generation, and for
succeeding generations, to file a class suit. Their personality to sue on behalf of succeeding generation
can only be based on the personality concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. [Oposa vs. Factoran]

This is the doctrine by virtue of which the members of the present generation are given the
personality to sue on behalf of succeeding generations insofar as the right to a balanced and healthful
ecology is concerned.

Is the right to a balanced and healthful ecology any less important than any of the civil and political
rights enumerated in the Bill of Rights? Explain.

While the right to a balanced and healthful ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important
than any of the civil and political rights enumerated in the latter. Such a right belongs to a different
category of rights altogether for it concerns nothing less than self-preservation and self-
perpetuation, the advancement of which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they
are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far when all else would be
lost not only for the present generation, but also for those to come – generations which stand to inherit
nothing but parched earth incapable of sustaining life. (Oposa v. Factoran, Jr., 224 SCRA 792
[1993][Davide]) (Sandoval notes)

Indigenous Cultural Communities

The State recognizes and promotes the rights of indigenous cultural communities within the
framework of national unity and development. [Sec. 22, Art. II]

Reinforced by:

a. Sec. 5(2), Art. VI: sectoral representation of ICCs

b. Sec. 5, Art. XII: State protection of the rights of ICCs to their ancestral lands to ensure their
economic, social, and cultural well-being.
c. Sec. 17, Art. XIV: State recognition, respect, and protection of the rights of ICCs to preserve and
develop their cultures, traditions, and institutions.

The Rights of Indigenous Cultural Communities/Indigenous Peoples

Does R.A. 8371, otherwise known as ―the Indigenous People‘s Rights Act‖ infringe upon the State‘s
ownership over the natural resources within the ancestral domains?
NO. That IPRA is not intended to bestow ownership over natural resources to the indigenous
peoples.

Page 25 of 186
 Petitioners posit that IPRA deprives the State of its ownership over mineral lands of the public
domain and other natural resources, as well as the State‘s full control and supervision over the
exploration, development and utilization of natural resources. Specifically, petitioners and the Solicitor
General assail Sections 3[a], 5, and 7 of IPRA as violative of Section 2, Article XII of the Constitution
which states, in part, that ―[a]ll 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.‖ (Section 2, Article XII, Constitution) They would have the
Court declare as unconstitutional Section 3[a] of IPRA because the inclusion of natural resources in the
definition of ancestral domains purportedly results in the abdication of State ownership over these
resources.

Xxx

Section 3[a] merely defines the coverage of ancestral domains, and describes the extent, limit and
composition of ancestral domains by setting forth the standards and guidelines in determining whether a
particular area is to be considered as part of and within the ancestral domains. In other words, Section
3[a] serves only as a yardstick which points out what properties are within the ancestral domains. It
does not confer or recognize any right of ownership over the natural resources to the indigenous
peoples. Its purpose is definitional and not declarative of a right or title.

The specification of what areas belong to the ancestral domains is, to our mind, important to
ensure that no unnecessary encroachment on private properties outside the ancestral domains will result
during the delineation process. The mere fact that Section 3[a] defines ancestral domains to include the
natural resources found therein does not ipso facto convert the character of such natural resources as
private property of the indigenous peoples. Similarly, Section 5 in relation to Section 3[a] cannot be
construed as a source of ownership rights of indigenous people over the natural resources simply because
it recognizes ancestral domains as their ―private but community property.‖

The phrase “private but community property” is merely descriptive of the indigenous peoples’
concept of ownership as distinguished from that provided in the Civil Code. x x x. In contrast, the
indigenous peoples’ concept of ownership emphasizes the importance of communal or group
ownership. By virtue of the communal character of ownership, the property held in common “cannot
be sold, disposed or destroyed” because it was meant to benefit the whole indigenous community and
not merely the individual member.

That IPRA is not intended to bestow ownership over natural resources to the indigenous peoples
is also clear from the deliberations of the bicameral conference committee on Section 7 which recites the
rights of indigenous peoples over their ancestral domains x x x.

Further, Section 7 makes no mention of any right of ownership of the indigenous peoples over
the natural resources. In fact, Section 7[a] merely recognizes the ―right to claim ownership over lands,
bodies of water traditionally and actually occupied by indigenous peoples, sacred places, traditional
hunting and fishing grounds, and all improvements made by them at any time within the domains.‖
Neither does Section 7[b], which enumerates certain rights of the indigenous peoples over the natural
resources found within their ancestral domains, contain any recognition of ownership vis-à-vis the natural
resources.

What is evident is that the IPRA protects the indigenous peoples’ rights and welfare in relation
to the natural resources found within their ancestral domains, including the preservation of the
ecological balance therein and the need to ensure that the indigenous peoples will not be unduly
displaced when the State-approved activities involving the natural resources located therein are
undertaken. (Separate Opinion, Kapunan, J., in Cruz v. Secretary of Environment and Natural
Resources, 347 SCRA 128, 284-293, Dec. 6, 2000, En Banc [Per Curiam])

Has the concept of native title to natural resources, like native title to land, been recognized in the Philippines?

The concept of native title to natural resources, unlike native title to land, has not been
recognized in the Philippines. NCIP and Flavier, et al. invoke the case of Reavies v. Fianza (40 Phil.
1017 [1909], 215 US 16, 54 L Ed 72) in support of their thesis that native title to natural resources has
been upheld in this jurisdiction. They insist that ―it is possible for rights over natural resources to vest on
a private (as opposed to a public) holder if these were held prior to the 1935 Constitution.‖ However, a
judicious examination of Reavies reveals that, contrary to the position of NCIP and Flavier, et al., the
Court did not recognize native title to natural resources. Rather, it merely upheld the right of the
indigenous peoples to claim ownership of minerals under the Philippine Bill of 1902.

While x x x native title to land or private ownership by Filipinos of land by virtue of time
immemorial possession in the concept of an owner was acknowledged and recognized as far back during
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 the Spanish colonization of the Philippines, there was no similar favorable treatment as regards natural
resources. The unique value of natural resources has been acknowledged by the State and is the
underlying reason for its consistent assertion of ownership and control over said natural resources
from the Spanish regime up to the present. Natural resources, especially minerals, were considered by
Spain as an abundant source of revenue to finance its battle in wars against other nations. Hence,
Spain, by asserting its ownership over minerals wherever these may be found, whether in public or
private lands, recognized the separability of title over lands and that over minerals which may be found
therein (Noblejas, Philippine Law on Natural Resources 1961 Revised Ed., p. 6).

On the other hand, the United States viewed natural resources as a source of wealth for its
nationals. As the owner of natural resources over the Philippines after the latter’s cession from Spain,
the United States saw it fit to allow both Filipino and American citizens to explore and exploit minerals
in public lands, and to grant patents to private mineral lands. x x x. Although the United States made a
distinction between minerals found in public lands and those found in private lands, title in these minerals
was in all cases sourced from the State. The framers of the 1935 Constitution found it necessary to
maintain the State‘s ownership over natural resources to insure their conservation for future generations
of Filipinos, to prevent foreign control of the country through economic domination; and to avoid
situations whereby the Philippines would become a source of international conflicts, thereby posing
danger to its internal security and independence.

The declaration of State ownership and control over minerals and other natural resources in the
1935 Constitution was reiterated in both the 1973 and 1987 Constitutions. (Separate Opinion, Kapunan,
J., in Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 284-293, Dec. 6, 2000,
En Banc [Per Curiam]) (Sandoval notes)

Discuss the Indigenous Peoples Rights Act (R.A. No. 8371).

Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the Rights of
Indigenous Cultural Communities/Indigenous Peoples, Creating a National Commission on Indigenous
Peoples, Establishing Implementing Mechanisms, Appropriating Funds Therefor, and for Other
Purposes." It is simply known as "The Indigenous Peoples Rights Act of 1997" or the IPRA.

The IPRA recognizes the existence of the indigenous cultural communities or indigenous
peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the ownership and
possession of their ancestral domains and ancestral lands, and defines the extent of these lands and
domains. The ownership given is the indigenous concept of ownership under customary law which
traces its origin to native title.

Xxx

Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to self-
governance and empowerment (Sections 13 to 20), social justice and human rights (Sections 21 to 28), the
right to preserve and protect their culture, traditions, institutions and community intellectual rights, and
the right to develop their own sciences and technologies (Sections 29 to 37). (Separate Opinion, Puno,
J., in Isagani Cruz v. Secretary of DENR, et al., G.R. No. 135385, Dec. 6, 2000, En Banc) (Sandoval
notes)

Define "indigenous peoples/indigenous cultural communities."

[Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or

homogeneous societies who have continuously lived as an organized community on communally bounded
and defined territory].

Drawing inspiration from both our fundamental law and international law, IPRA now employs
the politically-correct conjunctive term "indigenous peoples/indigenous cultural communities" as follows:

Section 3. Definition of Terms. - For purposes of this Act, the following terms shall mean:

(a) Indigenous peoples/Indigenous cultural communities. - refer to a group of people or

homogenous societies identified by self-ascription and ascription by others, who have continuously lived
as organized community on communally bounded and defined territory, and who have, under claims of
ownership since time immemorial, occupied, possessed and utilized such territories, sharing common
bonds of language, customs, traditions, and other distinctive cultural traits, or who have, through
resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures,
became historically differentiated from the majority of Filipinos. Indigenous peoples shall likewise
include peoples who are regarded as indigenous on account of their descent from the populations which
inhabited the country at the time of conquest or colonization, or at the time of inroads of non-indigenous

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 religions and cultures, or the establishment of present State boundaries, who retain some or all of their
own social, economic, cultural and political institutions, but who may have been displaced from their
traditional domains or who may have resettled outside their ancestral domains x x x.
(Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of Environment and Natural Resources,
et al., G.R. No. 135385, Dec. 6, 2000, En Banc)(Sandoval notes)

The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural
Communities (ICCs) or the Indigenous Peoples (IPs). The term "ICCs" is used in the 1987
Constitution while that of "IPs" is the contemporary international language in the International
Labor Organization (ILO) Convention 169 (Convention Concerning Indigenous and Tribal Peoples
in Independent Countries, June 27, 1989) and the United Nations (UN) Draft Declaration on the
Rights of Indigenous Peoples (Guide to R.A. 8371, published by the Coalition for IPs Rights and
Ancestral Domains in cooperation with the ILO and Bilance-Asia Department, p. 4 [1999] - hereinafter
referred to as Guide to R.A. 8371).

Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or

homogeneous societies who have continuously lived as an organized community on communally bounded
and defined territory. These groups of people have actually occupied, possessed and utilized their
territories under claim of ownership since time immemorial. They share common bonds of language,
customs, traditions and other distinctive cultural traits, or, they, by their resistance to political, social and
cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated
from the Filipino majority. ICCs/IPs also include descendants of ICCs/IPs who inhabited the country at
the time of conquest or colonization, who retain some or all of their own social, economic, cultural and
political institutions but who may have been displaced from their traditional territories or who may have
resettled outside their ancestral domains. (Separate Opinion, Puno, J., in Isagani Cruz v. Secretary of
DENR, et al., G.R. No. 135385, Dec. 6, 2000, En Banc) (Sandoval notes)

Define "ancestral domains" and "ancestral lands." Do they constitute part of the land of the public domain?
NO.

Ancestral domains and ancestral lands are the private property of indigenous peoples and do not
constitute part of the land of the public domain.

The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains and ancestral
lands. Ancestral lands are not the same as ancestral domains. These are defined in Section 3(a) and (b) of
the Indigenous Peoples Rights Act x x x.

Ancestral domains are all areas belonging to ICCs/IPs held under a claim of ownership,
occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or
individually since time immemorial, continuously until the present, except when interrupted by war,
force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any
other voluntary dealings with government and/or private individuals or corporations. Ancestral domains
comprise lands, inland waters, coastal areas, and natural resources therein and includes ancestral
lands, forests, pasture, residential, agricultural, and other lands individually owned whether
alienable or not, hunting grounds, burial grounds, worship areas, bodies of water, mineral and
other natural resources. They also include lands which may no longer be exclusively occupied by
ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities,
particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators (Section 3[a],
IPRA).

Ancestral lands are lands held by the ICCs/IPs under the same conditions as ancestral
domains except that these are limited to lands and that these lands are not merely occupied and
possessed but are also utilized by the ICCs/IPs under claims of individual or traditional group
ownership. These lands include but are not limited to residential lots, rice terraces or paddies, private
forests, swidden farms and tree lots (Section 3[b], IPRA). (Separate Opinion, Puno, J., in Isagani Cruz
v. Secretary of DENR, et al., G.R. No. 135385, Dec. 6, 2000, En Banc) (Sandoval notes)

How may ICCs/IPs acquire rights to their ancestral domains and ancestral lands?

The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired in two
modes:

(1) by native title over both ancestral lands and domains; or

(2) by torrens title under the Public Land Act and the Land Registration Act with respect to
ancestral lands only. (Separate Opinion, Puno, J., in Isagani Cruz v. Secretary of DENR, et al.,
G.R. No. 135385, Dec. 6, 2000, En Banc) (Sandoval notes)

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What is the concept of "native title"? What is a Certificate of Ancestral Domain Title (CADT)?

Native title refers to ICCs/IPs preconquest rights to lands and domains held under a claim
of private ownership as far back as memory reaches. These lands are deemed never to have been
public lands and are indisputably presumed to have been held that way since before the Spanish
Conquest. The rights of ICCs/IPs to their ancestral domains (which also include ancestral lands) by
virtue of native title shall be recognized and respected (Section 11, IPRA). Formal recognition, when
solicited by ICCs/IPs concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT),
which shall recognize the title of the concerned ICCs/IPs over the territories identified and delineated.

Like a torrens title, a CADT is evidence of private ownership of land by native title. Native title,
however, is a right of private ownership peculiarly granted to ICCs/IPs over their ancestral lands and
domains. The IPRA categorically declares ancestral lands and domains held by native title as never to
have been public land. Domains and lands held under native title are, therefore, indisputably presumed to
have never been public lands and are private.

The concept of native title in the IPRA was taken from the 1909 case of Carino v. Insular
Government (41 Phil. 935 [1909], 212 U.S. 449, 53 L. Ed. 594). Carino firmly established a concept of
private land title that existed irrespective of any royal grant from the State. (Separate Opinion, Puno, J.,
in Isagani Cruz v. Secretary of DENR, et al., G.R. No. 135385, Dec. 6, 2000, En Banc) (Sandoval
notes)

Distinguish ownership of land under native title and ownership by acquisitive prescription against the State.

Ownership by virtue of native title presupposes that the land has been held by its possessor and
his predecessor-in-interest in the concept of an owner since time immemorial. The land is not acquired
from the State, that is, Spain or its successor-in-interest, the United States and the Philippine Government.
There has been no transfer of title from the State as the land has been regarded as private in character as
far back as memory goes. In contrast, ownership of land by acquisitive prescription against the State
involves a conversion of the character of the property from alienable public land to private land, which
presupposes a transfer of title from the State to a private person. (Separate Opinion, Kapunan, J., in
Isagani Cruz v. Secretary of DENR, G.R. No. 135385, Dec. 6, 2000, En Banc) (Sandoval notes)

CITIZENSHIP
ARTICLE IV

CITIZENSHIP. Membership in a political community which is personal and more or less permanent in
character.

NATIONALITY. Membership in any class or form of political community. Nationality does not necessarily
include the right or privilege of exercising civil or political rights.

 a person‘s citizenship is determined by the prevailing constitution at the time of his birth. This is
very important. That is why it is important to know the date of effectivity of the 1935, 1973, and 1987
Constitution.

What are the usual modes of acquiring citizenship?

a. By birth, which is of two modes: 1. Jus sanguinis (blood relationship) and 2. Jus soli (birth place)

b. By naturalization;
c. By marriage.

Modes (by birth) applied in the Phils:

a. Before the adoption of the 1935 Constitution:

1. Jus sanguinis. All inhabitants of the islands who were Spanish subjects on April 11, 1899, and residing in
the islands who did not declare their intention of preserving Spanish nationality between said date and
October 11, 1900, were declared citizens of the Philippines [Sec. 4, Philippine Bill of 1902, which
effected ―en masse Filipinization‖; Sec. 2, Jones Law of 1916], and their children born after April 11,
1899;
2. Jus soli. (Roa vs. Collector of Customs, Roa doctrine)

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b. After the adoption of the 1935 Constitution: only the jus sanguinis doctrine.

What citizenship principle does the Philippines adhere to?

The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a child follows the
nationality or citizenship of the parents regardless of the place of his/her birth, as opposed to the doctrine of jus
soli which determines nationality or citizenship on the basis of place of birth.

The signing into law of the 1935 Philippine Constitution has established the principle of jus sanguinis as basis for
the acquisition of Philippine citizenship x x x. So also, the principle of jus sanguinis, which confers citizenship
by virtue of blood relationship, was subsequently retained under the 1973 and 1987 Constitutions.

Who are natural-born citizens and what are the two types of natural-born citizens?

(1st type). Those who are citizens of the Philippines from birth without having to perform any act
to acquire or perfect their Philippine citizenship.

(2nd type). Those who elect Philippine citizenship in accordance with par. 3, Sec. 1 hereof shall be
deemed natural-born citizens referring to those born before January 17, 1973 [Sec. 2, Art. IV]

What are the two kinds of Filipino citizenship?

In general actually there are only two kinds of Filipino citizens – natural born or naturalized.
There is no third category there. Either one is natural born or one is naturalized. If one did not have to
undergo the cumbersome process of naturalization, that simply means that he is natural born [Sandoval
notes].

What is the policy against dual allegiance?

Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. [Sec.
5, Art. IV]

Mercado vs. Manzano

―Dual citizenship‖ as a disqualification (Sec. 40, LGC) must refer to citizens with ―dual
allegiance‖. Consequently, persons with mere dual citizenship do not fall under the disqualification.
(reiterated in Valles vs. Comelec) xxx The filing of a certificate of candidacy suffices to renounce foreign
citizenship, effectively removing any disqualification as dual citizen. This is so because in the certificate
of candidacy, one declares that he/she is a Filipino citizen and that he/she will support and defend the
Constitution and will maintain true faith and allegiance to the same. Such declaration under oath operates
as an effective renunciation of foreign citizenship.

However this doctrine (italicized and underscored above) does not apply to one who, after having
reacquired Philippine citizenship under RA 9225, runs for public office. To comply with the provisions of
Sec. 5(2) of RA 9225 (An Act Making the Citizenship of Philippine Citizens Who Acquire Foreign
Citizenship Permanent), it is necessary that the candidate for public office must state in clear and
unequivocal terms that he is renouncing all foreign citizenship. [Lopez vs. Comelec]

Distinguish dual citizenship from dual allegiance.

Dual citizenship 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. For
instance, such a situation may arise when a person whose parents are citizens of a state which adheres to
the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso
facto and without any voluntary act on his part, is concurrently considered a citizen of both states.

Dual allegiance, on the other hand, refers to a 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 individual‘s volition. (Mercado v. Manzano, 307 SCRA 630, May 26, 1999,
En Banc [Mendoza]) (Sandoval notes)

Eusebio Eugenio Lopez vs. Comelec (2008) reiterated in Jacot vs. Dal and Comelec (2008)

A Filipino-American, or any dual citizen cannot run for elective public office in the Philippines
unless he personally swears to a renunciation of all foreign citizenship at the time of filing of the
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 certificate of candidacy. The mere filing of a certificate of candidacy is not sufficient; Sec. 5(2) of RA
9225 categorically requires the individual to state in clear and unequivocal terms that he is renouncing all
foreign citizenship, failing which, he is disqualified from running for an elective position. The fact that he
may have won the elections, took his oath and began discharging the functions of the office cannot cure
the defect of his candidacy. The doctrine laid down in Valles vs. Comelec, and Mercado vs. Manzano
does not apply.

May an attack on one‘s citizenship be made through a collateral proceeding?

No. Attack on one‘s citizenship may be made only through a direct, not a collateral proceeding.
[Co vs. HRET]

Does the doctrine of Res Judicata apply in cases involving citizenship?

As a rule, the doctrine of Res Judicata does not ordinarily apply to questions of citizenship. It
applies only when:

a. A person‘s citizenship is resolved by a court or an administrative body, as a material issue in the

controversy, after a full-blown hearing;
b. With the active participation of the Solicitor-General or his representative; and
c. The finding of his citizenship is affirmed by the SC.

Then the decision on the matter shall constitute conclusive proof of such party‘s citizenship in
any other case or proceeding. [Board of Commissioners, CID vs. de la Rosa]

WHO ARE CITIZENS OF THE PHILIPPINES?

1. Those who are citizens of the Philippines at the time of the adoption of this Constitution;

a. Citizens under the 1935 Constitution:

i. Sec. 4, Philippine Bill of 1902 [en masse Filipinization]; Sec. 2, Jones Law of 1916 [including children
born after April 11, 1899]

Maria Jeanette Tecson vs. Comelec (The case on the controversy surrounding the citizenship of FPJ)

The issue of whether or not FPJ is a natural-born citizen would depend on whether his father,
Allan F. Poe, was himself a Filipino citizen, and if in the affirmative, whether or not the alleged
illegitimacy of FPJ prevents him from taking after the Filipino citizenship of his putative father. The Court
took note of the fact that Lorenzo Pou (father of Allan F. Poe), who died in 1954 at 84 years old, would
have been born sometime in 1870, when the Philippines was under Spanish rule, and that San Carlos,
Pangasinan, his place of residence upon his death in 1954, in the absence of any other evidence, would
have benefited from the ―en masse Filipinization‖ that the Philippine Bill of 1902 effected. That Filipino
citizenship of Lorenzo Pou, if acquired, would thereby extend to his son, Allan F. Poe (father of FPJ). The
1935 Constitution, during which regime FPJ has seen first light, confers citizenship to all persons whose
fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate.

Now, with respect to those born under the 1935 constitution of a Filipino father like FPJ,
regardless of whether he is legitimate or illegitimate, he is a Filipino citizen because the 1935
constitution clearly provides that among those who are citizens of the Philippines are those whose
fathers are citizens of the Philippines. The 1935 constitution only made a distinction between
legitimate and illegitimate children with respect to those born of Filipino mothers. [Sandoval notes]

ii. Act No. 2927 [March 26, 1920], then CA 473, on naturalization [including children below 21 and
residing in the Philippines at the time of naturalization, as well as children born subsequent to
naturalization];

iii. Foreign women married to Filipino citizens before or after November 30, 1938 [effectivity of CA 473]
who might themselves be lawfully naturalized [in view of the SC interpretation of Sec. 15, CA 473, in
Moy Ya Lim Yao vs. Commissioner of Immigration];

iv. Those benefited by the Roa doctrine applying the jus soli principle;

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 v. Caram Provision. Those born in the Philippines of foreign parents who, before the adoption of this
[1935] Constitution, had been elected to public office in the Islands. The right acquired by virtue of this
provision is transmissible – Chiongbian vs. de Leon;

vi. Those who elected Philippine citizenship.

b. Citizens under the 1973 Constitution: Those whose mothers are citizens of the Philippines. This provision
is prospective in application; to benefit only those born on or after January 17, 1973 Constitution.

2. Those whose fathers or mothers are citizens of the Philippines [Prospective in application, consistent with the
provision of the 1973 Constitution]

3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the
age of majority; and

What is the procedure of election?

Election is expressed in a statement to be signed and sworn to by the party concerned before any official
authorized to administer oaths. Statement to be filed with the nearest Civil Registry, accompanied with the
Oath of Allegiance to the Constitution and the Government of the Philippines [Sec. 1, CA 625].

When should the election be made?

Within three (3) years from reaching the age of majority [Opinion, Sec. of Justice, s. 1948]; except when
there is a justifiable reason for the delay.

Example of justifiable delay

There was justifiable reason for the delay because the party thought all along that he was already
a Filipino citizen [Cuenco vs. Sec. of Justice]

Manifestations of Election

a. Doctrine of Implied Election [In Re: Florencio Mallari]

b. The exercise of the right of suffrage and participation in election exercises constitute a positive act of
election of Philippine citizenship [Co vs. HRET]

Can a legitimate child born under the 1935 Constitution of a Filipino mother and an alien father
validly elect Philippine citizenship fourteen (14) years after he has reached the age of majority? NO.

Under Article IV, Section 1(3) of the 1935 Constitution, the citizenship of a legitimate child
born of a Filipino mother and an alien father followed the citizenship of the father, unless, upon
reaching the age of majority, the child elected Philippine citizenship. C.A. No. 625 which was
enacted pursuant to Section 1(3), Article IV of the 1935 Constitution, prescribes the procedure that should
be followed in order to make a valid election of Philippine citizenship. However, the 1935 Constitution
and C.A. No. 625 did not prescribe a time period within which the election of Philippine citizenship
should be made. The 1935 Charter only provides that the election should be made ―upon reaching the age
of majority.‖ The age of majority then commenced upon reaching twenty-one (21) years. In the opinions
of the Secretary of Justice on cases involving the validity of election of Philippine citizenship, this
dilemma was resolved by basing the time period on the decisions of this Court prior to the effectivity of
the 1935 Constitution. In these decisions, the proper period for electing Philippine citizenship was, in
turn, based on the pronouncements of the Department of State of the United States Government to the
effect that the election should be made within a ―reasonable time‖ after attaining the age of majority. The
phrase ―reasonable time‖ has been interpreted to mean that the election should be made within
three (3) years from reaching the age of majority.

The span of fourteen (14) years that lapsed from the time that person reached the age of
majority until he finally expressed his intention to elect Philippine citizenship is clearly way beyond
the contemplation of the requirement of electing ―upon reaching the age of majority.‖

[Ching, having been born on April 11, 1964, was already 35 years old when he complied with the
requirements of CA 625 on June 15, 1999 or over 14 years after he had reached the age of majority. By
any reasonable yardstick, Ching‘s election was clearly beyond the allowable period within which to

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 exercise the privilege. All his mentioned acts cannot vest in him citizenship as the law gives requirement
for election of Filipino citizenship which Ching did not comply with] (Nachura)

Philippine citizenship can never be treated like a commodity that can be claimed when needed
and suppressed when convenient. One who is privileged to elect Philippine citizenship has only an
inchoate right to such citizenship. As such, he should avail of the right with fervor, enthusiasm and
promptitude. (Re: Application for Admission to the Philippine Bar, Vicente D. Ching, Bar Matter No.
914, Oct. 1, 1999, En Banc [Kapunan]) [Sandoval notes]

In case of a Filipino mother who lost her Philippine citizenship by reason of her marriage to an
alien, is the right to elect Philippine citizenship available to a child (legitimate) born to that
marriage?

Yes. The right is available to the child as long as his mother was a Filipino citizen at the time of
her marriage to the alien, even if by reason of such marriage, she lost her Philippine citizenship [Cu vs.
Republic]; and even if the mother was not a citizen of the Philippines at birth [Opinion, Sec. of Justice, s.
1948].

What is the nature of the right to elect Philippine citizenship?

The right to elect Philippine citizenship is an inchoate right; during his minority, the child is an
alien [Villahermosa vs. Commissioner of Immigration]

Does the requirement of electing Philippine citizenship apply to illegitimate children?

The constitutional and statutory requirements of electing Filipino citizenship apply only to
legitimate children (of Filipino mother and her alien spouse born under the 1935 Constitution)[Republic
vs. Chule Lim]. (Parenthesis supplied)

If the child is illegitimate, he follows the status and citizenship of his only known parent, the
mother [Serra vs. Republic]

4. Those who are naturalized in accordance with law.

What is the Doctrine of Indelible Allegiance?

An individual may be compelled to retain his original nationality even if he has already
renounced or forfeited it under the laws of the second State whose nationality he has acquired.

What are three ways by which an alien may become a citizen of the Philippines by naturalization?

In the case of Edison So vs. Republic dealing with naturalization, the court clarified that under
current and existing laws, there are three ways by which an alien may become a citizen of the Philippines
by naturalization.

1. administrative naturalization pursuant to RA 9139 [Administrative Naturalization Law of 2000]

which is a relatively new law;

Is RA 9139 available to all aliens? NO.

RA 9139 is not really available to all aliens. This is available only to native-born aliens who
live here in the Philippines all their lives; who thought that they were Filipinos; who have adopted our
culture and tradition, and etc.

Special Committee on Naturalization:

This is composed of the Solicitor-General, as chairman, the Secretary of Foreign Affairs or his
representative, and the National Security Adviser, as members. This committee has the power to
approve, deny or reject applications for naturalization under this Act.

2. judicial naturalization pursuant to CA 473, as amended, which is the naturalization law that we
know of. The process here is judicial, very cumbersome, tedious, very technical, and costly; and

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 3. legislative naturalization pursuant to a law enacted by Congress vesting or conferring citizenship to
an alien.

Edison So vs. Republic (2007)

C.A. 473 and RA 9139 are separate and distinct laws. The former covers aliens regardless of
class, while the latter covers native-born aliens who lived in the Philippines all their lives, who never saw
any other country and all along thought that they were Filipinos, who have demonstrated love and loyalty
to the Philippines and affinity to Filipino customs and traditions.

The intention of the legislature in enacting RA 9139 was to make the process of acquiring
Philippine citizenship less tedious, less technical, and more encouraging. There is nothing in the law
from which it can be inferred that CA 473 is intended to be annexed to or repealed by RA 9139. What the
legislature had in mind was merely to prescribe another mode of acquiring Philippine citizenship which
may be availed of by native-born aliens. The only implication is that a native-born alien has the choice to
apply for judicial or administrative naturalization, subject to the prescribed qualifications and
disqualifications.

What are the causes for LOSS OF CITIZENHIP? [C.A. 63]

1. By naturalization in a foreign country

However, this is modified by RA 9225 [An Act Making the Citizenship of Philippine
Citizens Who Acquire Foreign Citizenship Permanent] (which took effect on September 17,
2003), which declares the policy of the State that all Philippine citizens who become citizens of
another country shall be deemed not to have lost their Philippine citizenship under the conditions
of this Act. (Nachura);

2. By express renunciation of citizenship

Express renunciation means a renunciation that is made known distinctly and explicitly,
and not to inference or implication [Board of Immigration Commissioners vs. Go Gallano].

Examples of express renunciation:

a. Labo lost Filipino citizenship because he expressly renounced allegiance to the Philippines when
he applied for Australian citizenship [Labo vs. Comelec];

b. Obtention of a Portuguese passport and signing of commercial documents as a Portuguese were

construed as renunciation of Philippine citizenship [Willie Yu vs. Defensor-Santiago]

No express renunciation here:

The fact that private respondent was born in Australia does not mean that she is not a
Filipino. If Australia follows the principle of jus soli, then at most she can also claim Australian
citizenship, resulting in her having dual citizenship. That she was a holder of an Australian passport
and had an alien certificate of registration do not constitute effective renunciation, and do not militate
against her claim, of Filipino citizenship. For renunciation to effectively result in the loss of
citizenship, it must be express. [Valles vs. Comelec]

3. By subscribing to an oath of allegiance to support the Constitution or laws of a foreign country

upon attaining 21 years of age; Provided, however, that a Filipino may not divest himself of Philippine
citizenship in any manner while the Republic of the Philippines is at war with any country ;

This should be considered modified by RA 9225[An Act Making the Citizenship of Philippine
Citizens Who Acquire Foreign Citizenship Permanent].

The underscored proviso may be considered as an application of the principle of indelible

allegiance.

4. By rendering service to or accepting commission in the armed forces of a foreign country [unless
with the consent of the Republic of the Philippines if either of the following requisites is present: (1) The
Republic of the Philippines has a defensive and/or offensive pact of alliance with the said foreign country;
or (2) The said foreign country maintains armed forces in Philippine territory with the consent of the
Republic of the Philippines];

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 5. By cancellation of the certificate of naturalization;

6. By having been declared by competent authority a deserter of the Philippine armed forces in time of
war, unless subsequently, a plenary pardon or amnesty has been granted.

What are the ways by which Filipino citizenship may be reacquired?

REACQUISITION OF CITIZENSHIP

1. Under RA 9225, by taking the oath of allegiance required of former natural-born Philippine citizens who
may have lost their Philippine citizenship by reason of their acquisition of the citizenship of an foreign
country;

2. By naturalization provided that the applicant possesses none of the disqualifications prescribed for
naturalization;

3. By repatriation of deserters of the Army, Navy, or Air Corps, provided that a woman who lost her
citizenship by reason of her marriage to an alien may be repatriated in accordance with the provisions of
this Act after the termination of the marital status;

What is the effect of repatriation?

It results in the recovery of the original nationality.

The act of repatriation allows the person to recover, or return to, his original status before
he lost his Philippine citizen. Thus, respondent Cruz, a former natural-born Filipino citizen who
lost his Philippine citizenship when he enlisted in the United States Marine Corps, was deemed to
have recovered his natural-born status when he reacquired Filipino citizenship through
repatriation [Bengzon III vs. HRET]

When does repatriation take effect?

Repatriation retroacts to the date of filing of the application (for repatriation) [Frivaldo
vs. Comelec]

Repatriation under RA 8171 (lapsed into law on October 23, 1995)

The law governs the repatriation of Filipino women who may have lost Filipino citizenship by
reason of marriage to aliens, as well as the repatriation of former natural-born Filipino citizens who lost
Filipino citizenship on account of political or economic necessity, including their minor children. (with
conditions). Repatriation is effected by taking the necessary oath of allegiance to the Republic of the
Philippines and registration in the proper Civil Registry an in the Bureau of Immigration and Deportation.

4. By direct act of Congress.

DISTINCTIONS BETWEEN NATURALIZATION AND REPATRIATION

Naturalization is a mode for both acquisition and reacquisition of Philippine citizenship. As a

mode of initially acquiring Philippine citizenship, naturalization is governed by Commonwealth Act No.
473, as amended. On the other hand, naturalization as a mode for reacquiring Philippine citizenship is
governed by Commonwealth Act No. 63 (An Act Providing for the Ways in Which Philippine Citizenship
May Be Lost or Reacquired [1936]). Under this law, a former Filipino citizen who wishes to reacquire
Philippine citizenship must possess certain qualifications and none of the disqualifications mentioned in
Section 4 of C.A. 473.

Repatriation, on the other hand, may be had under various statutes by those who lost their
citizenship due to: (1) desertion of the armed forces (Section 4, C.A. No. 63); (2) service in the armed
forces of the allied forces in World War II (Section 1, Republic Act No. 965 [1953]); (3) service in the
Armed Forces of the United States at any other time (Sec. 1, Republic Act No. 2630 [1960]); (4) marriage
of a Filipino woman to an alien (Sec. 1, Republic Act No. 8171 [1995]); and (5) political and economic
necessity (Ibid).

As distinguished from the lengthy process of naturalization, repatriation simply consists of the
taking of an oath of allegiance to the Republic of the Philippines and registering said oath in the Local
Civil Registry of the place where the person concerned resides or last resided.
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 In Angat v. Republic (314 SCRA 438 [1999]), we held:

[P]arenthetically, under these statutes (referring to RA Nos. 965 and 2630), the person desiring to
reacquire Philippine citizenship would not even be required to file a petition in court, and all that he had
to do was to take an oath of allegiance to the Republic of the Philippines and to register that fact with the
civil registry in the place of his residence or where he had last resided in the Philippines.

Moreover, repatriation results in the recovery of the original nationality. This means that a
naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino
citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine
citizenship, he will be restored to his former status as a natural-born Filipino. (Antonio Bengson III v.
HRET, G.R. No. 142840, May 7, 2001, En Banc [Kapunan]) (Sandoval notes)

STRUCTURE OF GOVERNMENT

DOCTRINE OF SEPARATION OF POWERS

What we have in the Philippines is a presidential form of government and in a presidential form
of government, the three important powers and functions of government –legislative power,
executive power, and judicial power – have been distributed among the three great branches or
departments of government so that legislative power has been vested in the Congress; executive power
has been vested in the President; and judicial power has been vested in one Supreme Court and in such
lower courts as maybe established by law. That, plain and simple, is the doctrine of separation of powers
enshrined in the Constitution. [Sandoval notes]

Now remember that to Congress belongs the power of appropriation. That‘s why sometimes
Congress is referred to as having the power of the purse because it has the power of appropriation. To the
President belongs the power of the sword. He is the chief executive. He is the commander-in-chief of all
the armed forces. He wields the power of the sword. To the courts belong judicial power and the power of
judicial review. It is only the courts that may declare an act of a co-equal branch of government
unconstitutional. [Sandoval notes]

Now the first two branches, referring to legislative and executive branch, are the political
branches of government. These are the branches where policies are formulated, laws are enacted and
eventually enforced and executed.

Presidential vs. Parliamentary

Now if we compare a presidential form of government from a parliamentary one, where is the basic
difference?

In a presidential form of government, there is the adherence to the doctrine of separation of

powers, whereas, in a parliamentary form of government, you have there the union of the legislative and
executive branches.

How does a parliamentary government operate?

The Prime Minister is not elected by the people. He is elected by members of Parliament so that
he is directly accountable to Parliament. At any time that his presence is required in Parliament, he will
have to appear there and explain certain issues, certain programs, certain controversies. Because if he will
not appear, what will happen? There might be a vote of no confidence in him in Parliament.

Unlike in a presidential form of government like what we have, where the President is not
directly accountable to Congress. He is directly accountable to the people. It is the people who placed him
there. That‘s one very important distinction between the two forms of government.

Purpose of the doctrine

It is intended to prevent a concentration of authority in one person or group of persons that might
lead to an irreversible error or abuse in its exercise to the detriment of our republican institutions.

It is also intended to secure action, to forestall over-action, to prevent despotism and to obtain
efficiency. [Pangasinan Transportation Co., vs. PSC]

Political Question Doctrine

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 From the doctrine of separation of powers arose or sprung the so called political question
doctrine. Political questions are questions of policy. They involve the wisdom of an act or the efficacy or
the necessity or even the morality of a particular measure. And as a rule, courts are not supposed to
intrude into these kinds of questions if courts wish not to violate the doctrine of separation of powers
enshrined in the Constitution.

For example, should we legalize prostitution? That is a question of policy. That involves the
wisdom or even the morality of the issue of legalizing prostitution. Should we give recognition to a new
government in a foreign country? That is a political question. Courts cannot compel the President to
recognize that new government in a foreign country. You better leave that to the President, the branch in
charged with foreign relations and foreign policy. Should we legalize jueteng? Again that is a question of
policy. Should we allow same sex marriage? These are questions of policy.

As a rule, courts are not supposed to dwell into political questions. Courts are not supposed to lay
down policies. Courts are supposed to apply the Constitution and the laws. For example, is the act of the
President in conformity with the fundamental law? What kind of a question is that? Obviously, that is
justiceable question because in our system, only the courts may determine with finality what the
Constitution really means.

Tanada vs. Cuenco

Political questions are those questions which are to be decided by the people in their
sovereign capacity or those in regard to which full discretionary authority has been delegated by
the Constitution to the executive or legislative branch of the government.

Two types of political questions:

First, those questions which are to be decided by the people in their sovereign capacity. If
the question presented before the court is one which eventually will have to be decided by the people
themselves in their sovereign capacity, then that becomes a political question.

Second type, those questions in regard to which full discretionary authority has been
delegated by the Constitution to the executive or the legislative branch of government.

Examples of the 1st type of political question:

Those questions which are to be decided by the people in their sovereign capacity

1. Loss of confidence as a ground for recall is a political question and therefore should not be intruded into by
the courts. [Evardone vs. Comelec];
2. EDSA Revolution of 1986. [Lawyers League for a Better Phils. vs. Pres. Cory Aquino]

Query: Is EDSA II an example of the first type of political question? Was the assumption by GMA to the
Presidency a political question and therefore not subject to judicial review, not even by the SC? No.
Estrada vs. Desierto

Comparison of LLBP vs. Aquino and Estrada vs. Desierto

LLBP vs Aquino:

The government of former President Cory Aquino was the result of a successful revolution by the
sovereign people. 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 Consitution, as amended, the then prevailing constitution. It is familiar learning that the legitimacy
of a government sired by successful revolution is beyond judicial scrutiny for that government
automatically orbits out of the constitutional loop. That government becomes extra constitutional. It goes
beyond the reach of the constitution.

Estrada vs. Desierto

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 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.

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 There lies the big difference between the two. Unlike the Cory government which was a
government that was established in defiance of the then prevailing 1973 Constitution.

In fine according to the SC, the legal distinction between the EDSA People power 1 and EDSA
People power 2 is clear. EDSA 1 involves the exercise of the people power of revolution which
overthrows the whole government. EDSA 2 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, only Estrada was removed. EDSA 1 is extra constitutional and the legitimacy
of the new government that resulted from it cannot be the subject of judicial review. EDSA 2 is intra
constitutional and the resignation of the sitting President under that cause, and the succession of the Vice
President as the President – these are subject to judicial review. EDSA 1 in short presented a political
question. EDSA 2 involves legal questions.

Example of the 2nd type of political question:

Those questions in regard to which full discretionary authority has been delegated by the Constitution to
the executive or the legislative branch of government.

IBP vs. Zamora. The calling-out power as commander-in-chief of the armed forces. [Sec. 18,
Art. VII]

When the President calls the armed forces to prevent or suppress lawless violence, invasion,
or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear
from the intent of the framers and from the text of the Constitution itself. The court therefore cannot be
called upon to overrule the President‘s wisdom or substitute its own.

There is a clear textual commitment under the constitution to bestow on the President full
discretionary power to call out the armed forces and determine the necessity for the exercise of such
power. It is the unclouded intent of the Constitution to vest upon the President as commander-in-
chief of the armed forces full discretion to call for the military when in his judgment it is necessary
to do so in order to prevent or suppress lawless violence, invasion, or rebellion.

In effect, is that not a way of saying that indeed this is a political question? A question in regard
to which full discretionary authority has been delegated by the Constitution to the President as
commander-in-chief of the armed forces. Said the SC, do not tie the hands of the President. Do not place
him in a legal straight jacket by subjecting his calling-out power to unfettered judicial scrutiny for that
could be a veritable prescription for disaster if you do that.

Take note that the martial law power and the power to suspend the privilege of the writ of habeas
corpus have expressly been made subject to judicial review whereas the calling-out power, according to
the SC in this case of IBP vs. Zamora, is really a political question. How do you explain that now?
According to the SC in the same case, the reason for the difference in treatment is this: the martial law
power and the power to suspend the privilege of the writ of habeas corpus under Section 18, Article VII,
these are the two greater powers of the President as they involve direct curtailment and suppression
of individual freedoms and civil liberties thereby necessitating safeguards by Congress and review
by the SC. Unlike the calling-out power, which of the three in Section 18, Article VII, is actually the
lesser and more benign power of the President as it does not involve direct curtailment and suppression of
individual freedoms and civil liberties therefore, political question.

PRINCIPLE OF BLENDING OF POWERS

There are instances under the Constitution when powers are not confined exclusively within one
department but are in fact assigned to or shared by several departments. [Cruz]

Examples:

1. Enactment of general appropriations law;

2. Grant of amnesty by the President requiring the concurrence of a majority of all the members of
Congress;
3. Deputization by Comelec of law-enforcement agencies with the consent of the President

PRINCIPLE OF CHECKS AND BALANCES

Corollary to the doctrine of separation of powers is the principle of checks and balances which is
also recognized in the Constitution. Under this principle, each of the three branches is supposed to be a
check on the two others and vice-versa. Consequently, Congress is supposed to serve as a check on the

Page 38 of 186
 President and the courts. The President is supposed to be a check on Congress and the courts. And the
courts are supposed to be a check on Congress and the President. The idea there is so that power will not
be concentrated in just one branch or department because if that happens, that can easily lead to abuse,
corruption, and eventually tyranny.

The principle of checks and balances is a system by means of which one department is allowed to
resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the
other departments.

This is actually a system of counteraction between and among the three branches of government
for which the Constitution itself provides.

Examples:

1. The law-making power of Congress is checked by the Presidential veto power which in turn may be
overridden by Congress;
2. Congress may check a Presidential proclamation of amnesty by refusing to give its concurrence, and the
Senate to a treaty that the President has concluded;
3. Presidential pardon of a convicted criminal;
4. Congress may limit the jurisdiction of the SC and inferior courts. Congress may even abolish the latter
tribunals;
5. The Judiciary has the power to declare invalid or unconstitutional an act done by Congress, the President,
or the Constitutional Commissions.

THE PRINCIPLE OF NON-DELEGATION OF POWERS

Potestas delegata non delegari potest – what has been delegated cannot be delegated.

It is based upon the ethical principle that such delegated power constitutes not only a right but a
duty to be performed by the delegate through the instrumentality of his own judgment and not through the
intervening mind of another. [Cruz]

Practicality of this principle:

Such a device as applied to a hundred other similar cases can relieve the Congress of many
problems that are better left to be solved by more capable entities and at the same time enable it to tackle
the more serious difficulties of the country requiring its direct and immediate attention. [Cruz]

Instances of Permissible Delegation (PETAL)

1. Delegation to the people through plebiscites and referendum;

2. Delegation of emergency powers to the President pursuant to Section 23, 2nd par. of Article VI of the
constitution;
3. Delegation of tariff powers to the President under Section 28, 2nd par., Article VI;
4. Delegation to administrative agencies; and
5. Delegation to local governments.

Give examples of invalid delegation:

1. The authority given by LTFRB to provincial bus operators to set a free range over and above the
existing authorized fare [KMU Labor Center vs. Garcia, 1994];

2. Section 68 of the Revised Administrative Code authorizing the President to create municipalities
through executive orders [Pelaez vs. Auditor General, 1965]

Tests for valid delegation:

1. The Completeness Test

The law must be complete in all its 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.

2. The Sufficient Standard Test

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 A sufficient standard is intended to map out the boundaries of the delegate‘s authority by defining
the legislative policy and indicating the circumstances under which it is to be pursued and effected. The
purpose of the sufficient standard is to prevent a total transference of legislative power from the
lawmaking body to the delegate. Why? This is because without a statutory declaration of policy, the
delegate would in effect, make or formulate such policy, which is the essence of every law.

The sufficient standard is usually indicated in the law delegating legislative power.

Political Law Part 2

Defined. The power to propose, enact, amend, and repeal laws. In nutshell, the power of lawmaking.

Is legislative power exclusively vested in the Congress? NO.

Legislative power is vested in the Congress, except to the extent reserved to the people by the
provision on initiative and referendum (Section 1 of Article VI). In other words, the people have
expressly made a reservation to directly enact or propose laws by the provision on initiative and
referendum. Because of this reservation, legislative power is no longer exclusively vested in the Congress
in this constitution. But actually, under the 1935 Constitution, legislative power was exclusively vested in
the Congress then because in that constitution, there was no similar reservation made by the people to
directly enact or propose laws.

How about during martial law? Does a state of martial law vest legislative power to the President?

Martial law in its strict sense refers to that law which has application when the military arm does
not supersede civil authority but is called upon to aid it in the execution of its civil function.

The declaration of martial law has no further legal effect than to warn the citizens that the
military powers have been called upon by the executive to assist him in the maintenance of law and order
and that while emergency lasts, they must, upon pain of arrest and punishment, not commit any act which
will in any way render difficult the restoration of order and enforcement of law. When martial law is
declared, no new powers are given to the executive; no extension of arbitrary authority is
recognized; no civil rights of the individual are suspended. The relation of the citizens to their State
is unchanged. [Willoughby]

―A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, x x x‖ [Sec. 18, Art. VII]

COMPOSITION OF CONGRESS

SENATE

24 Senators elected at large

Among the incumbent members of the Senate, who is currently the 25th senator?

Is there uniformity in the powers and functions of the Senate and the House of Representatives in
view of the constitutional provision that legislative power is vested to Congress consisting of the
Senate and the House of Representatives?

Not necessarily. There are powers of each house of Congress which are exclusive to either house.

Examples:

a. Senate concurrence to a treaty ratified by the President;

―No treaty or international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate.‖ [Sec. 21, Art. VII]

b. APRIL bills must originate exclusively from the HOR pursuant to Sec. 24, Art. VI.

c. The HOR shall have exclusive power to initiate all cases of impeachment [Sec. 3(1), Art. XI],
Articles of Impeachment originate from HOR; HOR members as panel of prosecutors;

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d. The Senate shall have the sole power to try and decide all cases of impeachment [Sec. 3(6), Art. XI];
impeachment court; Senator-judges.

Membership of the House of Representatives

The House of Representatives shall be composed of not more than 250 members, unless otherwise fixed
by law… [Sec. 5(1) and (2), Art. VI].

[This provision is now practically functus officio because actually at present we have more than
250 members in the HOR, both district representatives and the party-list representatives. That is because
actually under Section 5, par. 4, Art. VI, you have the power of Congress to reapportion legislative
districts within three years following the return of every census. Also under Section 5, par. 3, each
city with a population of at least 250,000 or each province shall have at least one representative. So
meaning to say whenever Congress creates a new city with a population of at least 250,000 or a new
province, Congress will have to create a separate legislative district for that city or for that province
alone]. (Sandoval notes)

In what ways may the membership of HOR be increased?

1. Through a general law enacted by Congress pursuant to its power to reapportion legislative districts
within three years following every census under Section 5, par.4, Art. VI;

2. Through a special law (piece meal basis). Every time Congress creates a city with a population of at
least 250,000, or a province, Congress will have to create a separate legislative district for that city or
for that province alone.

May Congress validly delegate to the ARMM Regional Legislative Assembly the power to create
provinces and cities and thus in effect includes a delegation of the power to create legislative
districts?

Sema vs Comelec

Congress cannot validly delegate to the ARMM Regional Assembly the power to create
legislative districts, nothing in Sec. 20, Art. X of the Constitution authorizes autonomous regions,
expressly or impliedly, to create or reapportion legislative districts. The power to increase the allowable
membership in the HOR and to reapportion legislative districts is vested exclusively in Congress.
Accordingly, Sec. 19, Art. VI of RA 9054 granting the ARMM Regional Assembly the power to create
provinces and cities is void for being contrary to Sec. 5, Art. VI, and Sec. 20, Art. X, as well as Sec. of the
Ordinance appended to the Constitution.

[Here the Regional Legislative Assembly of ARMM created a new province (Sharif Kabunsuan).
They elected their own Congressman. The law enacted by the Regional Assembly of ARMM creating the
Province of Sharif Kabunsuan was declared unconstitutional. Why? Because the power to create
provinces and cities is inherently legislative. Now, may it be delegated to local legislative bodies or
regional assemblies? NO. When the ARMM Regional Assembly created the province of Sharif
Kabunsuan, in effect, it also created a legislative district for that province alone. That is not allowed
because only Congress may create a new legislative district. Besides it is absurd, said the SC, for an
inferior legislative body to create a national office of a Congressman. (Sandoval notes)

This textual commitment to Congress of the exclusive power to create or reapportion legislative
districts is logical. Congress is a national legislature and any increase in its allowable membership or in
its incumbent membership through the creation of legislative districts must be embodied in a national law.
Only Congress can enact such a law. It would be anomalous for regional or local legislative bodies to
create or reapportion legislative districts for national legislature like Congress. An inferior
legislative body created by a superior legislative body cannot change the membership of the
superior legislative body.

Is there a specific provision in the Constitution that fixes a 250,000 minimum population that must
compose a legislative district? No. (Must a legislative district be always composed of a minimum
population of 250,000?)

There is no specific provision in the Constitution that fixes a 250,000 minimum population that
must compose a legislative district. Plainly read, Section 5(3), Art. VI of the Constitution requires a
250,000 minimum population only for a city to be entitled to a representative, but not so for a province.
[Aquino vs. Comelec, 2010]

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 ―Each city with a population of at least two hundred fifty thousand, or each province, shall have
at least one representative.‖ [Section 5(par. 3, 2nd sentence), Art. VI of the Constitution]

THE PARTY-LIST SYSTEM

How many congressmen are you entitled to elect directly?

Only one. Only the district congressmen are directly elected by the registered voters of their
respective districts. How about the party-list congressmen? They are not directly elected by the
registered voters in the districts but they are elected through their respective parties. That is why in
the ballot, you cannot find therein the names of the nominees of each party-list. What you can find there
actually are the names of the parties. That‘s why a registered voter anywhere in the Philippines can vote
for Ang Ladlad, An Waray, A Teacher, Anak Pawis, Amoy Pawis, Ako Bicol, Ako Meranao, Aa
Kasosyo, Aabnormal, etc.

Preliminaries

The party-list system is something new in this jurisdiction. This is a concept which is borrowed
from a parliamentary democracy especially from the parliamentary democracies in Europe for being
very popular therein. So as a borrowed concept, we have to go back to its origin for us to really
understand the nature of the party-list system. (Pinoys love to imitate: presidential form of government is
adopted by the two laggard countries in Southeast Asia [Phils. and Indonesia])

What is the philosophy behind this party-list system as practiced in parliamentary democracies in
Europe?

The philosophy behind it is for the so called marginalized and underrepresented sectors of
society to have appropriate representation in the law-making body. This was made clear by the SC in
the case of Ang Bagong Bayani OFW Labor Party vs. Comelec, an en banc ruling, June 2001. It is an
attempt to integrate this party-list system into our Presidential form of government. Because of that
our Congress enacted RA 7941, the party-list law, or the law that implements the various provisions of
our Constitution dealing with this party-list system.

What are some of these marginalized and underrepresented sectors of society?

Some of them are identified in Section 5, par. 2, Article VI itself: labor sector, peasant, urban
poor, indigenous cultural communities, women, youth, (mga guwapo, mga pangit, mga takuleng gang)

What is the nature of the Party-List system. Is this system open to all without any qualification?

The party-list system is a SOCIAL JUSTICE TOOL designed not only to give more law to
the great masses of our people who have less in life, but also to enable them to become veritable
lawmakers themselves, empowered to participate directly in the enactment of laws designed to
benefit them. It intends to make the marginalized and the underrepresented not merely passive
recipients of the State‘s benevolence, but active participants in the mainstream of representative
democracy. Thus, allowing all individuals and groups, including those which now dominate district
elections, to have the same opportunity to participate in party-list elections would desecrate this lofty
objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics.
(Ang Bagong Bayani – OFW Labor Party v. COMELEC, G.R. No. 147589, June 26, 2001, En Banc
[Panganiban]) (Sandoval notes)

Crucial to the resolution of this case is the fundamental social justice principle that those who
have less in life should have more in law. The party-list system is one such tool intended to benefit
those who have less in life. It gives the great masses of our people genuine hope and genuine power.
It is a message to the destitute and the prejudiced (and the takuleng gang), and even to those in the
underground, that change is possible. It is an invitation for them to come out of their limbo and
seize the opportunity.

Clearly, therefore, the Court cannot accept the submissions x x x that the party-list system
is, without any qualification, open to all. Such position does not only weaken the electoral chances of
the marginalized and underrepresented; it also prejudices them. It would gut the substance of the party-
list system. Instead of generating hope, it would create a mirage. Instead of enabling the marginalized, it
would further weaken them and aggravate their marginalization. (Ang Bagong Bayani – OFW Labor
Party v. COMELEC, G.R. No. 147589, June 26, 2001, En Banc [Panganiban]) (Sandoval notes) [But
take note of the Atong Paglaum case to be discussed later.]
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Are political parties – even the major ones – prohibited from participating in the party-list elections?
NO.

Under the Constitution and RA 7941, private respondents cannot be disqualified from the
party-list elections, merely on the ground that they are political parties. Section 5, Article VI of the
Constitution, provides that members of the House of Representatives may ―be elected through a
party-list system of registered national, regional, and sectoral parties or organizations.

Furthermore, under Sections 7 and 8, Article IX [C] of the Constitution, political parties may be
registered under the party-list system. X x x

For its part, Section 2 of RA 7941 also provides for ―a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, x x x.‖ Section 3 expressly states
that a ―party‖ is ―either a political party or a sectoral party or a coalition of parties.‖ More to the
point, the law defines ―political party‖ as ―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 and supports certain of its leaders and members as
candidates for public office.‖

Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of political parties in

the party-list system. X x x

Indubitably, therefore, political parties – even the major ones – may participate in the party-list
elections.

That political parties may participate in the party-list elections does not mean, however,
that any political party – or any organization or group for that matter – may do so. The requisite
character of these parties or organizations must be consistent with the purpose of the party-list
system, as laid down in the Constitution and RA 7941. X x x (Ang Bagong Bayani – OFW Labor
Party v. COMELEC, G.R. No. 147589, June 26, 2001, En Banc [Panganiban]) (Sandoval notes)

Xxx

Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under
the party-list system would not only dilute, but also prejudice the chance of the marginalized and
underrepresented, contrary to the intention of the law to enhance it. The party-list system is a tool for the
benefit of the underprivileged; the law could not have given the same tool to others, to the prejudice of the
intended beneficiaries. (Ang Bagong Bayani – OFW Labor Party v. COMELEC, G.R. No. 147589, June
26, 2001, En Banc [Panganiban]) (Sandoval notes)

What are the INVIOLABLE PARAMETERS TO DETERMINE THE WINNERS in a Philippine-style

party-list election? [2007 Bar exam] [VETERANS FEDERATION PARTY VS. COMELEC]

To determine the winners in a Philippine-style party-list election, the Constitution and Republic
Act No. 7941 mandate at least four inviolable parameters. These are:

FIRST, THE TWENTY PERCENT ALLOCATION - the combined number of all party-list
congressmen shall not exceed twenty percent of the total membership of the House of Representatives,
including those elected under the party list.

How many party-list representatives should there be?

20% of the total number of representatives including those under the party-list.

Now assuming that in the HOR there are 200 district representatives. How many party-
list representatives should there be following that provision section 5, par. 2? Veterans
Federation Party vs Comelec.

If you are given the number of district representatives, to arrive at the number of seats
allotted for party-list representatives, you should not simply multiply that figure with 20%
because you‘ll go wrong if you do that. Why? Because the constitution says that the party-list
representatives shall constitute 20% of the total number of representatives including those under
the party-list. It says including those under the party-list that‘s why do not simply multiply that
figure 200 with 20% because you‘ll go wrong.

So what is the correct formula? If there are 200 district representatives, that means that
they represent how many percent of the number of representatives? 80%. Since 20% is reserved

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 for party-list. This is the proper formula. So mathematically that would be 200 divided by 4 or 50.
[Sandoval lecture]

What if in the HOR there are 203 district representatives, how many should be the party-
list?

203/80%x20%=50.75. You now have a problem there. What do you do with the .75? Is
there a .75 representation? Will you round that off? That would be 51. In the same case of
Veterans Federation Party, the SC said that that should not be rounded off. That may be sound
mathematically but it will violate the constitution if you do that because 51 will exceed 20% of
203. So what should be done if that be the case? All you have to do is, instead of rounding it off,
just disregard the .75 fraction. Fractional representation is not allowed. What is the ratio
following this provision? For every 4 district representatives there should be 1 party-list.

Section 5(2), Article VI of the Constitution provides that "[t]he party-list

representatives shall constitute twenty per centum of the total number of representatives
including those under the party-list." Does the Constitution require all such allocated seats to
be filled up all the time and under all circumstances? NO.

The Constitution simply states that "[t]he party-list representatives shall constitute twenty
per centum of the total number of representatives including those under the party-list."

Xxx

In the exercise of its constitutional prerogative, Congress enacted RA 7941. As said

earlier, Congress declared therein a policy to promote "proportional representation" in the
election of party-list representatives in order to enable Filipinos belonging to the marginalized
and underrepresented sectors to contribute legislation that would benefit them. It however
deemed it necessary to require parties, organizations and coalitions participating in the system to
obtain at least two percent of the total votes cast for the party-list system in order to be entitled to
a party-list seat. Those garnering more than this percentage could have "additional seats in
proportion to their total number of votes." Furthermore, no winning party, organization or
coalition can have more than three seats in the House of Representatives. X x x

Considering the foregoing statutory requirements, it will be shown x x x that Section

5(2), Article VI of the Constitution is not mandatory. It merely provides a ceiling for party-
list seats in Congress. (Veterans Federation Party v. COMELEC, G.R. No. 136781, Oct. 6,
2000, En Banc [Justice Artemio Panganiban])

SECOND, THE TWO PERCENT THRESHOLD - only those garnering a minimum of two
percent of the total valid votes cast for the party-list system are "qualified" to have a seat in the House of
Representatives.

2% threshold

Under RA 7941, for a political party that participated in the party-list elections to be
entitled to at least one seat (the qualifying seat) in the HOR, it must be able to obtain at least 2%
of the votes cast under the party-list. This is known as the 2% threshold.

To illustrate, there are 50 million registered voters. However, of the 50 million, only 10
million voted under the party-list. Party X participated. How many votes must Party X obtain for
it to be entitled to representation in the HOR? 200,000 votes. That is the 2% of 10million. If Party
X obtained 200,000 votes, it shall now be entitled to one seat in the HOR. What do you call that
seat? Qualifying seat.

THIRD, THE THREE SEAT LIMIT - each qualified party, regardless of the number of votes it
actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional
seats.

Three-seat limit

Under RA 7941, a qualified party shall be entitled only to a maximum of three seats in
the HOR regardless of the actual number of votes it received in the party-list elections. Meaning
to say, one qualifying seat and two additional seats. Going back to our example, 10 million voted
under the party-list. Party X participated. It obtained 1 million votes. How many seats shall Party
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 X be entitled to in the HOR? Three seats. The first 200,000 votes, qualifying seat. The second and
third 200,000 votes – two additional seats.

What is the rationale behind this three-seat limit rule?

That was explained by the SC also in that same ruling of Veterans Federation Party vs.
Comelec. Congress deemed it proper to impose the so called three-seat limit because without that
it may happen that there is a single political party that is so strong that it will dominate the
others in the party-list elections. There is a possibility that it will get all the allocated 20%
seats. (What is the example of that very strong party-list? Ang Ladlad)

FOURTH, 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
Party v. COMELEC, G.R. No. 136781 and Companion Cases, Oct. 6, 2000, En Banc [Panganiban])
(Sandoval notes)

Proportional representation

Under this parameter, a qualified party shall be entitled only to such number of additional
seats in proportion to the actual number of votes it received in the party-list elections.
State the guidelines for screening Party-List Participants.

ATONG PAGLAUM, INC represented by its President, Mr.

Alan Igot vs Comelec, G.R. No. 203766, April 2, 2013
[Consolidated decision on 54 petitions] (Justice Carpio)

Thus, we remand all the present petitions to the COMELEC. In determining who may
participate in the coming 13 May 2013 and subsequent party-list elections, the COMELEC shall
adhere to the following parameters:

1. Three different groups may participate in the party-list system: (1) national parties or
organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.

2. National parties or organizations and regional parties or organizations do not need to organize
along sectoral lines and do not need to represent any ―marginalized and underrepresented‖ sector.

3. Political parties can participate in party-list elections provided they register under the party-list
system and do not field candidates in legislative district elections. A political party, whether major
or not, that fields candidates in legislative district elections can participate in party- list elections
only through its sectoral wing that can separately register under the party-list system. The
sectoral wing is by itself an independent sectoral party, and is linked to a political party through
a coalition.

4. Sectoral parties or organizations may either be ―marginalized and underrepresented‖ or lacking

in ―well-defined political constituencies.‖ It is enough that their principal advocacy pertains to the
special interest and concerns of their sector. The sectors that are ―marginalized and underrepresented‖
include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans,
and overseasworkers. The sectors that lack ―well-defined political constituencies‖ include professionals,
the elderly, women, and the youth.

5. A majority of the members of sectoral parties or organizations that represent the ―marginalized and
underrepresented‖ must belong to the ―marginalized and underrepresented‖ sector they represent.
Similarly, a majority of the members of sectoral parties or organizations that lack ―well-defined political
constituencies‖ must belong to the sector they represent. The nominees of sectoral parties or
organizations that represent the ―marginalized and underrepresented,‖ or that represent those
who lack ―well-defined political constituencies,‖ either must belong to their respective sectors,
or must have a track record of advocacy for their respective sectors. The nominees of national
and regional parties or organizations must be bona-fide members of such parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if some of their
nominees are disqualified, provided that they have at least one nominee who remains qualified.

Question: Partido maralita participated in party-list elections. Its members are urban poor, slam dwellers,
90% of whom are Roman Catholics. Its nominee is a known Roman Catholic priest. It has been established
that Partido Maralita had been regularly receiving support, financial and material, from the DSWD and

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the PCSO on behalf of its members in times of calamities and disasters. Is Partido Maralita qualified to
participate in party-list elections? [Sandoval lecture]

Veterans Federation Party vs. Comelec [Sandoval lecture]

FACTS:

In that first party-list elections actually 123 political parties participated. At that time, the
number of district representatives is 208. So how many should be the seats allocated to party-list
representatives following the 20% allocation? 208/4=52 is the number of seats that should be allocated to
party-list representatives. Of the 123 political parties that participated, only 13 qualified. In other
words, only 13 obtained votes equivalent to 2% of the votes cast under the party-list after applying the 2%
threshold. So 52-13=39 vacant seats. Now of the 13 qualified party-list, one of them, the highest,
obtained 5% of the votes cast under the party-list. So will it be entitled to additional seats? One additional
seat. Its first 2%, you apply that for the qualifying seat. So there is still a balance of 3%, that‘s another 2%
for one additional seat. There is no fractional representation for the remaining 1%. So there are still 38
remaining vacant seats.

What should be done with the 38 remaining vacant seats?

Do you know what the ―COMOLEC‖ did? The remaining 38 vacant seats were allocated by the
Comelec to parties that failed to qualify, meaning to say, parties which did not obtain at least 2% of the
votes cast for party-list. Of course, the 13 qualified parties complained. What was the reason of
Comelec in allocating those 38 vacant seats? We did that because that is more democratic. With it
more groups, more sectors will have representation in the HOR.

Eventually it reached the SC. What did the SC say?

Obviously that was grave abuse of discretion on the part of the Comelec. The law is clear,
RA 7941 is clear. For a political party that participated in the party-list elections to be entitled to at
least one seat in the HOR, it must be able to obtain at least 2% of the votes cast under the party-list
system. The Comelec, as the administrative agency charged with the implementation of the party-list law,
must be the first one to follow the law it seeks to implement. That was grave abuse of discretion on the
part of the Comelec. So the court had to undo the act of the Comelec of allocating the 38 remaining
vacant seats to those parties that failed to qualify under the 2% threshold.

Now what about the explanation of the Comelec that it did that because that is more
democratic?

The SC said, the question of whether a particular measure is more democratic or not should
be left to Congress because under Section 1 of Article VI, legislative power is vested in the
Congress, not in the Comelec.

But did the story end there?

But the 13 qualified parties said, well in that case, since we were the only ones that
qualified, hence the remaining 38 vacant seats should be allocated to us proportionately. Is that
correct? No. What will be violated? The rule on proportional representation. The SC said, if you do
that, each of the 13 qualified parties will be overrepresented. Remember under the 4 th parameter, a
qualified party shall be entitled only to such number of additional seats in proportion to the actual number
of votes it received in the party-list elections.

So what do we do now with the remaining 38 vacant seats in that case?

That‘s where the SC clarified that this 20% allocation under Section 5, par. 2 of Article VI, that is
merely the ceiling. It is not mandatory that all of those 20% allocated seats shall be filled up all the time.
That is merely the ceiling. So that the party-list representatives must not exceed 20% of the total number
of representatives (Veterans Case).

Actually, the reason why the 38 remaining vacant seats were not filled up is because in that case
the SC, in computing the number of additional seats that shall be allocated to the parties, adopted the so
called Panganiban formula.

At any rate, in adopting the Panganiban formula you will find actually if you read that case very
carefully, there is no way by which the 20% allocated seats shall be filled up all the time, mathematically

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impossible. There will always be vacant seats by adopting the Panganiban formula. In the Panganiban
formula, the first party, the party that obtained the highest number of votes, compared with the other
parties, is always one seat ahead of the rest. And considering that there is a three-seat limit rule, by
adopting the Panganiban formula, if the first party is entitled to two additional seats, that is the only time
when the other parties will be entitled to an additional seat. But if the first party, the highest party, is
entitled only to one additional seat, there is no way by which the other political parties shall have
additional seats. It became restrictive when Panganiban formula was used that‘s why there are always
vacant seats and the SC found that out.

BANAT vs. Comelec

In this later case of BANAT vs. Comelec, the court abandoned the Panganiban formula.

Now take note the Panganiban formula was applied only in the computation of the
additional seats. But the 2% threshold remains. Do not make that wrong interpretation, that
misreading that this Banat case – the court declared the 2% threshold unconstitutional. No that is
not exactly correct. You will have to apply the 2% threshold in determining who are the qualified
parties. However, in determining the additional seats, the 2% threshold will no longer be used.

In other words, under this new formula in Banat, there are two rounds of computations.
First, the 2% threshold will be used. Determine the qualified parties among the participating
parties. After that, for the remaining seats, you will no longer apply the 2% threshold.

To that extent, the 2% threshold was affected in the computation of additional seats until all the
20% allocated seats are filled up. That‘s why by adopting this new formula, all of the 20% allocated seats
will be filled up. But that‘s very complicated already. I‘m just clarifying that misunderstanding in Banat
vs. Comelec, that the 2% threshold was abandoned. It‘s not correct. The 2% threshold is still there. But in
the computation of additional seats, you will no longer use the 2% threshold. That‘s why in this case,
when the SC ordered the filling up ng SC of all the 20% allocated seats, the members of HOR exceeded
250.

(Later) Ang Bagong Bayani Case, June 2003.

In the May 2001 party-list elections, as I told you there were certain political parties that
participated but were disqualified by the SC because the court found out that their participation did not
comply with the guidelines for screening party-list participants. Among them of course was MAD.

The relevant question in this second Ang Bagong Bayani case was this: what do we do with the
votes cast for the disqualified party? Should they be considered stray votes or should they be
considered valid votes?

That‘s a very relevant question to ask. Going back to our example: 10 million voted under the
party-list. Party X participated and obtained 1 million votes. Later on, Party X was disqualified by the SC
because the court found that its participation did not comply with the guidelines for screening party-list
participants. What do we do with the 1 million votes for Party X, disqualified party? Should they be
considered valid votes or stray votes? Because if they have to be considered stray votes, you deduct that
from the 10 million votes. So what will be the base of the 2% threshold, 9 million only, and 2% of 9
million will be 180,000 votes. But if you will not consider them as stray votes, still 10 million will be the
base of the 2% threshold, and 2% of 10 million is 200,000.

Meaning to say, the other parties that obtained this 180,000 votes up to 199,999 votes, they will
become qualified parties, entitled to a qualifying seat. So the question becomes very material because of
that. So what do we do with the votes cast for disqualified party? Should they be considered valid votes
and to be included in the determination of 2% threshold or should they be excluded as stray votes?

Now in resolving that issue, the SC said, let us be guided by the Labo doctrine in election laws.
What is that Labo doctrine in election laws? The votes cast for the disqualified candidate should not
be considered as stray votes. Those are valid votes, otherwise you will disenfranchise the majority.

So that is now the novel issue in this case, Ang Bagong Bayani OFW Labor Party, June 2003.
Should you apply the Labo doctrine in party-list elections so that the votes cast for the disqualified party
should not be considered as stray votes? The SC, do not apply the Labo doctrine in party-list elections.
Why? Because of Section 10 of RA 7941, the party-list law, which clearly provides that the votes cast for
a party, a sectoral organization, or a coalition not entitled to be voted for shall not be counted. The
language of the law is clear. Hence, there is room not for interpretation but merely for application. RA

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 7941 is a special law governing the election of party-list representatives and is the controlling law in
matters pertaining thereto.

You cannot apply the Labo doctrine in party-list elections because of Section 10 of RA 7941:
xxx Provided, That a vote cast for a party, sectoral organization, or coalition not entitled to be voted
for shall not be counted; xxx.

And then the court went further, the SC said, another reason for not applying Labo and Grego in
party-list election is that these cases involve single elective post, that of Mayor. While the present
controversy pertains to the acquisition of a number of congressional seats depending on the total election
results such that even those garnering second, third, fourth, or lesser places could be proclaimed winners
depending on their compliance with other requirements. (Ang Bagong Bayani, June 2003)

Immunities and Privileges of Members of Congress

Section 11 of Article VI

Privilege from Arrest

―A Senator or Member of HOR shall, in all offenses punishable by not more than 6 years
imprisonment, be privileged from arrest while Congress is in session.‖

People vs. Jalosjos (Sandoval notes)

While waiting for his appeal inside the penitentiary, there came the May 1998 elections so Cong.
Jalosjos run for reelection and he was reelected. Now, upon having been reelected, he filed a motion in
the SC that he be allowed to fully discharge the duties of a Congressman, including attendance at
legislative sessions and committee hearings for five days in a week, despite his having been
convicted by the trial court of a non-bailable offense. Here, the SC denied the motion.

It must be noted that the case against Jalosjos was Statutory rape, punishable by reclusion
perpetua. So he may not validly invoke his privilege from arrest because he is charged of an offense
where the imposable penalty is imprisonment of more than 6 years.

Now, in People vs Jalosjos, the SC clarified that point. The immunity from arrest or detention
of Senators or Members of HOR arises from a provision of the Constitution. The history of the
provision shows that the privilege has always been granted in a restrictive sense. So the liberal
interpretation rule or considerations of equity and fairness is not applicable. The provision granting an
exemption as a special privilege cannot be extended beyond the ordinary meaning of its terms. It may not
be extended by intendment, implication, or equitable considerations.

In denying his motion to bail out to attend congressional sessions, the SC said that allowing
him to attend congressional sessions and committee meetings for 5 days or more in a week will
virtually make him a freeman with all the privileges appurtenant to his position as a Congressman.
Such an aberrant situation not only elevates his status to that of a special class and therefore
violative of the equal protection clause, it also would be a mockery of the purposes of the correction
system.

But then he raised another argument, the DISENFRANCHISEMENT ARGUMENT, that if he

will not be allowed to attend congressional sessions, in effect, that will be disenfranchising his voters who
reelected him to Congress, who wanted their voices to be heard in the Congress through him. This was
not the first time that this disenfranchisement argument was raised before the SC and ever since the SC
has never looked kindly on that kind of argument.

What was the answer of the SC? We remain unpersuaded. When the voters of his district elected
him to Congress, they did so with full awareness of the limitations on his freedom of action. They did
so with the knowledge that he could achieve such legislative results which he could accomplish within
the confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge
that he is suffering from a terminal illness, they do so knowing that at any time, he may no longer serve
his full term in office.

But then Cong. Jalosjos had another argument. This time he invoked the so called DOCTRINE
OF CONDONATION – Aguinaldo vs. Santos: The term of office of elective public officers is
separate and distinct from each other so that if during a prior term, he was charged
administratively and in the meantime there was an election and then he run for reelection and he
was reelected, his reelection serves as a condonation by the people of whatever administrative offense

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 which he may have committed during a prior term. That’s why in his new term, he may no longer be
validly penalized therefor. This is known as the doctrine of condonation in the law of public officers.

However, take note that this doctrine of condonation applies only or may be invoked only in
administrative cases involving elective public officers who had been reelected. This finds no
application in criminal cases. That‘s why in this case of People vs Jalosjos when he invoked this
doctrine of condonation, the SC said that his reliance on the ruling in Aguinaldo vs. Santos will not
extricate him from his predicament. It can be readily seen that the Aguinaldo case involves the
administrative removal of a public officer for acts done prior to his present term of office. It does not
apply to imprisonment arising from the enforcement of criminal law.

Now what is the reason behind this doctrine of condonation? This was explained by the SC in
the case of Mayor Alvin Garcia vs. Hon. Arturo Mojica. According to the SC, the rationale for this
holding is that when the electorate put him back into office, it is presumed that it did so with full
knowledge of his life and character including his past misconduct. If, armed with such knowledge, the
electorate still reelects him, then such reelection is considered a condonation of his past misdeeds. That is
the reason behind this doctrine of condonation.

Sen. Trillanes IV vs. Judge Oscar Pimentel

You know very well, Sen. Trillanes was there in detention. He run for Senator and he was elected
Senator. So he filed a motion in the sala of Judge Oscar Pimentel where his criminal case was pending for
him to be allowed to attend Senate sessions. In denying his various motions, Judge Pimentel relied
heavily on People vs. Jalosjos. Trillanes anchored his motion on his right to be presumed innocent and
claims that the Jalosjos ruling should not be applied to him because he is a mere detention prisoner. When
the matter was elevated to the SC, the SC dismissed the petition of Trillanes on the ground that Sec. 13,
Article III of the Constitution explicitly provides that crimes punishable by reclusion perpetua are non-
bailable. The presumption of innocence does not necessarily carry with it the full enjoyment of civil
and political rights. [Sandoval notes]

Privilege of Speech and of Debate

―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.‖

What is the purpose of this privilege?

―x x x the parliamentary non-accountability thus granted to members of Congress is not to

protect them against prosecutions for their own benefit, but to enable them, as the people‘s
representatives, to perform the functions of their office without fear of being made responsible before the
courts or other forums outside the congressional hall. It is intended to protect members of Congress
against government pressure and intimidation aimed at influencing the decision-making prerogatives of
Congress and its members.‖ [Pobre vs. Santiago, 2009]

Osmena vs. Pendatun.

Then Senator Osmena delivered a privileged speech in the Senate. In the course of his privileged
speech, he maligned President Carlos Garcia. And because of that he was sanctioned by the Senate for
disorderly behavior. In fact, he was suspended from the Senate. Was he not covered by that immunity, the
freedom of speech and debate? The SC said no, because the provision says he may not be questioned, he
may not be held liable in any other place but not in the Senate itself because of the power of each house of
congress to punish its members for disorderly behavior and to order their suspension or expulsion as the
case may be (as now found in Section 16, par. 3 of Article VI). Actually, the SC clarified that this
freedom of speech and debate of members of Congress, this is actually an absolutely privileged
communication and therefore not actionable even if the author acted in bad faith. [Sandoval lecture]

Senator Atty. MDS, in a privilege speech delivered before the Senate, made an offensive and
disrespectful language that tends to denigrate the courts of justice. Because of that the
accountability of Senator Atty. MDS upon her speech is sought for in the SC on the basis of her
disregard of her duty as member of the bar – the duty to respect the courts of justice. Should the
privilege of speech of Senator Atty. MDS be sustained over her duties as member of the bar?

In Pobre vs. Santiago, A.C. No. 7399, August 25, 2009, the SC sustained the privilege of speech
of Senator Santiago over her duties as member of the bar. The SC ruled that, ―we, however, would be
remiss in our duty if we let the Senator‘s offensive and disrespectful language that definitely tended to

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denigrate the institution pass by. It is imperative on our part to re-instill in Senator/Atty. Santiago her duty
to respect the courts of justice, especially this Tribunal, . . .‖

DISQUALIFICATIONS OF MEMBERS OF CONGRESS

Incompatible Office

―No Senator or Member of the HOR may 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 during his term without forfeiting his seat.‖

What is the purpose behind the prohibition of holding of an incompatible office? Is such
prohibition absolute?

The purpose is to prevent him from owing loyalty to another branch of the government, to the
detriment of the independence of the legislature and the doctrine of separation of powers.

The prohibition against the holding of an incompatible office is not absolute; what is not allowed
is the simultaneous holding of that office and the seat in the Congress. Any legislator may hold another
office or employment in the government provided he forfeits, as a result, his position in the Congress
[Cruz].

Is the forfeiture of the seat in Congress automatic upon the member‘s assumption of an
incompatible office?

Forfeiture of the seat in Congress shall be automatic upon the member‘s assumption of such other
office deemed incompatible with his seat in Congress [Adaza vs. Pacana].

Is every other office or employment to be regarded as incompatible with the legislative position?

Not every other office or employment is to be regarded as incompatible with the legislative
position.

Examples:

1. Membership in the Electoral Tribunals is permitted by the Constitution itself;

2. The second office is an extension of the legislative position;
3. The second office is in aid of legislation;
4. The chairmen of the Senate and House committees on education retain their seats in Congress while
sitting concurrently as ex officio members in the UP Board of Regents;
5. Legislators who serve as treaty negotiators under the President of the Philippines continue to sit in the
Congress [Cruz].
Forbidden Office

―Neither shall he be appointed to any office which may have been created or the emoluments
thereof increased during the term for which he was elected.‖

What is a forbidden office?

A forbidden office refers to any office in the government that has been created or the emoluments
thereof have been increased during the term of members of Congress and to which position said members
of Congress may not be appointed even if they are willing to forfeit their seats therein.

What is the purpose for the prohibition on the appointment of Members of Congress to a forbidden
office?

The purpose is to prevent trafficking in public office. Were the rule otherwise, certain legislators,
especially those not sure of re-election, might be able to work for the creation or improvement of lucrative
positions and, in combination with the President, arrange for their appointment thereto in order to provide
for their future security at the expense of the public service.

Is the ban against appointment to a forbidden office perpetual? NO.

The ban against appointment to the office created or the emoluments thereof increased shall,
however, last only for the duration of the term for which the member of Congress was elected. [Nachura]

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 The appointment of the member of the Congress to the forbidden office is not allowed only
during the term for which he was elected, when such office was created or its emoluments were increased.
After such term, and even if the legislator is re-elected, the disqualification no longer applies and he may
therefore be appointed to the office. [Cruz]

SESSIONS OF CONGRESS

What is the settled meaning of the phrase ―in session‖?

The phrase ―in session‖ refers not to the day to day sessions of Congress but rather it refers to the
entire duration of the session from its opening until its final adjournment.

Regular Session

―Congress shall convene once every year on the fourth Monday of July, unless a different date is
fixed by law, and shall continue for such number of days as it may determine until thirty days before the
opening of its next regular session, exclusive of Saturdays, Sundays and legal holidays.‖ [Sec. 15, Art.
VI]
Special Session
―The President may call a special session at any time.‖ [Sec. 15, Art. VI]
The President may call a special session at any time, usually to consider legislative measures
which he may designate in the call.

JOINT SESSIONS:
a. Voting separately:
1. Choosing the President [Sec. 4, Art. VII];
2. Determine President‘s disability [Sec. 7, Art. VII];
3. Confirming nomination of the Vice President [Sec. 9, Art. VII];
4. Declaring the existence of state of war [Sec. 23, Art. VI];
5. Proposing constitutional amendments [Sec. 1, Art. XVII]
b. Voting jointly:
1. Revoking or extending proclamation suspending the privilege of the writ of habeas corpus;
2. Revoking or extending proclamation of martial law. [Sec. 18, Art. VII]

Quorum
―A majority of each House shall constitute a quorum to do business, but a smaller number may
adjourn from day to day and may compel the attendance of absent Members in such manner, and under
such penalties, as such house may provide.‖

What is a quorum?

A quorum is defined as any number sufficient to transact business.

Avelino vs. Cuenco
The basis in determining the existence of a quorum in the Senate shall be the total number of
Senators who are in the country and within the coercive jurisdiction of the Senate.
Arroyo vs. De Venecia

The question of quorum cannot be raised repeatedly, especially when a quorum is obviously
present, for the purpose of delaying the business of the House.

DISCIPLINE OF MEMBERS
―Each House may determine the rules of its proceedings, punish its Members for disorderly
behavior, and with the concurrence of two-thirds, of all its Members, suspend or expel a Member. A
penalty of suspension, when imposed, shall not exceed sixty days.‖ [Sec. 16(3), Art. VI]

Can the authority to discipline Members of Congress still be exercised by each House even without
the above-cited provision being provided in the Constitution? YES.

Without the above provision, the authority to discipline its members can still be exercised by each
House as an inherent power, with the concurrence of only a majority vote, conformably to the general rule
on the will of the majority. [Cruz]

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 What constitutes ‗disorderly behavior‘?

The interpretation of the phrase ‗disorderly behavior‘ is the prerogative of the Congress
and cannot, as a rule, be judicially reviewed. The matter comes in the category of a political
question. Accordingly, the SC did not interfere when the legislature declared that the physical assault by
one member against another, or the delivery of a derogatory speech which the member was unable to
substantiate, constituted ‗disorderly behavior‘ and justified the adoption of disciplinary measures. [Cruz]

Are disciplinary measures available to Congress limited to suspension and expulsion only?
Other disciplinary measures besides expulsion and suspension are deletion of unparliamentary
remarks from the record, fine, imprisonment and censure, sometimes called ―soft impeachment.‖ [Cruz]

THE BODIES THAT ARE ATTACHED TO THE CONGRESS

THE ELECTORAL TRIBUNALS
What is the composition of the Electoral Tribunals? 9 members each.
Each electoral tribunal has nine (9) members. Three (3) of whom are Justices of the SC to
be designated by the Chief Justice, with the most senior among whom automatically becomes the
chairman. The remaining six (6) are either Senators or Congressmen as the case may be, chosen on
the basis of proportional representation from the political parties having members in the Senate or in the
HOR as the case may be (stated otherwise, from the political parties registered under the party-list
system represented therein).
Are the Electoral Tribunals independent of Congress?
The Electoral Tribunals are independent of Congress and devoid of partisan influence and
consideration. Consequently, ―disloyalty to the party‖ and ―breach of party discipline‖ are not valid
grounds for the expulsion of a member. HRET members enjoy security of tenure; their membership may
not be terminated except for a just cause such as the expiration of congressional term, death, resignation
from the political party, formal affiliation with another political, or removal for other valid causes
[Bondoc vs Pineda; see also Tanada vs. Cuenco]

From the decision of these electoral tribunals, where do you appeal?

No appeal lies because the Constitution made these electoral tribunals the sole judge of all
contests relating to the election, returns, and qualifications of their respective members. That is why from
their decisions no appeal lies. In the first place, appeal is not a constitutional right. Why? It‘s not found in
the constitution. It is merely statutory. It‘s not even found in the Bill of Rights. To reiterate, is appeal a
constitutional right? No because it‘s not found in the Bill of Rights. It‘s not found in the constitution. It is
merely statutory so that if there is no law which grants one that right to appeal, one cannot appeal. One
cannot even claim in such a case when he is not allowed to appeal that there was denial of due process.
[Sandoval lecture]

What is the remedy available to a party adversely affected by the decisions of these electoral tribunals?

Certiorari under Rule 65. But why not under Rule 45? That is because Rule 45 is actually a
mode of appeal on pure questions of law – petition for review on certiorari on pure questions of law. That
is a mode of appeal, whereas Rule 65 is a special civil action which is an original action based on grave
abuse of discretion.

When may the HRET assume jurisdiction over an election contest affecting a winning congressional
candidate who is a party to said election controversy?

The HRET may assume jurisdiction only after the winning candidate (who is a party to the
election controversy) shall have been duly proclaimed, has taken his oath of office and has assumed
the functions of the office, because it is only then that he is said to be a member of the House
[Aquino vs. Comelec].

Once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member
of the HOR, the Comelec‘s jurisdiction over the election contest relating to his election, returns and
qualifications ends, and the HRET‘s own jurisdiction begins [Vinzons-Chato vs. Comelec]

REGINA ONGSIAKO REYES VS. COMELEC, 2013

FACTS: Reyes was a candidate for Congresswoman for the lone district of Marindoque in connection
with the May 13, 2013 National and Local elections. Her COC however was sought to be denied due
course to or be cancelled mainly in connection with her American citizenship. The Comelec First
Division issued a Resolution on March 27, 2013 cancelling her COC which resolution was later on
affirmed by the Comelec en banc on May 14, 2013 which denied the MR filed by Regina. Four days later

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or on May 18, 2013 Regina was proclaimed winner of the May 13, 2013 elections. On June 5, 2013, the
Comelec en banc issued a Certificate of Finality declaring the 14 May 2013 Resolution of the Comelec en
banc final and executory, considering that 21 days have elapsed from the date of the promulgation with no
order issued by the SC restraining its execution. On the same day, Regina took her oath of office before
Speaker Feliciano Belmonte. Regina has yet to assume office then which officially starts at noon of June
30, 2013.
One of the ISSUES raised:
Whether or not COMELEC is without jurisdiction over Petitioner Regina who is a duly
proclaimed winner and who has already taken her oath of office for the position of Member of the House
of Representatives for the lone congressional district of Marindoque.

RULING:
According to the petitioner, the COMELEC was ousted of its jurisdiction when she was duly
proclaimed because pursuant to Section 17, Art. VI of the 1987 Constitution, the HRET has the exclusive
jurisdiction to be the ―sole judge of all contests relating to the election, returns and qualifications‖ of the
Members of the House of Representatives.
Contrary to petitioner‘s claim, however, the COMELEC retains jurisdiction for the following
reasons:
First, the HRET does not acquire jurisdiction over the issue of petitioner‘s qualification, as well
as over the assailed COMELEC Resolutions, unless a petition is duly filed with said tribunal.
Petitioner has not averred that she has filed such action.
Second, the jurisdiction of the HRET begins only after the candidate is considered a Member of
the HOR as stated in Section 17, Art. VI of the 1987 Constitution: x x x.
As held in Marcos vs. Comelec, the HRET does not have jurisdiction over a candidate who is
not a member of the HOR, to wit:
As to the HRET‘s supposed assumption of jurisdiction over the issue of petitioner‘s
qualifications after the May 8, 1995 elections, suffice it to say that HRET‘s jurisdiction as the
sole judge of all contests relating to the elections, returns and qualifications of members of
Congress begins only after a candidate has become a member of the HOR. Petitioner not
being a member of the HOR, it is obvious that the HRET at this point has no jurisdiction
over the question.

The next inquiry, then, is when is a candidate considered a Member of the House of
Representatives?
In Vinzons-Chato vs. Comelec, citing Anggabao vs. Comelec and Guerrero vs. Comelec, the
Court ruled:
The court has invariably held that once a winning candidate has been proclaimed, taken
his oath, and assumed office as a member of HOR, the Comelec‘s jurisdiction over election
contests relating to his election, returns, and qualifications ends, and the HRET‘s own jurisdiction
begins.

This pronouncement was reiterated in the case of Limkaichong vs. Comelec and was again
affirmed in Gonzales vs. Comelec, to wit:

After proclamation, taking of oath and assumption of office by Gonzales, jurisdiction

over the matter of his qualifications, as well as questions regarding the conduct of the election
and contested returns – were transferred to the HRET as the constitutional body created to pass
upon the same.

From the foregoing, it is then clear that to be considered a Member of HOR, there must be a
concurrence of the following requisites:

(1) A valid proclamation;

(2) A proper oath; and
(3) Assumption of office.
X X X
Here, the petitioner cannot be considered a Member of HOR because, primarily, she has not yet
assumed office. To repeat, what has earlier been said, the term of office of a Member of HOR begins only
―at noon on the thirtieth day of June next following their election.‖ Thus, until such time, the Comelec
retains jurisdiction.

Imelda Romualdez Marcos vs Comelec

To highlight the jurisdiction of electoral tribunals

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 In connection with the May 1995 elections, the former First Lady run for Congresswoman in her
district there in Leyte. But a disqualification case was filed against her in the Comelec questioning her
residence qualification. The problem was the Comelec failed to immediately resolve that disqualification
case against her. So there came the elections and Imelda won as Congresswoman but she was not
proclaimed precisely because of that pending disqualification case against her in the Comelec. Because of
that what she did so that she can be proclaimed was she filed a motion to dismiss that pending
disqualification case against her in the Comelec arguing that since she already won as Congressman, the
Comelec is now ousted of jurisdiction to continue with that disqualification case.

When the matter reached the SC, the SC ruled that said motion to dismiss filed by Imelda in that
case should be denied. If we go over Section 17 of Article VI, what does it say there? – The electoral
tribunals shall be the sole judge of all contests relating to the election, returns, and qualifications of their
respective members. Look at the wordings in the provision. In the case of Imelda, although she won as
Congressman but since she has not yet been proclaimed, she is not yet a member of the HOR therefore the
HRET may not yet validly assume jurisdiction over her disqualification case.

Besides, Section 6 of RA 6646 has to be considered. It states there, second sentence, if for
any reason a candidate is not declared by final judgment before an election to be disqualified and is
voted for and receives the winning number of votes in such election, the court or commission shall
continue with the trial and hearing of the action, inquiry, or protest, etc. So the SC said that it is clear
from the provisions of RA 6646 that the Comelec is not ousted of its jurisdiction to continue with that
disqualification case. On the contrary, the law says that the court or commission shall continue with the
trial and hearing of the action, inquiry, or protest as the case may be. [Sandoval lecture]

Guerrero vs. Comelec, en banc ruling

This was the case involving Gov. Rudy Farinas of Ilocos Norte. In the May 1998 elections, Gov.
Rudy Farinas was no longer qualified to run again for governor, he having served previously as governor
for three consecutive terms already. So what he did, he run for congressman in one of the districts in
Ilocos Norte. There was also a disqualification case filed against him in the Comelec before the election
questioning his residence qualification to run in that district. Now just like in the Imelda case, for
whatever reason the Comelec was not able to immediately resolve that disqualification case against him.
So there came the election and Gov. Farinas was now elected Congressman. Not only that, he was
proclaimed, he took his oath, and he assumed office already as Congressman. Having done so, the
Comelec dismissed that pending disqualification case against him before that body.

Was the act of the Comelec in dismissing that case proper? The SC said in that case that it is
proper. Once a winning congressional candidate has been proclaimed, taken his oath, and assumed office
as member of the HOR, Comelec‘s jurisdiction ends because the jurisdiction of the HRET begins. This is
a recognition of the jurisdictional boundaries separating the Comelec and the HRET. [Sandoval lecture]

COMMISSION ON APPOINTMENTS
Section 18, Article VI.

What is the composition of the Commission on Appointments?

Senate President as ex officio Chairman, 12 Senators, and 12 Members of HOR, elected by each
House on the basis of proportional representation from the political parties having members in the Senate
or in the HOR as the case may be (stated otherwise, from the political parties registered under the party-
list system represented therein). The Chairman shall not vote except in case of a tie.

How many elected Senators that a political party must have for every seat in the Commission on
Appointments? At least two (2) elected Senators.
A political party must have at least two elected senators for every seat in the Commission on
Appointments. Thus, where there are two or more political parties represented in the Senate, a political
party/coalition with a single senator in the Senate cannot constitutionally claim a seat in the Commission
on Appointments. It is nor mandatory to elect 12 Senators to the Commission; what the Constitution
requires is that there must be at least a majority of the entire membership.

Discuss the nature and function of the Commission on Appointments?

The function of the commission is to act on Presidential appointments submitted to it within thirty
(30) session days of Congress from their submission. The Commission shall rule by a majority vote of its
members. The Commission shall meet only while Congress is in session, at the call of its Chairman, or a
majority of all its members.

This is one way by which Congress serves as a check on the appointing power of the President
through the Commission on Appointments.

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 Comparison of the membership of Commission on Appointments and the Electoral Tribunals

With respect to the Electoral Tribunals, each electoral tribunal has a judicial component. The 3
justices of the SC who sit in each of the electoral tribunals comprise the judicial component of these
electoral tribunals. Whereas the 6 senators or 6 Congressmen, they comprise the legislative component of
these electoral tribunals. Unlike the Commission on Appointments where there is no judicial component.
All the members of the Commission on Appointments are members of Congress – 12 senators, 12
congressmen, Senate President as ex officio chairman. That is one big difference in their composition.

POWERS OF THE CONGRESS

Classification of the powers of Congress in general:
1. Legislative.

Legislative power is the power of lawmaking, the framing and enactment of laws. The power to
make laws includes the power to alter or repeal them. It includes the specific powers of appropriation,
taxation, and expropriation.
2. Non-legislative.
The non-legislative powers include (1) the power to canvass the presidential elections, (2) to
declare the existence of a state of war, (3) to give concurrence to treaties and amnesties, (4) to propose
constitutional amendments, and (5) to impeach. [Cruz]

How is legislative power in general effected?

Legislative power in general is effected through the adoption of a bill, or a proposed or projected
law, which, once approved, becomes a statute.

A statute is ―the written will of the legislature, solemnly expressed according to the forms
necessary to constitute it the law of the state.

THE PROCESS IN LAW-MAKING

Discuss the procedure in the approval of bills.

I. Introduction of bill by any member of each House of Congress except for some bills which must
originate only in the HOR;

II. First Reading: It involves only a reading of the number and title of the bill and its referral by the
Senate President or the Speaker to the proper committee for study.

III. Second Reading: It is at this stage that the bill is read in its entirety, scrutinized, debated upon and
amended when desired. This is the most important stage in the passage of a bill.

The bill as approved on second reading is printed in its final form and copies thereof are
distributed at least three (days) before the third reading.

IV. On third reading, the members merely register their votes and explain them if they are allowed by
the rules.

Once the bill passes third reading, it is sent to the other House of Congress, where it will also
undergo the three readings on separate days requirement. This is a manifestation of the principle of
bicameralism.
If there are differences in the versions of the bill approved by both Houses of Congress, the
concept of Bicameral Conference Committee will come into play. In which case, a bicameral
conference committee representing both Houses of Congress will have to draft a compromise version of
the bill that if ratified by both Houses of Congress will then be presented to the President for his
consideration. That presentment to the President is otherwise known as the Rule on Presentment of
Bills.
Origin of Bills
Section 24 of Article VI
What are the bills which are required to originate exclusively in the House of Representatives?
APRIL.
1. Appropriations bill;
2. Private bill;
3. Revenue or tariff bill;
4. Bill authorizing Increase in public debts; and

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 5. Bill of Local application.

However, if you read Section 24, look at the last phrase – but the Senate may propose or concur with
amendments.
Tolentino vs Sec. of Finance

This was the case involving the EVAT law during the time of then President Ramos where said
law was questioned on the ground, inter alia, that the revenue measure did not originate exclusively in the
HOR as it was the result of the consolidation of the two versions introduced separately in the two
Houses of Congress. According to the SC, although these bills are required to originate exclusively in
the House of Representatives, yet the Senate has the power to propose or concur with amendments under
Section 24 of Article VI. And when we talk of amendments, these include amendments by substitution
which may entirely replace the bill initiated in the HOR. After all, what is really required to originate
exclusively in the House of Representatives is not the law itself but only the bill. Therefore, such
consolidation in this case was consistent with the power of the Senate to propose or concur with
amendments to the version which originated in the HOR. What the Constitution simply means is that
the initiative must come from the HOR.

ONE SUBJECT ONE TITLE RULE

Section 26, 1st paragraph, Article VI
Only one subject, to be stated in the title of the bill.

What are the objectives of this rule?

1. to prevent hodge-podge or log-rolling legislation;
This is defined as ―any act containing several subjects dealing with unrelated matters representing
diverse interests, the main object of such combination being to unite the members of the
legislature who any one of the subjects in support of the whole act.‖
2. To prevent surprise or fraud upon the legislature; and
3. To fairly apprise the people of the subjects of legislation that are being considered.
In short actually, this one subject one title rule is intended to prevent or do away with the so-
called riders. What is a rider? A rider actually is a provision which has no relation whatsoever with the
main subject matter of the bill and which may be the subject of a separate piece of legislation by itself.
[Sandoval lecture]
Is the One Subject One Title Rule to be strictly interpreted? NO.
However, the court has adopted the liberal interpretation rule. Under the liberal interpretation
rule, the title of the bill need not be an index or catalogue of the contents thereof. There is substantial
compliance for as long as the various provisions are germane or related to the main subject matter
which is the one required to be expressed in the title of the bill. This is the liberal interpretation rule
adopted by the court with respect to this one subject one title rule. [Sandoval lecture]
To illustrate, the title is the ―New Civil Code of the Philippines,‖ or ―The Revised Penal Code.‖
Did that comply with the one subject one title rule? Yes. Otherwise, said the SC, if you will not allow this
liberal interpretation rule, what will happen? You will have such a kilometric title.
Section 26(1) of Article VI of the 1987 Constitution is sufficiently complied with where x x x the
title is comprehensive enough to embrace the general objective it seeks to achieve, and if all the
parts of the statute are related and germane to the subject matter embodied in the title or so long as
the same are not inconsistent with or foreign to the general subject and title. (Agripino A. De
Guzman, Jr., et al. v. COMELEC, G.R. No. 129118, July 19, 2000, en Banc [Purisima]) (Sandoval
notes)

THE THREE READINGS ON SEPARATE DAYS RULE

Section 26, 2nd paragraph, Article VI

Before a bill may become a law, it will undergo how many readings all in all?

Six (6) readings all in all because there will be three readings on separate days in each house,
meaning to say from one house the bill will have to be sent to the other house and it will again undergo
that requirement and vice-versa. [Sandoval lecture]
Enrolled bill doctrine
What is that enrolled bill doctrine?
Under the enrolled bill doctrine, once a bill is enrolled, then it becomes conclusive upon the
courts as to its due enactment. So that the courts may no longer validly inquire into whether that
bill has been duly and regularly enacted. That is the enrolled bill doctrine.

For instance, if the bill has already become an enrolled bill, will it still be proper for the courts to
determine or inquire into whether that bill has undergone the three readings on separate days requirement

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 under 2nd Par. Section 26, Article VI? No more. It has become conclusive upon the courts as to its due
enactment, so that the courts are now precluded from inquiring into whether that bill has been duly and
regularly enacted.
Why is it that the courts are precluded from inquiring into whether that bill has been duly and
regularly enacted?
Remember that the bill is enrolled when printed as finally approved by the Congress,
thereafter authenticated with the signatures of the Senate President, the Speaker, and the
Secretaries of their respective chambers, and approved by the President. So an enrolled bill contains
the signatures of the Senate President and the Speaker of the House of Representatives and then the
certification from the respective secretaries of both houses of Congress that that bill has been duly and
regularly enacted and then sent to the President for his signature. Courts should give due respect to
signatures of officers of co-equal branches of the government appearing in the enrolled bill as well
as the certification from the respective secretaries of both houses of Congress that that bill has been duly
and regularly enacted. So eventually the reason would be the doctrine of separation of powers.

The enrolled bill doctrine, as a rule of evidence, is well-established. It is cited with approval by
text writers here and abroad. The enrolled bill rule rests on the following considerations:
X x x. As the President has no authority to approve a bill not passed by Congress, an enrolled
Act in the custody of the Secretary of State, and having the official attestations of the Speaker of the
House of Representatives, of the President of the Senate, and of the President of the United States,
carries, on its face, a solemn assurance by the legislative and executive departments of the
government, charged, respectively, with the duty of enacting and executing the laws, that it was
passed by Congress. The respect due to coequal and independent departments requires the judicial
department to act upon that assurance, and to accept, as having passed Congress, all bills authenticated in
the manner stated; leaving the court to determine, when the question properly arises, whether the Act, so
authenticated, is in conformity with the Constitution. (Marshall Field & Co. v. Clark, 143 U.S. 649, 672,
36 L. Ed. 294, 303 [1891])
To overrule the doctrine now, x x x is to repudiate the massive teaching of our cases and
overthrow an established rule of evidence. (Arroyo v. De Venecia, 277 SCRA 268, Aug. 14, 1997
[Mendoza]) [Sandoval notes]

Between an enrolled bill and a journal, which should prevail?

Enrolled bill must prevail because of the enrolled bill doctrine, except only as to matters which
under the constitution are required to be entered in the journal because as to these matters, they become
conclusive upon the courts.
Arroyo vs. de Venecia
Matters which are required to be entered in the journal:

1. The yeas and the nays of the third and final reading of a bill (Section 26, 2nd par. Article VI);
2. The yeas and the nays on any question at the request of one-fifth (1/5) of the members present
(Section 16, par. 4 of Article VI);
3. The President‘s objection to a bill which he has vetoed (Section 27, par.1, Article VI);
4. The yeas and the nays upon re-passing of a bill which the President has vetoed (Section 27, par.1,
Article VI)

These four (4) matters are, under the Constitution, required to be entered in the journal and
therefore they become conclusive upon the courts.

The Rule on Presentment of Bills

The last stage in law-making.

What is the Rule on Presentment of Bills?

―Every bill passed by the Congress shall, before it becomes a law, be presented to the President.‖
[Sec. 27(1),1st sentence, Article VI]. From the Congress, the bill will have to be presented to the President
for his signature. This is known as the rule on presentment of bills to the President.

What are the options available to the President which are also the three methods by which a bill
may become a law?

1. The President may sign the bill and the bill becomes a law; or
2. The President may veto the bill and the bill does not become a law;

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 The moment the President vetoes a bill, he is required to send that bill back to the House where it
originated together with his objections, in other words together with his veto message, and Congress may
decide to override the veto by two-thirds (2/3) votes of all its members.

3. If within thirty (30) days upon receipt of that bill from Congress, the President failed to act on that
bill, the bill automatically becomes a law by inaction on the part of the President. (Bills that lapsed
into law)

Veto of the President

Section 27, Article VI

In the 1st par., 2nd sentence, Section 27 of Art. VI:

―If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his
objections to the House where it originated…‖
This is where you will find the general veto of the President.
In the 2nd par., Section 27 of Art. VI:
―The President shall have the power to veto any particular item or items in an appropriation,
revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.‖
This is where you will find the item or line veto of the President.
In other words, under Section 27 of Article VI, you have the two kinds of Presidential veto.
General veto, the President signs the bill and the bill becomes a law or the President vetoes the bill and
the bill does not become a law [Sandoval lecture].

Is partial veto allowed under the Constitution?

The general rule is that the President must approve the bill entirely or disapprove it in toto. In
other words, he may not veto a provision in a bill without vetoing the entire bill itself. Therefore, selective
veto is not allowed.
Bengzon vs. Drilon
The executive must veto a bill in its entirety or not at all. He or she cannot, like an editor, cross
out specific lines, provisions, or paragraphs in a bill that he or she dislikes. In the exercise of the veto
power, it is generally all or nothing. Either he signs it in toto and then it becomes a law or he vetoes it in
toto and it does not become a law.

Exception to the rule – 2nd par. of Section 27

―The President shall have the power to veto any particular item or items in an appropriation,
revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.‖
Under this provision, the President is expressly allowed to veto any particular item or items in an
appropriation, revenue, or tariff bill (ART) but the veto shall not affect the item or items to which he does
not object.

Gonzales vs Macaraig (Doctrine of Inappropriate Provision)

It was in this case where the SC in justifying the veto by President Cory Aquino invoked the so
called doctrine of inappropriate provision. What is the basis of that doctrine?
Section 25, 2nd par. Article VI: ―No provision or enactment shall be embraced in the general
appropriations bill unless it relates specifically to some particular appropriation therein.‖
The purpose is to prevent ―riders‖ or irrelevant provisions that are included in the general
appropriations bill to ensure their approval. [Cruz]
In other words according to the SC in this case, for a provision in a general appropriations bill
to be valid, it must relate specifically to some particular appropriation therein. If it does not, then it
becomes an inappropriate provision and as an inappropriate provision, it may now be treated as an
item. And as an item, it is now subject to the item veto of the President under Section 27, par. 2 of
Article VI, so that a veto by the President of that inappropriate provision will not affect the item or
items to which he does not object.

You know what happened there? During the time of President Cory Aquino, 1989, the general
appropriations bill from Congress was presented to her for her signature. Of course, she liked it seeing
that represented the budget of her administration for that particular year 1989. But actually there was one
very specific provision there which she found to be objectionable. It was a provision prohibiting her
from augmenting coming from savings from other departments any item or items of appropriations
that were slashed by the Congress during the budget deliberations. So what she did, she vetoed that
particular provision which she found to be very objectionable but she approved the rest. So when it was
sent back to Congress, it caused a problem. The Senators said that when President Cory vetoed this
particular provision, she is deemed to have vetoed the entire bill itself. So we have no budget now. What
is the effect of that? Automatic reenactment of the previous year‘s budget. So when the case was elevated
to the SC, the Sol-Gen said in defense of the veto: but this is an appropriations bill and under Section 27

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 par. 2 of Article VI the President may veto an item or items in an appropriations bill and the veto shall not
affect the item or items to which she does not object. But then the Senators countered, if you read Section
27 par. 2, what the President may validly veto there is an item. In this case what she vetoed was not an
item. It was a provision. Since what she vetoed here was a provision, you have to go back to the general
rule that the President may not veto a provision in a bill without vetoing the entire bill itself. That‘s very
true. A provision is different from an item.

So the SC said in this case, for a provision in a general appropriations bill to be valid, it
must relate specifically to some particular appropriation therein. If it does not, then it becomes an
inappropriate provision and as an inappropriate provision, it may now be treated as an item. And as an
item, it is now subject to the item veto of the President under Section 27, par. 2 of Article VI, so that a
veto by the President of that inappropriate provision will not affect the item or items to which he does not
object.

Actually, if you will analyze, that vetoed provision is more of a rider. It does not relate
specifically to some particular appropriation therein. In fact it may even be a separate piece of
legislation by itself. But the court did not say that it was a rider. Short of declaring that that vetoed
provision was actually a rider what the SC said was inappropriate provision because it did not comply
with Section 25 2nd par. of Article VI.

BICAMERALISM
Sec. 1, Article VI:
―The legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives…‖
That is the principle of bicameralism enshrined in the Constitution.
We have a bicameral congress consisting of the Senate and the House of Representatives. And
because of that what concept will come into play? Bicameral Conference Committee, a matter that is
not treated at all in any of the books available in the market in Political Law. But you ought to know that
one. Especially on important bills, e.g. EVAT law, RH law, Anti-Cybercrime law, etc. Practically, the
important laws, they pass through the bicameral conference committee. [Sandoval lecture]

BICAMERAL CONFERENCE COMMITTEE

Philippine Judges Ass‘n vs Secretary Prado
A bicameral conference committee is a mechanism for compromising differences between
the Senate and the House of Representatives. That is because we have a bicameral congress. If what we
have is a unicameral congress, there will be no need for a bicameral conference committee. But since
under Section 1 of Article VI, we have a bicameral congress, the concept of bicameral conference
committee.
Reiterated in later cases like Tolentino vs Sec. of Finance, the SC said, by the nature of its
function, a bicameral conference committee is capable of producing unexpected results, results
which sometimes may even go beyond its own mandate.
As the term suggests, bicameral, the members of the committee will come from both the
Senate and the House of Representatives.
Because of that, sometimes authorities in the US actually have referred to this bicameral
conference committee, in effect, to have already become a ―third House of Congress.‖ [Sandoval
lecture]

From the bicameral conference committee, where will the bill now go? Is it now ready to be sent to
the President for his signature?

Tolentino vs. Secretary of Finance

The bill is not to be sent yet to the President for his signature. The bill will have to be sent back to
both Houses of Congress. Will it undergo again the three readings on separate days requirement? No
more. From the bicameral conference committee, the bill will have to be sent back to both houses of
Congress, and there in both houses of Congress, it will now be subjected to votation. Now if during the
votation, the yeas prevailed over the nays, it is only then that the bill will have to be signed by the Senate
President and the Speaker of the House of Representatives certified to as having been duly and regularly
enacted by the respective secretaries of both Houses of Congress, sent to the President for his signature.
In other words, it is only then that the bill has become an enrolled bill.

However, if from the bicameral conference committee the bill is sent back to both houses of
Congress and during the votation in both houses of Congress the nays prevailed over the yeas, is the
bill now ―killed‖ at that stage?

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 Here, the SC did not say that the bill is now ―killed‖ at that stage, rather what the court said that if
that happens, then it is about time to convene another bicameral conference committee until it is able to
craft a version that is acceptable to both Houses of Congress. [Sandoval lecture]

THE POWER OF APPROPRIATION

Philconsa vs. Enriquez
The spending power, called the ―power of the purse‖, belongs to Congress, subject only to the
veto power of the President. While it is the President who proposes the budget, still the final say on
the matter of appropriation is lodged in Congress. The power of appropriation carries with it the
power to specify the project or activity to be funded under the appropriation law. It can be detailed and as
broad as Congress wants it to be.

Why is there a need for appropriation?

There is a need for appropriation because ―[N]o money shall be paid out of the treasury except in
pursuance of an appropriation made by law.‖ [Sec. 29(1), Art. VI]

What is an appropriation law and what are its classification?

Appropriation law is a statute the primary and specific purpose of which is to authorize the
release of public funds from the Treasury.

Classification:
1. General appropriation law: passed annually, intended to provide for the financial operations of the
entire government during one fiscal period;
2. Special appropriation law: designed for a specific purpose.

What is automatic reappropriation?

Sec. 25(7), Art. VI:
―If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriation
bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be
deemed re-enacted and shall remain in force and effect until the general appropriations bill is passed by
the Congress.‖

May Congress increase the appropriations recommended by the President in the budget proposal?
NO.
Congress may not increase the appropriations recommended by the President for the operation of
the Government as specified in the budget.

What is the rationale for this?

Being responsible for the proper operation of the executive department, the President is
naturally the party best qualified to know the maximum amount that the operation of his
department requires [De Leon]

May Congress reduce the budget of a particular office, which is under the power of Congress to
create or abolish, to one peso (P1) a year?

Yes. That is tantamount to abolition of the office [Sandoval lecture]

Is it the Congress which has the power to abolish the PDAF?

What is exeutive impoundment in relation to appropriation?

It is the refusal by the President for whatever reason to spend funds made available or already
allocated by Congress for specific purpose. It is the failure to spend or obligate budget authority of any
type. [Philconsa vs, Enriquez, 1994] This power of the President is derived from Sec. 38 of the
Administrative Code of 1987 on suspension.

What is the prohibition against transfer of appropriations?

It is a constitutional limitation on general appropriations law which prohibits the transfer of funds
from one department to another or under one appropriation law to another. It is based on Section 25(5),
Art. VI of the Constitution which states in part that ―No law shall be passed authorizing any transfer of
appropriations x x x‖

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 What is the rationale of this prohibition?

Stopping the practice in the past of giving the President authority to transfer funds from one
department to another or under one appropriation law to another, which in effect invested him with
legislative power to appropriate, thereby providing a loophole for violations of the appropriations act. [De
Leon]

What is the doctrine of augmentation in relation to the prohibition against transfer of

appropriations?

―However, the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions
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.‖
The list is exclusive. [Philconsa vs. Enriquez, 1994]

What are discretionary funds?

Funds appropriated by Congress for certain activities of the government to be disbursed at the
discretion of certain officials (i.e., intelligence funds); said funds must be disbursed only for public
purposes, supported by appropriate vouchers, and subject to the guidelines as may be prescribed by law.
―Discretionary funds appropriated for particular officials shall be disbursed only for public
purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by
law.‖ [Sec. 25(6), Art. VI]

What should be the basis of the general appropriations bill to be passed by Congress?
―The President shall submit to the 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]

CONGRESSIONAL OVERSIGHT POWERS AND FUNCTIONS

What is the power of oversight?
Macalintal vs. COMELEC
In this case, Justice Puno, in his separate concurring and dissenting opinion, had an occasion to
discuss the so called congressional oversight powers and functions. According to Justice Puno, broadly
defined, the power of oversight embraces all activities undertaken by Congress to enhance its
understanding of, and influence over, the implementation of legislation it has enacted. Clearly,
according to him, oversight concerns post-enactment measures undertaken by Congress:
a. To monitor bureaucratic compliance with program objectives;
b. To determine whether agencies are properly administered;
c. To eliminate executive waste and dishonesty;
d. To prevent executive usurpation of legislative authority; and
e. To assess executive conformity with the congressional perception of public interest.
And then he went further, he said, this power of oversight has been held to be intrinsic in the
grant of legislative power reserved to Congress by the Constitution and integral to the checks and
balances inherent in a democratic system of government.
Now, let‘s put it this way. Remember that the work of Congress does not end upon the enactment
of a law. It does not end there. Congress has a continuing interest to see to it that the law it has enacted is
properly being administered and implemented. It is in that context that you have to view it in order to
understand the so called congressional oversight powers and functions. [Sandoval lecture]
Actually according to Justice Puno, there are three categories of congressional oversight powers
and functions:
1. Legislative scrutiny;
2. Legislative investigation;
3. Legislative supervision.

LEGISLATIVE SCRUTINY
1st category of congressional oversight and functions
When does Congress exercise its oversight function of scrutiny?
Actually there are three (3) instances:
a. During the budget hearings;
b. During the question hour;
c. During the confirmation process in the Commission on Appointments.
1. During the budget hearings

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 Following the doctrine of separation of powers, the power of appropriations belongs to whom?
Congress, that‘s why Congress has the power of the purse. However, if you look at Section 22 of Article
VII of the Constitution, the one who really prepares the budget is the President through the Department of
Budget and Management. And it is this proposed budget which the President submits or transmits to the
Congress and becomes the basis for the enactment by Congress of the General Appropriations bill. The
moment that the proposed budget is submitted by the President to the Congress, Congress will now
conduct budget hearings. That is the first instance whereby the Congress exercises its oversight function
of scrutiny. So that if you happen to be the head of a department or agency or office or bureau, you might
be required to attend during the budget hearings to defend your budget proposals. now, when you go there
you better prepare. Congress has the power to slash or trim down the proposed budget. It may be alright if
Congress merely slashes or trims down the proposed budget. But if Congress reduces your proposed
budget P1 a year, that is allowed. That will be tantamount to the abolition of your office. How can you
operate with a budget of P1 a year? Congress has the power to slash or trim down or limit your budget to
P1 a year.

2. During the question hour

Section 22 of Article VI. The heads of department may upon their own initiative with the consent
of the President or upon the request of either House as the rules of each shall provide, appear before and
be heard by such house on any matter pertaining to their departments. This is known as the question hour.
Senate vs. Ermita
In this case, the SC had an occasion to clarify this. This question hour is not really a regular
feature of a Presidential form of government like what we have. This is merely a borrowed concept from
a parliamentary government. Actually, this is a part of a working mechanism and dynamics of a
parliament. Because as we had already discussed earlier, in a parliamentary government, the Prime
Minister is elected by members of the Parliament. So he is directly accountable to members of Parliament.
So that at any time that his presence is required before Parliament to explain certain issues, programs, or
controversies, he must appear there. Because if he will not appear, there may be a vote of no confidence
in him in Parliament. And if that happens, then the entire Parliament will have to be dissolved and a
special election will have to be conducted to elect a new Parliament. And when there is a new Parliament,
naturally there will be a new Prime Minister. That‘s how a Parliamentary government works and operates.
That cannot be found in a presidential form of government like what we have. But the framers of the
Constitution imported that concept and integrated that in our present Constitution. That‘s why you find it
there in Section 22 of Article VI. So that is merely a borrowed concept from a parliamentary government.

3. During the confirmation process in the Commission on Appointments

First of all, what is this Commission on Appointments? It is a body that is attached to the
Congress whose function is to act on Presidential appointments. 12 Senators, 12 Congressmen, Senate
President as ex officio chairman. A 25-member Commission on Appointments. This is one way by
which the Congress serves as a check on the appointing power of the President. So when you appear
before the Commission on Appointments you better prepare because you will be roasted. Good if your
appointment is merely by-passed by C.o.A because in that case you may be validly reappointed by the
President. But actually, if your appointment is disapproved by the commission on appointments, you may
no longer be validly reappointed by the President in that case because as explained in

Matibag vs Benipayo
A disapproval by the commission on appointments of your appointment is actually a judgment on
the merits of your qualifications by the commission. And therefore, that involves an exercise by the
commission of its checking function following the principle of checks and balances.

So in that case you may no longer be validly reappointed by the President because of the principle
of checks and balances. However, if your appointment was merely by passed by the commission on
appointments, you may still be validly reappointed by the President. Because a by-pass by the
commission of your appointment is not really a judgment on the merits of your qualifications by the
commission and therefore, that did not involve an exercise by the commission of its checking function
following the principle of checks and balances.

LEGISLATIVE INVESTIGATION
2nd category of congressional oversight powers and functions
The Power of Legislative Investigation or
The Investigatorial Power of Congress
Section 21, Article VI:
―The Senate or the HOR or any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.‖

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 When we talk of congressional investigation, properly speaking, we refer to Section 21 of Article
VI – Inquiry in aid of legislation or the power of each House of Congress to conduct inquiries in aid of
legislation.

May Congress conduct inquiries in aid of legislation even in the absence of a provision in the
Constitution expressly granting it that power?

Arnault vs. Nazareno, 1950 decision

The SC said, intrinsic in the grant of legislative power reserved to Congress by the Constitution is
the power to conduct inquiries in aid of legislation for you cannot expect Congress to enact good laws if
you will deny it the power to investigate.

Arnault vs. Nazareno was decided under the 1935 constitution. And under that Constitution, there
was no provision similar to that which you now find in Section 21 of Article VI. Yet the SC already
recognized that intrinsic in the grant of legislative power reserved to Congress by the Constitution is the
power to conduct inquiries in aid of legislation because you cannot expect Congress to enact good laws if
you will deny it the power to investigate.

Is the power to conduct inquiries in aid of legislation absolute or are there limitations?

Bengzon vs. Senate Blue Ribbon Committee

What did the SC say? A mere reading of Section 21 of Article VI will show that this is not really
absolute. In fact there are limitations.
First, the inquiry must always be in aid of legislation, whether in connection with a pending
bill in the Congress or in connection with a bill that is expected to be filed in the Congress. But the point
is it must always be in aid of legislation. It is not an inquiry for inquiry‘s sake;
Second, it must be conducted in accordance with the duly published rules of procedure of
the House of Congress conducting that inquiry;
Finally, the third limitation is found in the second sentence, the rights of the persons appearing
in, or affected by such inquiries, shall be respected.

That‘s why in this case, the SC found that the inquiry there was not actually in aid of legislation
because the purpose of the inquiry in that case was for the Senate Blue Ribbon Committee to determine
whether there was possible violation of Philippine criminal laws on the matter (Sec. 5, RA 3019). The
subject matter of that inquiry was certain properties of alleged cronies of the late Pres. Marcos which are
subject of a pending case before the Sandiganbayan.
In the privileged speech of Sen. Enrile, he urged the Senate Blue Ribbon Committee to conduct
an inquiry because he was deploring the fact that these properties of alleged Marcos cronies which are
subject of pending criminal cases in the Sandiganbayan, somehow, found their way in the hands of the
relatives of the former Pres. Cory Aquino. So he was deploring that because of that he urged the Senate
Blue Ribbon Committee to conduct an inquiry to determine whether there was possible violation of
Philippine criminal laws on the matter.

The SC said obviously that was not in aid of legislation because the speech of Sen. Enrile
contained no suggestion of contemplated legislation. There appears to be no intended legislation
involved. He merely called upon the Senate Blue Ribbon Committee to look into possible violation of
Philippine criminal laws on the matter (Sec. 5, RA 3019). The SBRC‘s probe and inquiry into the same
justiciable controversy would be an encroachment into the exclusive domain of judicial jurisdiction that
had much earlier set in. Besides, if the Senate Blue Ribbon Committee continues with that inquiry, what
if it will arrive at a conclusion different from that of the Sandiganbayan? You will have a constitutional
crisis there. [Sandoval lecture; Nachura]

Standard Charter Bank vs. Senate Committee on Banks

This is an almost parallel case with Bengzon but there was a major difference. The Standard
Charter Bank is a foreign bank allowed to do business in the Philippines. There are local investors who
were allegedly ―defrauded‖ by this bank. So apparently they approcahed Senator Enrile and because of
that Sen. Enrile delivered a privileged speech in the Senate urging the Senate Committee on Banks to
conduct inquiry in aid of legislation to determine whether there were loopholes in our laws on the
matter of foreign banks allowed to do business in the Philippines so that local investors will be
protected from fraudulent practices. That privileged speech was followed by a resolution which he
filed in the Senate of the same tenor.
The Standard Charter Bank questioned that because at that time, Standard Charter Banks were
facing similar criminal and civil cases before the Sandiganbayan, RTC, MTC, saying that if the Senate
Committee on Banks will be allowed to proceed with that inquiry, it may arrive at a conclusion different

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 from that of the courts, the RTC, the Sandiganbayan, etc. So the Senate Committee on Banks should be
ordered to desist from further conducting that inquiry.

Now this time the SC did not agree because in this case, it is obvious that the inquiry is in aid of
legislation. What was the purpose of the inquiry? For the Senate Committee on Banks to determine
whether there were loopholes in our laws on the matter of foreign banks allowed to do business in the
Philippines so that local investors will be protected from fraudulent practices. So obviously that was in
aid of legislation. So that remedial legislation may be enacted.

Unlike in the Bengzon case where the purpose of the inquiry was for the Senate Blue Ribbon
Committee to determine whether there was possible violation of Philippine criminal laws on the matter
and no indication that it is intended in aid of legislation. [Sandoval lecture]

Elsewhere in the ruling, however, the mere filing of a criminal or an administrative

complaint before a court or quasi-judicial body should not automatically bar the conduct of
legislative inquiry, otherwise, it would be extremely easy to subvert any intended inquiry by
Congress through the convenient ploy of instituting a criminal or an administrative complaint.
Surely, the exercise of sovereign legislative authority, of which the power of legislative inquiry is an
essential component, cannot be made subordinate to a criminal or an administrative investigation.
[Nachura]

Is this subject to judicial review or is this a political question?

According to the SC in Bengzon, since it had already been shown that this is not really
absolute, in fact, there are important limitations on this power, then it follows that this is not a
political question. For instance, the court may validly inquire into whether the inquiry is indeed in aid of
legislation or not, like what happened in Bengzon vs. Senate Blue Ribbon Committee as well as in
Standard Charter Bank vs. Senate Committee on Banks. The court may validly inquire into whether the
inquiry is in aid of legislation or is conducted in accordance with the duly published rules of procedure of
the House of Congress conducting that inquiry. Finally, the courts may validly inquire into whether the
rights of persons appearing in, or affected by such inquiries, are respected.
Neri vs. Senate Committees
The SC declared that the conduct of the investigations by the Senate Committees did not comply
with the Constitution, for failure to publish the rules of procedure on legislative inquiries.

Legislative contempt
Remember that when you speak of inquiry in aid of legislation, the concept of legislative
contempt is not far behind. When you are summoned by the House of Congress conducting an inquiry in
aid of legislation but you refused to appear or assuming you appear but you refuse to cooperate, you may
be cited in contempt there. That is legislative contempt. You may even be sent to prison. [Sandoval
lecture]

Arnault vs. Nazareno

According to the SC, intrinsic in the grant of legislative power reserved to Congress by the
Constitution is the power to conduct inquiries in aid of legislation with the process to enforce it. Now
tell me, what process to enforce it? Legislative contempt. That is a process. [Sandoval lecture]

Discuss the extent of the Power to punish contempt.

Punishment of contumacious witness may include imprisonment, for the duration of the session.
The Senate, being a continuing body, may order imprisonment for an indefinite period, but principles of
due process and equal protection will have to be considered. [See Arnault vs. Nazareno] (Nachura)

Question Hour vs. Legislative Investigation (Senate vs. Ermita)

In the power to conduct inquiries in aid of legislation,
a. The aim is to elicit information that may be used for legislation;
b. Appearance is mandatory;
c. Persons who may be required to appear are not necessarily department heads; and
d. It is conducted in aid of legislation;
Whereas, in the power to conduct question hour
a. The objective is to obtain information in pursuit of Congress oversight function;
b. The appearance of department heads is with the consent of the President
c. The persons who may appear are the department heads;
d. It is conducted in pursuit of Congress oversight function.
May the department heads refuse to appear in inquiries in aid of legislation?
When the inquiry in which Congress requires their appearance in ―aid of legislation‖ under Sec.
21, Art. VI, the appearance is mandatory. When Congress exercises its power of inquiry, the only way for

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 department heads to exempt themselves therefrom is by a valid claim of executive privilege. They are not
exempt by the mere fact that they are department heads. [Senate vs. Ermita]

Who are the officials who may be exempted from the legislative power of inquiry in aid of legislation?
Only one executive official may be exempted from this power – the President – on whom
executive power is vested, hence, beyond the reach of Congress except through the power of
impeachment. [Senate vs. Ermita]

Discuss the validity of Sec. 1 of E.O. 464 requiring Cabinet members to secure Presidential consent in their
appearances in the question hour.
The requirement for Cabinet Members to secure Presidential consent under Section 1 of E.O. 464,
which is limited only to appearances in the question hour, is valid on its face. It cannot, however, be
applied to appearances of department heads in inquiries in aid of legislation. Congress is not bound in
such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim
of privilege is subsequently made either by the President herself or by the Executive Secretary, acting for
the President. [Senate vs. Ermita]

LEGISLATIVE SUPERVISION
3rd category of congressional oversight power and functions
According to Justice Puno, the 3rd and most encompassing form by which Congress exercises
its oversight power is through legislative supervision.
Supervision means or connotes a continuing and informed awareness on the part of a
congressional committee regarding executive operations in a given administrative area.
Congressional supervision allows Congress to scrutinize the exercise of delegated law-making
authority and permits Congress to retain part of that delegated authority.
To emphasize legislative supervision, we will go back to delegation to administrative agencies by
way of an exception to the rule that what has been delegated may no longer be delegated. This quasi-
legislative power, this is merely a delegated power to an administrative agency.

Legislative veto
Congress exercises supervision over the executive agencies or over this administrative agencies
or even the President through its legislative veto power.

What is a legislative veto?

A congressional veto is a means whereby the legislature can block or modify administrative
action taken under a statute. It is a form of legislative control in the implementation of particular
executive action. The form may either be negative, i.e., subjecting the executive action to disapproval by
Congress, or affirmative, i.e., requiring approval of the executive action by Congress. [Nachura]
―Legislative veto is a statutory provision requiring the President or an administrative agency to
present the proposed implementing rules and regulations of a law to Congress which, by itself or through
a committee formed by it, retains a ‗right‘ or ‗power‘ to approve or disapprove such regulations before
they take effect. [Rene Gorospe]
Actually, a legislative veto is a disapproval by Congress of an administrative regulation
promulgated by an administrative agency. Because as I told you, this quasi-legislative power, this is
merely a delegated power to an administrative agency. And since that is merely a delegated power – the
power to promulgate administrative regulations – it follows therefore that it is subject to the review
powers of Congress. The moment that Congress disapproves an administrative regulation, that is called
‗legislative veto.‘ [Sandoval lecture]

ABAKADA Guro Party-list vs Secretary Purisima, August 2008

In this later case, the SC said that legislative veto is a statutory provision requiring the
President or an administrative agency to present the proposed implementing rules and regulations
of a law to Congress which by itself or through a committee formed by it, retains a right or power
to approve or disapprove such regulations before they take effect.

The SC declared a legislative veto unconstitutional. Henceforth, any post-enactment

congressional measure should be limited only to scrutiny and investigation. Any action or step beyond
that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes fall in this
category.
Because actually what did SC say, what is a legislative veto? A disapproval by Congress of an
administrative regulation promulgated by an administrative agency. Remember that
administrative regulations have the force and effect of law. Now only the courts may declare an
administrative regulation unconstitutional since it has the force and effect of a law. In this
legislative veto, in effect Congress or a committee of Congress encroaches now on a judicial
prerogative. That is one of the reasons why a legislative veto has to be declared unconstitutional.

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 Besides according to the SC, a legislative veto violates the principle of bicameralism as well
as the rule of presentment of bills to the President. Remember under Section 1 of Article VI, we have a
bicameral congress consisting of the Senate and the House of Representatives. And under Section 26, 2 nd
par. of Article VI, before a bill may become a law, it will have to undergo three readings on separate days
in each house of Congress. This is the principle of bicameralism.

This legislative veto does not undergo the three readings on separate days requirement under
Section 26, 2nd par. of Article VI. So this in effect violated the principle of bicameralism enshrined in the
Constitution.
Moreover, it violates the rule on presentment of bills to the President. What is that rule on
presentment of bills? Remember, from Congress the bill will have to be presented to the President for his
signature. If he signs it that bill becomes a law. If it is already a law, who will now implement it? The
executive branch. This legislative veto violates the rule on presentment of bills to the President because
actually the President participates in the law-making process. In fact the last step that will effectively
convert a bill into a law is the act of the President – the act of signing that bill.
So on that considerations, the court declared in that case of ABAKADA Guro Party-list vs
Secretary Purisima, August 2008, a legislative veto unconstitutional. First, it encroaches on a judicial
prerogative. Second, it violates the principle of bicameralism in the Constitution as well as the rule
on the presentment of bills to the President. In effect, with legislative veto, Congress is now
participating in the implementation of a law. That will violate the doctrine of separation of powers.
In the US where this legislative veto had its origin, the American Supreme Court has not yet
declared this legislative veto unconstitutional. So we are deviating actually from the American
experience. [Sandoval lecture]
Power of taxation
War powers of Congress
By a vote of 2/3 of both Houses in joint session assembled, voting separately, declare the
existence of a state of war. [Sec. 23(1), Art. VI]
Power to act as Board of Canvassers in election of President [Sec. 4, Art. VII]
May Congress validly delegate the initial determination of the authenticity and due execution of the
certificates of canvass to a Joint Congressional Committee?
In the exercise of this power, Congress may validly delegate the initial determination of the
authenticity and due execution of the certificates of canvass to a Joint Congressional Committee xxx
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 Congress, the two Houses voting separately. [Ruy Elias
Lopez vs. Senate of the Philippines]
Power to call a special election for President and Vice President [Sec. 10, Art. VII]
Power to judge President‘s physical fitness to discharge the functions of the Presidency [Sec. 11, Art. VII]
Power to revoke or extend suspension of the privilege of the writ of habeas corpus or declaration of martial
law [Sec. 18, Art. VII]
Power to concur in Presidential amnesties
Concurrence of majority of all the members of Congress [Sec. 19, Art. VII]
Power to concur in treaties or international agreements
Concurrence of at least 2/3 of all members of the Senate [Sec. 21, Art. VII]
Power to confirm certain appointments/nominations made by the President
Power of Impeachment [Sec. 2, Art. XI]
Power relative to natural resources [Sec. 2, Art. XII]

Power to propose to amendments to the Constitution [Secs. 1 and 2, Art. XVII]

THE EXECUTIVE DEPARTMENT

ARTICLE VII

Executive Power
Section 1, Article VII:
―The executive power shall be vested in the President of the Philippines.‖
What is executive power?
Executive power is briefly described as the power to enforce and administer the laws, but it is
actually more than this. In the exercise of this power, the President of the Philippines assumes a plenitude
of authority, and the corresponding awesome responsibility, that make him, indeed, the most influential
person in the land. The potentials of executive power are tremendous – for good or evil. [Cruz]

What are the qualifications of the President?

8. Natural-born citizen of the Philippines;

9. Registered voter;

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 10. Able to read and write;
11. At least forty (40) years of age on the day of election;
12. Resident of the Philippines for at least ten (10) years immediately preceding such election.

May the President run (or serve again as such) for another term after other persons shall have served in his
former office?

The question of whether or not the President can run for another term after other persons shall
have served in his former office has yet to be settled by the SC. One view is that the President can be re-
elected provided this is not done immediately following his first term. Others contend that he is forever
disqualified because Section 4, Article VII provides that ―the President shall not be eligible for any re-
election.‖ [Cruz]
Rules on Succession
Vacancy at the beginning of the term:
1. Death or permanent disability of the President-elect:
Vice President-elect shall become President.
2. President-elect fails to qualify:
Vice President-elect shall act as President until the President-elect shall have qualified.
3. President-elect shall not have been chosen:
Vice President-elect shall act as President until a President shall have been chosen and
qualified.
4. No President and Vice President chosen nor shall have qualified, or both shall have died or become
permanently disabled:
The President of the Senate or, in case of his inability, the Speaker of HOR shall act as
President until a President or a Vice President shall have been chosen and qualified. 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 a Vice President shall have
qualified.

Vacancy during the term

1. Death, permanent disability, removal from office, or resignation of the President:
Vice President shall become the President.
2. Death, permanent disability, removal from office, or resignation of President and Vice President:
Senate President or, in case of his inability, the Speaker of the HOR, shall act as
President until a President 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.

Did former President Estrada resign as President or should be considered resigned as of January 20,
2001 when President Gloria Macapagal Arroyo took her oath as the 14th President of the Republic?
Resignation x x x is a factual question and its elements are beyond quibble: there must be an
intent to resign and the intent must be coupled by acts of relinquishment. The validity of a resignation is
not governed by any formal requirement as to form. It can be oral. It can be written. It can be express.
It can be implied. As long as the resignation is clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write any formal letter of resignation
before he evacuated Malacanang Palace in the afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his acts
and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and
posterior facts and circumstantial evidence bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.
Xxx
In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacanang. In the press release containing his final statement, (1) he acknowledged the oath-
taking of the respondent as President of the Republic albeit with reservation about its legality; (2) he
emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to
begin the healing process of our nation. He did not say he was leaving the Palace due to any kind of
inability and that he was going to re-assume the presidency as soon as the disability disappears; (3) he
expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring
to the past opportunity given him to serve the people as President; (4) he assured that he will not shirk
from any future challenge that may come ahead on the same service of our country. Petitioner‘s reference
is to a future challenge after occupying the office of the president which he has given up; and (5) he called
on his supporters to join him in the promotion of a constructive national spirit of reconciliation and
solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not
give up the presidency. The press release was petitioner‘s valedictory, his final act of farewell. His

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 presidency is now in the past tense. (Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, en Banc
[Puno])

Temporary disability
PRIVILEGES OF THE PRESIDENT

Presidential immunity from suit

May the President, who is immune from suit, institute a suit? Is he immune from civil liability?

While the President is immune from suit, she may not be prevented from instituting suit. [Soliven
vs, Makasiar]. The President is immune from civil liability [Forbes vs. Chuoco Tiaco]. But after his
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 vs.
Desierto]

Can former President Estrada still be prosecuted criminally considering that he was not convicted in
the impeachment proceedings against him?
We reject his argument that he cannot be prosecuted for the reason that he must first be convicted
in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout
of the prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001,
the Senate passed Senate Resolution No. 83 ―Recognizing that the Impeachment Court is Functus
Officio.” Since the Impeachment Court is now functus officio, it is untenable for petitioner to demand
that he should first be impeached and then convicted before he can be prosecuted. The plea if granted,
would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it
will place him in a better situation than a non-sitting President who has not been subjected to
impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in
the Constitutional Commission make it clear that when impeachment proceedings have become moot due
to the resignation of the President, the proper criminal and civil cases may already be filed against him x x
x.
This is in accord with our ruling in In Re: Saturnino Bermudez (145 SCRA 160 [1986]) that
―incumbent Presidents are immune from suit or from being brought to court during the period of their
incumbency and tenure‖ but not beyond. Considering the peculiar circumstance that the impeachment
process against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada
cannot demand as a condition sine qua non to his criminal prosecution before the Ombudsman that he be
convicted in the impeachment proceedings. (Estrada v. Desierto, G.R. Nos. 146710-15, Mar. 2, 2001, en
Banc [Puno])

Executive Privilege
What is executive privilege?
It has been defined as ―the right of the President and high-level executive branch officials to
withhold information from Congress, the courts, and ultimately the public.‖ Thus, presidential
conversations, corresponds, or discussions during closed-door Cabinet meetings, like the internal
deliberations of the SC 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 vs. Ermita]

What are some of the cases where a claim of executive privilege is highly recognized?

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 our Constitution, the President is the repository of the
commander-in-chief, appointing, pardoning and diplomatic power. Consistent with the doctrine of
separation of powers, the information relating to these powers may enjoy greater confidentiality than
others [Neri vs. Senate Committees]

Who has the power to invoke the privilege?

However, the privilege being, by definition, an exemption from the obligation to disclose
information (in this case to Congress), 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 order of the President) the power to invoke the privilege [Senate vs.
Ermita]

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 POWERS OF THE PRESIDENT

The Executive Power

Section 1, Article VII:

―The executive power shall be vested in the President of the Philippines.‖

What is executive power?

Executive power is briefly described as the power to enforce and administer the laws, but it is
actually more than this. In the exercise of this power, the President of the Philippines assumes a plenitude
of authority, and the corresponding awesome responsibility, that make him, indeed, the most influential
person in the land. The potentials of executive power are tremendous – for good or evil. [Cruz]

As the administrative head of the government, the President is vested with the power to execute,
administer and carry out laws into practical operation. Executive power, then, is the power of carrying out
the laws into practical operation and enforcing their due observance [National Electrification Admi‘n vs.
CA]

Is executive power limited only to the specific powers enumerated in the Constitution?
―xxx we hold the view that although the 1987 Constitution imposes limitations on the exercise of
specific powers of the President, it maintains intact what is traditionally considered as within the scope of
―executive power.‖ Corollarily, the powers of the President cannot be said to be limited only to the
specific powers enumerated in the Constitution. In other words, executive power is more than the sum of
specific powers so enumerated.” Marcos vs. Manglapus.

THE POWER OF APPOINTMENT

―The President shall nominate and, with the consent of the Commission on Appointments, appoint
the heads of the executive 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 by law, and those whom he may be authorized by law to
appoint. The Congress may, by law, vest appointment of other officers lower in rank in the President
alone, in the courts, or in the heads of departments, agencies, commissions, or boards.‖ Sec. 16, Art. VII
What is appointment?
Appointment may be defined as the selection, by the authority vested with the power, of an
individual who is to exercise the functions of a given office. It is distinguished from designation in that
the latter simply means imposition of additional duties, usually by law, on a person already in public
service. It is also different from commission in that the latter is the written evidence of the appointment.

What is the implication where the person is merely designated and not appointed?
However, where the person is merely designated and not appointed, the implication is that he
shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority.
In this sense, the designation is considered only an acting or temporary appointment, which does not
confer security of tenure on the person named. [Binamira vs. Garrucho]

Are both temporary appointment and the designation subject to confirmation by the Commission
on Appointments?
No. Both the temporary and the designation are not subject to confirmation by the Commission
on Appointments. Such confirmation, if given erroneously, will not make the incumbent a permanent
appointee. [Valencia vs. Peralta, 8 SCRA 692]
Classifications of Appointments:
1. Permanent or Temporary
Permanent appointments are those extended to persons possessing the requisite eligibility
and are thus protected by the constitutional provision on security of tenure.
Temporary appointments, on the other hand, which are given to persons without such
eligibility, are revocable at will and without the necessity of just cause or valid investigation.
They are extended upon the understanding that the appointing power has not yet decided on a
permanent appointee and that the temporary appointee may be replaced at any time a final choice
shall have been made by the President. [Cruz]
2. Regular or ad interim
A regular appointment is 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.

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 An ad interim appointment is 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. In the latter case, the ad interim
appointment is intended to prevent interruptions in vital government services that would
otherwise result from prolonged vacancies in government. [Nachura]

Is an ad interim appointment a permanent appointment? Yes.

An ad interim appointment is a permanent appointment [PLM vs IAC]. It is a permanent
appointment because 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 [Matibag vs. Benipayo]

Enumerate the groups of officers who are to be appointed by the President under Section 16,
Article VII of the 1987 Constitution, and identify those officers whose appointments shall require
confirmation by the Commission on Appointments.

Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III v. Mison
(Ibid.), and in the subsequent cases of Bautista v. Salonga (172 SCRA 160), Quintos-Deles v.
Constitutional Commission (177 SCRA 259), and Calderon v. Carale (208 SCRA 254), under Section 16,
Article VII, of the Constitution, there are four groups of officers of the government to be appointed
by the President:

First, the heads of the executive departments, 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 in this Constitution;
Second, all other officers of the Government whose appointments are not otherwise provided for
by law;
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank whose appointments the Congress may by law vest in the President
alone.
It is well-settled that only presidential appointees belonging to the first group require the
confirmation by the Commission on Appointments. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999,
En Banc [Purisima]) [Sandoval notes]
Some officers whom the President is authorized by law to appoint (third [3rd] group) are the
members of the various statutory administrative agencies. An example of an officer whose appointment is
not otherwise provided for in the Constitution (2nd group) is the Chairman of the Commission on Human
Rights. On the other hand, there is express constitutional authority given to the President in the
appointment of the Ombudsman (last category in the 1st group). [Cruz]

May Congress expand the power of confirmation of the Commission on Appointments? No.
As held in the case of Tarrosa v. Singson (232 SCRA 553), Congress cannot by law expand the
power of confirmation of the Commission on Appointments and require confirmation of appointments of
other government officials not mentioned in the first sentence of Section 16 of Article VII of the 1987
Constitution.
In fact in Manalo vs. Sistoza, the SC said that Congress cannot, by law, require the confirmation
of appointments of government officials other than those enumerated in the first sentence of Sec. 16, Art.
VII

What are the steps in the appointing process?

i. Nomination by the President;
ii. Confirmation by the Commission on Appointments;
iii. Issuance of the Commission;
iv. Acceptance by the appointee

When is an appointment deemed complete?

An appointment is deemed complete only upon its acceptance. Pending such acceptance, which is
optional to the appointee, the appointment may still be validly withdrawn. Appointment to a public office
cannot be forced upon any citizen except for purposes of defense of the State under Sec. 4, Art. II, as an
exception to the rule against involuntary servitude. [Lacson vs. Romero]
May Congress, through a law, impose on the President the obligation to appoint automatically the
undersecretary as her temporary alter ego? [2013 Bar exam]
Pimentel vs. Ermita:
The essence of an appointment in an acting capacity is its temporary nature. In case of a vacancy
in an office occupied by an alter ego of the President, such as the office of Department Secretary, the
President must necessarily appoint the alter ego of her choice as Acting Secretary before the permanent

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 appointee of her choice could assume office. Congress, through a law, cannot impose on the President
the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego,
whether temporary or permanent, holds a position of great trust and confidence. Acting appointments are
a way of temporarily filling the important offices but, if abused, they can also be a way of circumventing
the need for confirmation by the Commission on Appointments. However, we find no abuse in the present
case. The absence of abuse is readily apparent from President Arroyo‘s issuance of ad interim
appointments to respondents immediately upon the recess of Congress, way before the lapse of one year.

What are the special constitutional limitations on the President‘s appointing power?

1. The President may not appoint his spouse, and relatives by consanguinity or affinity within the fourth
civil degree as Members of the Constitutional Commissions, as Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or offices, including government owned or controlled
corporations [Sec. 13, Art. VII];
2. Appointments extended by an acting President shall remain effective unless revoked by the elected
President within ninety (90) days from his assumption of office [Sec. 14, Art. VII];
3. Two months immediately before the next presidential elections and up to the end of his term, a
President or acting President shall not make appointments except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public
safety [Sec. 15, Art. VII] (and appointment of members of the Supreme Court like in the case of
former Chief Justice Corona);

Does the prohibition on midnight appointments or appointments intended for buying votes apply to
local executive officials?
Section 15, Article VII applies only to presidential appointments. There is no law that prohibits
local executive officials from making appointments during the last days of their tenure. [De Rama vs. CA]
How may Congress limit the presidential power of appointment considering that appointment is
essentially a discretionary power?
The presidential power of appointment may also be limited by Congress through its power to
prescribe qualifications for public office. [Nachura]

THE POWER OF REMOVAL

Is the power of removal expressly granted by the Constitution to the President?
From the express power of appointment, the President derives the implied power of removal.
[Cruz]
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 Commissions, the Ombudsman, who can be removed only by
impeachment, or judges who are subject to the disciplinary authority of the Supreme Court.

THE CONTROL POWER

―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]

How is CONTROL defined and how is it distinguished from SUPERVISION?

Control is defined as ―the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment of the former
for that of the latter.‖ [Mondano vs. Silvosa]
It is distinguished from supervision in that the latter means overseeing or the power or authority
of an officer to see that subordinate officers perform their duties, and if the latter fail or neglect to fulfill
them, then the former may take such action or steps as prescribed by law to make them perform these
duties. [Nachura]
As elaborated by the SC in Drilon vs. Lim:
―An officer in control lays down the rules in the doing of an act. If they are not followed, he may,
in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it
himself. Supervision does not cover such authority. The supervisor or superintendent 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. If the rules are not observed, he may order the work done or re-done but only to
conform to the prescribed rules. He may not prescribe his own manner for the doing of the act. He has no
judgment on this matter except to see to it that the rules are followed.‖

Discuss the authority of the President to reorganize the Office of the President.
The Administrative Code of 1987 expressly grants the President continuing authority to
reorganize the Office of the President. The law grants the President this power in recognition of the
recurring need of every President to reorganize his office “to achieve simplicity, economy, and

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efficiency”. The Office of the President is the nerve center of the Executive Branch. To remain effective
and efficient, the Office of the President must be capable of being shaped and reshaped by the President
in the manner he deems fit to carry out his directives and policies.

Is this authority to reorganize the Office of the President the same with the power to reorganize the
Office of the President Proper?

The two must be distinguished.

The President can reorganize the Office of the President Proper by abolishing, consolidating or
merging units, or by transferring functions from one unit to another. [Sec. 31(1) of EO 292]

In contrast, the President‘s power to reorganize offices outside the Office of the President Proper
is limited to merely transferring functions or agencies from the Office of President to Departments or
Agencies, and vice versa. [Sec. 31(2) and (3) of EO 292] (Domingo vs. Zamora)

May the President reorganize the Department of Health?

The President has the authority to carry out a reorganization of the Department of Health under
the Constitution and Statutes. This authority is adjunct of the President’s power of control under Art. VII,
Secs. 1 and 17, and it is also an exercise of his “residual powers”. [MEWAP vs. Romulo]

Discuss the President’s power to reorganize the executive branch.

The President’s power to reorganize the executive branch is also an exercise of his residual
powers under Sec. 20, Title I, Book II, Executive Order No. 292 (Administrative Code of the
Philippines) which grants the President broad organization powers to implement reorganization
measures. Further, P.D. No. 1772, which amended P.D. 1416, grants the President the continuing
authority to reorganize the national government which includes the power to group, consolidate
bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services
and activities, and to standardize salaries and materials. [MEWAP vs Romulo]

May the President exercise this power in bad faith?

However, the President must exercise good faith in carrying out the reorganization of any branch
or agency of the executive department (if it is for the purpose of economy or to make bureaucracy more
efficient). [MEWAP vs. Romulo]

May the President’s power to reorganize the executive branch be validly delegated to his Cabinet
members?
Applying this doctrine (alter ego doctrine), the power of the President to reorganize the National
Government may validly be delegated to his Cabinet Members exercising control over a particular
executive department. Accordingly, in this case, the DENR Secretary can validly reorganize the DENR
by ordering the transfer of the DENR XII Regional Offices from Cotabato City to Koronadal, South
Cotabato. The exercise of this authority by the DENR Secretary, as an alter ego of the President, is
presumed to be the act of the President because the latter had not expressly repudiated the same. [DENR
vs. DENR Region XII Employees (2003)]

What is the ALTER EGO DOCTRINE?

This is also known as the ―Doctrine of Qualified Political Agency‖.
Under this doctrine which recognizes the establishment of a single executive, all executives and
administrative organizations are adjuncts of the Executive Department, the heads of the various executive
departments are assistants and agents of the Chief Executive, and except in cases where the Chief
Executive is required by the Constitution or 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 departments, and the acts of the Secretaries of such departments
performed and promulgated in the regular course of business are, unless disapproved or reprobated by the
Chief Executive, presumptively the acts of the Chief Executive. [DENR vs. DENR Region XII
Employees (2003)]

Discuss the full control of the President over all members of his Cabinet.
Theoretically, the President has full control of all the members of his Cabinet. He may appoint
them as he sees fit, shuffle them at pleasure, and replace them in his discretion without any legal
inhibition whatever xxx From the purely legal standpoint, the members of the Cabinet are subject at all
times to the disposition of the President since they are merely his alter ego. [Cruz]

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 May the President exercise powers conferred by law upon Cabinet members or other subordinate
executive officers?

The President may exercise powers conferred by law upon Cabinet members or other subordinate
executive officers. [City of Iligan vs. Director of Lands]

Examples:
Even where the law provides that the decision of the Director of Lands on questions of fact shall
be conclusive when affirmed by the Secretary of Agriculture and Natural Resources, the same may, on
appeal to the President, be reviewed and reversed by the Executive Secretary. [Lacson-Magallanes vs.
Pano]
The Executive Secretary had the authority to enter into the ―Agreement to Arbitrate‖ with ABS-
CBN, since he was acting on behalf of the President who had the power to negotiate such agreement.
[Gascon vs. Arroyo]

May a Cabinet secretary invoke the President‘s immunity from suit in a case filed against him?
But even if he is an alter-ego of the President, the DECS Secretary cannot invoke the President‘s
immunity from suit in a case filed against him, in as much as the questioned acts are not those of the
President. [Gloria vs. CA, 2000]

But, may the control power be exercised by the President over the actor?
It should be noted that the power of control is exercisable by the President over the acts of his
subordinates and not necessarily over the subordinate himself. [Cruz]
The power of control may be exercised by the President only over the acts, not over the actor.
[Angangco vs. Castillo] In this case, the President of the Philippines had assumed direct jurisdiction over
a member of the classified Civil Service against whom administrative charges had been filed by the
Commissioner of Customs. This act of the President was declared unlawful by the SC holding that the
power merely applies to the exercise of control over the acts of the subordinate and not over the actor or
agent himself of the act. It only means that the President may set aside the judgment or action taken by a
subordinate in the performance of his duties.

THE MILITARY POWERS OF THE PRESIDENT

Section 18, Article VII:
―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. Xxx‖

What are three powers of the President in this provision?

There are three:
1. Calling-out power as Commander-in-Chief of the armed forces;
2. Martial law power;
3. Power to suspend the privilege of the writ of habeas corpus.

What is the Commander-in-Chief clause?

The President shall be the Commander-in-Chief‖ of all armed forces of the Philippines…

Distinguish the President’s power to call out the armed forces as their Commander-in-Chief in order to
prevent or suppress lawless violence, invasion or rebellion, from his power to proclaim martial law and
suspend the privilege of the writ of habeas corpus.
Firstly, in the power to proclaim martial law and suspend the privilege of the writ of habeas
corpus, Congress may revoke such proclamations (of martial law) or suspension (of the privilege of the
writ of habeas corpus) and the Court may review the sufficiency of the factual basis thereof;
Whereas, in the calling out power, there is no such equivalent provision dealing with the
revocation or review of the President's action to call out the armed forces;
Secondly, the power to suspend the privilege of the writ of habeas corpus and the power to
impose martial law involve the curtailment and suppression of certain basic civil rights and individual
freedoms, and thus necessitating safeguards by Congress and review by Supreme Court;
Whereas, the power to call out is considered as the lesser and more benign power as it does not
involve a direct curtailment and suppression of certain basic civil rights and individual freedoms;
Thirdly, in the exercise of the power to suspend the privilege of the writ of habeas corpus or to
impose martial law, two conditions must concur: (1) there must be an actual invasion or rebellion and, (2)
public safety must require it;

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 These conditions are not required in the case of the power to call out the armed forces. 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." (Integrated Bar of the Philippines v. Hon. Ronaldo B.
Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan]) [Sandoval notes]

What is the scenario contemplated in the exercise of the calling-out power?

Under the calling-out power, the President may summon the armed forces to aid her in
suppressing lawless violence, invasion or rebellion; this involves ordinary police action. But every act
that goes beyond the President‘s calling-out power is considered illegal or ultra vires. For this
reason, a President must be careful in the exercise of her powers. She cannot invoke a greater
power when she wishes to act under a lesser power. [David vs. Arroyo]

Are the martial law power of the President and his power to suspend the privilege of the writ of
habeas corpus subject to judicial review?
Under the Sec. 18, 3rd par., Art. VII, the SC may review 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 thereby
leaving no doubt that under 1987 Constitution, these two powers have expressly been made subject to
judicial review.
Unlike in the past where as to that question the SC flip-flopped. In the old case of Montenegro vs
Baker, according to the SC this question is a political question and as such courts are not supposed to
intrude into these kinds of questions following the doctrine of separation of powers. But then in Lansang
vs. Garcia which was decided under Martial law, for the first time the SC clarified that it has the power
to review the sufficiency of the factual basis of the proclamation of martial law. However, the case of
Lansang vs Garcia did not last long. It did not even last three months. It was followed by the case of
Enrile vs Morales where the SC reverted to the political question doctrine with respect to that particular
issue.
Now after the EDSA revolution of 1986, the drafters of 1987 Constitution were obviously aware
of the doctrine in Lansang vs. Garcia so they deemed it proper to include that provision in the third
paragraph. So there you have now the doctrine in Lansang vs. Garcia which has now been elevated into a
constitutional provision. [Sandoval lecture]

Is the calling-out power of the President as Commander-in-Chief of the armed forces subject to judicial
review?
Her calling out power is a political question and not subject to judicial power as this is the lesser
and more benign of the three powers under Sec. 18, Art. VII of the 1987 Constitution (IBP v. Zamora,
G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan]).It is a question in regard to which full
discretionary authority has been delegated by the Constitution to the President, as their Commander-in-
Chief, to call out the armed forces whenever she deems it necessary in order to prevent or suppress
lawless violence, invasion, or rebellion. To subject such calling out power to unfettered judicial scrutiny
could be a veritable prescription for disaster as such power may be unduly straitjacketed by an injunction
or a TRO every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-
Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to
do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can
show that the exercise of such discretion was gravely abused, the President's exercise of judgment
deserves to be accorded respect from this Court.(Integrated Bar of the Philippines v. Hon. Ronaldo B.
Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan]) [Sandoval notes]
In this case, during the time of then President Estrada, there were fears expressed then that the
insurgency problem in Mindanao might spill over in Metro Manila. And because of that, what President
Estrada did then was he issued that Letter of Instruction ordering the deployment of the Marines in the
metro polis to conduct joint visibility patrols with members of the PNP in shopping malls and other public
places in Metro Manila. Now question, when President Estrada issued that LOI ordering the deployment
of the marines under those circumstances, what power did he actually exercise? Actually, if you will
analyze it was his calling-out power as commander-in-chief of the armed forces under Section 18, Article
VII. [Sandoval lecture]

Prof. Randolph David vs. Arroyo

February 2006, the commemoration of the EDSA event in February 1986. President GMA issued
Proclamation 1017 declaring a state of national emergency. And because of that, authorities effected
warrantless arrests on Prof. Randolph David and the others. Then they prohibited the holding of rallies,
public assemblies, and demonstrations. Remember that these are guaranteed rights under the Bill of
Rights, part of freedom of expression. Then they raided the office of a newspaper Tribune and impose
censorship, violative of press freedom. Then they threatened media. They threatened to take over public
utilities. And because of that, several petitions were filed in the SC in effect questioning the
constitutionality of Proclamation 1017 as well as the acts committed purportedly pursuant thereto.

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 When Pres. GMA issued PP 1017 declaring a state of national emergency, what power did
she actually exercise? Was it her emergency power? What provision in the constitution deals with
emergency powers?

Section 23, 2nd par., Article VI. In times of war or other national emergency, the Congress may,
by law, authorize the President xxx to exercise powers necessary and proper to carry out a declared
national policy. Now as you can see, emergency power is merely a delegated power to the President
from Congress so that the President may not exercise emergency powers motu proprio. There must
be a law enacted by Congress authorizing her to exercise emergency powers.

Now in that case, was there a law enacted by Congress then authorizing her to exercise
emergency powers? There was none. So it was not her emergency powers that she exercised when she
promulgated 1017 declaring a state of national emergency.

Now next question, was it not her martial law power that she exercised when she issued
1017?
For the President to declare martial law, in case of invasion or rebellion, when public safety
requires it. Was there an invasion then? There was none. Was there rebellion? Neither was there
rebellion. So obviously it was not her martial law power which she exercised when she promulgated
1017.
So if not her martial law power, what power did she actually exercise? As you can see
actually it was her calling-out power as commander-in-chief of the armed forces because if you read
Section 18, Article VII, what does it state there? 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.
Now going back to the lessons of IBP vs Zamora, is this calling-out power of the President
subject to judicial review?
Of course no, it is a political question unless it can be shown that the President gravely abused her
discretion in the exercise of that power. But who has the burden of proving that the President gravely
abused her discretion when she promulgated 1017? The petitioners. Now, were the petitioners in that case
able to discharge that burden? They failed to discharge that burden. The petitioners failed to rebut the
factual assertions of the Solicitor-General that there was then an on-going conspiracy to overthrow the
government – leftists, rightists, military rebels.
You cannot expect the President to just fold her hands just like that while all these events were
transpiring. She has got to do something. And because of that as you can see actually, in that case the SC
sustained the constitutionality of Proclamation 1017 because of that consideration. The SC sustained the
constitutionality of Proclamation 1017 because the petitioners failed to discharge that burden of proving
that the President gravely abused her discretion when she issued 1017.

But here is now the twist. While sustaining the constitutionality of Proclamation 1017, what
were declared ultra vires and unconstitutional by the SC in that case?
It‘s not the proclamation itself. The ones declared ultra vires and unconstitutional were the acts
committed by law enforcement officers purportedly pursuant to Proclamation 1017. What acts? When
they effected warrantless arrests on Randolph David and the others, when they prohibited the holding of
rallies, demonstrations, mass actions, when they raided the office of a newspaper and impose censorship,
when they threatened media, when they threatened to take over public utilities, those acts were the ones
declared ultra vires and unconstitutional by the SC.
Now, why were they declared ultra vires and unconstitutional? Now we have to go back to
IBP vs. Zamora. Remember that the calling-out power is the lesser and more benign power of the
President as it does not involve a direct curtailment and suppression of individual freedoms and civil
liberties.

What is the nature of the President‘s authority to declare a ―state of rebellion‖ [Lacson vs. Perez] and
where does it spring from? [Sanlakas vs. Reyes]
The President has discretionary authority to declare a ―state of rebellion‖. The Court may only
look into the sufficiency of the factual basis for the exercise of the power. [Lacson vs. Perez]
The President‘s authority to declare a ―state of rebellion‖ springs in the main from her powers as
chief executive and, at the same time, draws strength from her Commander-in-Chief powers. [Sanlakas
vs. Reyes]

May a mere declaration of a state of rebellion diminish or violate constitutionally protected rights?
A mere declaration of a state of rebellion cannot diminish or violate constitutionally protected
rights. [Sanlakas] The authorities may only resort to warrantless arrests of persons suspected of rebellion
as provided under Sec. 5, Rule 113 of the Rules of Court.

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What is the extent of a state of martial law?

Section 18, 4th par., Article VII provides:

―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.‖

What is the Olaguer doctrine?

Military tribunals cannot try civilians when civil courts are open and functioning. [Olaguer vs.
Military Commission No. 34]

This is also based on the ―open court‖ theory observed in the United States.

What are the limitations of the Military powers of the President?

1. He may call out the armed forces when it becomes necessary to prevent or suppress lawless violence,
invasion or rebellion only;
2. The grounds for the suspension of the privilege of the writ of habeas corpus and the proclamation of
martial law are now limited only to invasion or rebellion, when public safety requires it;
3. The duration of such suspension or proclamation shall not exceed sixty (60) days, following which it
shall be automatically lifted;
4. Within 48 hours after such suspension or proclamation, the President shall personally or in writing
report his action to the Congress. If not in session, Congress must convene within 24 hours without
need of a call;
5. The Congress may then, by a majority vote of all its members voting jointly, revoke his action;
6. The revocation may not be set aside by the President;
7. By the same vote and in the same manner, the Congress may, upon initiative of the President, extend
his suspension or proclamation for a period to be determined by the Congress if the invasion or
rebellion shall continue and the public safety requires the extension;
8. The SC may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus or the extension thereof [Lansang doctrine];
9. Olaguer doctrine;
10. The suspension of the privilege of the writ of habeas corpus shall apply only to persons facing
charges of rebellion or offenses inherent in or directly connected with invasion;
11. Any person arrested for such offenses must be judicially charged therewith with three (3) days.
Otherwise he shall be released

THE PARDONING POWER

Sec. 19, Art. VII:

―Except in cases of impeachment, or as otherwise provided in this Constitution, the President may
grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final
judgment.‖

―He shall also have the power to grant amnesty with the concurrence of a majority of all the
Members of the Congress.‖

What is the nature of the exercise of the pardoning power of the President?
The exercise by the President of the pardoning power is discretionary. It may not be controlled by
the legislature or reversed by the courts unless there is a constitutional violation. [People vs. de Garcia]

What are the limitations on the pardoning power of the President?

1. Cannot be granted in cases of impeachment. [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;
4. Cannot be granted in cases of legislative contempt (as it would violate separation of powers), or civil
contempt (as the State is without interest in the same);
5. Cannot absolve the convict of civil liability;
6. Cannot restore public office forfeited.

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Is the Supreme Court justified in issuing a TRO on the date convicted rapist Leo Echegaray is to be executed
by lethal injection, and may not be considered as an encroachment on the power of the President to grant
reprieve under Section 19, Article VII, 1987 Constitution?

Section 19, Article VII of the 1987 Constitution is simply the source of power of the President to
grant reprieves, commutations, and pardons and remit fines and forfeitures after conviction by final
judgment. This provision, however, cannot be interpreted as denying the power of courts to control
the enforcement of their decisions after the finality. In truth, an accused who has been convicted by
final judgment still possesses collateral rights and these rights can be claimed in the appropriate
courts. For instance, a death convict who becomes insane after his final conviction cannot be
executed while in a state of insanity (See Article 79 of the Revised Penal Code). The suspension of such
a death sentence is undisputably an exercise of judicial power. It is not usurpation of the presidential
power of reprieve though its effect is the same – the temporary suspension of the execution of the death
convict. In the same vein, it cannot be denied that Congress can at any time amend R.A. No. 7659 by
reducing the penalty of death to life imprisonment. The effect of such an amendment is like that of
commutation of sentence. But by no stretch of the imagination can the exercise by Congress of its
plenary power to amend laws be considered as a violation of the President‘s power to commute final
sentences of conviction. The powers of the Executive, the Legislative and the Judiciary to save the life
of a death convict do not exclude each other for the simple reason that there is no higher right than the
right to life. (Echegaray v. Secretary of Justice, 301 SCRA 96, Jan. 19, 1999, En Banc [Puno])
[Sandoval notes]

Discuss the nature of a conditional pardon. Is its grant or revocation by the President subject to judicial
review?

A conditional pardon is in the nature of a contract between the sovereign power or the
Chief Executive and the convicted criminal to the effect that the former will release the latter
subject to the condition that if he does not comply with the terms of the pardon, he will be
recommitted to prison to serve the unexpired portion of the sentence or an additional one (Alvarez
v. Director of Prisons, 80 Phil. 50). By the pardonee‘s consent to the terms stipulated in this contract, the
pardonee has thereby placed himself under the supervision of the Chief Executive or his delegate who is
duty-bound to see to it that the pardonee complies with the terms and conditions of the pardon. Under
Section 64(i) of the Revised Administrative Code, the Chief Executive is authorized to order ―the
arrest and re-incarceration of any such person who, in his judgment, shall fail to comply with the
condition, or conditions of his pardon, parole, or suspension of sentence.‖ It is now a well-
entrenched rule in this jurisdiction that this exercise of presidential judgment is beyond judicial
scrutiny. The determination of the violation of the conditional pardon rests exclusively in the sound
judgment of the Chief Executive, and the pardonee, having consented to place his liberty on
conditional pardon upon the judgment of the power that has granted it, cannot invoke the aid of the
courts, however erroneous the findings may be upon which his recommitment was ordered.

It matters not that the pardonee has allegedly been acquitted in two of the three criminal cases
filed against him subsequent to his conditional pardon, and that the third remains pending for thirteen (13)
years in apparent violation of his right to a speedy trial.

Ultimately, solely vested in the Chief Executive, who in the first place was the exclusive
author of the conditional pardon and of its revocation, is the corollary prerogative to reinstate the
pardon if in his own judgment, the acquittal of the pardonee from the subsequent charges filed
against him, warrants the same. Courts have no authority to interfere with the grant by the
President of a pardon to a convicted criminal. It has been our fortified ruling that a final judicial
pronouncement as to the guilt of a pardonee is not a requirement for the President to determine whether or
not there has been a breach of the terms of a conditional pardon. There is likewise nil a basis for the
courts to effectuate the reinstatement of a conditional pardon revoked by the President in the
exercise of powers undisputably solely and absolutely in his office. (In Re: Wilfredo Sumulong
Torres, 251 SCRA 709, Dec. 29, 1995 [Hermosisima]) [Sandoval notes]

Is the acceptance by the pardonee required in conditional pardon and absolute pardon?
Where the pardon is conditional, the offender has either the right to accept or reject it since in the
latter case, he may feel that the condition imposed is more onerous than the penalty sought to be remitted.
But in the case of an absolute pardon, the pardonee has no option at all but to accept it whether he likes it
or not. [Cruz]

Is conviction of the pardonee of the violation of the condition of his pardon required before he can be
administratively reincarcerated by the President?

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 NO. Mere commission, not necessarily conviction by the court, of any other crime, is enough in
order that the pardonee may be deemed to have violated the condition of his parole or pardon.
Determination of violation of such condition rests exclusively in the sound judgment of the Chief
Executive and the courts will not interfere by way of review with any of his findings. [See Espuelas vs.
Provincial Warden of Bohol]

May a convict who has already served his prison term still be extended a pardon?

YES, for the purpose of relieving him of whatever accessory liabilities have attached to his
offense.

What is the legal effect of pardon?

The legal effect of pardon is the restoration of not only the offender‘s liberty but also his civil and
political rights.

AMNESTY PARDON
Addressed to political offenses Infractions of the peace of the stat
Classes of persons Individuals
No need for distinct acts of acceptance Acceptance necessary
Requires concurrence of Congress Does not
A public act which the courts may take judicial Private act which must be pleaded and proved
notice of
Looks backward and puts into oblivion the Looks forward and relieves the pardonee of the consequences
offense itself of the offense

THE BORROWING POWER

What is the basis of the borrowing power of the President?

Section 20, Article VII:

―The President may contract or guarantee foreign loans on behalf of the Republic of the
Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be
provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the
calendar, submit to the Congress a complete report of its decisions on applications for loans to be
contracted or guaranteed by the Government or government-owned and controlled corporations which
would have the effect of increasing the foreign debt, and containing other matters as may be provided by
law.‖

What is the borrowing power of the President?

It is the power of the President to contract or guarantee foreign loans on behalf of the Republic of
the Philippines.

THE DIPLOMATIC POWER

Explain the diplomatic power of the President.
As head of State, the President is supposed to be the spokesman of the nation on external affairs.
In this capacity, he may deal with foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations.
[Cruz]
According to Jefferson, the conduct of external affairs ―is executive altogether.‖
In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US Supreme Court held that
―[t]he President is the sole organ of the nation in its external relations, and its sole representative with
foreign relations.‖ (penned by Chief Justice Marshall) [Cited in Vinuya]

Vinuya, et.als. vs. Romulo, et. als.

There is a broad range of vitally important areas that must be regularly decided by the Executive
Department without either challenge or interference by the Judiciary. One such area involves the delicate
arena of foreign relations. It would be strange indeed if the courts and the executive spoke with different
voices in the realm of foreign policy.

(Chief Justice Puno‘s dissent in Secretary of Justice v. Lantion as cited in Vinuya)

x x x The conduct of foreign relations is full of complexities and consequences, sometimes with
life and death significance to the nation especially in times of war. It can only be entrusted to that
department of government which can act on the basis of the best available information and can decide
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 with decisiveness. x x x It is also the President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic and consular officials regularly brief
him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military
intelligence data. In fine, the presidential role in foreign affairs is dominant and the President is
traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay,
validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to
breach of an international obligation, rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally undesirable consequences.

May the Executive Department be compelled to espouse the claims of Filipina comfort women for
official apology and other forms of reparations against Japan?
Issue of Vinuya:
(a) declare that respondents committed grave abuse of discretion amounting to lack or excess of
discretion in refusing to espouse their claims for the crimes against humanity and war crimes committed
against them; and
(b) compel the respondents to espouse their claims for official apology and other forms of
reparations against Japan before the International Court of Justice (ICJ) and other international tribunals.
Stripped down to its essentials, the issue in this case is whether the Executive Department
committed grave abuse of discretion in not espousing petitioners‘ claims for official apology and other
forms of reparations against Japan.

Ruling:
The petition lacks merit.
From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to
determine whether to espouse petitioners‘ claims against Japan.

Xxx To be sure, not all cases implicating foreign relations present political questions, and courts
certainly possess the authority to construe or invalidate treaties and executive agreements. However, the
question whether the Philippine government should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive Department has
already decided that it is to the best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners herein assail the said determination by the Executive
Department via the instant petition for certiorari.
Xxx Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to
comprehend the unimaginable horror they underwent at the hands of the Japanese soldiers. We are also
deeply concerned that, in apparent contravention of fundamental principles of law, the petitioners appear
to be without a remedy to challenge those that have offended them before appropriate fora. Needless to
say, our government should take the lead in protecting its citizens against violation of their fundamental
human rights. Regrettably, it is not within our power to order the Executive Department to take up the
petitioners’ cause. Ours is only the power to urge and exhort the Executive Department to take up
petitioners’ cause.

Cite the limitation on the power of the President to conclude treaties.

Section 21, Article VII:
―No treaty or international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate.‖

Distinguish between treaty and international agreement.

i. International agreements which involve political issues or changes of national policy and those
involving international arrangements of a permanent character take the form of a treaty; while
international agreements involving adjustment of details carrying out well established national
policies and traditions and involving arrangements of a more or less temporary nature take the form
of executive agreements;

ii. In treaties, formal documents require ratification, while executive agreements become binding
through executive action.

Are treaties and other international agreements concluded by the President subject to check by the
Supreme Court? Why?
Yes because the SC has the power to declare said treaties and other international agreements
unconstitutional under Section 4(2), Article VIII of the Constitution.

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THE BUDGETARY POWER OF THE PRESIDENT
Cite the basis of this power.
Section 22, Article VII:
―The President shall submit to the 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.‖

May Congress increase the budget proposals of the President?

The Congress may not increase the appropriations recommended by the President for the
operation of the Government as specified in the budget. [Sec. 25(1), Article VI]

THE INFORMING POWER OF THE PRESIDENT

What are some of the other powers of the President?

a. Call Congress to a special session at any time [Section 15, Article VI]
b. Power to approve or veto bills
c. To consent to deputation of government personnel by the COMELEC
d. To discipline such deputies
e. Emergency powers and tariff powers (by delegation from Congress) [Sec. 23(2) and Section 28(2),
Article VI]
f. General supervision over local governments and autonomous regional governments [Article X]

JUDICIAL DEPARTMENT
ARTICLE VIII

What is judicial power?

Section 1, par. 2, Article VIII:
―Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.‖

To whom judicial power is vested?

―The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.‖ [Sec. 1, par. 1, Art. VIII]

May Congress validly create a temporary SC to sit in special cases?

No. Congress may not validly create a temporary SC to sit in special cases in view of the
constitutional provision that the judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law. [See Vargas vs. Rilloraza]

Is judicial power merely a power?

No, judicial power is not a simply a power because it has been made a duty by the Constitution
mandatorily to be performed by the courts so that if the courts wish to remain faithful to the Constitution,
the courts ought to exercise that duty – duty of the courts of justice.

Is the silence, obscurity or insufficiency of the laws a valid reason for the courts not to exercise judicial
power?
As correlated in Article 9 of the NCC, ―no judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the laws.‖

Is judicial power expanded by the 1987 Constitution? Yes.

Under the previous constitutions, actually there was no definition of judicial power provided
therein. The relevant provision merely states that judicial power shall be vested in one Supreme Court and
in such other lower courts as maybe established by law. It is only in the 1987 Constitution where for the
first time the framers thereof deemed it proper to include the definition of judicial power.

Actually, the definition of judicial power under the 1987 Constitution can be divided into two.
The first part speaks of the duty of courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable. That part is what is now referred to as the
traditional concept of judicial power. That was how judicial power was understood under the previous
Constitutions.
That is why during before whenever an act of government is questioned before the court the usual
defense invoked by the Solicitor-General, who as you know is the lawyer for the government, is to raise
the so called Political Question doctrine. It will be argued by the Sol-Gen that the issue presented before

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 the court is a political question. And if the court is convinced that indeed the issue presented before it is a
political question, the court is left with no option but to dismiss the petition.

But then as now formulated, you have that second part. It speaks of the duty of the courts of
justice to determine whether or not there has been a grave abuse of discretion- the magic phrase
there, grave abuse of discretion - amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government. Now this second part of the definition is now what is
referred to as the expanded power of judicial review, expanded concept of judicial review. And
because of this expanded power of judicial review, according to authorities in Constitutional law, the so
called Political Question doctrine has been adversely affected. In fact, it has been greatly diminished
[because it enabled the courts of justice to review what was before forbidden territory, to wit, the
discretion of the political departments of the government (Cruz)]

That is why at present even if the question presented before the court appears to be a political
question, for as long as there is sufficient allegation of grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government, the court may still
intrude into those questions. That is how this expanded power of judicial review has adversely affected
the so called political question doctrine. This expanded power of judicial review, sometimes the SC in its
decisions referred to this as the ―extraordinary power of the court.‖ [Sandoval lecture]

What are the requisites of the power of judicial review?

1. There must be an actual case or controversy.
2. The question of constitutionality must be raised by the proper party meaning to say the petitioner must
have sufficient locus standi or legal standing to question the act complained of
3. The constitutional question must be raised at the earliest opportune time or earliest possible opportunity;
4. The resolution of the constitutional question must constitute the very les mota or the very mean issue of
the entire controversy. Meaning to say by the fourth requirement that there is no way by which the court
may resolve the entire controversy unless the court first resolves the constitutional question raised.

ACTUAL CASE OR CONTROVERSY

What is an actual case or controversy?

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial adjudication. [Cruz]
Now in several cases the court clarified that an actual case or controversy means an existing case
or controversy which is both ripe for resolution and susceptible of judicial determination. That
which is not conjectural or anticipatory or that which seeks to resolve hypothetical or feigned
constitutional problems.
That‘s how the court defined the term actual case or controversy.
Effects of this requirement:
Because of this requisite, courts are not supposed to resolve hypothetical cases or cases based on
assumptions.

May courts render advisory opinions?

Courts may not even render advisory opinions because by the very nature of an advisory opinion,
there is no actual controversy to be resolved there. If the President wants an advice, he can consult his
Presidential legal adviser or the Secretary of Justice or the Solicitor-General, not the courts because courts
are not supposed to render advisory opinions. In fact even if initially there was an actual controversy, but
if due to supervening events the case had been rendered moot and academic, the court will have to
dismiss the case also.
But take note an action for declaratory relief under Rule 63 of the Rules of Court.

But may the ICJ render an advisory opinion?

The International Court of Justice, the principal judicial organ of the UN, may render an advisory
opinion because under the Charter of the United Nations and under its own Statute, the ICJ has two main
functions: first is to resolve contentious cases and second is to render advisory opinions to the
General Assembly, the Security Council, and other organs of the United Nations. So as you can see, the
ICJ may render advisory opinions.

If due to supervening events the case had been rendered moot and academic, will there be still an
actual case or controversy?
Although initially there may have been an actual case or controversy but if due to supervening
events, the case had been rendered moot and academic, the court will have to dismiss the case as there is
no more an actual case or controversy it having been rendered moot and academic.

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 What are the instances where notwithstanding the moot and academic principle, courts will still
continue to resolve the case?

However, take note that that is a general rule. And that general rule may admit of several
exceptions. In fact in thecase of Prof. Randolph David vs. Pres. GMA, the court enumerated the
exceptions to the moot and academic principle. The SC said that the moot and academic principle is not
a magical formula that can automatically dissuade the courts in resolving a case.

Courts will decide cases otherwise moot and academic if:

1. There is a grave violation of the Constitution;

2. The exceptional character of the situation and the paramount public interest is involved;
3. When constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public.
This is one of the functions of judicial review, to wit, checking function, legitimating
function, and symbolic function. The latter will afford the court an opportunity to
exercise its symbolic function to educate the bench, the bar, and the public on the extent
of protection given by constitutional guaranties; and
4. The case is capable of repetition yet evading review, (like the validity of the declaration by
President Arroyo of a ―state of rebellion‖ after the Oakwood incident. [Sanlakas vs.
Executive Secretary]

Proper party
Explain the second requisite.
Meaning to say the petitioner must have sufficient locus standi or legal standing to question the
act complained of.
Who is a property party?
A property is one who has sustained or is in imminent danger of sustaining an injury as a result of
the act complained of. To be a proper party, one must have ―legal standing‖ or locus standi.

What is the meaning of legal standing or locus standi?

Legal standing or locus standi has been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a result of the governmental
act that is being challenged. [Direct Injury Test]

What are the requirements for according petitioners, who have invoked a public right allegedly
breached by a governmental act, the legal standing to sue?
As summarized in David vs. Arroyo:
1. The case involves constitutional issues;
2. For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;
3. For voters, there must be a showing of obvious interest in the validity of the election law in
question;
4. For concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and
5. For legislators, there must be a claim that the official action complained of infringes their
prerogatives as legislators.

Is the Government of the Philippines a proper party to question the validity of its own laws?
Yes, because more than any one, it should be concerned with the constitutionality of its acts.
[People vs. Vera]

Raised at the earliest opportune time

When is the earliest opportune time of raising the constitutional question? Do we refer here to the
time element?
Not necessarily so. In Matibag vs. Benipayo, according to the SC, the earliest opportune time of
raising the constitutional question is to raise it in the pleadings filed before a court of competent
jurisdiction because if one did not raise that in his pleadings, he will not be allowed to raise it for the first
time only on appeal to avoid surprises.

But in criminal cases, the constitutional question can be raised at any time in the discretion of the
court. And in every case, the constitutional question can be raised at any stage if it involves the
jurisdiction of the court except where there is estoppel.

Lis mota

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 What is meant by this requisite?

Meaning to say, there is no way by which the court may resolve the entire controversy unless the
court first resolves the constitutional question raised.

What is the reason why the courts will as much as possible avoid the decision of a constitutional
question?

The reason can be traced to the doctrine of separation of powers, which enjoins upon each
department a proper respect for the acts of the other departments. In line with this policy, courts indulge
the presumption of constitutionality and go by the maxim that ―to doubt is to sustain‖. The theory is that,
as the joint act of the legislative and executive authorities, a law is supposed to have been carefully
studied and determined to be constitutional before it was finally enacted. [Cruz]

EFFECTS OF DECLARATION OF UNCONSTITUTIONALITY

There are two views:

1. Orthodox view:
There is total nullity. 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.
2. Modern view:
Courts simply refuse to recognize the law and determine the rights of rights of the parties
as if the statute had no existence.

What are the requisites of partial unconstitutionality?

1. The Legislature must be willing to retain the valid portion/s usually expressed in a separability clause
found in the law; and
2. The valid portion/s can stand independently as a law.

Rule-making power of the SC

Section 5, par.5, Article VIII
―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 underprivileged.‖
Remember that it is pursuant to this rule-making power that the SC promulgated the Rules of
Court of the Philippines.

What is the basis of the SC when it promulgated the writ of amparo, writ of habeas data, writ of
kalikasan, and MCLE?
The Rule-making power of the SC.

What is the purpose of the writ of amparo and writ of habeas data?
The purpose of the two writs is to address the twin problem of extrajudicial killings and enforced
disappearances. The court here found habeas corpus to be inadequate as a remedy. Because you know
very well in a petition for habeas corpus, general denial will do. How can you compel the military or the
police to produce the person if they deny that said person is not with them. But remember that under this
writ of amparo and writ of habeas data, general denial is not allowed. If the person is not with you, do
something. Look for him. Bring him before the court. Produce records.

What is a writ of amparo?

The petition for a writ of amparo is a remedy available to any person whose right to life, liberty,
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.
This remedy allows a grant by the court of interim reliefs, which may either be a temporary
protection order, inspection order, production order, or a witness protection order.

What is a writ of habeas data?

The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty
or 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 engaged in the gathering, collecting, or storing of data or
information regarding the person, family, honor, and correspondence of the aggrieved party.
It is an independent remedy to protect the right to privacy, especially the right to informational
privacy.

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 May Congress amend the Rules of Court?
―But most importantly, 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]

Discuss the Judicial and Bar Council.

Composition [Sec. 8(1), Article VIII]

―A Judicial and Bar Council is hereby created under the supervision of the Supreme Court,
composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of
the Congress as ex officio members, a representative of the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative of the private sector.
Ex-officio members: Chief Justice, as Chairman; the Secretary of Justice; and a representative of
Congress
Regular members: A Representative of IBP, a professor of law, a retired justice of the SC, and a
representative of the private sector
Secretary ex-officio: The Clerk of the Supreme Court

Is the appointment of members of the JBC subject to the consent of the Commission on
Appointments?
The regular members shall be appointed by the President for a term of four (4) years, with the
consent of the Commission on Appointments. [Sec. 8(2), Art. VIII]

What is the principal function of the JBC?

Recommending appointees to the Judiciary.

Does the first paragraph of Section 8, Article VIII of the 1987 Constitution on the composition of
JBC allow more than one (1) member of Congress to sit in the JBC?

No. The Congress is entitled to only one (1) representative in the JBC. [Chavez vs JBC, 2013]

As stated in the July 17, 2012 Decision, in opting to use the singular letter ―a‖ to describe
―representative of Congress,‖ the Filipino people through the Framers intended that Congress be entitled
to only one (1) seat in the JBC. Had the intention been otherwise, the Constitution could have, in no
uncertain terms, so provided, as can be read in its other provisions.

Political Law Part III

POLICE POWER

What is Police Power?

It is described by Professor Freund as the power of promoting the public welfare by restraining
and regulating the use of liberty and property.

How is police power characterized?

It is considered the most pervasive, the least limitable, and the most demanding of the three
powers. It may be exercised as long as the activity or the property sought to be regulated has some
relevance to the public welfare. The reach of police power is virtually limitless

What is the justification for police power?

a. Salus populi est suprema lex;
b. Sic utere tuo ut alienum non laedas
May police power be bargained away through the medium of a contract or even a treaty?
No, as held in Stone vs. Mississippi (franchise) and Ichong vs. Hernandez (Treaty).

May police power use the power of taxation or eminent domain as an implement for the attainment
of a legitimate police objective?

Yes, Powell vs. Pennsylvania (imposition of exorbitant tax upon the margarine industry) and
Association of Small Landowners vs. Sec. of Agrarian Reform (constitutionality of the Comprehensive
Agrarian Reform Law)

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 Who may exercise police power and what is the nature of that exercise?
The exercise of police is lodged primarily in the national legislature but it may be validly
delegated to the President, administrative agencies, and local government units.
The exercise of police power lies in the discretion of the legislative department.

What are the tests to determine the validity of a police measure?

1. The interests of the public generally, as distinguished from those of a particular class, require the
exercise of the police power; and
The first requisite simply means that the subject of the measure is within the scope of
police power, that is, that the activity or property sought to be regulated affects the public
welfare.
As long as the object is the public welfare and the subject of regulation may be properly
related thereto, there is compliance with the first test requiring the primacy of the welfare of the
many over the interests of the few.
But there are still some areas of human activity that are not within its reach.
2. The means employed are reasonably necessary for the accomplishment of the purpose and not unduly
oppressive upon individuals.
Even if the purpose be within the scope of the police power, the law will still be annulled
if the subject is sought to be regulated in violation of the second requirement.

In Constitutional Law, the end does not justify the means. The lawful objective must
be pursued through a lawful method.
Examples:
a. An ordinance requiring all laundry establishments to issue their receipts in English and
Spanish was held valid [Kwong Sing vs. City of Manila]

b. But a law prohibiting traders from keeping their books of accounts in a language other than
English, Spanish, or any local dialect was held unconstitutional. [Yu Eng Cong vs. Trinidad]

THE POWER OF EMINENT DOMAIN

What is the power of eminent domain?

It is the inherent power of the State to acquire private property for public use upon payment of
just compensation. It is also called the power of expropriation the nature of which is of a compulsory sale
to the State.

Are eminent domain and expropriation the same?

Eminent Domain is the right, expropriation refers to the procedure, thru which the right is
exercised.

Take note that the provision of Article 435 is in the negative form. ―NO person shall be
deprived of his property except by competent authority and for public use and always upon
payment of just compensation.‖
The rule therefore is Non-deprivation of a person‘s property.

Is the necessity of the exercise of eminent domain subject to judicial review?

Questions of necessity or wisdom are essentially political when decided by the national
legislature and are usually not subject to judicial review. But where these questions are decided by
a delegate only of the national legislature, the SC has adopted a more censorious attitude. In which
cases, the judiciary has assumed the power to inquire into whether the authority conferred upon such
delegate has been correctly or properly exercised. This will involve looking into whether the
expropriation contemplated by the delegate is necessary or wise.

What properties are subject to expropriation?

Anything that can come under the dominion of man is subject to expropriation. The only
exceptions to this rule are money and choses in action.

WHAT ARE THE ESSENTIAL REQUISITES OF EMINENT DOMAIN?

I. Taking by competent authority;
Who may exercise the power of expropriation?
Under existing laws, the following may exercise the power of expropriation:
a. The Congress;
b. The President of the Philippines;
c. The various local legislative bodies;
d. Certain public corporation, like the Land Authority and the National Housing Authority;

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e. Quasi-public corporations, e.g. PNR, PLDT, Meralco.

II. Observance of due process of law:

III.Taking for public use:

a. includes indirect public benefit or advantage (e.g. urban land reform and housing);
b. not determined by the public character of the expropriator (entity);
c. Congress may authorize the devoting of land from one public use to another, a city is not so authorized.

What is meant by public use?

Any use directly available to the general public as a matter of right and not merely of forbearance
or accommodation.

Are all taking compensable?

Not all taking are compensable. Taking may be justified under the police power. The loss to be
sustained in this case is in the nature of damnun absque injuria. E.g. a building on the verge of collapse
may be ordered demolished in the interest of public safety, without payment of just compensation. [See
Article 436.]

What are the requisites of taking in eminent domain? [Republic vs. Castellvi, 58 SCRA 336]
1. The expropriator must enter a private property;

What may be the subject of expropriation?

Anything that can come under the dominion of man is subject to expropriation except
money and choses in action. [Cruz]
2. The entry must be for more than a momentary period;
3. The entry must be under warrant or color of legal authority;
4. The property must be devoted to public use or otherwise informally appropriated or injuriously
affected;
5. The utilization of the property for public use must be in such a way as to oust the owner and deprive
him of beneficial enjoyment of the property.

IV.Payment of just compensation:

What is the so called Extraordinary expropriation?

– large scale expropriation of private lands (big landed estates) for purposes of not merely
equality in the owning of lands but the championing of the cause of social justice to the end that public
welfare will be enhanced.

What is contemplated in extraordinary expropriation?

―The Constitution contemplates large scale purchase or condemnation of lands with a view to
agrarian reforms and the alleviation of acute housing shortage.‖

How does it differ with ordinary expropriation?

Ordinary expropriation refers to a taking for public use, extraordinary expropriation is allowed
under the Constitution for private use (there is however a connotation of public use) i.e., for the benefit
of certain individuals.

THE POWER OF TAXATION

What is the nature of the obligation to pay taxes?

The obligation to pay taxes is not based on contract. It is a duty imposed upon the individual by
the mere fact of his membership in the body politic and his enjoyment of the benefits available from such
membership.

Explain the dicta that the power to tax includes the power to destroy and that the power to tax does
not include the power to destroy as long as this Court sits.
The power to tax may include the power to destroy if it is used validly as an implement of the
police power in discouraging and in effect prohibiting certain things or enterprises inimical to the public
welfare.
But where the power to tax is used solely for the purpose of raising revenues, the modern view is
that it cannot be allowed to confiscate or destroy.

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Who may exercise?

Primarily vested in the national legislature, it may now also be exercised by the local legislative
bodies.

Is taxation an inherent power of the LGUs? May it be validly withdrawn by Congress? No.

Must the exercise of taxation comply with the requirement of public purpose?

Yes. To sustain a tax, it is necessary to show that the proceeds are devoted to a public purpose.
Revenues derived from taxes cannot be used for purely private purposes or for the exclusive benefit of
private persons.

THE BILL OF RIGHTS

FUNDAMENTALS.

When we speak of constitution of liberty, essentially we are referring to the Bill of Rights.
Without the Bill of Rights, the State can practically do anything and one cannot complain.

Examples:
1. Without Section 9 of Art. III, your private property may be taken away by the state at any time of day
and night and you cannot complain. But since there is Section 9, it says there ―Private property shall
not be taken for public use without just compensation‖, the state cannot just take away your private
property. If the state wants to take private property, it must pay just compensation and there must be
due process. Remember the property taken must be converted to public use. So the property owner
must be given that opportunity to challenge the expropriation;

2. Without Section 2, the right against unreasonable searches and seizures. You can be searched or
arrested at any time of day and night and you cannot complain. But there is a guarantee under Section
2 for which reason the state cannot just search or arrest you. There must be a search warrant or
warrant of arrest.

So as can be seen, the Bill of Rights really constitutes a limitation on the powers of government. It
has to be understood in that context. That is why our constitution has been referred to as essentially a
limitation on the powers of government it is because of the Bill of Rights.

Discuss the structure of the Bill of Rights.

The Bill of Rights consists of 22 sections. How about Section 9, is it a right? It is more a
limitation on the power of eminent domain of the state. How about Section 15: ―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.‖

Is there a right to appeal under the Bill of Rights?

None. This is the reason why appeal is not a constitutional right. It is not found in the
constitution. It is not found in the Bill of Rights. It is merely statutory so that if there is no law that grants
you that right to appeal, you cannot appeal.

*Is there a right to privacy under the Bill of Rights?

Section 3 speaks of privacy of communication and correspondence. Obviously that is a limited

concept of privacy right.

Yes there is, as held by the SC in Ople vs. Torres, because the essence of privacy is the right to
be let alone. In the 1965 case of Griswold vs. Connecticut, the US Supreme Court gave more
substance to the right to privacy when it ruled that the right has a constitutional foundation. It was
held that there is a right to privacy which can be found within the penumbras of the 1st (establishment
clause) the 3rd, the 4th (right against unreasonable searches and seizures), the 5th, and 9th amendments.

In the 1968 case of Morfe vs. Mutuc, the SC adopted the Grisworld vs. Connecticut ruling that
there is a constitutional right to privacy. Said the SC, indeed if we extend our judicial gaze, we will find
that the right to privacy is well-recognized and enshrined in several provisions of our constitution.
It is expressly recognized in Section 3, par. 1 of the Bill of Rights.

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 But aside from that, other facets of the right to privacy are protected in the various provisions of
the Bill of Rights like those in Section 1, the right to due process, has a strong element of privacy right.
There is also a strong element of privacy right in Section 2, the right against unreasonable searches and
seizures; Section 6, the liberty of abode, the liberty of changing the same abode, the right to travel – do
you want the government to monitor wherever you go, of course no. So it has an element of privacy right
there. Section 8, freedom of association, has an element of privacy right there because the freedom of
association includes freedom not to associate. Section 17, the right against self-incrimination, also has a
strong element of privacy right. After all the essence of the right to privacy is the right to be let alone.
Aside from the provisions in the constitution, there are even source of privacy recognized and
protected in our laws like the Civil Code on the chapter on human relations (Art. 26, NCC) which says
that every person shall respect the dignity, personality, privacy, and peace of mind of his neighbors and
other persons and punishes as actionable torts several acts by persons of prying into the privacy of
another‘s residence and meddling with or disturbing the private life or family relations of another. The
civil code recognizes the privacy of letters and other private communications.
The revised penal code makes a crime a violation of secrets by an officer – the revelation of
trade and industrial secrets. And of course trespass to dwelling. Then invasion of privacy is an offense
in special laws like RA 4200 – Anti-Wire Tapping Law; Secrecy of Bank Deposits Act; The
Intellectual Property Code; then the Rules of Court on privileged communication likewise recognize
the privacy of certain information e.g. husband and wife relations, priest-confessant; doctor-patient;
attorney-client. So it is settled that there is really a right to privacy because the essence of the right to
privacy is the right to be let alone.

Structure:
Of the 22 Sections of the Bill of Rights, the first 11 sections pertain to the rights of the people in
general, the civil and political rights. Beginning with Section 12 up to the last section 22, the focus of the
Bill of Rights has narrowed. It is now focused on the rights of an accused:
Section 12 – custodial investigation rights (Miranda Rights);
Section 13 – right to bail;
Section 14 – rights of an accused during trial;
Section 15 – privilege of the writ of habeas corpus;
Section 16 – right to speedy disposition of cases;
Section 17 – right against self-incrimination;
Section 18 – prohibition against involuntary servitude;
Section 19 – prohibition against the imposition of cruel, degrading, inhuman punishment ;
Section 20 – non-imprisonment for debt or non-payment of a poll tax;
Section 21 – right against double jeopardy;
Section 22 – right against ex post facto law and bill of attainder.

What are the four (4) sections in the Bill of Rights that are governed by the Exclusionary Rule in
evidence?
Sections 2, the right against unreasonable searches and seizures; section 3, the right to privacy of
communication and correspondence; section 12, custodial investigation rights, and section 17, the right
against self-incrimination. These sections are governed by the exclusionary rule in evidence because any
evidence, any admission or confession obtained in violation of any of this four will not be admissible. The
same is excluded by the constitution. It becomes incompetent evidence. Evidence is competent if it is not
excluded by the law or the rules. In other words, if it is excluded then it becomes incompetent. It becomes
the fruit of the poisonous tree on the theory that the poisonous tree may never bear good fruit.
Section 3, 2nd par:
Any evidence obtained in violation of this or the preceding section (referring to section 2) shall
be inadmissible for any purpose in any proceeding.
Section 12, 3rd par:
Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.

What is involved here is testimonial evidence.

What sections of the Bill of Rights where the doctrine of the fruit of the poisonous tree is
applicable?
Sections 2, the right against unreasonable searches and seizures; section 3, the right to privacy of
communication and correspondence; section 12, custodial investigation rights, and section 17, the right
against self-incrimination. It is in these provisions that the doctrine of fruit of the poisonous tree is
applicable.
These four sections are favorite areas for bar questions.

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DUE PROCESS OF LAW

What is the due process clause under the Constitution?

No person shall be deprived of life, liberty, or property without due process of law x x x. [Article
III, Section 1]. This is a catch-all provision.

What is the meaning of due process?

Due process is a guaranty against any arbitrariness on the part of the government, whether
committed by the legislature, the executive, or the judiciary.
It is described as ―responsiveness to the supremacy of reason, obedience to the dictates of
justice.‖ – Justice Fernando.
It is nothing more and nothing less than ―the embodiment of the sporting idea of fair play.‖ –
Justice Frankfurter

Who are protected by due process?

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. The guarantee extends to aliens and includes the means of livelihood.

The meaning of life, liberty and property.

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. [Discuss masectomy, LGBT
(Anti-fencing and cymbals), this is life!]
Liberty includes ―the right to exist and the right to be free from arbitrary personal restraint or
servitude. X x x it includes the right of the citizen to be free to use his faculties in all lawful ways.‖
Property is anything that can come under the right of ownership and be the subject of contract.

What are the two essential elements of due process?

The twin requirements of notice and hearing constitute the essential elements of due process
and neither of these elements can be eliminated without running afoul of the constitutional guaranty.

*When do you invoke the due process clause?

If what is involved is an unreasonable, whimsical, capricious, oppressive, confiscatory act of
government, if you want to challenge that you invoke the due process clause – no person shall be
deprived of life, liberty, or property without due process of law. [Sandoval lectures]

What are two kinds of due process?

a. Substantive.
This serves as a restriction on government‘s law and rule-making powers. The requisites are
incidentally the two tests for determining the validity of an exercise of police power.

b. Procedural.
In Corona vs. United Harvard Fellow Association of the Philippines, according to the SC, when
one speaks of due process of law, a distinction must be made between matters of procedure and matters of
substance.

What is the essence of procedural and substantive due process?

In essence, procedural due process refers to the method or manner by which the law is enforced.
Whereas, substantive due process requires that the law itself, not merely the procedure by which the law
would be enforced, is fair, reasonable, and just.
Examples:
1. Assuming that Congress enacted a law making jaywalking as a criminal offense and
prescribed reclusion perpetua as penalty. As can be observed, the law itself appears to be
very unfair and unjust. So what is involved here? Substantive due process. Considering the
nature of the offense – jaywalking, the penalty is deprivation of liberty for the rest of your
life, obviously the law is unfair and unjust. Obviously what is involved here is not merely
procedural due process but rather substantive due process. It strikes deep into the very heart
of due process. [Sandoval lecture]

2. Tanada vs. Tuvera. The secret decrees promulgated by former President Marcos. Laws
should be published first to comply with the requirement of Article 22 of the NCC which says
that ―Laws shall take effect fifteen days following the completion of their publication
either in the Official Gazette, or in a newspaper of general circulation in the Philippines,
unless it is otherwise provided.‖ [As amended by E.O. 200]. That is why even if it is
expressly provided that the law that this shall take effect immediately but you cannot

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 dispensed with the requirement of publication under Article 2. Why? Imagine you are held
liable for committing a violation of law that was never published, which never saw the
light. That will strike deep into the very essence of due process. That will be the height of
injustice. Obviously, that law robs a person of his life, liberty, or property without due
process of law. hence, if the law was never published, Article 3 of the NCC will not find any
application – ignorantia legis non excusat. Obviously what is involved here is not merely
procedural due process but rather substantive due process.

So take note, substantive due process requires that the law itself, not merely the procedure by
which the law would be enforced, is fair, reasonable, and just. Whereas, procedural due process refers to
the method or manner by which the law is enforced.

What is the essence of procedural due process?

Notice and hearing or the opportunity to be heard. It is expressed in that immortal cry
―Strike, but hear me first!‖. It is one which hears before it condemns, which proceeds upon
inquiry and renders judgment only after trial.

What are the requisites of procedural due process?

1. An impartial court or tribunal clothed with judicial power to hear and determine the matter before it;

What is the meaning of this?

Every litigant is entitled to the cold neutrality of an impartial judge [Gutierrez v. Santos] who
must not only be impartial but must also appear to be impartial as an added assurance to the parties
that his decision will be just. [Javier vs. Comelec]

May a public officer who decided a case be allowed to decide it on appeal?

A public officer who decided the case should not be the same person to decide it on appeal
because he cannot be an impartial judge.

May the judge cross-examine both the accused and witnesses?

When the court cross-examined the accused and the witnesses, it acted with overzealousness,
assuming the role of both magistrate and advocate, and thus denied the accused due process of law.

But take note that Judges have as much interest as counsel in the orderly and expeditious
presentation of evidence, and have the duty to ask questions that would elicit the facts on the issues
involved, clarify ambiguous remarks by witnesses, and address the points overlooked by counsel.

Is there a violation of due process in Tejano vs. Ombudsman where Ombudsman Desierto
participated in the reinvestigation of the instant case despite his having earlier participated in
the initial preliminary investigation of the same when he was Special Prosecutor?

Yes, there was a violation of due process. It is a steadfast rule that the officer who reviews a case
on appeal should not be the same person whose decision is under review. [For truly, there is no
impartiality there.]

2. Jurisdiction must be lawfully acquired over the person of the defendant and over the property which
is the subject matter of the proceeding.

How is jurisdiction acquired over the person of the defendant?

Jurisdiction is acquired over the person of the defendant by the service of summons [Sarmiento
vs. Raon] or by the voluntary appearance before the court which includes submission of pleadings in
compliance with the order of the court or tribunal [De los Santos vs. NLRC]

Similarly, is a decision over a complaint to which a person was not impleaded violative of due
process insofar as that person is concerned?

Yes, a person who is not impleaded in a complaint cannot be bound by the decision rendered
therein, for no man shall be affected by a proceeding in which he is a stranger. [NHA v. Evangilista]

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 What is the importance of service of summons?
It 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 due process as of
jurisdiction. [Sarmiento vs. Raon]

Hence, lack of service of summons is equivalent to failure to notify the defendant. Notice is a
fundamental component of due process. To pursue a proceeding without an interested party having
been previously notified thereof is denial of due process as held in Saquilayan vs. Comelec.

How is jurisdiction acquired by the court over the person of the accused?
Jurisdiction is acquired over the person of the accused upon his arrest or by his voluntary
submission to the jurisdiction of the court.

How is jurisdiction acquired by the court over the subject matter insofar as the accused is
concerned?
Jurisdiction is acquired by the court over the subject matter insofar as the accused is concerned
upon the arraignment of the accused. This is the reason why when the accused is not arraigned, trial
cannot proceed. So that if an accused is at large and not yet arraigned, trial may not validly proceed
not because the accused is at large but because he is not arraigned.

So, if the accused had been previously arraigned and subsequently becomes at large because he
escaped from detention, what does the Constitution say? 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 [last sentence, Sec. 14(2), Article III]

3. The defendant must be given an opportunity to be heard

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
vs. CA]

Give examples:
1. Owner of carabaos confiscated and immediately condemned and punished is denied the right
to be heard in his defense [Ynot vs. IAC];

2. The summary closure of radio station without a hearing is violative of due process [Eastern
Broadcasting vs. Dans];

3. Unreasonable delay in the termination of the P.I. by the Tanodbayan violated the guarantee of
due process [Tatad vs. Sandiganbayan];

4. There was a denial of due process where the notice to the petitioner to report back to work
within five days otherwise he would be dropped from the rolls, was sent to petitioner‘s
Quezon City address when the office knew where petitioner was temporarily residing in San
Jose, California [Gonzales vs. CSC]

Do all cases require a trial-type hearing?

Not all cases require a trial-type hearing and in these cases parties may not demand an
adversarial trial as a matter of right.
Examples:
a. NLRC and the Labor Arbiter are authorized to decide a case on the basis of position papers
submitted by the parties [Valladolid vs. Inciong]
b. Neither is the potential extraditee entitled to notice and hearing during the evaluation stage of
the extradition process.
Why?
The extraditee‘s right to know is momentarily withheld during the evaluation stage to
accommodate the more compelling interest of the state to prevent escape of potential
extraditees which can be precipitated by premature information on the basis of the request for
extradition. [Secretary of Justice vs. Judge Lantion]

In the following cases, notice and hearing may be dispensed with altogether without violating
due process:

a. Cancellation of the person sought for the commission of a crime [Suntay vs.People];

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 b. Preventive suspension of civil servant facing administrative charges [Co vs. Barbers];
c. Distraint of property for tax delinquency;
d. Padlocking of restaurants found unsanitary or of theaters showing obscene movies;
e. Abatement of nuisance per se.

4. Judgment must be rendered upon lawful hearing.

What are some areas where due process is relevant?

a. Is the right to appeal essential to the right to a hearing?
The right to appeal is not essential to the right to a hearing.
It is not a natural right nor is it part of due process. Generally, it may be allowed or denied by the
legislature in its discretion. It is not even a constitutional right since you cannot find it in the Bill of
Rights. It is not found in the Constitution. It is merely a statutory privilege.
But where there is a statutory grant of the right to appeal, denial of that remedy constitutes a
denial of due process

b. Preliminary investigation and due process

What is preliminary investigation?
It is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-
founded belief that a crime has been committed and the respondent is probably guilty thereof.
So essentially, a preliminary investigation is an inquiry to determine (1) whether a crime has been
committed, and (2) whether there is probable cause that the accused is guilty thereof.

Is denial of the right to preliminary investigation a violation of due process?

While the right to preliminary investigation is statutory rather than constitutional in its
fundament, it is a component part of due process in criminal justice system [Duterte v. Sandiganbayan]
Where there is a statutory grant of the right to preliminary investigation, denial of the same is an
infringement of the due process clause [Go vs. CA] The right to preliminary investigation is substantive,
not merely formal or technical. To deny it to the petitioner would deprive him of the full measure of his
right to due process [Yusop v. Sandiganbayan]

Is lack of preliminary investigation a ground for motion to quash?

Be that as it may, the lack of preliminary investigation is not a ground for a motion to quash.

c. Administrative due process

See Ang Tibay vs. Court of Industrial Relations

MARK JIMENEZ CASES.

EXRADITION IN RELATION TO PROCEDURAL DUE PROCESS
RP – US Extradition Treaty
PD 1069 – Extradition law
This is the law which seeks to implement the various extradition treaties that the Philippines
entered into with other states.

First Mark Jimenez Case, October 17, 2000

(Sec. of Justice vs. Hon. Ralph Lantion)
Is Mark Jimenez entitled to those documents he was requesting so that he can prepare for his defense?

Facts of the case:

US requested through DFA that Mark Jimenez be arrested and extradited in US. The DFA
transmitted the request to the DOJ for initial evaluation. Mark Jimenez learned that there is already a
request for his extradition to the US. So what he did was to request the DOJ to give him copies (1) of the
request of his extradition from the American government; (2) supporting evidences and documents
so that allegedly he can prepare for his defense. Of course the DOJ did not give him copies of the
documents so eventually the issue was elevated to the SC. The question becomes one of due process. He
invoked his right to due process.

Ruling:

Initially, the SC on January 18, 2000, 9-6, ruled in favor of Mark Jimenez. Indeed according to
the SC, there was denial of due process for how can he prepare for his defense if he will not be given
copies of those documents he was requesting, anchored on the basic premise that an extradition
proceeding is similar to a criminal proceeding. And likewise, the initial evaluation stage in an extradition
proceeding is also similar to a preliminary investigation in a criminal case. So that if you deny him copies
of the requested documents so that he can prepare for his defense, that will constitute denial of his right to

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due process. But in this initial ruling, there were already dissenting opinions to the effect that the issue is
no longer a question of due process, as this is now a question of over due process. What happens now to
our obligation to extradite pursuant to the RP-US Extradition Treaty especially in view of pacta sunt
servanda?

But the DOJ filed a motion for reconsideration. On October 17, 2000, the SC, 9-6, reconsidered.
An extradition proceeding is actually sui generis, a class by itself. It is not similar to a criminal
proceeding which will call into operation all of the rights of an accused as guaranteed under the Bill
of Rights. This is now the doctrine.

As an extradition proceeding is not criminal in character and the evaluation stage is not similar to
a preliminary investigation, the due process safeguards during preliminary investigation do not
necessarily apply during the evaluation stage in an extradition proceeding. This we hold for the
procedural due process required by given set of circumstances must begin with the determination of the
precise nature of the government function involved as well as the private interest that has been affected by
the governmental action. The concept of due process is flexible for not all situations calling for
procedural safeguards call for the same kind of procedure.

How do you distinguish an extradition proceeding from a criminal proceeding? [Sec. of Justice vs.
Lantion]

First, a criminal proceeding involves the determination of the guilt or innocence of an accused,
whereas, an extradition proceeding does not involve the determination of the guilt or innocence of an
accused because his guilt or innocence will be determined in the courts of law of the requesting
government. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or
innocence of an accused cannot be invoked by an extraditee, especially by one whose extradition papers
are still undergoing evaluation.

Secondly, extradition proceeding under PD 1069 is summary in nature. Criminal

proceeding is not summary. It will require a full blown adversarial trial.

Thirdly, with respect to the application of the rules of evidence, in criminal proceeding there is
strict adherence to the rules of evidence. In extradition proceeding, liberal interpretation rule is applied.

Fourthly, with respect to the quantum of proof required, in a criminal proceeding, the quantum of
proof required for conviction is proof beyond reasonable doubt. In extradition proceeding, the quantum of
proof required is mere prima facie evidence. It is a very low kind of evidence.

Finally, in a criminal proceeding, judgment becomes executory after having attained finality. In
extradition proceeding, our courts may declare a person extraditable but it will always be the President
who will have the last say on the matter, whether to finally extradite him or not.

In this case, was Mark Jimenez not at all entitled to the documents he was requesting?

The SC did not say that he was not at all entitled to the documents he was requesting so that he
can prepare for his defense. What the SC said is that he was not entitled to the documents at that early
stage of the proceeding which was initial evaluation stage at the DOJ. At that time he is not yet arrested.
If you give him that documents, what if he finds out that the evidence against him is strong, obviously he
would escape. This is because an extraditee is always presumed to be a flight risk. In other words,
eventually he will be given those documents once the petition for extradition is filed in court but not
at that early stage of the proceeding because under PD 1069, the moment the petition for
extradition is filed in the RTC, the judge shall immediately issue a warrant of arrest. When
arrested and now in the custody of the law, he can already be given the documents. Here the court
applied the balancing of interest approach in resolving the question. The right to due process of Mark
Jimenez vs. to prevent the escape of potential extraditees which can be precipitated by premature
information on the basis of the request for his extradition. This is but a soft restraint on his right to due
process at that stage. There is no denial of due process for as long as fundamental fairness is assured a
party.
N.B: An extraditee is always presumed to be a flight risk. Why? The extraditee previously escaped.

Can you not apply the presumption of innocence in extradition?

No, because an extradition proceeding is not similar to a criminal proceeding. The presumption of
innocence is a right of an accused in a criminal proceeding. On the contrary, an extraditee is always
presumed to be a flight risk.

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EQUAL PROTECTION OF THE LAWS

What is the equal protection clause enshrined in the Constitution?

―x x x nor shall any person be denied the equal protection of the laws.‖ [Sec. 1, Art. III]

One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. [Biraogo v. Philippine Truth
Commission]

What is the meaning of the equal protection clause?

All persons or things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed. Natural and juridical persons are entitled to this guarantee but with respect to
artificial persons, they enjoy the protection only insofar as their property is concerned.

―According to a long line of decisions, equal protection simply requires that all persons or
things similarly situated should be treated alike, both as to rights conferred and responsibilities
imposed.‖ It ―requires public bodies and institutions to treat similarly situated individuals in a
similar manner.‖

What is the purpose of the equal protection clause?

―The purpose of the equal protection clause is to secure every person within a state‘s
jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express
terms of a statue or by its improper execution through the state‘s duly constituted authorities.‖ ―In
other words, the concept of equal justice under the law requires the state to govern impartially, and it may
not draw distinctions between individuals solely on differences that are irrelevant to a legitimate
governmental objective.

Is the equal protection clause embraced in the concept of due process?

The equal protection of the laws is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has been embodied in a separate clause,
however, to provide for a more specific guaranty against any form of undue favoritism or hostility from
the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if
the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it
down is the equal protection clause. [Biraogo v. Philippine Truth Commission]

What is the scope of equality?

a. Economic ;
b. Political;
c. Social.

But, does the equal protection clause require universal application of the laws to all persons or
things without distinction?

It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification, however, to
be valid must pass the test of reasonableness.

What is the concept of valid classification and what are its requisites?
Persons or things ostensibly similarly situated may, nonetheless, be treated differently if there is a
basis for valid classification.
Its requisites are:
a. Substantial distinctions which make for real differences;

―Superficial differences do not make for a valid classification.‖

Examples:
1. Law (RA 2000, Limited Highway Access Act) limiting access to toll ways by motorcycles as
there is substantial distinction between a motorcycle and other motor vehicles [Mirasol vs.
DPWH];

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 2. Filipino female domestics working abroad were in a class by themselves, because of the special
risks to which their class was exposed [Phil. Ass‘n of Service Exporters v. Drilon];

3. Land-based and sea-based Filipino OFWs because of dissimilarities in work environment, safety,
danger to life and limb, accessibility to social, civil and spiritual activities

But in the following cases, there is no substantial distinction which makes for real differences:

1. The election to the position of Congressman is not a reasonable basis for valid classification in
criminal law enforcement [People v. Jalosjos];

2. There is no reasonable distinction between the services rendered by ―foreign hires‖ and ―local
hires‖ as to justify the disparity in salaries paid to these teachers [International School Alliance of
Educators v. Quisumbing];

3. In this regard, it must be borne in mind that the Arroyo administration is but just a member of a
class, that is, a class of past administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness which the equal protection clause
cannot sanction. Such discriminating differentiation clearly reverberates to label the commission
as a vehicle for vindictiveness and selective retribution. [Biraogo v. Philippine Truth
Commission] The PTC, to be true to its mandate of searching for the truth, must not exclude the
other past administrations. The PTC must, at least, have the authority to investigate all past
administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be
struck down for being unconstitutional;

b. Germane to the purpose of the law;

c. Not limited to existing conditions only;

Examples:
a. The SC upheld the validity of the law prohibiting members of non-christian tribes from drinking
foreign liquor, on the ground that their low degree of culture and unfamiliarity with the drink
rendered them more susceptible to its effects [People v. Cayat];

b. An ordinance was declared invalid 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., v. Treasurer of Ormoc City]

d. Must apply equally to all members of the same class.

Examples:
a. Section 35, RA 7354 which withdrew franking privileges formerly granted to the judiciary but
remained with the executive and legislative departments, was declared unconstitutional because
the three branches of government are similarly situated [Phil. Judges Ass‘n v. Prado];

b. The ordinance imposing a work permit fee of P50 upon all aliens desirous of obtaining
employment in the City of Manila was declared unconstitutional because the fee imposed failed
to consider valid substantial differences in situation among individuals aliens who are required to
pay [Villegas v. Hui Chiong];

SEARCHES AND SEIZURES

Section 2, Article III

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.

“It may be frail; its roof may shake; the rain may enter; the wind may enter. But the King of
England may not enter; all his forces dare not cross the threshold of the ruined tenement.” For truly, a
man‘s house is his own castle; the humblest subject might shut the door of his cottage against the King
and defend from intrusion that privacy which was as sacred as the kingly prerogatives.

Page 95 of 186
What is the extent of the protection by this provision?

The protection is available to all persons, including aliens, whether accused of a crime or not.
Artificial persons are entitled to the guarantee although they may be required to open their books of
accounts for examination by the State in the exercise of police and taxing powers.

May the right be invoked for and in behalf of another person?

No, because the right is personal. It may be invoked only by the person entitled to it. [Stonehill v.
Diokno]

May the right be waived?

The right may be waived [Lopez v. Commissioner of Customs] either expressly or impliedly
[People v. Malasugui], but the waiver must be made by the person whose right is invaded, not by one who
is not authorized to effect such waiver. [People v. Damaso]

To whom the right is directed against?

The right applies as a distraint 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.

The Bill of Rights does not protect citizens from unreasonable searches and seizures by private
individuals. [Waterous Drug Corp. v. NLRC]

Who may validly issue a warrant? Is there an exception?

Only a judge may validly issue a warrant upon fulfillment of certain basic requirements.

Article 38 of the Labor Code is unconstitutional for granting the Secretary of Labor the authority
to issue orders of arrest, search and seizure because the Labor Secretary is not a judge.
Exception:

Orders of arrest may be issued by administrative authorities but only for the purpose of carrying
out a final finding of a violation of law, e.g. an order of deportation or an order of contempt but not for
the sole purpose of investigation or prosecution [Morano v. Vivo]

What are the requisites of a valid warrant?

Is a prior notice or hearing required before the judge issue a warrant of arrest against an
extraditee?

No. [Gov‘t of USA vs. Judge Purganan] See Sec. 6 of PD 1069 (extradition law) using
the term ―immediate‖ to qualify the arrest of the accused would be rendered nugatory. See Sec. 2
of the Bill of Rights.

1. It must be based upon probable cause

What is probable cause?

It is defined as 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.

For a search, such facts and circumstances which would lead a reasonably discreet, and prudent
man to believe that an offense has been committed and the objects sought in connection with the
offense are in the place sought to be searched.

Must the warrant refer to one specific offense only? Exception?

The warrant must refer to one specific offense only. [What is the rationale for this? In the
determination of the probable cause by the judge]

However, since the Dangerous Drugs Act of 1972 is a special law that deals specifically to
dangerous drugs which are subsumed into prohibited and regulated drugs, and defines and penalizes

Page 96 of 186
 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 [Asian Surety v. Herrera;
Castro v. Pabalan; reiterated in People v. Salanguit]

Where such search warrant was issued for the seizure of shabu and drug paraphernalia,
but probable cause was found to exist only with respect to the shabu, the warrant cannot be
invalidated in toto, it is still valid with respect to the shabu [People Salanguit]

2. The probable cause must be determined personally by the judge.

What is the nature of this function?

It is not a ministerial function of the judge. It is discretionary on the part of the judge. Whether it
is necessary to arrest the accused in order not to frustrate the ends of justice is left to his sound
judgment and discretion [Cruz v. Areola]

Is it necessary for the issuance of warrant of arrest that the judge personally examine the
complainant and his witnesses?
No, it is sufficient that the judge ―personally determine‖ the existence of probable cause. It is not
necessary that he should personally examine the complainant and his witnesses [Soliven v. Makasiar].
After all, the judge could rely on the findings of the fiscal although he is not bound thereby. The
judge should evaluate the report and supporting documents submitted by the prosecutor OR require
the submission of the supporting affidavits of witnesses to aid him in determining whether probable
cause exists. He need not conduct a de novo hearing.

But what if the judge relied solely on the certification of the Prosecutor, is that the personal
determination of probable cause contemplated?
No, because he cannot be said to have personally determined the existence of probable cause and
therefore the warrant of arrest issued by him is null and void [Lim v. Felix]

But how about that part of the provision which says ―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‖?

That is specifically applicable only in cases when it is the judge who himself conducts the
preliminary investigation, in which cases, for him to issue a warrant of arrest, the investigating judge
must:

a. Have examined, under oath and in writing, the complainant and his witnesses;
b. Be satisfied that there is probable cause; and
c. That there is a need to place the respondent under immediate custody in order not to frustrate
the ends of justice [Mantaring v. Judge Roman]

Is a search warrant proceeding a criminal action or the commencement of a prosecution?

No. it is, in no sense, a criminal action or the commencement of a prosecution. The
proceeding is not one against any person, but is solely for the discovery and to get possession of
personal property. It is a special and peculiar remedy, drastic in nature, and made necessary
because of public necessity. It resembles in some respect with what is commonly known as John
Doe proceedings. While an application to a search warrant is entitled like a criminal action, it
does not make it such an action [United Laboratories, Inc. v. Isip]

3. The determination must be made after examination under oath or affirmation of the complainant and
the witnesses he may produce

What is the purpose of this requisite?

The purpose of this rule is to satisfy the examining magistrate as to the existence of probable
cause. The personal examination must not be merely routinary or pro forma, but must be probing and
exhaustive.

Should the evidence be based on personal knowledge of the complainant and his witnesses?
Yes. The evidence offered by the complainant and his witnesses should be based on their own
personal knowledge and not on mere information or belief.

So the following are not sufficient evidence for the issuance of warrant:
a. Reliable information [Alvarez v. CFI];
b. Evidence gathered and collated by our unit [Burgos v. Chief of Staff];

Page 97 of 186
 c. Mere affidavits of the complainant and his witnesses were not enough to sustain the issuance
of a search warrant [Mata v. Bayona]

ERGO, absent the element of personal knowledge by the applicant or his witnesses of the facts
upon which the issuance of the search warrant may be justified, the warrant is deemed not based
on probable cause and is a nullity, the issuance being, in legal contemplation, arbitrary [Sony
Music Entertain v. Judge Espanol]

4. It must particularly describe the place to be searched and the persons or things to be seized

This is the particularity of description requirement.

What is the aim of this requirement?

This requirement is primarily meant to enable the law enforcers serving the warrant to

a. Readily identify the properties to be seized and thus prevent them seizing the wrong items;
and
b. Leave said peace officers with no discretion regarding the articles to be seized and thus
prevent unreasonable searches and seizures. [People v. Tee]

What the Constitution seeks to prevent by this requirement?

What the Constitution seeks to avoid are search warrants of broad and general
characterization or sweeping descriptions which will authorize police officers to undertake a
fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to an
offense. [People v. Tee]

Because of this, the following are unconstitutional:

a. General warrants [Nolasco v. Pano];
b. Where the search warrant charged violations of two special laws, it was considered ―scatter-
shot warrant‖ which is null and void [Tambasen v. People];

When is a warrant of arrest compliant with the particularity of description requirement?

A warrant of arrest is said to particularly describe the person to be seized if it contains the name/s
of the person/s to be arrested. If the name of person to be arrested is not known, then a Johd Doe warrant
may be issued if there is some descriptio persona which will enable the officer to identify the accused.

How about a search warrant?

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 allow [People v. Rubio];

Or when the description expresses a conclusion of fact by which the warrant officer may be
guided in making the search and seizure

Or when the things described are limited to those which bear direct relation to the offense for
which the warrant is being issued [Bache & Co. v. Ruiz];

Does the failure to specify detailed descriptions in the warrant necessarily make the warrant a
general warrant?

No. The description of the property to be seized need not be technically accurate nor necessarily
precise, and its nature will necessarily vary according to whether the identity of the property, or its
character is a matter of concern. The description is required to be specific only in so far as
circumstances will allow. [Kho v. Judge Makalintal]

Does ―an undetermined amount of marijuana‖ satisfy the particularity of description requirement?
Yes [People v. Tee]
Is a search warrant severable? What does it mean?

1. The general description of most of the documents in the warrant – if there are others particularly
described – will not invalidate the entire warrant. Those items which are not particularly described
may simply be cut off without destroying the whole warrant [Uy v. BIR];

Page 98 of 186
 2. Only the articles particularly described in the warrant may be seized. Where the warrant authorized
only the seizure of shabu, and not marijuana, the seizure of the latter was held unlawful.

Must the description of the place to be searched also comply with the particularity of description
requirement?

Yes.
Hence, the following description is not particular:
a. Compound of petitioner [Paper Industries Corp of the Phil v. Asuncion];
b. ―residence of X in Manatapoli, Marantao‖;

The place to be searched, as described in the warrant, cannot be amplified or modified by the
peace officer‘s own personal knowledge of the premises or the evidence which they adduced in support of
their application for a warrant.

a. Search warrant: Apt. 1207. A search on Apt. No. 1 is an infringement of the constitutional
guarantee [People v. CA];
b. Search warrant: Apt. No. 2, extended search to Apt. No. 8 on the same compound. Search on
the latter is invalid. [Yousef Al Ghoul v. CA]

Now, is it necessary that the property to be searched or seized be owned by the person against
whom the warrant is issued?

No. It is sufficient that the property is within his control or possession [Burgos v. Chief of Staff]

How should the conduct of the search be made?

It must be in the presence of the lawful occupant thereof OR any member of his family OR in the
absence of the latter, in the presence of two witnesses of sufficient age and discretion, residing in the
same locality. Failure to comply with this requirement invalidates the search. [People v. Gesmundo]

Police officers may use force in entering the dwelling if justified by Rule 126 of the RC.

WARRANTLESS ARRESTS

Section 5, Rule 113

A peace officer or even a private person, may effect an arrest without warrant:
a. When the person to be arrested has committed, is actually committing, or is attempting to commit an
offense in his presence;
b. When (1) an offense had just been committed and (2) there is probable cause to believe, based on his
personal knowledge of facts or of other circumstances, that the person to be arrested has committed
the offense;

Explain.

Hence, there must be a large measure of immediacy between the time the offense is
committed and the time of the arrest, and if there was an appreciable lapse of time between the
arrest and the commission of the crime, a warrant of arrest must be secured.

Aside from the sense of immediacy, it is also mandatory that the person making the arrest
has personal knowledge of certain facts indicating that the person to be taken into custody has
committed the crime.

c. 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 temporary confined while his case is pending, or has escaped
while being transferred from one confinement to another;

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 v. de Lara]

Entrapment
An arrest made after an entrapment operation does not require a warrant of arrest; it is reasonable
and valid.

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 Buy-bust operation

A buy-bust operation is a valid in flagrante arrest.

What are the requirements of a valid in flagrante arrest?

It is necessary that two requisites concur:

a. The person to be arrested must execute an overt act indicating that he had just committed, is actually
committing, or is attempting to commit a crime;
b. Such over act is done in the presence or within the view of the arresting officer.

May the right be voluntary waived?

Yes, as 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 v. Salvatierra]

When shall the illegality of the arrest be raised?

It shall be raised before arraignment. Failure to do so would constitute a waiver of is right against
unlawful restraint of his liberty. [People v. Cachola]
The failure of the accused to assert their constitutional right prior to arraignment and by entering
a plea of not guilty and participating actively in the trial, they were deemed to have waived their right to
raise the issue of the illegality of the arrest [People vs. Conde; People vs. Galvez]

WARRANTLESS SEARCHES

What are the instances of warrantless searches?

a. When the right is voluntarily waived;

What are the requisites for a valid waiver?

For the valid waiver of a constitutional right, it must appear first
1. That the right exists;
2. Secondly, that the person involved had either actual or constructive knowledge of the
existence of such right;
3. And thirdly, that the said person had an actual intention to relinquish the right [De Garcia v.
Locsin]
N.B.: the consent must be voluntary, i.e., unequivocal, specific and intelligently given,
uncontaminated by any duress or coercion.

Give examples of cases showing valid waiver.

1. Searches of passengers at airport;

What is the scope of the waiver?

Where permission to enter the residence is given to search for rebels, it is illegal to search the
rooms therein and seize firearms without a search warrant.

b. When there is a valid reason to ―stop-and-frisk‖

What is a ―Terry‖ search?

It was defined as the vernacular designation of the right of a police officer to stop a citizen on the
street, interrogate him and pat him for weapons whenever he observes unusual conduct which leads
him to conclude that criminal activity may be afoot. [Terry v. Ohio] The validity of this search was
upheld in Manalili v. CA.

Requisite:

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 latter‘s outer
clothing for possibly concealed weapons.

The apprehending police officer must have a genuine reason, in accordance with the police
officer‘s experience and the surrounding conditions, to warrant the belief that the person to be held
has weapons or contraband concealed about him. It should therefore be emphasized that a search
and seizure should precede the arrest for the principle to apply. [People v. Sy Chua]

c. Where the search (and seizure) is an incident to a lawful arrest.

Page 100 of 186

 Sec. 12, Rule 126:

―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 search warrant.‖
The search must, however, be contemporaneous to the arrest and made within a permissible
area of search.
Requisite:
As a rule, the arrest must precede the search; the process cannot be reversed. Nevertheless, a
search substantially contemporaneous with an arrest can precede the arrest if the police have probable
cause to make the arrest at the outset of the search. [People v. Nuevas]

What are some of the tell-tale clues which are sufficient to justify a warrantless arrest?
a. A bag or package emanating the odor of marijuana or other prohibited drug [People v. Claudio;
People v. Lacerna];
b. A confidential report and/or positive identification by informers of couriers of prohibited drugs
and/or the time and place where they will transport the same [People v. Maspil; People v. Lo Ho
Wing];
c. Suspicious demeanor or behavior [People v. Tangliben; Posadas v. CA];
d. Suspicious bulge in the waist [People v. Malmstedt]

Explain the Permissible area of search.

The warrantless search and seizure as an incident to a lawful arrest may extend beyond the person
of the one arrested to include the premises or surroundings under his immediate control [People v.
Hindoy]
d. Search of vessels and aircraft;

N.B.: If there is an ample time for obtaining a warrant, the authorities should so obtain a search
warrant; e.g.: two days before the arrival of the vessel; at 4pm on the day before the arrival of the
vessel.
e. Search of moving vehicles

What is the justification for this?

This is justified on the ground that it is not practicable to secure a warrant because the vehicle can
be moved quickly out of the locality or jurisdiction in which the warrant may be sought.

What are the two type of check point search?

a. Mere routine inspection
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 a physical or body search.
b. It may involve an extensive search
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.
f. Inspection of buildings and other premises for the enforcement of fire, sanitary and building
regulations
g. Where prohibited articles are in plain view
Explain the plain view doctrine.

Objects in plain view of an officer who has the right to be in the position to have that view are
subject to seizure and may be presented as evidence. The ―plain view‖ doctrine is usually applied
where the police officer is not searching for evidence against the accused but nonetheless
inadvertently comes upon an incriminating object [People v. Musa]

What are the elements of a valid seizure based on the ―plain view‖ doctrine?

a. Prior valid intrusion based on the valid warrantless arrest in which the police are legally
present in the pursuit of their official duties;

b. The evidence was inadvertently discovered by the police who have the right to be where they
are;
c. The evidence must be immediately apparent; and
d. ‗plain view‘ justified the seizure of the evidence without any further search [People v. Musa]

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 When is an object in ―plain view‖?

An object is in ―plain view‖ if the object itself is plainly exposed to sight. Where the object seized
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 contents are in plain view and may
be seized. [Caballes v. CA] If the package is such that an experienced observer could infer from its
appearance that it contains prohibited article then the article is deemed in plain view. [People v.
Nuevas]

What is the extent of the plain view doctrine?

In Musa, it was held that the plain view doctrine may not be used to launch unbridled searches
and indiscriminate seizures, nor to extend a general exploratory search made solely to find evidence
of defendant‘s guilt.

The doctrine is not an exception to the warrant. It merely serves to supplement the prior
justification –whether it be a warrant for another object, hot pursuit, search as an incident to a lawful
arrest or some other legitimate reason for being present, unconnected with a search directed against
the accused. It is recognition of the fact that when executing police officers come across immediately
incriminating evidence not covered by the warrant, they should not be required to close their eyes to
it, regardless of whether it is evidence of the crime they are investigating or evidence of some other
crime. It would be needless to require the police to obtain another warrant. [United Laboratories v.
Isip]

What does the ―immediately apparent‖ test require?

It does not require an unduly high degree of certainty as to the incriminating character of
evidence. It requires merely that the seizure be presumptively reasonable assuming that there is
probable cause to associate the property with criminal activity; that a nexus exists between the viewed
object and criminal activity [United Laboratories v. Isip]

h. Search and seizure under exigent and emergency circumstances

What is the effect if Section 2, Article III is violated?

EXCLUSIONARY RULE

Evidence obtained in violation of Sec. 2, Article III shall be INADMISSIBLE for any purpose in
any proceeding [Sec. 3(2), Art. III] because it is ―the fruit of the poisoned tree.‖

N.B: Objections to the legality of the search warrant and to the admissibility of the evidence
obtained thereby are deemed waived when not raised during the trial [Demaisip v. CA]

PRIVACY OF COMMUNICATION AND CORRESPONDENCE

Sec. 3, Article III

―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 b law.‖ [Sec. 3(1)]

Zulueta v. CA:

The 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.

FREEDOM OF EXPRESSSION
Section 4, Article III

―No law shall be passed abridging the freedom of speech, of expression, or the press, or the right
of the people peaceably to assemble and petition the government for redress of grievances.‖

What is the scope of the guaranty?

Any and all modes of expression are embraced in the guaranty. This is reinforced by Sec. 18 (1),
Art. III.

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What are the aspects of this guaranty?

a. Freedom from censorhip or prior restraint

Some notable principles under this aspect.

i. There need not be total suppression; even restriction of circulation constitutes censorship
[Grosjean v. American Press Co.]

ii. Comelec cannot procure print space without paying just compensation therefor [Philippine Press
Institute v. Comelec];

iii. Sec. 92, BP 881 is constitutional, even as it provides that air time may be procured by the
Comelec free of charge, the same being an exercise of the plenary police power of the State to
promote the general welfare [Telecommunications and broadcast attorneys of the Phils. v. Comelec];

iv. The Comelec‘s resolution prohibiting the posting of decals and stickers in mobile units like cars
and other moving vehicles was declared unconstitutional for infringement of freedom of expression
[Adiong v. Comelec];

v. Movie censorship. Movies, compared to other media of expression, have greater capacity for evil
and must, therefore, be subjected to a greater degree of regulation. But the power of the MTRCB can
be exercised only for purposes of ―classification‖, not censorship.

vi. The freedom of expression enjoys primacy over the right to privacy of a public figure like Enrile.
[Ayer Productions v. Capulong];

vii. O‘Brien Test. A government regulation is valid if:

1. It is within the constitutional power of government;

2. It furthers an important or substantial governmental interest;
3. The governmental interest is unrelated to the suppression of free expression; and
4. The incidental restriction on the freedom is no greater than is essential to the furtherance of
that interest. [US v. O‘Brien; used in SWS v. Comelec as the test for the validity of Sec. 5.4,
RA 9006]

b. Freedom from subsequent punishment

Explain.

Without this assurance, the individual would hesitate to speak for fear that he might be held to
account for his speech, or that he might be provoking the vengeance of the officials he may have
criticized.

Some notable principles under this aspect.

i. However, this freedom is not absolute, and may be properly regulated in the interest of the public.

ii. Accordingly, the State may validly impose penal and/or administrative sanctions, such as in the
following:
1. Libel;

2. Obscenity, it is not constitutionally protected because it offends public decency and morals

What are the tests of obscenity?

a. Whether the average person, applying contemporary community standards, would find
that the work, taken as a whole, appeals to the prurient interest;

b. Whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable law;

c. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific
value.

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 iii. In the criticism of official conduct, the individual is given the widest latitude. The SC compared
criticism to a ―scalpel that relieves the abscesses of officialdom‖. [US v. Bustos];

(But) Freedom of the press is subordinate to the decision, authority, integrity and independence of
the Judiciary and the proper administration of justice. While there is no law to restrain or punish the
freest expression of disapprobation of what is done in or by the courts, free expression must not be
used as a vehicle to satisfy one‘s irrational obsession to demean, ridicule, degrade and even destroy
the courts and their members. [In Re: Column of Ramon Tulfo (Tulfo‘s Sangkatutak na Bobo column
on the SC decision in Valmonte v. de Villa)];

iv. Right of students to free speech in school premises not absolute

ASSEMBLY AND PETITION

Is it subject to prior restraint? NO

The right to assemble is not subject to prior restraint. It may not be conditioned upon the prior
issuance of a permit or authorization from government authorities. However, the right must be
exercised in such a way as will not prejudice the public welfare.

Does the holding of an assembly require a permit?

If the assembly is to be held in a public place, a permit for the use of such place, AND NOT FOR
THE ASSEMBLY ITSELF, may be validly required. But the power of local officials in this regard is
merely one of regulation, not prohibition. [Primicias v. Fugoso; Reyes v. Bagatsing]

What are the places where the holding of a public assembly therein will not require a permit?
A permit to hold a public assembly shall not be necessary where the meeting is to be held:
a. In a private place
b. In the campus of government-owned or operated educational institution;
c. Or in a freedom park. [BP 880, Public Assembly Act of 1985]

TESTS OF VALID GOVERNMENTAL INTERFERENCE

What are these?

a. CLEAR AND PRESENT DANGER RULE

Whether the words are used in such circumstances and of such a nature as to create a
clear and present danger that they will bring about the substantive evils that the State has the right
to prevent [Schenck v. US]. ―The substantive evil must be extremely serious and the degree of
imminence extremely high before utterances can be punished.‖
The rule is that the danger created must not only be clear (causal connection between the
danger of substantive evil arising from the utterance) and present (time element) but also
traceable to the ideas expressed.

The danger must not only be probable, but very likely inevitable.

b. DANGEROUS TENDENCY RULE

If the words uttered create a dangerous tendency of an evil which the State has the right to
prevent, then such words are punishable. 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. [Cabansag v. Fernandez];

c. BALANCING OF INTERESTS TEST

―When particular conduct is regulated in the interest of public order, and the regulation results in
an indirect, conditional, or partial abridgment of speech, the duty of the courts is to determine which
of the two conflicting interests demands the greater protection under the particular circumstances
presented.‖ [American Communications Ass‘n v. Douds]

What is FACIAL CHALLENGE in relation to Freedom of Expression?

The established rule is that a party can question the validity of a statue only if, as applied to him,
it is unconstitutional. The exception is the so-called ―facial challenge.‖ But the ONLY TIME a facial
challenge to a statute is allowed is when it operates in the area of freedom of expression.

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 In such instance, the ‗OVERBREADTH DOCTRINE‘ permits a party to challenge the validity
of a statute even though, as applied to him, it is not unconstitutional, but it might be if applied to others
not before the Court whose activities are constitutionally protected. Invalidation of the statute ―on its
face‖, rather than ―as applied‖, is permitted in the interest of preventing a ―chilling effect‖ on
freedom of expression. [Mendoza, concurring opinion in Cruz v. DENR]

Facial invalidation of laws is considered as manifestly strong medicine, to be used sparingly and
only as a last resort, thus, is generally disfavored.

A facial challenge on the ground of overbreadth is the most difficult challenge to mount
successfully since the challenger must establish that there can be no instance when the assailed law
may be valid.

VOID-FOR-VAGUENESS RULE

A law is facially invalid if men of common intelligence must necessarily guess at its meaning
and differ as to its application. It is subject to the same principles governing the ―overbreadth‖ doctrine.
For one, it also an analytical tool for testing, ―on their faces‖, statutes in free speech cases. And 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.

FREEDOM OF RELIGION
Section 5, Article III

―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.‖

Two guarantees:

1. Non-establishment clause;

2. Freedom of religious profession and worship.

What does the non-establishment clause mean?

It simply means ―that the state cannot set up a church; nor pass laws which aid one religion, aid
all religion, or prefer one religion over another nor force nor influence a person to go to or remain away
from church against his will or force him to profess a belief or disbelief in any religion x x x‖ [Everson v.
Board of Education (US)]

It connotes ―sponsorship, financial support, and active involvement of the sovereign in religious
activity.‖

The government is neutral, and while protecting all, it prefers none, and it disparages none.

Freedom of religion includes from religion; the right to worship includes the right not to worship.

Examples:

a. School prayer case [Engel v. Vitale]

The recitation by the students in public schools in New York of a prayer composed by the
Board of Regents was held unconstitutional. ―It is not part of the business of government to compose
official prayers for any group of the American people, to recite as part of a religious program carried
on by the government.‖

b. Islamic Da‘wah Council of the Phils. v. Office of the Executive Secretary

Without doubt, classifying food products as halal is a religious function because the standards
are drawn from the Qur‘an and Islamic beliefs. By giving OMA the exclusive power to classify food

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 products as halal, EO 46 encroached on the religious freedom of Muslim organizations to interpret for
Filipino Muslims what food products are fit for Muslim consumption.

Two aspects of Freedom of Religious Profession and Worship:

a. Freedom to believe;

This is absolute as long as the belief is confined within the realm of thought.

b. Freedom to act on one‘s beliefs.

This is subject to regulation where the belief is translated into external acts that affect the
public welfare.

Examples:

1. Ebralinag v. The Division Superintendent of Schools of Cebu

The petitioners may not salute the flag if to do so would violate their religious freedom since
in their view, the flag is an ―image‖ which their Bible prohibited them from rendering
obeisance.

THE COMPELLING STATE INTEREST TEST

And BENEVOLENT NEUTRALITY
Estrada v. Escritor

Respondent Escritor was administratively charged with immorality for living with a married man
not her husband. As members of J‘s W and the Watch Tower Bible Tract Society, their conjugal
arrangement was in conformity with their religious beliefs. After ten years, they executed a ―Declaration
of Pledging Faithfulness‖ before their religious elders.

Benevolent neutrality recognizes that government must pursue its secular goals and interests, but
at the same time, strive to uphold religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion, provided it does not offend
compelling state interest.

In applying the test, the first inquiry is whether respondent‘s right to religious freedom has been
burdened. The second step is to ascertain respondent‘s sincerity in her religious belief.

If the burden is great and the sincerity of the religious belief is not in question, adherence to
benevolent neutrality accommodation approach requires that the Court make an individual determination
and not dismiss the claim outright.

In the area of religious exercise as a preferred freedom, man stands accountable to an authority
higher than the state, and so the state interest sought to be upheld must be so compelling that the violation
will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that
such state interests exist, man must be allowed to subscribe to the infinite.

LIBERTY OF ABODE AND OF TRAVEL

Sec. 6, Article 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.‖

There are three rights embraced here, namely:

1. Right of abode;
2. Right of changing abode;
3. Right to travel or the right of locomotion.

Examples:
1. The deportation of some 170 women of ill repute to Davao on orders of the Mayor of Manila was
held unlawful in Villavicencio v. Lukban;

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 2. A maid has the right to transfer to another residence even if she had not yet paid the amount advanced
for her transportation from the province by an employment agency which was then effectively
detaining her [Caunca c. Salazar]

Examples of cases emphasizing the limitations:

1. An administrative order issued by the Sec. of Labor temporarily suspending the deployment of
Filipino female domestic helpers abroad was upheld, in view of the need to extend protection to
female domestics who were most prone to exploitation and abuse by their foreign employers. [Phil.
Ass‘n of Service Exporters v. Drilon];

2. The refusal of the government to allow the petitioner‘s return to the Philippines was sustained, on the
ground that it would endanger national security. [Marcos v. Manglapus]

RIGHT TO INFORMATION
Section 7, Article III

―The right of the people to information on matters of public concern shall be recognized x x x‖

Exception: 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.

RIGHT TO FORM ASSOCIATIONS

NON-IMPAIRMENT CLAUSE

FREE ACCESS TO COURTS

MIRANDA DOCTRINE
Section 12, Article III

Use of voluntary confessions

The picture being depicted against which the Miranda doctrine is used is that police often would
beat defendants to obtain their confessions using many measures to force said confessions. Defendants,
for example, were questioned for hours on end with no sleep or food, or threatened with physical violence
until they were mentally beaten into a confession.

Miranda v. Arizona was the US Supreme Court‘s response to these creative efforts to obtain
confessions that were not truly voluntary.

Facts of the case:

On March 3, 1963, an 18 year old girl was kidnapped and raped on the outskirts of Phoenix,
Arizona. Ten days later, police arrested Ernesto Miranda, a poor, mentally disturbed man with a ninth-
grade education. In a police station line up, the victim identified Miranda as her attacker. Police then took
Miranda to a separate room and questioned him for two hours. At first he denied his guilt. Eventually
however, he confessed to the crime and wrote and signed a brief statement describing the crime and
admitting his guilt. At no time was he told that he did not have to answer any questions or that he
could be represented by an attorney.

After Miranda‘s conviction, his case was appealed on the ground that his Fifth Amendment right
not to incriminate himself had been violated because his confession had been coerced. Writing for the
court, CJ Earl Warren, himself a former district attorney and California state attorney general, noted that
because police have a tremendous advantage in any interrogation situation, criminal suspects must be
given greater protection. A confession obtained in the manner of Miranda‘s was not truly voluntary; thus
it was inadmissible at trial. Later, Miranda was given a new trial and convicted again on the strength of
his ex-girlfriend‘s testimony and that of the victim which were enough to convince the jury of his guilt.

Ernesto Miranda served nine years in prison before he was released on parole. After his release,
he routinely sold autographed cards inscribed with the Miranda rights now read to all suspects. In 1976,
four years after his release, Miranda was stabbed to death in Phoenix in a bar fight during a card game.
Two Miranda cards were found on his body, and the person who killed him was read his Miranda rights
upon his arrest.

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When are the Miranda rights available?

These rights available only during custodial investigation or ―in-custody interrogation of accused
persons‖ which has been defined as ―any questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action in any significant
way.‖

It includes the practice of issuing ―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.

However, a police line-up is not considered a part of any custodial investigation because it is
conducted before that stage of investigation. An out-of-court identification may be made in a ―show-up‖
(where the accused is brought face to face with the witnesses for identification). But any identification of
an uncounseled accused in a police line-up or show-up made after the start of the custodial
investigation is inadmissible in evidence against him because these types of identification have been
recognized as ―critical confrontations of the accused by the prosecution‖ necessitating the presence of
counsel for the accused.

When does the Miranda doctrine begin to operate?

The rule begins to operate at once as soon as the investigation ceases to be a general inquiry into
an unsolved crime, and direction is then aimed upon a particular suspect who has been taken into custody
and to whom the police would then direct interrogatory questions which tend to elicit incriminating
statements. [People v. de la Cruz]

It does NOT apply to:

1. spontaneous statement not elicited through questioning by authorities but given in an ordinary
manner;

2. admissions or confessions made by a suspect before he was placed under custodial

investigation;

3. normal audit investigation because an audit examiner can hardly be deemed to be the law
enforcement officer contemplated in the rule;
4. investigation made by the Court Administrator because the latter is not a law enforcement
officer;
5. investigation made an employer over his employee;
6. investigation by CSC involving fake eligibility;
7. preliminary investigation is not part of custodial investigation;
8. interview by media men, but extreme caution must be taken by the court in admitting
confessions through the medium of televised interview by media men.

What rights are available?

a. To remain silent;

b. To competent and independent counsel (preferably of his choice) at all stages of the
investigation;

c. To be informed of such rights;

d. Rights cannot be waived except in writing and signed by the person in the presence of his
counsel;

e. No torture, force, etc.., which vitiates the free will shall be used;

f. Secret detention places are prohibited;

g. Confessions/admissions obtained in violation of these rights are inadmissible in evidence.

What are the requisites for a valid waiver?

Must be in writing and made in the presence of counsel;

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 What may be waived?

The right to remain silent and the right to counsel, but not the right to be informed of these rights.

What is the effect of violation of Miranda rights?

Exclusionary rule.
Confession or admission obtained in violation of Sec.12 and Sec. 17, Article III, shall be
inadmissible in evidence.

But this can be waived. For failure of the accused to object to the offer in evidence, the
uncounseled confession was admitted in evidence. [People v. Samus]

RIGHT TO BAIL
Sec. 13, Article III

―All persons, except those charged with offenses punishable by reclusion perpetua when
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.‖

What is the basis of the right to bail?

The right to bail emanates from the right to be presumed innocent. It is accorded to a person in
custody of the law who may by reason of the presumption of innocence he enjoys, be allowed provisional
liberty upon filing a security to guarantee his appearance before any court. [People v. Fitzgerald]

Exceptions to the right to bail:

1. When charged with an offense punishable by reclusion perpetua (or higher) and evidence of guilt is
strong;

2. Traditionally, the right to bail is not available to the military.

When is the right immediately available?

The rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may
apply for bail as soon as he is deprived of his liberty even before a complaint or information is filed
against him.

When is bail a matter of right and when is it a matter of discretion?

a. Bail, a matter of right:
All persons in custody shall
1. Before or after conviction by MTCs;
2. Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life
imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be released
on recognizance as prescribed by law or Sec. 4, Rule 114.

b. Bail, when discretionary:

1. Before conviction by the RTC of an offense punishable by reclusion perpetua or higher and the
evidence of guilt is not strong;

2. After conviction by the RTC of an offense not punishable by death, reclusion perpetua or life
imprisonment, the court, on application, may admit accused to bail.

Is the right to bail available in extradition or deportation cases?

This court, in Mejoff v. Director of Prisons, in granting bail to a prospective deportee, held that
under the Constitution the principles set forth in the Universal Declaration of Human Rights are part of
the law of the land. If bail can be granted in deportation cases, considering that the Universal
Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be
invoked in extradition cases. [Government of HongKong v. Felixberto Olalia, Jr.]

Extradition proceedings is sui generis. [Gov‘t of US v. Judge Puruganan and Mark Jimenez]

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 What is the standard of evidence required in granting bail in extradition cases?

A ―clear and convincing evidence‖ should be used in granting bail in extradition cases. The
standard is lower than proof beyond reasonable doubt, but higher than preponderance of evidence. The
potential extraditee must prove by ―clear and convincing evidence‖ that he is not a flight a risk and
will abide with all the orders and processes of the extradition court.

CONSTITUTIONAL RIGHTS OF THE ACCUSED

Sec. 14, Art. III
1. Criminal due process
2. Presumption of innocence;
3. Right to be heard by himself and counsel;
4. Right to be informed of the nature and cause of the accusation against him;
5. Right to speedy, impartial and public trial;
6. Right to meet witnesses face to face;
7. Right to compulsory process to secure attendance of witnesses and the production of evidence;
8. Trial in absentia
HABEAS CORPUS
SPEEDY DISPOSITION OF CASES
SELF-INCRIMINATION
Sec. 17, Art. III
―No person shall be compelled to be a witness against himself.‖

When is it available?

The right is available not only in criminal prosecution but also in all other government
proceedings, including civil actions and administrative or legislative investigations.

What is the scope of this right?

The kernel of the right is not against all compulsion, but testimonial compulsion. The right
against self-incrimination is simply against the legal process of extracting from the lips of the accused an
admission of his guilt. It does not apply where the evidence sought to be excluded is not an incriminating
statement but an object evidence. What is actually proscribed is the use of physical or moral compulsion
to extort communication from the accused-appellant and not the inclusion of his body, in evidence when
it may be material.

It extends to:

1. Compulsion for the production of documents, papers, and chattels that may be used as
evidence against witness, except where the State has a right to inspect the same such as the
books of accounts of corporations, under the police or taxing power;

2. Compulsion to furnish specimen of handwriting

It does not extend to:

1. Substance emitted from the body of the accused may be received in evidence;
2. Compulsion to submit to fingerprinting, photographing, and paraffin testing, as there is no
testimonial compulsion.

May it be waived?
Yes, the waiver is either directly or by a failure to invoke it, provided the waiver is certain and
unequivocal and intelligently made.

NON-DETENTION BY REASON OF POLITICAL BELIEFS OR ASPIRATIONS

INVOLUNTARY SERVITUDE

PROHIBITED PUNISHMENTS

NON-IMPRISONMENT FOR DEBT

DOUBLE JEOPARDY

EX POST FACTO LAW AND BILL OF ATTAINDER

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 Political Law Part 4

ADMINISTRATIVE LAW

What is administrative law?

That branch of public law which fixes the organization of government, determines the
competence of the administrative authorities who execute the law, and indicates to the individual
remedies for the violation of his rights.

What is meant by administration?

As a function: the execution in non-judicial matters, of the law or will of the State as expressed
by competent authority.

As an organization/institution: that group or aggregate of persons in whose hands the reins of

government are for the time being.

What is an administrative body or agency?

Organ of government, other than a court and other than a legislature, which affects the rights of
private parties either through adjudication or rule-making.

But as to its nature, an administrative agency may regarded as an arm of the legislature insofar
as it is authorized to promulgate rules that have the force of law by virtue of a valid delegation of
legislative power. It may also be loosely considered a court because it performs functions of a particular
judicial character, as when it decides factual and sometimes even legal questions as an incident of its
general power of regulation. (Carlo Cruz)

See Rule 43 of the Rules of Court, examples of administrative agencies

Is there an advantage of creating administrative agencies?

Compared to the national legislature and the courts of justice, administrative agencies have the
advantage not only of expertise derived from specialized training and experience, as previously
discussed, but also of adaptability to change and ease in reacting to new and even emergency
situations, given its flexible nature because of its basic rule-making authority and adjudicatory
prerogatives.

How shall an administrative body or agency be created?

a. Constitutional provision;

Examples: CSC, COMELEC, COA, Office of the Ombudsman, CHR

b. Legislative enactment;
c. Authority of law

May the President create administrative agencies?

Yes, through the issuance of an Executive Order, i.e. fact-finding body (Biraogo vs. Philippine
Truth Commission)

May an administrative agency be abolished by Congress? How?

It depends on whether or not the administrative agency concerned is created by a mere statute. If
it is created by a mere statute, Congress may abolish it. The legislature that breathed life into it can amend
or even repeal its charter, thereby resulting in its abolition, which is justified if made in good faith and not
attended by grave abuse of discretion. (De la Llana v. Alba) But if the administrative agency is created by
the Constitution, like CSC, COMELEC or COA, it may be abolished only by constitutional amendment
and not a mere statute.

In short, an administrative agency may only be abolished by the same mode it was created.
(Albano, Political Law Reviewer)

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 EXCEPTION:

When the President exercises his power of control over agencies in the executive department. In
such instance, an agency created by law can be abolished by an Executive Order (Bagaoisan vs. National
Tobacco Administration, G.R. No. 152845, August 5, 2003

How may a body or agency be determined as administrative or not?

A body or agency is 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 the discretion to determine what the law shall be
but merely prescribes details for the enforcement of the law.

What are the powers of administrative bodies?

1. Quasi-legislative or rule-making power;

2. Quasi-judicial or adjudicatory power;
3. Determinative powers.

May an administrative agency alter or repeal the implementing rules and regulations which it has
previously promulgated?

Yes. All powers necessary for the effective exercise of the express powers are deemed impliedly
granted (Doctrine of necessary implication). An express grant of the power to formulate IRR carries with
it the implied power to amend, modify, alter or repeal the same. (Yazaki Torres Manufacturing vs. Court
of Appeals, G.R. No. 130584, June 27, 2006)

QUASI-LEGISLATIVE POWER

This is otherwise known as the power of subordinate legislation and permits the body to
promulgate rules intended to carry out the provisions of particular laws. It is defined as the
authority delegated by the law-making body to the administrative body to adopt rules and
regulations intended to carry out the provisions of a law and implement legislative policy.

May Congress disapprove administrative rules and regulations promulgated by administrative

agencies?

No, the legislative veto of Congress has been declared unconstitutional by the SC in ABAKADA
Guro Party-list vs. Purisima. It is an elementary rule in administrative law that administrative regulations
and policies enacted by administrative bodies to interpret the law which they are entrusted to enforce,
have the force of law, and are entitled to great respect.

Is the power to issue administrative rules and regulations different from the power to promulgate
laws?
Yes. Administrative regulations are intended only to implement the law and to carry out the
legislative policy. The discretion to determine what the law shall be is exclusively legislative and
cannot be delegated. What is employed in the promulgation of administrative regulations is not this kind
of discretion but the discretion to determine how the law shall be enforced. There is no impediment to the
delegation of this kind of discretion. The power to make rules to carry out a policy declared by the
lawmaker is administrative and not legislative.
In principle, legislation and administration are distinct powers.

What is the source of the power to promulgate administrative regulations?

The power to promulgate administrative regulations is derived from the legislature, by virtue of a
valid delegation. To be valid, the delegation must not create ―a roving commission‖ but should be
―canalized within banks that keep it from overflowing.‖
There must not be a total abdication of legislative power to the delegate. To achieve this, the
delegation must be circumscribed by legislative restrictions.
Thus, a surrender of legislative power to the delegate is prevented.

What are the requisites for the validity of administrative regulations?

1. Its promulgation must be authorized by the legislature;

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 When Congress authorizes promulgation of administrative rules and regulations to implement
given legislation, all that is required is that the regulation be not in contravention with it, but conform
to the standards that the law prescribes.

2. It must be within the scope of the authority given by the legislature;

This means that the regulation promulgated must not be ultra vires or beyond the limits of the
authority conferred. An administrative agency cannot amend an act of Congress.

People vs. Maceren

If the Secretary of Agriculture and Natural Resources was authorized to promulgate regulations to
carry into effect the provisions of the Fishing Law, which prohibited inter alia fishing with the use of
obnoxious or poisonous substance, he cannot issue a regulation prohibiting ―electro-fishing‖ since
that would be in excess of the powers conferred upon the Secretary since the law did not prohibit
fishing by electricity.

Metropolitan Traffic Command vs. Gonong

If PD 1605 authorizes the Metro Manila Commission only to suspend or revoke license of the
driver found to have ―violated‖ traffic rules, it is illegal for traffic enforcers to remove the license
plates of illegally parked vehicles.

Administrative issuances must not override but must remain consistent and in harmony
with the law they seek to apply and implement.

3. It must be promulgated in accordance with the prescribed procedure;

Is notice and hearing required before the promulgation of administrative regulations?

There is no constitutional requirement for a hearing in the promulgation of a general regulation
by an administrative body. Where the rule is procedural, or where the rules are, in effect, merely legal
opinions, there is no notice required.
Quasi-legislative function – prior notice and hearing is not required;
Quasi-judicial function – notice and hearing is required.

But in Commissioner of Internal Revenue v. CA:

The SC distinguished thus:

a. Administrative rules in the nature of subordinate legislation.

These are designed to implement a law by providing its details, and before they are
adopted there must be a hearing under the Administrative Code of 1987. When an
administrative rule substantially adds to or increases the burden of those concerned, an
administrative agency must accord those directly affected a chance to be heard before its
issuance.
b. Interpretative rules – no hearing is required.

4. It must be reasonable.
Is publication required for the validity of administrative rules and regulations?

Administrative rules and regulations the purpose of which is to enforce or implement an

existing law pursuant to a valid delegation, must be published in the Official Gazette or in a
newspaper of general circulation, EXCEPT interpretative regulations and those merely internal in
nature, i.e., regulating only the personnel of the administrative agency, not the general public. [De
Jesus v. COA]

Additional requirements for Administrative Rules with Penal Sanctions:

a. The law must itself declare as punishable the violation of the administrative rule or regulation.
b. The law should define or fix the penalty for the violation of the administrative rule or regulation.

Tests for valid delegation:

3. The Completeness Test

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 The law must be complete in all its 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.

If there are gaps in the law that will prevent its enforcement until they are first filled, the delegate
will have the opportunity to repair the omission through the exercise of the discretion to determine what
the law shall be which, as earlier noted, is essentially and exclusively legislative.

US vs. Ang Tang Ho

The Governor-General was authorized by statute to issue and promulgate, with the consent of the
Council of State, temporary rules and emergency measures for carrying out the purposes of the law,
―whenever for any cause, conditions arise resulting in extraordinary rise in the price of palay, rice
or corn.‖ This law was challenged as an invalid delegation of legislative power for failure to conform to
the completeness test.

The law was declared incomplete as a legislation for its failure to specify or define under what
conditions or for what reasons the Governor-General shall issue the proclamation. The law neither
defined what is an extraordinary increase in the price of cereals nor has it specified or defined when
such temporary and emergency measures shall remain in force and effect, or when they shall take
effect. All of these are left to the sole judgment and discretion of the Governor-General.

4. The Sufficient Standard Test

A sufficient standard is intended to map out the boundaries of the delegate‘s authority by
defining the legislative policy and indicating the circumstances under which it is to be pursued and
effected. The purpose of the sufficient standard is to prevent a total transference of legislative power from
the lawmaking body to the delegate. The sufficient standard is usually indicated in the law delegating
legislative power.

What are examples of accepted sufficient standards?

Public interest, simplicity, economy and efficiency, and public welfare.

QUASI-JUDICIAL POWER

What is quasi-judicial power?

It is defined as the power of administrative authorities to make determinations of facts in the
performance of their official duties and to apply law as they construe it to the facts so found. The
exercise of this power is only incidental to their main function, which is the enforcement of the law.

What is the source of this power?

It is incidental to the power of regulation vested in the administrative body but is often expressly
conferred by the legislature through specific provisions in the charter of the agency.

What is the essence of administrative due process?

The essence of due process in administrative proceedings is the opportunity to explain one‘s side
or seek a reconsideration of the action or ruling complained of, and to submit evidence a party may have
in support of his defends. The demands of due process are sufficiently met when the parties are given the
opportunity to be heard before judgment is rendered. [Theoren V. Lacson vs. The Hon. Exec. Secretary]

What are the requisites (Cardinal principles) of administrative due process? [Ang Tibay vs. CIR]
a. Right to a hearing;
b. Tribunal must consider evidence presented;

What is the quantum of proof in administrative proceedings?

Substantial evidence – such relevant evidence that a reasonable mind might accept as adequate to
support a conclusion. (Rules of Court)

c. Decision must have something to support itself;

d. Evidence must be substantial;
e. Decision must be based on the evidence adduced at the hearing, or at least contained in the record and
disclosed to the parties;
f. The Board or its judges must act on its or their independent consideration of the facts and the law of
the case, and not simply accept the views of a subordinate in arriving at a decision;

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g. Decision must be rendered in such a manner that the parties to the controversy can know the various
issues involved and the reasons for the decision rendered.

Is the right against self-incrimination available in an administrative investigation?

Yes. [Cabal v. Kapunan; Pascual v. Board of Medical Examiners]

What does quasi-judicial power include?

Implied power to prescribe rules of procedure

An administrative agency exercising quasi-judicial powers has the inherent power to prescribe
rules of procedure which are effective unless disapproved by the SC.
Subpoena power

This is not inherent. It may be exercised only if allowed by the law and only in connection with
the matter they are authorized to investigate.

Do administrative agencies possess the power to punish contempt?

For being inherently judicial, this may be exercised only if expressly conferred by law, and when
administrative body is engaged in the performance of its quasi-judicial powers.

What are the other powers and functions of administrative agencies?

a. Fixing rates, wages and prices;

b. Licensing;
c. Investigative

Do administrative decisions form part of the legal system?

Judicial decisions applying or interpreting statutes are part of the legal system of the country. But
administrative decisions do not enjoy that level of recognition.

Administrative Appeal and Review

a. Where provided by law, appeal from an administrative determination may be made to a higher or
superior administrative officer or body;

b. By virtue of the power of control which the President exercises over all executive departments, the
President –by himself – or through the Department Secretaries (pursuant to the alter ego doctrine)
may affirm, modify, alter, reverse the administrative decision of subordinate officials and employees
[see Araneta v. Gatmaitan];

c. The appellate administrative agency may conduct additional hearings in the appealed case, if deemed
necessary. [Reyes v. Zamora]

Does the doctrine of res judicata apply to administrative decisions?

Yes. Decisions and orders of administrative agencies have upon their finality, the force and
binding effect of a final judgment within the purview of the doctrine of res judicata. [Ysmael v. Deputy
Executive Secretary]

The rule of res judicata thus forbids the reopening of a matter once determined by competent
authority acting within their jurisdiction.

However, the doctrine does not (generally) apply in administrative adjudication relative to
citizenship. [Board of Commissioners, CID v. Judge de la Rosa]

DOCTRINE OF PRIMARY ADMINISTRATIVE JURISDICTION (Doctrine of Prior Resort)

The courts cannot and will not resolve a controversy involving a question which is within the
jurisdiction of an administrative tribunal, where the question demands the exercise of sound

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administrative discretion requiring the special knowledge, experience and services of the administrative
tribunal to determine technical and intricate matters [Industrial Enterprises, Inc. vs. CA]

DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE

Whenever there is an available administrative remedy provided by law, no judicial recourse can
be made until all such remedies have been availed of and exhausted [Teotico vs. Ageda]

An administrative decision must be appealed to the administrative superior up to the highest level
before elevating it to the court for review. [PHIC vs. Chinese General Hospital and Medical Center]
When does this principle apply?

The principle applies only where the act of the administrative agency was performed pursuant to
its quasi-judicial function, and not when it pertains to its quasi-legislative power. [Smart Communication
vs. NTC]

What is the rationale for this principle?

1. Administrative authorities are in a better position to resolve questions addressed to their particular
expertise and that errors committed by the subordinates in their resolution maybe rectified by their
superiors if given a chance to do so [Sunville Timber vs. Abad]

2. The doctrine on separation of powers enjoins upon the Judiciary a becoming policy of non-
interference with matters falling primarily (albeit not exclusively) within the competence of other
departments (Antolin vs. Domondon);

3. The strict enforcement of the doctrine could relieve the courts of a considerable number of avoidable
cases which otherwise would burden their heavily loaded dockets;

4. Judicial review of administrative cases is usually effected through special civil actions which are
available only if there is no other plain, speedy and adequate remedy.

What is the effect of one‘s failure to exhaust administrative remedies?

Failure to exhaust administrative remedies results in lack of cause of action which is one of the
grounds allowed in the Rules of Court for the dismissal of the complaint.

The case may also be dismissed for failure to comply with condition precedent, which may be
invoked in a motion to dismiss.

EXCEPTIONS TO THE DOCTRINE:

1. When there is a violation of due process;

2. When the issue involved is a purely legal question;
3. When the administrative action is patently illegal amounting to lack or excess of jurisdiction;
4. When there is estoppel on the part of the administrative agency concerned;
5. When there is irreparable injury;
6. When to require exhaustion of administrative remedies would be unreasonable;
7. When it would amount to a nullification of a claim;
Etc, etc, etc,

DOCTRINE OF FINALITY OF ADMINISTRATIVE ACTION

No resort to courts will be allowed unless administrative action has been completed and there is
nothing left to be done in the administrative structure [Paredes vs. CA]

A party aggrieved must not merely initiate the prescribed administrative procedure to obtain a
relief but also must pursue it to its appropriate conclusion [Jariol vs. Comelec]

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 ELECTION LAW

Election is an aspect of Republicanism.

Because sovereignty resides in the people and all government authority emanates from them, it
must perforce follow that their will is determinative as to who are to be in office to represent the interests
of the people. That sovereign will is expressed through election. Election therefore is a very important
exercise which should be made truly reflective of what the people really want [mine].

Enfranchised citizen or voter as trustee of the people.

The enfranchised citizen or the registered voter is the trustee or representative of the people in the
exercise of their sovereign will. By the very nature of that trust, he is expected to exercise it in good faith
and for the good of his principal, the sovereign people.

What is election?

Election is the embodiment of the popular will, the expression of the sovereign power of the
people. It involves the choice or selection of candidates to public office by popular vote. It refers to the
conduct of the polls.

What is the purpose of election?

The purpose of an election is to enable the electorate to choose the men and women who
would run their government, whether national, provincial, city, municipal, or barangay. It is to give the
voters direct participation in the affairs of their government, either in determining who shall be their
public officials or in deciding some questions of public interests, and for this purpose all of the legal
voters should be permitted, unhampered and unmolested, to cast their ballots.

The purity of elections is one of the most important and fundamental requisites of popular
government.

What is the primary purpose of election laws?

The primary purpose of election laws is to prevent or at least minimize election frauds.

To protect the integrity of elections, to suppress all evils that may violate its purity and defeat the
will of the voters [Maruhom vs. Comelec, May 5, 2000]

Is voting compulsory?

Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law
who are 18 years of age, and who shall have resided in the Philippines for at least one year and in the
place wherein they proposed to vote for at least six months immediately preceding the election. [Section
1, Art. V of the 1987 Constitution]

This constitutional provision made the exercise of suffrage voluntary or directory on the part of
the voter by the use of the word ―may.‖

Nota bene: NO literacy, property, or other substantive requirement such as education, sex or
taxpaying ability shall be imposed on the exercise of suffrage. [Section 1, Article V, Constitution];

No religious test shall be required for the exercise of civil or political rights. [Last sentence,
Section 5, Article III, Constitution]

QUALIFICATIONS OF VOTERS: [Section 1, Article V, Constitution]

1. Citizenship – Filipino citizen;

Filipino citizenship is not presumed.

It is incumbent upon one who claims Philippine citizenship to prove to the satisfaction of
the court that he is really a Filipino. No presumption can be indulged in favor of the claimant
of Philippine citizenship, and any doubt regarding citizenship must be resolved in favor of the
state [Go vs. Ramos, Sept. 4, 2009]

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 2. Age – at least 18 years of age;

Any person, who, on the day of registration may not have reached the required age or
period of residence but, who, on the day of the election shall possess such qualifications, may
register as a voter [Sec. 9, RA 8189 (The Voter‘s Registration Act of 1996)]
3. Residence – resident of the Philippines for at least 1 year and of the place where he proposes
to vote for at least 6 months;

Domicile and residence are synonymous terms.

In election cases, the Court treats domicile and residence as synonymous terms. Both
import not only an intention to reside in a fixed place but also personal presence in that place,
coupled with conduct indicative of such intention. Domicile denotes a fixed permanent
residence to which when absent for business of pleasure, or for like reasons, one intends to
return [Pundaodaya vs. Comelec, Sept. 17, 2009]

4. Not disqualified by law.

DISQUALIFICATIONS OF VOTERS: [Sec. 118, OEC]

1. Person convicted by final judgment to suffer imprisonment for not less than 1 year, unless
pardoned or granted amnesty; but right is reacquired upon expiration of 5 years after service
of sentence;

2. Person adjudged by final judgment as having committed any crime involving disloyalty to
government or any crime against national security; but right is reacquired upon expiration of
5 years after service of sentence; and

3. Insane or incompetent persons as declared by competent authority.

System of continuing registration

The person filing of application of registration of voters shall be conducted daily in the office of
the Election Officer during regular office hours. No registration shall however, be conducted during the
period starting one hundred twenty (120) days before a regular election and ninety (90) days before a
special election. [Sec. 8, RA 8189 of The Voter‘s Registration Act of 1996]

What body is in charged with the enforcement of all laws relative to the conduct of elections?

The COMELEC is vested by the Constitution with the exclusive charge of the enforcement
of all laws relative to the conduct of elections, the assumption of jurisdiction by the trial court over a
case involving the enforcement of the Election Code ―is at war with the plain constitutional command, the
implementing statutory provisions, and the hospitable scope afforded such grant of authority so clear and
unmistakable in recent decisions.‖ [Zaldivar vs. Estenzo]

What is the composition of COMELEC?

The Comelec is composed of a Chairman and six (6) Commissioners.

POWERS AND FUNCTIONS OF THE COMELEC in general:

1. Enforcement and administration of election laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum or recall;
2. Ensure free, honest, orderly, credible, and peaceful elections
3. Rule making power;
4. Quasi-legislative functions;
5. Quasi-judicial power;
6. Contempt and subpoena;
7. Auxiliary writs and processes;
8. Exclusive control and supervision over the Automated Election System [Sec. 26, RA 8436]
Nota bene: There are specific powers of Comelec found in other laws and jurisprudence.

Powers not granted to the Comelec:

1. It has no power to decide questions involving the right to vote [Section 2(3), Art. IX-C, 1987
Constitution];
2. It has no power to include and exclude voters [Canicosa vs. Comelec]

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 Can the Comelec sitting en banc decide election cases in the first instance?

The COMELEC sitting en banc does NOT have the requisite authority to hear and decide election
cases in the first instance. This power pertains to the divisions of the Commission. Any decision by the
Commission en banc as regards election cases decided by it in the first instance is null and void. [Abad
vs. Comelec]

EXCEPTIONS:

1. When what is involved in the case is purely administrative, and not quasi-judicial in nature;

2. When the required number of votes to reach a decision, resolution, or order or ruling is not
obtained in the division [Garvida vs. Sales, Jr.];

3. Where the petitioner invoked the jurisdiction of the Comelec en banc, participated in its
proceedings and sought relief therefrom, in which instance he is estopped to subsequently
question the jurisdiction of the Comelec en bance [Ramirez vs. Comelec];

4. Petitions for the postponement, declaration of failure of election and the calling of special
elections [Loong vs. Comelec];

5. The Comelec en banc has the power to prosecute election cases, and in the exercise of such
prosecutor power, it conducts preliminary investigation, decides whether or not there exists a
probable cause and files the corresponding information in court. [Faelnar vs. People]

CANDIDATES AND CERTIFICATES OF CANDIDACY

Qualifications prescribed by law are continuing requirements.

Qualifications prescribed by law are continuing requirements and must be possessed for the
duration of the officer‘s active tenure. Once any of the required qualification is lost, his title to the office
may be seasonably challenged. [Frivaldo vs. Comelec, 1996]

DISQUALIFICATIONS UNDER THE OMNIBUS ELECTION CODE (Section 12, OEC)

a. Any person declared as incompetent or insane by competent authority before said insanity
or incompetence is declared removed;

b. Any person convicted by final judgment for subversion, insurrection, rebellion or any offense
for which he has been sentenced to a penalty of more than 18 months imprisonment, before
the expiration of a period of five years from his service of sentence;

c. Any person convicted by final judgment for a crime involving moral turpitude;

Examples:

Violation of BP 22 (Villaber vs. Comelec)

Violation of the Anti-Fencing Law (De la Torre vs. Comelec)
Direct bribery (Magno vs. Comelec)

d. Any person who is a permanent resident of or immigrant to a foreign country, unless said
person has waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws, e.g. greencard
holder

DISQUALIFICATIONS UNDER SECTION 40 OF THE LGC

Are the disqualifications under Section 40 of the LGC applicable to national elective officials?

No. These are applicable to candidates for local elective office only. [Magno vs. Comelec]

a. Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving
sentence;

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b. Those removed from office as a result of administrative case;

XX is an elective local official who was removed from office sometime in the year 1991 as a
result of an administrative case. Is XX disqualified from running for elective local office?
[Grego v. Comelec]

XX is not disqualified from running for elective local office since he was removed from office as
a result of an administrative case prior to January 1, 1992 or the date of effectivity of the Local
Government Code, Section 40 (b) of which code cannot be given retroactive application.

c. Those convicted by final judgment for violating the oath of allegiance to the Republic;

May Nur Misuari validly run for governor of the Province of Sulu?

d. Those with dual citizenship;

XX is both a citizen of the United States and the Republic of the Philippines. He run as Vice
Mayor of Makati City and in fact he won in the election. Was he disqualified as a candidate for
possessing dual citizenship? [Mercado vs. Manzano,]

XX was not disqualified under the disqualification on dual citizenship.

The SC clarified the ―dual citizenship‖ disqualification, and reconciled the same with Sec. 5, Art.
VI of the Constitution on ―dual allegiance.‖ Recognizing situations in which a Filipino citizen may,
without performing any act and as an involuntary consequence of the conflicting laws of different
countries, be also a citizen of another State, the Court explained that ―dual citizenship‖, as a
disqualification, must refer to citizens with ―dual allegiance.‖ Consequently, persons with mere
dual citizenship (such as XX) do not fall under the disqualification.

Valles vs. Comelec, 2000

The filing of certificate of candidacy operates as a sufficient renunciation of foreign citizenship.

This rule is superseded by the ruling of the SC in Lopez vs. Comelec.

LOPEZ vs. Comelec, 2008

In relation to reacquisition of Philippine citizenship and eligibility to run for public office, ―[a]
Filipino-American or any dual citizen cannot run for any elective public position in the Philippines
unless he or she personally swears to a renunciation of all foreign citizenship at the time of filing the
certificate of candidacy.‖ Accordingly, ―the Court‘s 2000 ruling in Valles [vs. Comelec, that the filing
of certificate of candidacy operates as a sufficient renunciation of all foreign citizenship] has been
superseded by the enactment of RA 9225 in 2003.‖ The law ―explicitly provides that should one seek
elective public office, he should first ‗make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath.‖

In the case of natural-born Filipinos who reacquire their citizenship and seek elective office, is
the mere filing of COC sufficient renunciation of their foreign citizenship?

In fine, RA 9225 categorically demands natural-born Filipinos who reacquire their citizenship
and seek elective office to execute a personal and sworn renunciation of any and all foreign
citizenships before an authorized public officer prior to or simultaneous to the filing of their
certificates of candidacy, to qualify as candidates in Philippine elections. The rule applies to all those
who have re-acquired their Filipino citizenship, like petitioner, without regard as to whether they are
still dual citizens or not. It is a pre-requisite imposed for the exercise of the right to run for public
office [Sobejana-Condon vs. Comelec, August 10, 2012]

e. Fugitives from justice in criminal or nonpolitical cases here or abroad;

XX is suspected of killing his strong political opponent. Subsequently, a charge for murder was
filed in court but after the filing of the information, XX continues to evade arrest as he does not
want to face trial. In a forthcoming regular election, is XX qualified to run for Mayor in that
election?

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 No, he is not qualified to run as Mayor in that election because he is disqualified for being a
fugitive from justice. In Marquez vs. Comelec, Art. 73 of the Rules Implementing the LGC, to the
extent that it confines the term ―fugitive from justice‖ to refer only to a person ―who has been
convicted by final judgment‖ is an inordinate and undue circumscription of the law. The term
includes not only those who flee after conviction to avoid punishment, but likewise those who,
after being charged, flee to avoid prosecution.

f. 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 this Code (LGC of 1991) e.g. Green
card holder [Caasi vs. CA];

g. The insane or feeble-minded.

What is the effect of filing of COC?

Automatic resignation

Officials holding appointive offices, including active members of AFP and officers of
government-owned or controlled corporations shall be considered ipso facto resigned (Section 66, OEC
and Art. 13, par.3, RA 9369)

ELEAZAR QUINTO vs. COMELEC (2010)

This is the case which upheld the constitutionality of Sec. 13 of RA 9369 and Sec. 66 of BP 881.

These provisions satisfy the requisites of the equal protection test, especially the second
requirement that it must be germane to the purposes of the law. It was held that only elective officials
may file their certificates of candidacy without being deemed ipso facto resigned from their posts.
There is no violation of the equal protection clause since there is a substantial distinction between
elective officials and appointive officials to warrant differential treatment:

1. Elective officials occupy their office by virtue of the mandate of the electorate. On the other
hand, appointive officials hold their office by virtue of their designation thereto by an
appointing authority
2. 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. On
the other hand, elective officials, or officers or employees holding political offices, are
obviously expressly allowed to take part in political and electoral activities.

Once you have filed your certificate of candidacy, are you already a candidate?
No. As held in Lanot vs. Comelec, 2006, a person who files a certificate of candidacy is NOT a
candidate until the start of the campaign period [Lanot doctrine] This doctrine was subsequently affirmed
in Penera vs. Comelec, Nov. 25, 2009.

Penera vs. Comelec

In the original decision in this case, the SC held that someone who had a motorcade after having
filed her certificate of candidacy a day before the start of the campaign period could be held liable for
premature campaigning. But on MR, the SC reversed itself holding that Congress, in enacting RA 9369
expressly wrote the Lanot doctrine into the second sentence, third paragraph of the amended Section 15
of RA 8436, which provides that ―[a]ny person who files his certificate of candidacy within this period
shall only be considered as a candidate at the start of the campaign period for which he filed his
certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period.‖

There is no prohibited premature campaigning in the Philippines.

Thus, a person who files his certificate of candidacy is only a considered as a ―candidate‖ at the
start of the campaign period. Accordingly, he could not be charged with premature campaigning before
then since there is no ―candidate‖ to speak of. [Gorospe]

The court further said that what the law says is ―any unlawful act or omission applicable to a
candidate shall take effect only upon the start of the campaign period. The plain meaning of this provision
is that the effective date when partisan political acts become unlawful as to a candidate is when the
campaign period starts. Before the start of the campaign period, the same partisan political acts are
lawful.‖

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 If there is yet no candidate whose interest it is to be promoted or defeated, there is no restriction
to any election campaign or partisan political activity.

It was stressed that when ―the applicable provisions of RA 8436, as amended by RA 9369, are
read together, these provisions of law do not consider Penera a candidate for purposes other than the
printing of the ballots until the start of the campaign period.‖ [Penera vs. Comelec]

{[Consequently,] This means that a candidate is liable for an election offense only for acts done
during the campaign period and not before. The law is clear as daylight – any election offense that may be
committed by a candidate under any election law cannot be committed before the start of the campaign
period.} [subject to confirmation]

SUBSTITUTION OF CANDIDATE

What are the instances when substitution is allowed and what are the conditions?

If after the last day for the filing of certificates of candidacy, an official candidate of a registered
accredited political party
1. Dies
2. Withdraws or
3. Is disqualified for any cause,

Only a person 1. belonging to, and 2. certified by, the same political party may file a certificate of
candidacy
to replace the candidate who died, withdrew or was disqualified not later than mid-day of the day of the election.
(Sec 76, BP 881)

Can an independent candidate who died be substituted?

When the candidate who dies is an independent candidate, he cannot be substituted
[Recabo, Jr. vs. Comelec, June 21, 1999]

When shall substitution of a candidate by reason of withdrawal be made?

Substitution of a candidate, by reason of withdrawal, must be made after the last day for
filing certificates of candidacy, not when the withdrawal is effected on or before such last day
[Villanueva vs. Comelec, Dec. 4, 1985]

Can a candidate whose certificate of candidacy has been cancelled or not given due course
be substituted?
A candidate whose certificate of candidacy has been cancelled or not given due course
cannot be substituted by another belonging to the same political party [Miranda vs. Abaya, July
28, 1999] The Court applied the principle of expressio unius est exclusio alterius because when
the law enumerated the occasions where a candidate may be validly substituted, no mention was
made of the case where a candidate is excluded not only by disqualification but also by denial and
cancellation of his certificate of candidacy [Ong vs. Alegre, January 2, 2006]

What is the deadline for the substitution of candidate in the Automated Election System?

Federico vs. Comelec, 2013

―In case of death or disqualification, the substitute had until midday of the election day to
file the COC. In case of withdrawal, which is the situation at bench, the substitute should have
filed a COC by December 14, 2009. The reason for the distinction can easily be divined. Unlike
death or disqualification, withdrawal is voluntary. Generally, a candidate has sufficient time to
ponder on his candidacy and to withdraw while printing has not yet started. If a candidate
withdraws after the printing, the name of the substitute candidate can no longer be accommodated
in the ballot and a vote for the substitute will just be wasted. ‖

Facts:

On April 27, 2010, Armando Sanchez, a candidate for Governor, died. He was substituted
by his widow Edna on April 29, 2010, who until then was running for mayor, who withdrew her
COC for mayor and filed another COC for Governor. On May 5, 2010, Federico filed his COC
for mayor, in substitution of Edna, but beyond the deadline for substitutions, December 14, 2009.
On election day Edna‘s name remain in the ballots, garnering the highest number of votes. Edna
was proclaimed winner but she was subsequently replaced by Federico in the revised Certificate

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 of Canvass and Proclamation of winners. Was that valid? No according to the SC because the
substitution was made beyond the deadline.

The Comelec ―has been empowered to set the dates for certain pre-election proceedings.
In the exercise of such constitutional and legislated power, especially to safeguard and improve
on the Automated Election System, Comelec came out with Resolution No. 8678. As automated
elections had been mandated by law, there was a need for the early printing of ballots. So
that all candidates would be accommodated in the ballots, the early filing of COCs was
necessary. If there would be late filing and approval of COCs, the names of aspiring candidates
would not be included in the ballot, the only document to be read by the Precinct Count Optical
Scan (PCOS) machines.‖ This led to different deadlines for substitution depending on the cause
of substitution, whether it is death, disqualification, or withdrawal.

WITHDRAWAL OF CERTIFICATE OF CANDIDACY

The withdrawal of the certificate of candidacy shall effect the disqualification of the candidate to
be elected, for the position. The withdrawal of the withdrawal, for the purpose of reviving the certificate
of candidacy, must be made within the provided by law for the filing of certificates of candidacy.

What may be the form of the withdrawal and where shall it be filed?

There is nothing in Section 73 of the Code which mandates that the affidavit of withdrawal must
be filed with the same office where the certificate of candidacy to be withdrawn was filed. It can be filed
directly with the main office of the COMELEC, the office of the regional director concerned, the office of
the provincial supervisor of the province to which the municipality involved belongs, or the office of the
municipal election officer of said municipality.

Withdrawal of withdrawal
The withdrawal of withdrawal, for the purpose of reviving the certificate of candidacy, must be
made within the period provided by law for the filing of certificates of candidacy [Monsale vs. Nico, May
28, 1949].

Shall the filing of withdrawal of COC affect whatever civil, criminal, or administrative liabilities a
candidate may have incurred?

The filing of withdrawal of a COC shall not affect whatever civil, criminal, or administrative
liabilities a candidate may have incurred.

May a person legally file several certificates of candidacy for more than one office? May the
COMELEC refuse to receive said certificates of candidacy?

Yes but he shall not be eligible for any of them. [Sec. 73, par. 3] The COMELEC shall have only
the ministerial duty to receive and acknowledge receipt of the certificates of candidacy (Sec. 76, BP 881)
Accordingly, the COMELEC may not, by itself, without proper proceedings, deny due course to or cancel
a certificate of candidacy filed in due form.

Exceptions: (instances when Comelec may go beyond the face of the COC)
a. authority over nuisance candidates
b. power to deny due course to or cancel a certificate of candidacy under Sec. 78, BP 88
c.
FILING OF TWO CERTIFICATES OF CANDIDACY

When a person files two certificates of candidacy for different offices, he becomes ineligible for
either position (Sec. 72, BP 881) He may withdraw one of his certificates by filing a sworn declaration
with the Commission before the deadline for the filing of certificates of candidacy.

Before the deadline for filing the certificate, a candidate may withdraw all except one declaring
under oath the office for which he desires to be eligible and cancel the certificate of candidacy for other
office or offices (Go vs. Comelec, 2001)

REMEDIES BEFORE THE ELECTION

There are three important sections of the OEC to consider: Section 68, 69, and 78 of the OEC.

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Section 68 (Disqualifications) of the OEC:

What are the notable grounds for disqualification under this section?

a. Vote-buying;
b. Commission of acts of terrorism to enhance his candidacy;
c. Election overspending;
d. Permanent resident or immigrant of a foreign country, unless said person has waived his
status as such before the elections.

NUISANCE CANDIDATES (Section 69)

Who is a nuisance candidate?

A nuisance candidate is thus defined as one who, based on the attendant circumstances,
has no bona fide intention to run for the office for which the COC has been filed, his sole purpose
being the reduction of the votes of a strong candidate, upon the expectation that ballots with only
the surname of such candidate will be considered stray and not counted for either of them.
[Martinez III vs. HRET, 2010]

One who has filed a Certificate of Candidacy but he does not have the bona fide intention
to run for the office.

What is the aim in prohibiting nuisance candidates?

The prohibition against nuisance candidates is aimed precisely at preventing uncertainty
and confusion in ascertaining the true will of the electorate. [Martinez III vs. HRET, 2010]

What is the rule under Section 69?

COMELEC may motu proprio or upon petition of an interested party, refuse to give due
course to or cancel a certificate of candidacy if shown that said certificate was filed:
1. to put the election process in mockery or disrepute;
2. to cause confusion among voters by similarity of names of registered candidates;
3. by other circumstances or acts which demonstrate that a candidate has no bona fide intention to
run for the office for which his certificate of candidacy has been filed, and thus prevent a faithful
determination of the true will of the electorate.

When shall the petition against a nuisance candidate be filed?

Within 5 days from the last day for the filing of certificates of candidacy.

If the COC of one who is found to be a nuisance candidate is cancelled, should the cancellation of
his COC be given retroactive effect?
―in certain situations as in the case at bar, final judgments declaring a nuisance candidate should
effectively cancel the COC filed by such candidate as of election day. Otherwise, potential nuisance
candidates will continue to put the electoral process into mockery by filing COCs at the last minute and
delaying resolution of any petition to declare them as nuisance candidates until elections are held and the
votes counted and canvassed.‖ Thus, ―ballots indicating only the similar surname of two (candidates) for
the same position may, in appropriate cases, be counted in favor of the bona fide candidate and not
considered stray, even if the other candidate was declared nuisance candidate by final judgment after
elections.‖ [Martinez III vs. HRET, 2010]

The principle in nuisance candidates is that the votes for a nuisance candidate whose COC has been
cancelled are to be counted as votes for the bona fide candidate and not to be considered as stray
votes. Is this applicable under the Automated Election System? YES. De la Cruz vs. Comelec, 2012

Even under the Automated Election System, the principle that the votes for a nuisance candidate
whose COC has been cancelled are to be counted as votes for the bona fide candidate and not to be
considered as stray votes still applies. [Gorospe digest]

PETITION TO DENY DUE COURSE OR TO CANCEL CERTIFICATE OF CANDIDACY

Sec. 78, OEC
The COMELEC, upon proper petition, may cancel a certificate of candidacy on the ground that
any material representation contained therein as required under Sec. 74 of BP 881 (contents of
COC: eligible for the office, political party, civil status, date of birth, residence, profession or occupation,
etc) is false, provided that

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(a) the false representation pertains to material matter affecting substantive rights of a candidate and that ;

(b) the false representation must consist of deliberate attempt to mislead, misinform, or hide a fact which
would otherwise render a candidate ineligible [Salcedo II vs. COMELEC]

When shall the petition be filed?

The petition may be filed at any time not later than twenty-five (25) days from the time of the
filing of certificate of candidacy. [The 25-day period is from the time of the filing of the certificate of
candidacy, and not from the date of discovery of the material misrepresentation as held in Loong vs.
Comelec]

If a candidate falsely claim in his COC that he is a professional where in truth and in fact he is not,
should his COC be cancelled or denied due course by the Comelec under Section 78 for material
misrepresentation in his COC? [Lluz vs. Comelec, 2007]

In this case the SC held that the act of falsely claiming that one is a professional is not punishable
as an election offense under Section 262 in relation to Section 74 of the OEC (BP 881). Such an act of
misrepresentation is not contemplated by Section 74 of the OEC.

For a candidate‘s COC to be denied due course or cancelled by the Comelec, the fact
misrepresented must pertain to a qualification for the office sought by the candidate. Here, the
misrepresentation was not material to his eligibility as a candidate and could not be a ground for
his prosecution. And, in this regard, no elective office, not even the office of the President of the
Republic of the Philippines, requires a certain profession or occupation as a qualification. Accordingly,
profession or occupation not being a qualification for elective office, misrepresentation of such does not
constitute a material misrepresentation. Otherwise stated, materiality of the misrepresentation is an
essential element of any violation of Section 74 of the OEC. [Gorospe, in his reading of the case]

Jalosjos, Jr. vs. Comelec, 2012

Facts: Jalosjos, Jr. was convicted of robbery by final judgment way back in 1970 with an accessory
penalty of perpetual special disqualification. He applied for probation but the same was subsequently
revoked. He never served his sentence and in the meantime he was able to run and win for 3 consecutive
terms as Mayor of Dapitan City. When he ran for the third term in 2010, his opponent Cardino filed a
petition for the cancellation of COC, grounded on Section 78 of the OEC (False material representation).
This was favorably acted upon by the Comelec on May 10, 2010, the election day itself. Jalosjos, Jr. won
nevertheless and he was proclaimed mayor anew for this third term. On August 11, 2010, the Comelec
denied his MR and ordered his ouster as Mayor, the Comelec holding that the rule on succession under
the LGC should then apply. He elevated the case to the SC. His opponent Cardino also filed a petition
before the SC claiming that he should be seated as Mayor, not the vice mayor. On April 30, 2012, while
the case is still pending, Jalosjos, Jr. resigned, stating that he was running for Governor of Zamboanga del
Sur in the May 2013 elections.

Has the case become moot and academic?

No. There are important questions attendant in the case and needing definitive resolution.
The Court has to ―address not only Jalosjos‘ eligibility to run for public office and the
consequences of the cancellation of his certificate of candidacy, but also Comelec‘s constitutional
duty to enforce and administer laws relating to the conduct of elections.‖

Is perpetual special disqualification a material fact involving eligibility which is a proper

ground for a petition under Section 78?

The Court said that ―the perpetual special disqualification against Jalosjos arising
from his criminal conviction by final judgment is a material fact involving eligibility which
is a proper ground for a petition under Section 78 of the OEC. Jalosjos‘ certificate of
candidacy was void from the start since he was not eligible to run for any public office at the time
he filed his COC. Jalosjos was never a candidate at any time, and all votes for Jalosjos were stray
votes. As a result of Jalosjos‘ certificate of candidacy being void ab initio, Cardino, as the only
qualified candidate, actually garnered the highest number of votes for the position of Mayor.‖

―the penalty of prision mayor automatically carries with it, by operation of law, the
accessory penalties of temporary absolute disqualification and perpetual special
disqualification. Under Article 30 of the RPC, temporary absolute disqualification produces the
effect of ‗deprivation of the right to vote in any election for any poplar elective office or to be

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elected to such office. The duration of the temporary absolute disqualification is the same as that
of the principal penalty. on the other hand, under Article 32 of the RPC, perpetual special
disqualification means that ‗the offender shall not be permitted to hold any public office during
the period of his disqualification,‘ which is perpetually. Both temporary absolute
disqualification and perpetual special disqualification constitute ineligibilities to hold
elective public office. A person suffering from these ineligibilities is ineligible to run for
elective public office, and commits a false material representation if he states in his COC
that he is eligible to so run.‖ clearly, Jalosjos was ineligible to run – ―he became ineligible
perpetually to hold, or to run for, any elective public office from the time his judgment of
conviction became final.‖

What are the consequences of cancellation of COC as a result of a false representation that
a candidate is eligible when in fact he is not?

―The Comelec properly cancelled Jalosjos‘ COC. A void COC on the ground of
ineligibility that existed at the time of the filing of the COC can never give rise to a valid
candidacy, and much less to valid votes. Jaloslos‘ COC was cancelled because he was
ineligible from the start to run for Mayor. Whether his COC is cancelled before or after the
elections is immaterial because the cancellation on such ground means he was never a valid
candidate from the very beginning, his COC being void ab initio. Jalosjos‘ ineligibility existed on
the day he filed his COC, and the cancellation of his COC retroacted to the day he filed it.‖ Thus,
Cardino ran unopposed. There was only one qualified candidate for Mayor in the May 2010
elections – Cardino – who received the highest number of votes.‖

Is conviction for robbery a ground under Section 68 (Disqualification) or Section 78 (denial

of due course to, or cancellation of COC) of the OEC?

―Conviction for robbery by final judgment with penalty of prision mayor, to which
perpetual special disqualification attaches by operation of law, is not a ground for a petition under
Section 68 because robbery is not one of the offenses enumerated in Section 68. Insofar as
crimes are concerned, Section 68 refers only to election offenses under the OEC and not to crimes
under the RPC.‖ ―there is absolutely nothing in the language of Section 68 that will justify
including the crime of robbery as one of the offenses enumerated in this Section. All the offenses
enumerated in Section 68 refer to offenses under the OEC.‖ ―[w]hat is indisputably clear is
that the false material representation of Jalosjos is a ground for a petition under Section 78.
However, since the false material representation arises from a crime penalized by prision mayor,
a petition under Section 12 of the OEC or Section 40 of the LGC can also be properly filed. The
petitioner has a choice whether to anchor his petition on Section 12 or Section 78 of the OEC, or
on Section 40 of the LGC. The law expressly provides multiple remedies and the choice of which
remedy to adopt belongs to the petitioner.‖

The Comelec should be more proactive.

―Even without a petition under Section 12 or 78 of the OEC, or under Section 40 of the
LGC, the Comelec is under legal duty to cancel the certificate of candidacy of anyone
suffering from the accessory penalty of perpetual special disqualification to run for public
office by virtue of a final judgment of conviction. The final judgment of conviction is notice to
the Comelec of the disqualification of the convict from running for public office. The law itself
bars the convict from running for public office, and the disqualification is part of the final
judgment of conviction. The final judgment of the court is addressed not only to the Executive
branch, but also to other government agencies tasked to implement the final judgment under the
law. whether or not the Comelec is expressly mentioned in the judgment to implement the
disqualification, it is assumed that the portion of the final judgment of disqualification to run for
elective public office is addressed to the Comelec because under the Constitution the Comelec is
duty bound to enforce and administer laws and regulations relative to the conduct of an election.
The disqualification of a convict to run for public office under the RPC, as affirmed by final
judgment of a competent court, is part of the enforcement and administration of ‗all laws‘ relating
to the conduct of elections. To allow the Comelec to wait for a person to file a petition to cancel
the certificate of candidacy of one suffering from perpetual special disqualification will result in
the anomaly that these cases so grotesquely exemplify. Despite a prior perpetual special
disqualification, Jalosjos was elected and served twice as mayor. The Comelec will be grossly
remiss in its constitutional duty to ‗enforce and administer all laws‘ relating to the conduct
of elections if it does not motu proprio bar from running for public office those suffering
from perpetual special disqualification by virtue of a final judgment. ‖

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ARATEA VS. COMELEC
Facts of the case:

Romeo D. Lonzanida and Estela D. Antipolo were candidates for Mayor of San Antonio,
Zambales in the May 2010 elections. On Dec. 1, 2009, Lonzanida filed his COC. But on Dec. 8, 2009,
Dra. Sigfrid S. Rodolfo (Rodolfo) filed a petition under Section 78 of the OEC to disqualify Lonzanida
and to deny due course or to cancel Lonzanida‘s COC on the ground that Lonzanida was elected, and had
served, as Mayor for four (4) consecutive terms immediately prior to the term for the May 2010 elections.
Rodolfo asserted that Lonzanida made a false material representation in his COC when Lonzanida
certified under oath that he was eligible for the office he sought election.

On February 18, 2010, the Comelec second division rendered a resolution cancelling Lonzanida‘s
COC. Lonzanida‘s MR before the Comelec en banc remained during the May 2010 elections. Lonzanida
and Efren Racel Aratea (Aratea) garnered the highest number of votes and were respectively proclaimed
mayor and vice mayor.

The Court, in the case of Aratea v. COMELEC, ruled that Lonzanida‘s certificate of candidacy
was void ab initio leaving Estela D. Antipolo as the only qualified candidate who actually garnered the
highest number of votes and should be proclaimed Mayor of San Antonio, Zambales.

Said COMELEC Resolution stated that the Commission, through the Second Division, had
already ordered the cancellation of Lonzanida‘s certificate of candidacy as early as February 18,
2012 and had stricken off his name in the list of official candidates for the mayoralty post of San
Antonio, Zambales.

The COMELEC En Banc resolution emphasized that ―Lonzanida‘s disqualification is two-

pronged: first, he violated the constitutional fiat on the three-term limit; and second, as early as December
1, 2009, he is known to have been convicted by final judgment for ten (10 ) counts of Falsification under
Article 171 of the Revised Penal Code.‖

Saying that ―on election day, Lonzanida‘s disqualification is notoriously known in fact and in
law‖ the COMELEC En Banc ruled that ―Lonzanida was never a candidate for the position of Mayor of
San Antonio, Zambales‖ and ―the votes cast for him should be considered stray votes.‖

With this ruling, the COMELEC En Banc further ruled that Estela D. Antipolo, who remained as
the sole qualified candidate for the mayoralty post and obtained the highest number of votes, should be
proclaimed as the duly elected Mayor of San Antonio, Zambales.‖

The Court emphasized that ―Lonzanida misrepresented his eligibility because he knew full
well that he had been elected, and had served, as mayor of San Antonio, Zambales for more than
three consecutive terms yet he still certified that he was eligible to run for mayor for the next
succeeding term.‖
The Court went on to say that ―Lonzanida‘s representation that he was eligible for the office
that he sought election constitutes false material representation as to his qualification or eligibility
for the office.‖

Pointing out that ―in a certificate of candidacy, the candidate is asked to certify under oath
his eligibility, and thus qualification, to the office he seeks election, ‖ the Court pronounced that
―even though the certificate of candidacy does not specifically ask the candidate for the number of
terms elected and served in an elective position, such fact is material in determining a candidate‘s
eligibility, and thus qualification for office.‖

The Court further stressed the characterization of the violation of the three-term limit as one
affecting the eligibility of a candidate saying that ―election to and service of the same local elective
position for three consecutive terms renders a candidate ineligible from running for the same position in
the succeeding elections.‖

On Lonzanida‘s disqualification based on his conviction, the Court stated that ―the
conviction of Lonzanida by final judgment, with the penalty of prision mayor, disqualifies him
perpetually from holding any public office, or from being elected to any public office.‖ The decision
also stressed the time when the disqualification attached to Lonzanida, saying that ―this perpetual
disqualification took effect upon the finality of the judgment of conviction, before Lonzanida filed
his certificate of candidacy.‖

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 Justice Carpio explained the PROCEDURAL EFFECT of the ruling, saying that “Perpetual
special disqualification is a ground for a petition under Section 78 of the Omnibus Election Code
because this accessory penalty is an ineligibility, which means that the convict is not eligible to run for
public office, contrary to the statement that Section 74 (OEC) requires him to state under oath in his
certificate of candidacy.”

The Court also stressed the COMELEC‘S LEGAL DUTY TO CANCEL THE CERTIFICATE
OF CANDIDACY OF ANYONE SUFFERING FROM PERPETUAL SPECIAL DISQUALIFICATION,
emphasizing that ―even without a petition under Section 78 of the Omnibus Election Code, the
COMELEC is under a legal duty to cancel the certificate of candidacy of anyone suffering from
perpetual special disqualification to run for public office by virtue of a final judgment of
conviction.‖

The Court explained that ―the final judgment of conviction is a judicial notice to the COMELEC
of the disqualification of the convict from running for public office.‖

Stressing that ―the law itself bars the convict from running for public office, and the
disqualification is part of the final judgment of conviction,‖ the Court explained that ―the final judgment
of the court is addressed not only to the Executive branch, but also to other government agencies tasked to
implement the final judgment under the law.‖

The Court further emphasized that ―whether or not the COMELEC is expressly mentioned in the
judgment to implement the disqualification, it is assumed that the portion of the final judgment on
disqualification to run for elective public office is addressed to the COMELEC because under the
Constitution the COMELEC is duty bound to ―enforce and administer all laws and regulations relative to
the conduct of the election.‖

What is the effect of disqualification of the candidate before and after election?

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. If for any reason 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 Commission 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. [Section 6, RA 6646 of the Electoral Reforms Law of 1987]

Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the
disqualification becomes final before the elections, which is the situation covered in the first sentence of
Section 6. The second is when the disqualification becomes final after the elections, which is the
situation covered in the second sentence of Section 6.

THE DOCTRINE ON THE REJECTION OF THE SECOND PLACER

Labo doctrine

A second placer who lost to an ineligible candidate cannot be proclaimed as the winner in the
elections because second placers are just that – second choices – they are not the choice of the electorate
therefore they are not entitled to sit whenever the winning candidate is eventually disqualified after the
election. The jurisprudential spring of this principle is Topacio vs. Paredes, 1912 case.
When the voters are well aware within the realm of notoriety of a candidate‘s disqualification and
still cast their votes in favor of said candidate, then the eligible candidate obtaining the next highest
number of votes may be deemed elected [Labo]

The ineligibility (or disqualification) of a candidate receiving the majority of votes does not
entitle the eligible candidate receiving the next highest number of votes (second placer) to be declared
elected.

Except when:

a. The one who obtained the highest number of votes is disqualified AND

b. The electorate is fully aware in fact and in law of the candidate‘s disqualification so as to
bring such awareness within the realm of notoriety but would nonetheless cast their votes in
favor of the ineligible candidate (Grego vs. Comelec)

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Is the Labo doctrine still an applicable doctrine?

NO. The Labo doctrine has been overturned by the ruling of the SC in the case of MAQUILING
vs. COMELEC, G.R. No. 195649, April 16, 2013.

MAQUILING vs. COMELEC

FACTS OF THE CASE:

Rommel Arnado is a natural born Filipino citizen. Because of his subsequent naturalization as a
citizen of US, he lost his Filipino citizenship. Later on, he applied for repatriation under RA 9225 and
took the Oath of Allegiance to the Republic of the Philippines on July 10, 2008. On the same day, his
citizenship retention and re-acquisition was approved in an Order of Approval issued in his favor. On
April 3, 2009, he again took his Oath of Allegiance to the Republic and executed an Affidavit of
Renunciation of his foreign citizenship. On November 30, 2009, Arnado filed his COC for Mayor of
Kauswagan, Lanao del Norte. On April 28, 2010, Linog C. Balua filed a petition to disqualify Arnado
and/or to cancel his COC for municipal mayor of Kauswagan, LDN in connection with the May 2010
elections on the ground that Arnado is not a resident of Kauswagan and that he is a foreigner as
inferred from his continued use of his US passport after his Affidavit of Renunciation submitting
evidences therefor. After Arnado failed to answer the petition, Balua moved to declare him in default
and to present evidence ex parte. Neither motion was acted upon, having been overtaken by the 2010
elections.

Arnado garnered the highest number of votes and was subsequently proclaimed winning
candidate for Mayor. It was only after his proclamation that Arnado filed his verified answer.

Ruling of Comelec First Division: Instead of treating the Petition as an action for the
cancellation of a COC based on misrepresentation, the Comelec first division considered it as one for
disqualification and held that although Arnado appears to have substantially complied with the
requirements of RA 9225, Arnado‘s act of consistently using his US passport after renouncing his US
citizenship on April 3, 2009 effectively negated his Affidavit of Renunciation. It granted the petition for
disqualification and/or to cancel COC, and annulled the proclamation of Arnado. It also applied the order
of succession under Section 44 of the LGC of 1991.

MR of Arnado in the Comelec en banc, Motion for intervention of Maquiling. Maquiling,

another candidate for Mayor who garnered the second highest number of votes in the 2010 elections,
intervened in the case and before the Comelec en banc an MR together his opposition to the Amended
MR of Arnado. Maquiling argued that while the Comelec first division correctly disqualified Arnado, the
order of succession under Section 44 of the LGC is not applicable in this case. He claimed that the
cancellation of Arnado‘s candidacy and the nullification of his proclamation, Maquiling, as the legitimate
candidate who obtained the highest number of lawful votes, should be proclaimed as the winner.

Ruling of the Comelec en banc: As to Maquiling‘s intervention, the Comelec en banc cited
Section 6 of RA 6646 which allows intervention in proceedings for disqualification even after elections if
no final judgment has been rendered, but went on further to say that Maquiling, as the second placer,
would not be prejudiced by the outcome of the case as it agrees with the dispositive portion of the
Resolution of the First Division allowing the order of succession under Section 44 of the LGC to take
effect, and the treatment of the petition as one for disqualification. However, the Comelec en banc
reversed and set aside the ruling of the First Division and granted Arnado‘s MR (reversed ruling of first
division: although Arnado appears to have substantially complied with the requirements of RA 9225,
Arnado’s act of consistently using his US passport after renouncing his US citizenship on April 3, 2009
effectively negated his Affidavit of Renunciation. It granted the petition for disqualification and/or to
cancel COC, and annulled the proclamation of Arnado).

Maquiling then filed the petition questioning the propriety of declaring Arnado qualified to run
for public office despite his continued use of a US passport, and praying that he be declared as the winner
in the mayoralty race, claiming that the COMELEC committed reversible error in ruling that ―the
succession of the vice mayor in case the respondent is disqualified is in order.‖

ISSUES:
Whether or not intervention is allowed in a disqualification case
Intervention of a rival candidate in a disqualification case is proper when there has not yet been
any proclamation of the winner.

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 The SC cited Mercado vs. Manzano which clarified the right of intervention in a disqualification
case in this wise:

That petitioner had a right to intervene at that stage of the proceedings for the disqualification
against private respondent is clear from Section 6 of RA No. 6646, otherwise known as the Electoral
Reforms Law of 1987, which provides:

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. If for any
reason 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 Commission 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.

Under this provision, intervention may be allowed in proceedings for disqualification even
after election if there has yet been no final judgment rendered.

Does the use of a foreign passport after renouncing foreign citizenship amount to undoing a
renunciation earlier made or does the use of a foreign passport after renouncing foreign citizenship
affects one‘s qualification to run for public office?

The use of a foreign passport after renouncing one‘s foreign citizenship is a positive and
voluntary act of representation as to one‘s nationality and citizenship; it does not divest Filipino
citizenship regained by repatriation but it recants the Oath of Renunciation required to qualify one to run
for an elective position.

We agree with the Comelec en banc that such act of using a foreign passport does not divest
Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing himself
as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a dual citizen.
Such reversion was not retroactive; it took place the instant Arnado represented himself as an American
citizen by using his US passport.

This act of using foreign passport after renouncing one‘s foreign citizenship is fatal to Arnado‘s
bid for public office, as it effectively imposed on him a disqualification to run for an elective public
position.

―Arnado‘s category of dual citizenship is that by which foreign citizenship is acquired through a
positive act of applying for naturalization. This is distinct from those considered dual citizens by virtue
of birth, who are not required by law to take the oath of renunciation as the mere filing of the certificate
of candidacy carries with it an implied renunciation of foreign citizenship. [see Cordora vs. Comelec,
2009] Dual citizens by naturalization, on the other hand, are required to take not only the Oath of
Allegiance to the Republic of the Philippines but also to personally renounce foreign citizenship in order
to qualify as a candidate for public office.‖

By the time he filed his COC on 30 November 2009, Arnado was a dual citizen enjoying the
rights and privileges of Filipino and American citizenship. He was qualified to vote, but by the express
disqualification under Section 40(d) of the LGC, he was not qualified to run for a local elective position.

We therefore hold that Arnado, by using his US passport after renouncing his American
citizenship, has recanted the same Oath of Renunciation he took. Section 40(d) of the LGC applies to his
situation. He is disqualified not only from holding the public office but even from becoming a candidate
in the May 2010 elections.

Whether or not the rule on succession in the LGC is applicable to this case.

Resolving the third issue necessitates revisiting Topacio vs. Paredes, [1912 case] which is the
jurisprudential spring of the principle that a second placer cannot be proclaimed as the winner in an
election contest. X x x The often-quoted phrase in Topacio vs. Paredes is that ―the wreath of victory
cannot be transferred from an ineligible candidate to any other candidate when the sole question is the
eligibility of the one receiving a plurality of the legally cast ballots.‖
This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing
―the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in
the elections x x x [with] that produced by declaring a person ineligible to hold such an office.‖

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 On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis
to stand on. It was a mere pronouncement of the Court comparing one process with another and
explaining the effects thereof. As an independent statement, it is even illogical.

Let us examine the statement: ―x x x the wreath of victory cannot be transferred from an
ineligible candidate to any other candidate when the sole question is the eligibility of the one
receiving a plurality of the legally cast ballots.‖

What prevents the transfer of the wreath of victory from the ineligible candidate to another
candidate?

When the issue being decided upon by the Court is the eligibility of the one receiving a plurality
of the legally cast ballots and ineligibility is thereafter established, what stops the Court from adjudging
another eligible candidate who received the next highest number of votes as the winner and bestowing
upon him that ―wreath‖?

Concerning the disqualification of candidates that may only be finally settled after elections, the SC
held:

The popular vote does not cure the ineligibility of a candidate. The ballot cannot override the
constitutional and statutory requirements for qualifications and disqualifications of candidates. When the
law requires certain qualifications to be possessed or that certain disqualifications be not possessed by
persons desiring to serve as elective public officials, those qualifications must be met before one even
becomes a candidate. When a person who is not qualified is voted for and eventually garners the highest
number of votes, even the will of the electorate expressed through the ballot cannot cure the defect in the
qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very law that
sets forth the qualifications and disqualifications of candidates. We might as well write off our election
laws if the voice of the electorate is the sole determinant of who should be proclaimed worthy to occupy
elective positions in our republic.‖

―It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring
that its exercise respects the rule of law. To allow the sovereign voice spoken through the ballot to trump
constitutional and statutory provisions on qualifications and disqualifications is not democracy or
republicanism. It is electoral anarchy. When set rules are disregarded and only the electorate‘s voice
spoken through the ballot is made to matter in the end, it precisely serves as an open invitation for
electoral anarchy to set in.‖

Maquiling is not a second placer as he obtained the highest number of votes from among the
qualified candidates.

With Arnado‘s disqualification, Maquiling then becomes the winner in the election as he obtained
the highest number of votes from among the qualified candidates.

We have ruled in the recent cases of Aratea vs. Comelec and Jalosjos vs. Comelec that a void
COC cannot produce any legal effect. Thus, the votes cast in favor of the ineligible candidate are not
considered at all in determining the winner of an election.

Even when the votes for the ineligible candidate are disregarded, the will of the electorate is
still respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute
the sole and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate
candidates form part of that voice and must also be respected.

As in any contest, elections are governed by rules that determine the qualifications and
disqualifications of those who are allowed to participate as players. When there are participants who turn
out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does not
possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as
candidates.

NOTA BENE: ―[t]here is no need to apply the rule cited in Labo vs. Comelec that when the
voters are well aware within the realm of notoriety of candidate‘s disqualification and still cast their
votes in favor of said candidate, then eligible candidate obtaining the next higher number of votes may be
deemed elected. That rule is also a mere obiter that further complicated the rules affecting qualified
candidates who placed second to ineligible ones.

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 The electorate‘s awareness of the candidate‘s disqualification is not a pre-requisite for the
disqualification to attach to the candidate. The very existence of a disqualifying circumstance makes
the candidate ineligible. Knowledge by the electorate of a candidate‘s disqualification is not
necessary before a qualified candidate who places second to a disqualified one can be proclaimed as
the winner. The second-placer in the vote count is actually the first-placer among the qualified
candidate.‖

CAYAT VS. COMELEC, exception to the Doctrine of Rejection of the Second Placer

On Palileng’s Proclamation

There is no doubt as to the propriety of Palileng‘s proclamation for two basic reasons.

First, the COMELEC First Division‘s Resolution of 12 April 2004 cancelling Cayat‘s certificate
of candidacy due to disqualification became final and executory on 17 April 2004 when Cayat failed to
pay the prescribed filing fee. Thus, Palileng was the only candidate for Mayor of Buguias, Benguet in
the 10 May 2004 elections. Twenty–three days before election day, Cayat was already disqualified
by final judgment to run for Mayor in the 10 May 2004 elections. As the only candidate, Palileng
was not a second placer. On the contrary, Palileng was the sole and only placer, second to none. The
doctrine on the rejection of the second placer, which triggers the rule on succession, does not apply
in the present case because Palileng is not a second-placer but the only placer. Consequently,
Palileng‘s proclamation as Mayor of Buguias, Benguet is beyond question.

Second, there are specific requirements for the application of the doctrine on the rejection of the
second placer. The doctrine will apply in Bayacsan‘s favor, regardless of his intervention in the present
case, if two conditions concur: (1) the decision on Cayat‘s disqualification remained pending on
election day, 10 May 2004, resulting in the presence of two mayoralty candidates for Buguias, Benguet
in the elections; and (2) the decision on Cayat‘s disqualification became final only after the elections.

LABO vs. COMELEC, Doctrine on the Rejection of the Second Placer.

In Labo there was no final judgment of disqualification before the elections. The doctrine on the
rejection of the second placer was applied in Labo and a host of other cases because the judgment
declaring the candidate‘s disqualification in Labo and the other cases had not become final before
the elections.

To repeat, Labo and the other cases applying the doctrine on the rejection of the second
placer have one common essential condition — the disqualification of the candidate had not become
final before the elections. This essential condition does not exist in the present case.

Thus, in Labo, Labo‘s disqualification became final only on 14 May 1992, three days after the 11
May 1992 elections. On election day itself, Labo was still legally a candidate. In the present case, Cayat
was disqualified by final judgment 23 days before the 10 May 2004 elections. On election day, Cayat
was no longer legally a candidate for mayor. In short, Cayat‘s candidacy for Mayor of Buguias, Benguet
was legally non-existent in the 10 May 2004 elections.

The law expressly declares that a candidate disqualified by final judgment before an election
cannot be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law.
Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states:

Sec. 6. Effect of Disqualification Case.— 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.
If for any reason 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
Commission 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.
(Emphasis added)

Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the
disqualification becomes final before the elections, which is the situation covered in the first sentence of
Section 6. The second is when the disqualification becomes final after the elections, which is the
situation covered in the second sentence of Section 6.

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 The present case falls under the first situation. Section 6 of the Electoral Reforms Law
governing the first situation is categorical: a candidate disqualified by final judgment before an
election cannot be voted for, and votes cast for him shall not be counted. The Resolution
disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all
the 8,164 votes cast in Cayat‘s favor are stray. Cayat was never a candidate in the 10 May 2004
elections. Palileng‘s proclamation is proper because he was the sole and only candidate, second to none.

Labo involved the second situation covered in the second sentence of Section 6 of the Electoral
Reforms Law. In Labo, the Court applied the second sentence of Section 6, and even italicized the
second sentence for emphasis.
A perusal of the above provision would readily disclose that the Comelec can legally suspend the
proclamation of petitioner Labo, his reception of the winning number of votes notwithstanding, especially
so where, as in this case, Labo failed to present any evidence before the Comelec to support his claim of
reacquisition of Philippine citizenship. (Italicization in the original)

Cayat‘s proclamation on 12 May 2004 is void because the decision disqualifying Cayat had
already become final on 17 April 2004. There is no longer any need to ascertain whether there was
actual knowledge by the voters of Cayat‘s disqualification when they cast their votes on election day
because the law mandates that Cayat‘s votes ―shall not be counted.‖ There is no disenfranchisement of
the 8,164 voters. Rather, the 8,164 voters are deemed by law to have deliberately voted for a non-
candidate, and thus their votes are stray and ―shall not be counted.‖

To allow a candidate disqualified by final judgment 23 days before the elections to be voted
for and have his votes counted is a blatant violation of a mandatory provision of the election law. It
creates confusion in the results of the elections and invites needless new litigations from a candidate
whose disqualification had long become final before the elections. The doctrine on the rejection of
the second placer was never meant to apply to a situation where a candidate‘s disqualification had
become final before the elections.

In short, the COMELEC First Division Resolution of 12 April 2004 cancelling Cayat‘s certificate
of candidacy, on the ground that he is disqualified for having been sentenced by final judgment for an
offense involving moral turpitude, became final on 17 April 2004. This constrains us to rule against
Cayat‘s proclamation as Mayor of Buguias, Benguet. We also rule against Bayacsan‘s petition-in-
intervention because the doctrine on the rejection of the second placer does not apply to this case.

DECLARATION OF FAILURE OF ELECTION

Who has the sole authority to postpone, declare failure of, and call special election?
COMELEC en banc has sole authority to postpone, declare failure of, and call special election.

What are the prerequisites for declaring failure of election?

A petition for annulment or declaration of failure of election may be filed at any time before
proclamation.
The pre-conditions for declaring failure of election are:
1. That no voting has been held in any precinct or precincts because of force majeure, violence or
terrorism, or even if there was voting, the election nevertheless resulted in a failure to elect; and
2. That the votes not cast therein are sufficient to affect the results of the elections.
The concurrence of these two circumstances is required to justify the calling of a special
election.
The cause of such failure of election must be any of the following: force majeure, violence,
terrorism, fraud, or other analogous causes. Such causes may occur before or after the casting of votes
or on the day of the election.

What are the three instances when the COMELEC may declare a failure of election and call for the
holding of special election?
First, when the election in any polling has not been held on the date fixed on account of force
majeure, violence, terrorism, fraud or other analogous cases.
Second, when the election in any polling place had been suspended before the hour fixed by law
for the closing of the voting.
And third, after the voting and during the preparation and the transmission of the election returns
or in the custody or canvass thereof, such election results in a failure to elect.

What is common to the above three instances is the resulting failure to elect. The failure to elect
must be understood in its literal sense, which is that nobody was elected. [Pasandalan vs.
Comelec]

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Does a very low turnout of voters in certain precincts justify a declaration of a failure of election?
No, as the results thereof cannot be disregarded but must be respected. All the law requires is that
a winning candidate must be elected by a plurality of valid votes. [Mitmug vs. Comelec]

Is the power to call for the holding of special elections inherent upon the Commission?
Comelec has NO power to call for the holding of special elections UNLESS pursuant to a specific
statutory grant…The power to fix the date of elections is essentially legislative in nature. [Datu Michael
Abas Kida, et. al vs. Senate of the Philippines, et. al, October 18, 2011]

PRE-PROCLAMATION CONTROVERSY

What is a pre-proclamation controversy?

It refers to the proceedings of the board of canvassers which may be raised by any candidates or
by any registered political party or coalition of political parties, or by any accredited and participating
party list group, before the board or directly with the Commission. [Sec. 1, Rule 3, Comelec Resolution
No. 8804, as amended by Comelec Resolution No. 9164, March 22, 2010]

What is the intent in the concept of pre-proclamation controversy?

Intended to prevent the nefarious practice known as ―grab-the-proclamation, prolong-the-protest‖
[Abayon vs. Comelec and Daza, Nachura dissenting opinion]

What is the extent or scope of this concept in relation to national elective officials?
In elections for President, Vice President, Senators and Members of the House of
Representatives, the general rule still is that pre-proclamation cases on matters relating to the preparation,
transmission, receipt, custody and appreciation of election returns or certification of canvass are still
prohibited.

What are the issues which may be raised?

In Sec. 1, Rule 3, Comelec Resolution No. 8804 [March 22, 2010], a pre-proclamation
controversy covers only two issues:

1. Illegal composition of the Board of Canvassers;

2. Illegal proceedings of the BOC.
It exists when the canvassing is a sham or mere ceremony, the results of which are pre-
determined and manipulated as when any of the following circumstances are present:
a. Precipitate canvassing;
b. Terrorism;
c. Lack of sufficient notice to the members of the BOC‘s; or
d. Improper venue (Sec. 2, Rule 4)

What is the basis of canvass in the automated election system?

The basis of the canvass shall be the electronically transmitted results (Sec. 21 of RA
8436 as amended by Section 20, RA 9369)

What is the nature of canvassing?

It is summary, expeditious, and ministerial.

LAGUMBAY DOCTRINE: Statistical improbability.

Where there exists uniformity of tallies in favor of candidates belonging to one party and
the systematic blanking out of the opposing candidates, as when all the candidates of one party
received all the votes, each of whom exactly the same number, and the opposing candidates got
zero votes, the election returns are obviously are obviously manufactured, contrary to all
statistical probabilities, and utterly improbable and clearly incredible. [Lagumbay vs. Comelec,
1966]

Qualification of the rule on statistical improbability

The thrust of all subsequent cases is to restrict the doctrine of the Lagumbay case to the
unique uniformity of tally in favor of candidates belonging to one party and the systematic
blanking out of the opposing candidates in the same locality, such as to make the fraud palpable
from the return itself and there is no reason to accept it and give it prima facie value and leading
to no other reasonable conclusion than that the returns were obviously manufactured because they
were utterly improbably and clearly incredible as to win the sweepstakes ten (10) times. [Ilarde
vs. Comelec; Simguat vs. Pendatum]

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ELECTION CONTESTS

JURISDICTION OVER ELECTION CONTESTS

Original and Exclusive:
1. President and Vice President: Supreme Court en banc
2. Senator: Senate Electoral Tribunal
3. Representative: House of Representatives Electoral Tribunal
4. Regional/Provincial/City: COMELEC
5. Municipal: Regional Trial Court
6. Barangay/SK: Municipal Trial Court

Appellate Jurisdiction:
1. For decisions of Regional Trial Court and Municipal Trial Court
 Appeal exclusively to COMELEC
 COMELEC decision shall be final and executory. EXCEPTION: When decision is marred by
grave abuse of discretion, may be filed with the Supreme Court by way of special civil action for
certiorari. (Galido vs. Comelec; Alvarez vs. COMELEC)
2. For decisions of COMELEC
 Petition for review by certiorari under Rule 65 with Supreme Court within 30 days from receipt
of decision on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction
or violation of due process
3. For decisions of Electoral Tribunal
 Petition for review by certiorari with the Supreme Court on the ground of grave abuse of
discretion amounting to lack or excess of jurisdiction or violation of due process.

JURISDICTION OVER ELECTION OFFENSES

COMELEC has exclusive jurisdiction to investigate and prosecute cases INVOLVING
VIOLATIONS OF ELECTION LAWS (Sec. 2(6), Art. IX-C, COnstitution);
a. But COMELEC may delegate the power to the Provincial Prosecutor (People vs. Judge
Basilia);
b. It is not the duty of the COMELEC, as investigator and prosecutor to gather proof in support
of a complaint filed before it (Kilosbayan vs. COMELEC);
c. The Ombudsman or Prosecutor may only prosecute election offenses if deputized by the
COMELEC.

KINDS OF CONTEST
1. Election Protest
a. May be filed by any candidate who has filed a certificate of candidacy and has been voted upon
for the same office
b. Grounds:
1. Fraud;
2. Terrorism;
3. Irregularities; or
4. Illegal acts committed before, during, or after the casting and counting of votes
c. Time to file: within 10 days from proclamation of the results of the election.
 It is suspended during the pendency of a pre-proclamation controversy.
 It should be decided within 15 days from filing in case of barangay officials.
2. Quo warranto (Section 253, OEC)
a. Filed by any registered voter in the constituency
b. Grounds:
1. Ineligibility;
2. Disloyalty to the Republic
c. Time to file: within 10 days from proclamation of the results of the election.

DISTINCTIONS BETWEEN QUO WARRANTO IN ELECTIVE AND APPOINTIVE OFFICE

a. In an elective office, the issue is eligibility; the court or tribunal cannot declare the protestant or the
candidate who obtained the second highest number or votes as having been elected.
b. In an appointive office, the issue is the legality of the appointment; the court or tribunal determines
who of the parties has legal title to the office.

LAW ON PUBLIC CORPORATIONS

What is meant by autonomy in general and in Philippine context?

The word autonomy comes from the Greek word autonomos – to live under one’s own laws. It is
the state of independence or the power of self-government. The rationale of autonomy is that the
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 subject has the power to determine its own destiny. Such is the philosophical underpinning of this
concept.
We can, thus, define local autonomy as the power of local government units to enjoy limited
self-government. In the Philippine context, it is the shift of the responsibilities and powers of
governance (albeit limited in character) from the national government to the thousands of LGUs all
over the archipelago. [Pimentel]

What is the principle of local autonomy under the 1987 Constitution?

The principle of local autonomy under the 1987 Constitution simply means ―decentralization‖, it
does not make the local governments sovereign within the state or an imperium in imperio [Basco vs.
Pagcor]

DELETERIOUS EFFECTS OF HIGHLY CENTRALIZED GOVERNMENT

QUESTION: What are some of the deleterious effects of a highly centralized government?
*A highly centralized government perpetuates the culture of dependence among local
government leaders upon the national leadership. That culture of dependence, with very few exceptions,
has dampened the spirit of initiative, innovation and imaginative resilience in matters of development
among local government leaders. [Pimentel]
*Concentration of power in the hands of a select few leads to the continuing marginalization of
the countryside.

RATIONALE OR PURPOSE OF LOCAL AUTONOMY

QUESTION: What is the reason or purpose behind the policy that the State shall guarantee and
promote the autonomy of local government units?
The State shall guarantee and promote the autonomy of local government units, especially the
barrio, to assure their fullest development as self-reliant communities. [Rebuco vs. Villegas] and
make them more effective partners in the attainment of national goals.
Toward this end, the State shall provide for [local autonomy signifies] a more responsive and
accountable local government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and resources.

Does being a self-reliant community mean that the LGU is supposed to address local needs without
relying heavily on the national government?

Ideally, yes. A self-reliant community is supposed to address local needs without relying heavily
on the national government. But there are circumstances where self-reliant communities have to look
upon the national government to meet local needs. Example: Tacloban City in the aftermath of Yolanda
super typhoon.
Summary:
In sum, ―local autonomy‖ refers to the degree of self-determination exercised by local
government units vis-à-vis the central government. To achieve local autonomy, a system of
―Decentralization‖ is a pre-requisite. And, to effect this system of decentralization, a process called
―Devolution‖ is applied. But when the process involves the transfer of functions from national office to
regional and local offices, and not to local governments, involving administrative functions, it is properly
called ―deconcentration.‖ [Largo, p. 28]

QUESTION: Does the devolution to LGUs under the LGC vary in degree?
Yes. The basic services and facilities are allocated to the barangay, the municipality, the city and
the province in varying degrees of devolution.

DEFINITION, NATURE, AND FUNCTIONS OF LOCAL GOVERNMENT

What is a local government?

It is ―a political subdivision of a nation or state which is constituted by law and has substantial
control of local affairs.‖ [Basco vs. Pagcor]

It ―refers to the political subdivisions established by or in accordance with the Constitution.‖

[Sec. 2(3), EO 292, Series of 1987]

Is the Autonomous Region in Muslim Mindanao a local government?

Yes. [Kida vs. Senate]

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 What is the nature of LGUs?
A Local Government Unit 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
one sovereign nation, but not intended, however, to be an imperium in imperio, the local government
unit is autonomous in the sense that it is given more powers, authority, responsibilities and
resources.

QUESTION: Is the establishment of local government structure in our political system a constitutional
mandate?
Yes.
Section 1, Article X provides that ―the territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in
Muslim Mindanao and the Cordilleras as hereinafter provided.‖
Section 3: ―The Congress shall enact a Local Government Code which shall provide for a more
responsive and accountable local government structure instituted through a system of decentralization
with effective mechanisms of recall, initiative, and referendum, allocate among the different local
government units their powers, responsibilities, and resources, and provide for the qualifications, election,
appointment and removal, term, salaries, powers and functions and duties of local officials, and all other
matters relating to the organization and operation of the local units.‖

QUESTION: Does the LGC recognize a dual functions of municipal corporations?

Yes. Every local government unit created or organized [under the LGC] 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]
Accordingly, it has dual functions, namely:
a. Public or governmental.
It acts as an agent of the State for the government of the territory and the inhabitants;

QUESTION: What makes a function of a local government governmental?

The governmental function of a local government involves the administration of
the power of the State and promoting the public welfare. [Largo, p. 15, with citation]
Cites examples:
 Passage of traffic ordinances;
 Maintenance of peace and order;
 Other regulatory measures.

QUESTION: Is the defense of the local government a governmental function of the local
government? (2013 Zamboanga Crisis)

b. Private or propriety.
It acts as an agent of the community in the administration of local affairs. As such, it
acts as a separate entity, for its own purposes, and not as a subdivision of the State (Bara
Lidasan vs. Comelec);

QUESTION: What makes a function of a local government proprietary?

The proprietary function of a local government is exercised for the special benefit
and advantage of the community and for the attainment of their collective needs.[Largo,
p. 15, with citation]
Cite examples:
 Maintenance of parks;
 Maintenance of cemeteries;
 Fiesta celebrations.
QUESTION: What is the importance of distinguishing between the dual functions of local government
units?
The importance is exemplified in at least two instances:
a. In the liability of municipalities for their acts and those of their officers;
Example: Municipality of San Fernando, La Union vs. Judge Fermi
b. In the extent of legislative control over the same. [Largo, p.15 citing Aruego]

QUESTION: Who is the principal of local governments? Congress.

CREATION, CONVERSION, and DISSOLUTION OF MUNICIPAL CORPORATIONS; REQUISITES

AND LIMITATIONS
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QUESTION: What does the Constitution has to say on the creation, division, merger, or abolition of
political subdivisions?

Section 10, Article X:

―No province, city, municipality, or barangay shall 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.‖

QUESTION: May Congress enact a law other than a local government code setting forth these
criteria?
No because the Constitution itself prohibits Congress from enacting any other law, other than a
law called ―local government code‖ setting forth these criteria. [Largo, p. 36]

What branch of government has the authority to create LGUs?

The power to create LGUs is legislative. In Pelaez vs. Auditor General, the SC ruled that the
authority to create municipal corporations is essentially legislative in nature.

Section 6, LGC:

―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 within its territorial jurisdiction, subject to such
limitations and requirements prescribed in this Code.‖

QUESTION: May Congress validly delegate (Sec. 19, RA 9054) to the ARMM Regional Legislative
Assembly the power to create provinces, cities, municipalities, and barangays within the ARMM?

Sema vs Comelec

There is no provision in the Constitution that conflicts with the delegation to regional legislative
bodies of the power to create municipalities and barangays, provided Sec 10, Article X of the Constitution
is followed. However, the creation of provinces and cities is another matter. Sec. 5(3), Art. VI provides
that each city with a population of at least 250,000 or each province, shall have at least one
representative. Consequently, a province cannot be created without creating a legislative district nor can
a city with a population of 250,000 or more be created without a legislative district. Thus, the power to
create a province or a city with a population of 250,000 or more requires the power to create
legislative district which cannot be validly delegated by Congress.

Congress cannot validly delegate to the ARMM Regional Assembly the power to create
legislative districts, nothing in Sec. 20, Art. X of the Constitution authorizes autonomous regions,
expressly or impliedly, to create or reapportion legislative districts. The power to increase the allowable
membership in the HOR and to reapportion legislative districts is vested exclusively in Congress.
Accordingly, Sec. 19, Art. VI of RA 9054 granting the ARMM Regional Assembly the power to create
provinces and cities is void for being contrary to Sec. 5, Art. VI, and Sec. 20, Art. X, as well as Sec. of the
Ordinance appended to the Constitution.

[Here the Regional Legislative Assembly of ARMM created a new province (Sharif Kabunsuan).
They elected their own Congressman. The law (MMA 201) enacted by the Regional Assembly of
ARMM creating the Province of Sharif Kabunsuan was declared unconstitutional. Why? Because
the power to create provinces and cities is inherently legislative. Now, may it be delegated to local
legislative bodies or regional assemblies? NO. When the ARMM Regional Assembly created the
province of Sharif Kabunsuan, in effect, it also created a legislative district for that province alone.
That is not allowed because only Congress may create a new legislative district. Besides it is absurd,
said the SC, for an inferior legislative body to create a national office of a Congressman.] (Sandoval
notes)

This textual commitment to Congress of the exclusive power to create or reapportion legislative
districts is logical. Congress is a national legislature and any increase in its allowable membership or in
its incumbent membership through the creation of legislative districts must be embodied in a national law.
Only Congress can enact such a law. It would be anomalous for regional or local legislative bodies to
create or reapportion legislative districts for national legislature like Congress. An inferior

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 legislative body created by a superior legislative body cannot change the membership of the
superior legislative body.

QUESTION: Assuming that Congress is not functioning, may the President create local
governments?

No. In view of the phrase ―enacted by Congress‖, the President cannot create local governments
even in a situation where Congress is not functioning. [see Largo, p. 45]

But it is the opinion of Jose M. Aruego (Author, The Law on Municipal Government in the
Philippines [1968]) that while Congress cannot delegate to any other agency the power to create local
areas of local governments, the same may, perhaps be delegated to the President in the exercise of
emergency powers under the Constitution.

QUESTION: Now, under Sec. 6 of the LGC, in case of creation of a barangay, this maybe done
through an ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod
concerned. Does this preclude the creation of a barangay by an ACT OF CONGRESS?

Not necessarily. In fact, under Section 386 of the LGC, Congress retained the power to create
barangays in indigenous cultural communities to ―enhance the delivery of basic services‖ and in
municipalities within Metropolitan Manila Area (as provided in Article 14 of the Implementing Rules)
because there is no Sangguniang Panlalawigan to discharge that duty in behalf of the said municipalities.
[See Largo, p. 45]

VERIFIABLE INDICATORS OF VIABILITY AND PROJECTED CAPACITY TO PROVIDE

SERVICES

What are the verifiable indicators of viability and projected capacity to provide services?

1. Income.
It 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, as expected of the local government unit concerned;

Question: Should the IRAs be included in the computation of the average annual income as
a requirement for the creation of local government units or for their conversion into higher
local government units? Why?

IRAs should be included in the computation of the average annual income as a

requirement for the creation of local government units since IRAs are actually items of income
which the local government can invariably rely upon as the source of much needed funds.
However, under RA 9009, in the case of conversion of a municipality into a city or a cluster of
barangays to be formed into new component city, IRAs are no longer included in the computation
of the annual income for purposes of complying with the income requirement.

2. Population.
It shall be determined as the total number of inhabitants within the territorial
jurisdiction of the local government unit concerned;

3. Land area.
It must be contiguous, unless it comprises two or more islands or is separated by a local
government unit independent of the others; properly identified by metes and bounds with
technical descriptions; ad sufficient to provide such basic services and facilities to meet the
requirements of its populace. [Sec. 7, LGC]

Question: Let us assume that the Malungkot community is proposed to be created as a

municipality. Malungkot has a population of at least 25,000 inhabitants and its annual
income is compliant with the requirement of the LGC. But the land area of Malungkot is
only 40 square kilometers. May Malungkot community be validly created as a municipality
in view of the land area requirement for municipalities which is at least 50 sq. kms?

As a rule, the requirements of the LGC of 1991 on income, population, and land
area must all be complied with for the creation of municipalities. Hence, considering that the
land area of Malungkot community falls short of the minimum land area requirement which is at
least 50 sq. kms, Malungkot may not be validly created as a municipality. However, if Malungkot

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 community is actually an island, then it may be validly created as a municipality notwithstanding
that it does not meet the minimum land area requirement because under the LGC of 1991, the
requirement on land area shall not apply where the municipality proposed to be created is
composed of one (1) or more islands.

What department or office shall attest compliance with said indicators?

Department of Finance, National Statistics Office, and the Lands Management Bureau of DENR,
respectively.

PROVINCE OF DINAGAT ISLANDS IN SURIGAO DEL NORTE

Rodolfo G. Navarro vs. Executive Secretary Ermita
G.R. No. 180050, February 10, 2010.

FACTS:
The creation of the Province of Dinagat Islands complied with the income requirement BUT
failed to officially comply with the land area and population requirements for the creation of
provinces set forth in the LGC of 1991. In other words, the population and land area of the proposed
Province of Dinagat Islands were short of the requirements which are (1) at least 250,000 inhabitants for
the population, and (2) at least 2000 sq. kms. for the land area. Now, for the creation of a province, you
have Section 461(a) of the LGC which provides for requisites for creation:

―A province may be created if it has an average annual income, as certified by

the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based
on 1991 constant prices and either of the following requisites:

i. a contiguous territory of at least two thousand (2,000) square kilometers, as

certified by the Lands Management Bureau; or
ii. a population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the National Statistics Office.‖

The problem was, the creation of the Province of Dinagat Islands failed to comply with any of the
population and land area requirements. In other words, the Province of Dinagat Islands has to comply
with the annual income requirement, which it did, PLUS either of the land area or population
requirement.

Now, the proponents for the creation of Dinagat islands as a separate province relied on the
provision of the IRR of the LGC of 1991, which provides in Article 9 thereof that: ―The land area
requirement shall not apply where the proposed province is composed of one (1) or more islands‖, a
provision which is not found in the LGC of 1991.

So obviously the proponents were asserting that because of Article 9 of the IRR implementing the
LGC of 1991, the land area requirement does not apply since the proposed province is composed of
islands.

QUESTION: Did the creation of the Province of Dinagat Islands validly comply with the land area
requirement for provinces under the LGC?

RULING:
In the first decision of the SC in 2010, the SC nullified Article 9 of the IRR on the ground that an
implementing rule cannot supplant nor add the statute it seeks to implement. There was a finding by the
SC that the IRR went beyond the criteria prescribed by Section 461 of the LGC of 1991 when it added:
―The land area requirement shall not apply where the proposed province is composed of one (1) or more
islands‖, for nowhere in the LGC is the said provision stated or implied. Under Section 461 of the LGC
of 1991, the only instance when the territorial or land area requirement need not be complied with
is when there is already compliance with the population requirement.

In 2011, the SC however reversed itself and found that that particular provision in the IRR is
within the spirit of the law and intent of the framers of the LGC of 1991. The SC reasoned that since the
LGC also exempts a municipality or a component city from complying with the land area requirement
when it consists of one (1) or more islands, there is no ―rhyme or reason‖ why the same is not made
applicable to a province that also consists of one (1) or more islands. [Discussed in Largo, p. 56]

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SUMMARY OF POINTS:

As long as there is compliance with the income requirement, then compliance with either land
area or population requirement is sufficient in the conversion of a municipality or cluster of barangays
into a component city (Section 450 as amended by RA 9009) or the creation of a province (section 461,
LGC of 1991).

This does not apply to the creation of a municipality. For the creation of a municipality, the
income, land area, and population requirements have to be complied with (Section 442(a), LGC), except
if the municipality proposed to be created is composed of one (1) or more islands, in which case the land
area requirement does not apply [Section 442(b), LGC].
And then take note of Navarro vs. Ermita, (Province of Dinagat Islands case) which held that
Article 9 of the IRR of the LGC of 1991, which provides that: ―The land area requirement shall not apply
where the proposed province is composed of one (1) or more islands‖, a provision which is not found in
the LGC, is valid for it is within the spirit of the law and intent of the framers of the LGC of 1991.

PLEBISCITE REQUIREMENT
QUESTION: What is the plebiscite requirement in relation to the creation, division, merger, abolition
or substantial alteration of boundaries of LGUs? Is it mandatory?
By the plebiscite requirement, the validity and effectivity of the creation, division, merger,
abolition, or substantial alteration of boundaries of local government units are made subject to approval
by a majority of the votes cast in a plebiscite in the political units directly affected.
The 1987 Constitution specifically requires that a plebiscite should be held in order to lawfully
create a municipal corporation.
QUESTION: Is the plebiscite requirement absolute?
Yes, because the plebiscite requirement is mandatory under the Constitution. [Section
10, Article X, Constitution; Section 10, LGC of 1991]
QUESTION: What is the significance of the plebiscite requirement?
The plebiscite enables the registered voters of a locality affected by the creation, division,
merger, abolition or alteration of the boundaries of a local government unit to check the power
of Congress or of the local government unit concerned to carry out such actions. [Pimentel]

QUESTION: Is the conversion of an independent component city into a mere component city of a
province (downgrading) legally possible? MIRANDA VS. AGUIRRE, G.R. No. 133064, Sept. 16,
1999.
Yes, as held in Miranda vs. Aguirre.
FACTS of Miranda vs. Aguirre:
In 1998, Santiago City was converted from an independent component city to a mere
component city of the Province of Isabela by virtue of R.A. 8528. The constitutionality of R.A.
8528 was assailed on the ground of lack provision in that law submitting the same for ratification
by the people of Santiago City in a proper plebiscite.

FIRST QUESTION: Will the downgrading of Santiago City from an independent component city to a
mere component city require the approval of the people of Santiago City?

The answer to this question depended on the following issue:

ISSUE:
Whether or not the downgrading of Santiago City falls within the meaning of creation,
division, merger, abolition or substantial alteration of boundaries of municipalities as provided
for in Section 10, Art. X of the 1987 Constitution.
RULING:
Plebiscite was required. The SC observed that the common denominator in Section 10,
Article X of the 1987 Constitution is the material change in the political and economic rights
of the local government units directly affected as well as the people therein. It is precisely for
this reason that the Constitution requires the approval of the people in the political units ―directly
affected.‖ [Discussed in Largo, p. 46]

QUESTION: May a municipal corporation exist by prescription?

Yes. In Sultan Osop Camid vs. Office of the President, G.R. No. 161414, January 17, 2005,
the SC confirmed that municipal corporations may exist by prescription where it is shown that 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. [Cited in Largo, p.70]

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 QUESTION: For a municipal corporation by prescription, what is essential to be established?

What is clearly essential is a factual demonstration of the (1) continuous exercise by the
municipal corporation of its corporate powers, as well as the (2) acquiescence thereto by the other
instrumentalities of the state. [See Largo, p.70]

This means that a defective incorporation may be obviated and a de facto unit rendered de jure by
subsequent legislative recognition or validation by the State. [Lardo, p. 74]

In the case of Sultan Osop Camid vs. Office of the President, the SC cautioned that Section
442(d) of the LGC which provides that: ―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‖, does not apply to just any municipality.

But where the executive order creating the municipality has already been annulled by the SC like
in:

Pelaez vs. Auditor General where the SC denied the President the power to create a local
government unit for being essentially legislative thus declaring as unconstitutional the executive orders of
the President which created certain municipalities;

And where the alleged continued exercise of powers has not been factually established in a trial,
Section 442(d) of the LGC cannot be applied. [See Largo, p.72]

ABOLITION

QUESTION: When and how may abolition of LGUs be done?

Section 9, LGC:

―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 sangguinian 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.‖

Abolition may be done through an act of Congress in the case of a province, city, municipality,
or any other political subdivision. In the case of barangay, it may be done by the Sangguiniang
Panlalawigan or Sangguiniang Panlungsod concerned.

QUESTION: Is a local government unit ipso facto dissolved or abolished when it suffers irreversible
reduction to less than the minimum standards required by law?

No. A local government is NOT ipso facto dissolved or abolished when it suffers irreversible
reduction to less than the minimum standards required by law. Such condition is only a ground for
dissolution or abolition. Accordingly, a further act, law or ordinance, is still required to effect abolition.
[See Largo, p.62 citing DILG Opinion 17, series of 2006]

BEGINNING OF CORPORATE EXISTENCE

QUESTION: When does the CORPORATE EXISTENCE of a newly created LGU begin?

―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:

QUESTION: Explain the provision of Section 14 of the LGC on the beginning of corporate existence?

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 This means that the beginning of corporate existence is that time fixed by the law or ordinance
creating the local government unit. If the law or ordinance is silent as to the time of the beginning of
corporate existence, the corporate existence is deemed to begin upon the election and qualification of the
local chief executive and majority of the sanggunian members. [See Largo, p. 66]

QUESTION: May the corporate existence of a newly created local government unit legally begin even
before the election and qualification of the local chief executive and majority of the members of the
legislative body?

The corporate existence of a newly created local government unit may now legally begin even
before the election and qualification of the local chief executive and majority of the legislative body when
the law or ordinance so provides in view of Section 14 of the LGC.

QUESTION: What is the rationale for the requirement for the election and qualification of the local
chief executive and majority of the sanggunian members for the beginning of corporate existence of
the LGU created?

This rationale is that the LGU created can only legally transact business if there is a quorum in
the sanggunian which means majority of its members, and a local chief executive to represent the LGU.

May a local government unit transact business without officials?

Since a city is a public corporation or juridical entity, and as such cannot operate or transact
business by itself but thru its agents and officials, it was necessary that the officials thereof be appointed
or elected in order that it may transact business as such public corporation or city. (Mejia vs. Balolong)
Hence, the general rule in Section 14 of the LGC of 1991. [Aralar]

GOVERNMENTAL POWERS OF LGUs

City Powers in General

Of all the LGUs, the city has been granted the most powers. The Code has devolved to the
city all the services and facilities which the barangay, the municipality and the province have been
empowered to deliver with the exception of the power to administer the Katarungang Pambarangay,
which only the barangay has been specifically designated to deliver.

In addition, there are two major functions that the city is expressly empowered to provide:

a. Adequate communication and transportation facilities, and

b. Support for education, police and fire services and facilities.

1. THE GENERAL WELFARE CLAUSE/LOCAL POLICE POWER

QUESTION: What is the general welfare clause?

The general welfare clause found in Section 16 of LGC is the statutory grant of police power to
local government units.

QUESTION: Is police power inherent to LGUs?

‗It is inherent in the State but not in municipal corporations. Before a municipal corporation may
exercise such power, there must be a valid delegation of power by the Legislature which may through
express delegation or inferred by the mere fact of creation of the municipal corporation‘ [Largo, p. 113
quoting Binay vs. Domingo, 201 SCRA 508 (1991)]

Our Congress delegated police power to the local government units in the LGC of 1991. This
delegation is found in Section 16 of the same Code, known as the general welfare clause. Local
government units exercise police power through their respective legislative bodies xxx. [MMDA vs. Bel-
Air Village]

QUESTION: What are the two branches of the general welfare clause?
First, general legislative power:
It authorizes the municipal council 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 the
municipal council by law.

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 Second, police power proper:

It authorizes the municipality to enact ordinances as may be necessary and proper 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. [Pimentel]

QUESTION: Discuss the extent of LGUs‘ exercise of this power pursuant to Sec. 16.

Pursuant to this rule, LGUs have the power to exercise just about any act that will benefit
their constituencies. Thus, LGUs can exercise powers that are:
(1) expressly granted;
(2) necessarily implied from the power that is expressly granted;
(3) necessary, appropriate or incidental for its efficient and effective governance; and
(4) essential to the promotion of the general welfare of their inhabitants. [Pimentel]

QUESTION: Who exercises local police power?

Being legislative in character, local police power is exercised by the Sanggunian of the local
government through the enactment of the appropriate ordinances. [Largo, p.114]

QUESTION: What are the limitations on the exercise of powers under the general welfare clause?

1. Equal protection clause;

2. Due process clause;
3. Exercisable only within the territorial limits of the local government unit, except for protection of
water supply;
4. Must not be contrary to the Constitution and the laws. [Nachura]

Otherwise put, ―[a] local government unit is considered to have properly exercised its police
powers only when the following requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require the interference of the State and (2) the means
employed are reasonably necessary for the attainment of the object sought to be accomplished and not
unduly oppressive.‖ [Parayno vs. Mun. of Calasiao, Pangasinan]

QUESTION: Summary of the valid use of police power by LGUs.

a. Promotion of the general welfare and public interest;

b. Promotion of public health, public morals, public safety and the general welfare of each inhabitant;
c. Preservation of the public order and prevention of offenses against the State and establishment of
rules of good manners and prevention of conflict of rights among neighbors;
d. Prohibition of all things hurtful to the comfort, safety and welfare of society;
e. Abatement of nuisance.

2. THE POWER TO GENERATE AND APPLY RESOURCES/LOCAL TAXATION

QUESTION: What is the basis of this power?

Section 18 and 129, RA 7160; Section 5, Article X, Constitution

QUESTION: What is the importance of local taxation on local autonomy?

Considered as the most revolutionary piece of legislation on local autonomy [Pimentel], the LGC
effectively deals with the fiscal constraints faced by LGUs. It widens the tax base of LGUs to
include taxes which were prohibited by previous laws such as the imposition of taxes on forest
products, forest concessionaires, mineral products, mining operations, and the like. The LGC likewise
provides enough flexibility to impose tax rates in accordance with their needs and capabilities. X x x
[NPC vs. City of Cabanatuan, cited in Largo, p. 89]

QUESTION: What are the more important portions of Section 18 of RA 7160?

The more important portions of Section 18 of RA 7160 are those which:

a. Grant LGUs the power to create their own sources of revenue and to levy taxes, fees and charges
which will accrue to them exclusively and be retained by them automatically and which they may use
for their own purposes;

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b. Entitle them to a just share of the national taxes which shall be automatically and directly released to
them without need of any further action; and
c. Grant them an equitable share in the proceeds of the utilization and development of the national
wealth and resources within their territorial jurisdictions and which they may share with their
inhabitants by way of direct benefits.

QUESTION: In general, how shall the LGUs exercise this power?

Each local government unit shall exercise its power to create its own sources of revenue and to
levy taxes, fees, and charges subject to the provisions herein, consistent with the basic policy of local
autonomy. Such taxes, fees, and charges shall accrue exclusively to the local government units. [Sec.
129, LGC]

QUESTION: In a LGU, who is actually the local taxing authority?

The power to impose a tax, fee, or charge or to generate revenue under this Code shall be
exercised by the sanggunian of the local government unit concerned through an appropriate
ordinance. [Sec. 132, LGC]
QUESTION: Is the power to tax inherent to LGUs?

Thus, despite the provision on local autonomy and decentralization, the traditional understanding
that local governments do not have the inherent power to tax except to the extent that such power might
be delegated to them either by the basic law or by statute is still prevailing even under the 1987
Constitution. [Manila Electric Company vs. Province of Laguna, G.R. No. 131359]

QUESTION: Under Section 5, Article X of the 1987 Constitution, what tax power has been given in
favor of LGUs?

Section 5, Art. X, 1987 Constitution:

―Each local government unit shall have the power to create its own sources of revenues
and to levy taxes, fees, and charges subject to such guidelines ad limitations as the Congress may
provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall
accrue exclusively to the local governments.‖

Here, only a general delegation of tax power has been given in favor of local government units.

QUESTION: What is the basic rationale for the current rule on local taxation power?

To safeguard the viability and self-sufficiency of LGUs by directly granting them general and
broad tax powers.

QUESTION: So if it is not inherent, may Congress withdraw this general tax power from the LGUs?

While the local governments‘ general power to tax is constitutionally guaranteed, such that no
legislative act can take that power away from them, their specific power to tax still remains a delegated
power subject to the ―guidelines as Congress may provide.‖

In Estanislao vs. Costales, it was ruled that LGUs have the power to create their own sources of
revenue, levy taxes, etc., but subject to the guidelines or limitations set by Congress.

Illustrative Example of Relationship between Congress

and Local Governments insofar as tax power is
concerned.

BASCO vs. PAGCOR (Basco Doctrine)

QUESTION: Do LGUs have the power to tax instrumentalities of the National Government,
such as the PAGCOR?

No. Congress has the power of control over local governments; if Congress can grant a
municipal corporation the power to tax certain matters, it can also provide for exemptions or even
take back the power x x x The power of local government to impose taxes and fees is always
subject to limitations which Congress may provide by law x x x. [Basco vs. Pagcor]

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 Thus, in resolving the issue of whether or not a local government can tax an
instrumentality of the National Government like PAGCOR, the SC ruled in the negative
upholding the authority of Congress to provide guidelines and limitations to the power to tax by
local governments. [Largo, p. 93]

QUESTION: May Congress validly authorize the Secretary of Justice to review the
constitutionality or legality of a tax ordinance – and if warranted, to revoke it on either or both
grounds? Does it confer the power of control over LGUs in the Secretary of Justice?

Yes, Congress may validly so authorize the Secretary of Justice as in Section 187, RA
7160. This does not confer the power of control over LGUs in the Secretary of Justice, as even if
the latter can set aside a tax ordinance, he cannot substitute his own judgment for that of the local
government unit. [Drilon vs. Lim]

QUESTION: Does the release of LGU shares require further action to be performed by the LGU
concerned? Is it absolute?

The shares of the LGUs in central government taxes and in the proceeds of natural resources
within their territories shall be automatically and directly released to them. The automatic release of the
LGU share is mandatory.

QUESTION: How is local taxation construed?

As in national taxation, local tax measures, being in derogation of property rights must also be
construed strictly against the LGU enacting it and liberally in favor of the taxpayers in case of doubt.
[Section 5(b), LGC of 1991] However, since taxation is the ―lifeblood‖ of the local government, any tax
exemption, incentive or relief granted by any local government shall be construed strictly against the
person claiming it. [Ibid] Thus, the principle that ―taxation is the rule and exemption is the exception‖ still
applies in local taxation. [Largo, p.99]

FUNDAMENTAL PRINCIPLES governing the exercise of the taxing and other revenue-raising
powers of LGUs
Section 130, LGC

QUESTION: Do the general principles on taxation apply as well to the taxing power of LGUs?

The general principles on taxation also apply to the taxing power of LGUs. Thus, local
government shall be uniform, equitable, progressive and devoted to public use, etc.

QUESTION: What are these principles?

a. Taxation shall be uniform in each local government unit;

Ordinance was declared invalid 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., v. Treasurer of Ormoc City]

b. Taxes, fees, charges and other impositions shall:

1. Be equitable and based as far as practicable on the taxpayer‘s ability to pay;

2. Be levied and collected only for public purposes;
3. Not be unjust, excessive, oppressive, or confiscatory;
4. Not be contrary to law, public policy, national economic policy, or in restraint of trade;

c. The collection of local taxes, fees, charges and other impositions shall in no case be let to any private
person;

d. The revenue collected pursuant to the provisions of this Code shall inure solely to the benefit of,
and subject to the disposition by, the local government unit levying the tax, fee, charge or other
imposition unless otherwise specifically provided herein; and

e. Each local government unit shall, as far as practicable, evolve a progressive system of taxation. [Sec.
130, LGC]

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 QUESTION: Which has the least degree of tax powers and which has the greatest tax powers among
the LGUs?

The least of tax powers is lodged with the barangay; the greatest power, with the city.

3. THE POWER OF EMINENT DOMAIN

Section 19, LGC

QUESTION: What is the nature of this power insofar as LGUs are concerned?

It is merely a delegated power to LGUs from the legislature. Consequently, the scope of this
delegated legislative power is narrower than that of the delegating authority and such entities may
exercise the power to expropriate private property only when authorized by Congress and subject to its
control and restraints imposed through law conferring the power or in other legislations.

QUESTION: What are the limitations on this power?

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; and
2. Private property shall not be taken for public use without just compensation.

QUESTION: What are the requisites of, and at the same time the limitations on, the power of
eminent domain of LGUs?

a. An ordinance passed authorizing the local chief executive to subject a certain property to a local
government unit‘s power of eminent domain or expropriation;

QUESTION: Is a resolution of the lawmaking body of LGU sufficient?

No. A local government unit cannot authorize an expropriation of private property through a mere
resolution of its lawmaking body. The Code expressly and clearly requires an ordinance or a local law
for the purpose. An ordinance is a law, but a resolution is merely a declaration of the sentiment or
opinion of a lawmaking body on a specific matter.

Thus, in Municipality of Paranaque v. V.M. Realty Corporation, the SC said that there was lack
of compliance with Sec. 19, LGC, where the Municipal Mayor filed a complaint for the expropriation
of two parcels of land on the strength of a resolution passed by the Sanggunian Bayan, because what
is required by the law is an ordinance.

b. The power must be exercised for public use, or purpose, or welfare for the benefit of the poor and the
landless;

QUESTION: What are examples of specific purposes for which LGUs may exercise the power
of eminent domain?

Private land may be taken by LGUs for the construction of artesian wells or water systems;
cemeteries or crematoriums, abattoirs, research buildings and animal dispersal centers.

c. There must be payment of just compensation;

QUESTION: What is meant by just compensation?

It has been defined to mean a ―fair and full equivalent for the value of the property taken.‖

d. A valid and definite offer to buy the property must have been previously made to the owner but the
offer was not accepted.

QUESTION: Is the valid and definite offer requirement mandatory?

Yes, it is mandatory. A single bona fide offer that is rejected by the owner will suffice. A
reasonable offer in good faith, not merely perfunctory or pro forma offer, to acquire the property for a
reasonable price must be made to the owner or his privy.

QUESTION: Who has the burden of proving compliance thereto?

The burden is on the LGU to prove its compliance with the mandatory requirement of a valid and
definite offer to the owner of the property before its filing of its complaint for expropriation [Jesus is
Lord Christian School, Inc. v. Municipality of Pasig]

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 QUESTION: What is the effect of failure to comply with this requirement?

Failure to prove compliance with the mandatory requirement will result in the dismissal of the
complaint.

4. LOCAL LEGISLATIVE POWER

Sections 48-59, LGC

Section 48, LGC:

Local legislative power shall be exercised by the Sangguniang Panlalawigan for the province; the
Sangguiniang Panlungsod for the city; the Sangguniang Bayan for the municipality; and the Sangguniang
Barangay for the barangay.

Powers of the Sanggunian:

a. Province – Section 468;

b. City – Section 458;
c. Municipality – Section 447;
d. Barangay – Section 391.

QUESTION: What is the nature of local legislative power?

It is merely a delegation of legislative power from the national legislature (except only that the
power to create their own sources of revenue and to levy taxes is conferred by the Constitution itself).
They are mere agents vested with what is called the power of subordinate legislation.

QUESTION: In the pursuance of this power, do LGUs possess contempt powers?

―There being no provision in the LGC explicitly granting local legislative bodies the power to
issue compulsory process and the power to punish for contempt, the Sangguniang Panlungsod of
Dumaguete is devoid of power to punish the petitioners…for contempt.‖ [Negros Oriental II Electric
Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete]

QUESTION: When LGUs exercise local legislative power, what are the particular end-products?

a. Ordinance – it is a law. It prescribes a permanent rule of conduct. It takes effect after three readings.

b. Resolution –it is a mere declaration of the sentiment or opinion of a lawmaking body on a specific
matter. It is of temporary character. It can take effect after two readings only.

This is manifest in paragraph (a) and (c) of Article 107, RRI the LGC of 1991 governing the
enactment of ordinances and resolutions:

a. Legislative actions of a general and permanent character shall be enacted in the form of
ordinances, while those which are temporary character shall be passed in the form of resolutions.
Matters relating to propriety functions and to private concerns shall also be acted upon by
resolution;
b. X x x x x x;
c. A resolution shall be enacted in the same manner prescribed for an ordinance, except that it need
not go through a third reading for its final consideration unless decided otherwise by a majority of
all the Sanggunian members.

What are the requisites for the validity of an ordinance?

As held in a number of cases, the requisites are, it:

a. must not contravene the Constitution and any statute;

b. must not be unfair or oppressive;
c. must not be partial or discriminatory;
d. must not prohibit, but may regulate trade;
e. must not be unreasonable; and
f. must be general in application and consistent with public policy.

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N.B: For an ordinance to be valid, it must not only be within the corporate powers of the city or
municipality to enact but must also be passed according to the procedure prescribed by law. [Lagcao v.
Labra]

When is an ordinance approved?

Ordinances passed by the sangguniang panlalawigan, sangguniang panlungsod or sangguniang

bayan shall be approved or deemed approved:

1. if the local chief executive approves the same, affixing his signature on each and every page thereof;

2. if the local chief executive vetoes the same, and the veto is overridden by 2/3 vote of all the members
of the sanggunian.

3. By the governor‘s inaction on a provincial ordinance within 15 days from the date of its receipt, or
mayor‘s inaction in a city or municipal ordinance within 10 days from the date of its receipt. Said
ordinance as the case may be shall become effective as if signed by the local chief executive.

QUESTION: Now, in relation to veto power, who may exercise the same?

The governor or mayor may veto ordinances enacted by their respective Sanggunians. The
Punong Barangay has no veto power over the ordinances of the Sangguniang Barangay.

So, what is the manner of approval of barangay ordinances?

In the case of barangay ordinances, once approved by a majority of all the members of the
Sangguniang Barangay, the approval of the punong barangay is not required to make the ordinances
effective. Why? The reason is that the punong barangay is a member of the Sangguniang Barangay.
Hence the action of the majority of all the members binds the punong barangay. All that remains for him
to do is to sign and implement them.

QUESTION: Explain the mechanics of the VETO POWER of Governor or Mayor as the case may
be.
The governor or mayor may veto ordinances enacted by their respective Sanggunians
ONLY ONCE and on the following grounds:
a. The ordinance or part/s thereof are ultra vires which means that it is beyond the power of the
sanggunian to enact;

b. The ordinance or part/s thereof are prejudicial to the public welfare.

QUESTION: What is the scope of the veto power of Governor or Mayor?

As a rule, the Governor or the Mayor as the case may be shall either veto the ordinance in its
entirety or approve the same in toto.

However, he may veto particular items of certain ordinances such as:

a. Appropriations ordinances;
b. Ordinances adopting local development plans and public investment programs; and
c. Ordinances directing payment of money or creating a liability against the province, city, or
municipality.

QUESTION: But, may the veto power of the Governor or Mayor as the case may be apply to
resolutions as well?
Generally, only ordinances are subject to veto. The Code, however, under Section 55 allows the
local chief executives to veto resolutions when they deal with local development plans and public
investment programs. The reason is that resolutions of that kind involve the investment of public money
and are in effect, ordinances.

REVIEW OF COMPONENT CITY and MUNICIPAL ORDINANCES or RESOLUTIONS by the

SANGGUNIANG PANLALAWIGAN
Section 56, LGC

QUESTION: Who has the power of review under Section 56?

It is the Sangguniang Panlalawigan, not the provincial governor, which has the power under
this section to review component city or municipality ordinances of all kinds and resolutions dealing with
local development plans and public investment programs formulated by the local development councils.

Page 149 of 186

 QUESTION: What are the two ways of approval by the Sangguniang Panlalawigan?

a. Formally, by its passing a resolution of approval, or

b. Informally, by its inaction on the ordinances or resolutions within 30 days from their submittal for
review.

QUESTION: What is the ground to invalidate an ordinance or resolution?

The Sangguniang Panlalawigan may declare such ordinances or resolutions invalid in whole or in
part if they are found to be outside the powers of the sanggunian of the component city or
municipality.

REVIEW of BARANGAY ORDINANCES by the SANGGUNIANG PANLUNGSOD or

SANGGUNIANG BAYAN
Section 57, LGC

QUESTION: Who has the power of review of barangay ordinances?

Barangay ordinances are subject to review by the Sangguniang Panlugsod or Sangguniang Bayan
of the city or municipality to which it belongs.

QUESTION: When shall barangay ordinances be approved?

The sanggunian concerned may approve the barangay ordinances if these are consistent with
law or with city or municipal ordinances.

QUESTION: What are the two ways of approval by the Sangguniang Panlalawigan?

a. Formally, in the form of a city or municipal resolution of the sanggunian concerned, or

b. Informally, by its inaction on the ordinances in question within 30 days from submittal thereof by the
sanggunian concerned.

CORPORATE POWERS

Explain the corporate powers of LGUs.

LGUs enjoy not only governmental powers but also corporate powers as a necessary incident of
they being corporate entities representing the inhabitants of their respective territory or agency of
the community in the administration of local affairs.

What are the corporate powers of the LGUs?

1. To have continuous succession in its corporate name;

2. To sue and be sued.

What is the relation of this power to state immunity from suit?

The rule is that the state may not be sued without its consent. Section 22 (a[2]) is actually an
example of a special law which is an express waiver of that immunity.

So, may LGUs enjoy sovereign immunity from suit when they are engaged in governmental
functions?

The rule is that, ―municipal corporations, for example, provinces and cities, are agencies of the
State when they are engaged in governmental functions and therefore should enjoy the sovereign
immunity from suit. Nevertheless, they are subject to suit even in the performance of such functions
because their charter provided that they can sue and be sued.‖

What is the effect when LGUs are exposed to suits?

When does sued, LGUs are susceptible to liability. Thus, we have Section 24 of the LGC which
says that ―Local government units and their officials are not exempt from liability for death or
injury to persons or damage to property.‖ In other words, LGUs are not exempt from liability
for torts and damages.

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 Does liability for damages under this provision preclude criminal liability?

The liability for damages as suggested by the provision does not preclude the criminal liability of
the officials concerned.

Explain Suability and Liability

One has to distinguish between suability of state and liability of the state. The two are not the
same. Suability is just a matter of state waiving its immunity from suit. Liability on the other hand is a
matter of the applicable law and the circumstances of each case. So that when the state allows one to sue
it, that is suability, the state does not automatically concede liability. It merely gives the claimant an
opportunity that he may hold the state liable. The state may raise possible legal defenses to avoid liability.

Will liability accrue when the local government unit is in the performance of its functions?

Here, one has to make a distinction.

a. If the local government unit is engaged in governmental functions, it is not liable; e.g.
Municipality of San Fernando, La Union vs. Judge Fermi

b. If engaged in proprietary functions, local government unit is liable; e.g injury sustained
during the celebration of a town fiesta.

May a province or municipality be represented by a private attorney?

No. Only the Provincial Fiscal or the Municipal Attorney can represent a province or
municipality in lawsuits. This is mandatory. The municipality‘s authority to employ a private lawyer is
limited to situations where the Provincial Fiscal is disqualified to represent it, and the fact of
disqualification must appear on record. [Municipality of Pililla, Rizal v. CA]

How about if the Provincial Fiscal refuses to represent the municipality?

The Fiscal‘s refusal to represent the municipality is not a legal justification for employing the
services of private counsel; the municipality should request the Secretary of Justice to appoint an Acting
Provincial Fiscal in place of the one who declined to handle the case in court [Municipality of Pililla,
Rizal v. CA]

3. To have and use a corporate seal;

Explain this.

As corporate entities, local governments have the right to use, modify or change their corporate
seals, which they have to register with the DILG.

4. To acquire and convey real or personal property;

LOCAL OFFICIALS: PROHIBITIONS; THEIR QUALIFICATIONS AND DISQUALIFICATIONS;

RULES ON SUCCESSION; DISCIPLINE; RECALL; ETC

What are the prohibited business and pecuniary interest of local officials?

Section 89 of the LGC.

What is the general prohibition embodied in this provision of the LGC?

Section 89 (a), LGC. It declares unlawful any business transaction between a local government
official, elective or appointive, or an employee with (a) the LGU in which he is an official or employee or
(b) any of its authorized boards, officials, agents or attorneys, where money is paid or property or any
other thing of value is to be transferred directly or indirectly out of the resources of the LGU
concerned.

(b) All other prohibitions governing the conduct of national public officers relating to prohibited business
and pecuniary interest so provided for under RA No. 6713 otherwise known as the ―Code of Conduct and
Ethical Standards for Public Officials and Employees‖ and other laws shall also be applicable to local
government officials and employees.

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May governors and mayors practice their possession?

All governors, city and municipal mayors are prohibited from practicing their profession or
engaging in any occupation other than the exercise of their functions as local chief executives. [Sec.
90(a)]

What is the reason for this?

The reason is that the office of governor or mayor is a full time job. To allow them to practice a
profession may give rise to a conflict of interest,

May Sanggunian members practice their professions?

(b) Sanggunian members may practice their professions, engage in any occupation, or teach in
schools except during session hours: Provided that sanggunian members who are also members of the Bar
shall not:

1. Appear as counsel before any court in any civil case wherein a local government unit or any
office, agency, or instrumentality, of the government is the adverse party;
2. Appear as counsel in any criminal case wherein an officer or employee of the national or
local government is accused of an offense committed in relation to his office;
3. Collect any fee for their appearance in administrative proceedings involving the local
government unit of which he is an official; and
4. Use property and personnel of the government except when the sanggunian member
concerned is defending the interest of the government.

(c) Doctors of medicine may practice their profession even during official hours of work only on
occasions of emergency: Provided, That the officials concerned do not derive monetary
compensation therefrom.

If City Councilor XX appeared as counsel for dismissed employees, did he violate the prohibition
against engaging in private practice?

Yes. In Javellana v. DILG, it was held that by appearing as counsel for dismissed employees, City
Councilor Javellana violated the prohibition against engaging in private practice if such practice
represents interests adverse to the government.

Prohibition against holding another office or position

In the law creating the SBMA, there was a provision therein which provides that the Mayor
of Olongapo City shall be appointed by the President as the first Chairman of SBMA for one year.
Pursuant to that provision, the President appointed then Olongapo City Mayor Dick Gordon and
the latter assumed the position of Chairman of SBMA and held the same simultaneously with his
other position as City Mayor. Under the Local Government Code, was the appointment of Dick
Gordon violative of any prohibition? [Flores v. Drilon]
Yes. The appointment of Dick Gordon violated the prohibition against holding another office or
position.
Under Section 94(a) of the LGC, no elective or appointive local official shall be eligible for
appointment or designation in any capacity to any public office or position during his tenure. Unless
otherwise allowed by law or by the primary functions of his office, no elective or appointive local
official shall 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.
In other words, while an official is holding a local government office, he cannot be appointed or
designated in any capacity to any public office or position.

Prohibition Against Appointment of Losing Candidates

XX ran for Mayor of Marawi City but he lost in the election. Within one year after the election, XX
was appointed (not designated) as Planning and Development Coordinator. Under the LGC, did the
appointment of XX violate any prohibition?
Yes. The appointment of XX violated the prohibition against appointment of losing candidates.

Under the Section 94(b) of the LGC, except for losing candidates in barangay elections, no
candidate who lost in any election shall within one year after such election, be appointed to any office in
the government or any GOCC or their subsidiaries.

Page 152 of 186

ELECTIVE LOCAL OFFICIALS

N.B.: ―it should be noted that Section 39 of the LGC speaks of ‗Qualifications‘ of ‗ELECTIVE
OFFICIALS‘, not of candidates‖ [Frivaldo vs. Comelec]

DISQUALIFICATIONS [Section 40, LGC]

The following persons are disqualified from running for any elective local position:

a. Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving
sentence;

Two types of criminal offenses that may disqualify an elective local official:
1. An offense that involves moral turpitude (regardless of the penalty that the offense carries);
2. An offense that carries the penalty of one (1) year or more of imprisonment (regardless of the
nature of the offense)

What is the effect of probation on disqualification?

MORENO vs. COMELEC, August 10, 2006
Facts:
A petition seeking to disqualify Moreno from running for Punong Barangay was filed based on
this disqualification particularly that Moreno was convicted by final judgment of the crime of
Arbitrary Detention and was sentenced to suffer imprisonment of 4 months and 1 day to 2 years and 4
months by the RTC. Moreno argued that he was under probation so he could not therefore be
disqualified on the ground that the probation suspended his sentence. What is the effect of probation
on disqualification?

―In Baclayan v. Mutia, the Court declared that an order placing defendant on probation is not a
sentence but is rather, in effect, a suspension of the imposition of sentence. We held that the grant of
probation to petitioner suspended the imposition of the principal penalty of imprisonment, as
well as the accessory penalties of suspension from public office and from the right to follow a
profession or calling, and that of perpetual special disqualification from the right of suffrage.
We thus deleted from the order granting probation the paragraph which required that petitioner refrain
from continuing with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from public
office, from the right to follow a profession or calling, and that of perpetual special disqualification
form the right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prision
correccional in its minimum period imposed upon Moreno were similarly suspended upon the
grant of probation.
It appears then that during the period of probation, the probationer is not even disqualified from
running for a public office because the accessory penalty of suspension from public office is put on
hold for the duration of the probation.
X x x x x x x x x
This is as good a time as any to clarify that those who have not served their sentence by
reason of the grant of probation which, we reiterate, should not be equated with service of
sentence, should not likewise be disqualified from running for a local elective office because the
two (2)-year period of ineligibility under Section 40(a) of the LGC does not even begin to run.‖

In the Moreno case, the crime involved is arbitrary detention, how about if the offense involves
moral turpitude, does the effect of probation still apply?

The phrase ―within two (2) years after serving sentence‖ should have been interpreted and
understood to apply both to those who have been sentenced by final judgment for an offense
involving moral turpitude and to those who have been sentenced by final judgment for an offense
punishable by one (1) year or more of imprisonment. The placing of the comma (,) in the provision
means that the phrase modifies both parts of Section 40(a) of the LGC of 1991. [Moreno vs. Comelec,
cited by Largo p. 190]

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THE THREE-TERM LIMIT

What is the basis of the three-term limit rule?

―The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected.‖ [Section 8, Article
X of the Constitution]

―No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official concerned was
elected.‖ [Section 43(b), LGC]

This is the limitation on the terms of office of elective local officials.

No local elective official shall serve for more than three consecutive terms in the same position.

Explain the ―Three-term limit‖.

The constitutional and statutory provisions have two parts.

The first part provides that an elective local official cannot serve for more than three consecutive
terms. The second part states that voluntary renunciation of office for any length of time does not
interrupt the continuity of service. The clear intent is that involuntary severance from office for any length
of time interrupts continuity of service and prevents the service before and after the interruption from
being joined together to form continuous service or consecutive terms. After three consecutive terms,
an elective local official cannot seek immediate re-election for a fourth term. The prohibited
election refers to the next regular election for the same office following the end of the third
consecutive term. Any subsequent election, like a recall election, is no longer covered by the
prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate
re-election after three consecutive terms. Second, the intervening period constitutes an involuntary
interruption in the continuity of service. [Socrates vs. Comelec]

BORJA Jr. vs. Comelec and Mayor Capco, leading case

XX was elected Vice Mayor in 1988 and became Mayor by the rule on succession in 1989 upon the
death of the incumbent Mayor. XX run again and won as Mayor in 1992 and 1995. May XX run
again for Mayor in the 1998 election? [Borja vs. Comelec]

Yes, XX may still run for Mayor in the 1998 election as the three-term limit did not as of that
time apply to him. The three-term limit on a local official is to be understood to refer to terms for which
the official concerned was elected.

Facts of the case:

Mayor Capco of Pateros was first elected Vice Mayor in 1988 and became Mayor by the rule on
succession in 1989 upon the death of the incumbent Mayor then, the old man Borja. Mayor Capco run
again and won as Mayor in 1992 and 1995. He run again for Mayor in the 1998 elections. Was he
qualified to run again as Mayor in the 1998 elections?

How many times had he served as Mayor of Pateros? Three times already. 1989, 1992, 1995.

But in this case according to the SC, Mayor Capco was still qualified to run again as Mayor in the
1998 elections. The court rendered an interpretation of Section 8, Article X of the Constitution.
According to the SC, the term limit for elective local officials must be taken to refer to the right to
be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an
individual has 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.

What is the rationale of the ―Three-term limit‖?

According to the SC in Borja, there are two policies embodied in this provision. First is to
prevent the establishment of political dynasties. Second is to enhance the freedom of choice of the people.

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[The framers of the Constitution specifically included an exception to the people‘s freedom to choose
those who will govern them in order to avoid the evil of a single person accumulating excessive power
over a particular territorial jurisdiction as a result of prolonged stay in the same office.]

Consequently, according to the SC in this case, to consider only the stay in office regardless of
how the official concerned came to that office whether by election or by succession by operation of law
would be to disregard one of the purposes of the constitutional provision in question. [Sandoval]

What are the conditions for the three-term limit to apply? Borja

For this disqualification under Section 8 of Article X of the Constitution to apply, there are two
conditions that must concur:

1. That the local official concerned has been elected for three consecutive times in the same
position;

2. That he must fully serve three consecutive terms.

Absent one or both of these two conditions, the disqualification may not yet apply.

LONZANIDA VS. COMELEC, [followed Borja vs. Comelec]

Facts of the case:

Mayor Lonzanida of San Antonio Zambales was first elected Mayor in 1988. In May 1992, he run
again for Mayor and won. In May 1995, he run again for Mayor and won. But in connection with the May
1995 elections, there was an election protest that was filed against him by his opponent. But he assumed
office already as Mayor. March 8, 1998, before his third term ended, the election protest was decided
against him. So he was removed as Mayor. May 1998, he run again for Mayor. Was he qualified to run
again for Mayor in May 1998?
Before the May 1998 elections, how many times had he been elected Mayor of San Antonio?
Two times only. Why? In the May 1995 elections, he was merely the presumptive winner. Eventually he
lost in the protest. So he was not elected Mayor in the May 1995 elections.

Besides before the May 1998 elections, was he able to fully serve three consecutive terms?
No because during his third term, March 8, 1998, he was removed as Mayor. His case involves a total
failure of the conditions to concur for the disqualification to apply. [Sandoval]

That is why in this case, the SC held: ―First, the petitioner cannot be considered as having been
duly elected to the post in the May 1995 elections, and second, the petitioner [Lonzanida] did not fully
serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office.‖

Francis Ong vs. Joseph Stanley Alegre and Comelec, January 23, 2006
Facts of the case:
Ong was first elected Mayor of his town in May 1995 elections. In May 1998 he run again for
Mayor and won against Joseph Stanley Alegre. But the latter filed an election protest in connection with
the May 1998 elections. In May 2001 elections, Ong run again for Mayor and won. So how many times
had Ong been elected Mayor? Three times already. On July 2, 2001, the election protest that was filed by
Alegre against him in connection with the May 1998 elections was decided by the RTC holding that the
winner in the May 1998 elections was Joseph Alegre but Ong has fully served already the 1998 to 2001
term. In May 2001 elections, Francis Ong again run for Mayor of San Vicente, Camarines Norte against
Joseph Stanley Alegre. The latter questioned that alleging that Ong is no longer qualified as he has fully
served as Mayor for three consecutive terms. Ong countered that he is still qualified arguing that he may
have fully served three consecutive terms but he was not elected three consecutive times because
according to the RTC, in the May 1998 elections he lost so he was merely the presumptive winner citing
the case of Lonzanida vs. Comelec.

Issue: WON Ong‘s assumption of office as Mayor from June 30, 1998 to June 30, 2001 may be
considered as one (1) full term service. Was Ong qualified to run again for Mayor in the May 2001
elections?
Ruling:
According to the SC, he was no longer qualified.
―We hold that such assumption of office constitutes, for Francis, ‗service for the full term,‘ and
should be counted as a full term served in contemplation of the three-term limit prescribed by the
constitutional and statutory provisions, barring local elective officials from being elected and serving for
more than three consecutive terms for the same position.

Page 155 of 186

 It is true that the RTC [of] Camarines Norte ruled in [said] election protest that it was [Alegre]
who won in the 1998 elections x x x. However, that disposition, it must be stressed, was without practical
and legal use and value, having been promulgated after the term of the contested office has expired.
Petitioner Francis‘ contention that he was only a presumptive winner in the 1998 mayoralty derby as his
proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the
MBOC x x x as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of
office and his continuous exercise of the functions thereof from the start to finish of the term, should
legally be taken as service for a full term in contemplation of the three-term rule.

The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary
view would mean that Alegre would – under the three-term rule – be considered as having served a term
by virtue of a veritably meaningless electoral protest ruling, when another actually served such term
pursuant to a proclamation made in due course after an election.‖

XX was elected and served as Mayor of Mabalacat, Pampanga, for the following three consecutive
terms: 1995-1998, 1998-2001, 2001-2004. He served his second term but he claims that he was
merely a de facto officer or caretaker because his proclamation was declared void by the Comelec
in an electoral protest, though the winning candidate never actually served as Mayor. May XX run
again for Mayor in the 2004 election?

No, because he is disqualified under the three-term limit rule. As of the end of his term in June 30
2004, XX had already served as Mayor for three consecutive terms. The fact that he was ousted as Mayor
on his second term in the electoral protest filed against him does not constitute an interruption in serving
the full term (1998-2001). He was proclaimed elected in 1998; he assumed the position; and he served as
Mayor until June 30, 2001. He was Mayor for the entire period notwithstanding the decision of the RTC
in the electoral case ousting him as Mayor. Whether as caretaker or as de facto officer, he exercised the
powers and enjoyed the perquisites of the office. [Rivera vs. Comelec and Morales] {same ruling with
Ong vs. Alegre}

SOCRATES vs. Comelec, 2002

Facts of the case:

Mayor Hagedorn of Puerto Princesa was first elected Mayor in 1992 elections. In May 1995, he
run again for Mayor and won. May 1998 he run again for Mayor and won. So how many times had he
been elected? Three times already. Was he still qualified to run again for Mayor in the May 2001
elections? No. He knew it. That‘s why in the May 2001 elections, he run for governor. He lost.
Meanwhile, the one who was elected Mayor in the 2001 elections was Socrates. Barely a year later or on
July 2, 2002, the members of the Preparatory Recall Assembly of Puerto Princesa City adopted a
resolution calling for the recall of Socrates as mayor which was submitted to the Comelec and the latter
scheduled a special recall election on September 24, 2002. Hagedorn filed his COC for Mayor in that
special recall election. That was questioned by Socrates saying that he is not yet qualified for Mayor
having just completed his third term as Mayor so he was disqualified from running for a fourth
consecutive term. He should wait until the May 2004 elections before he would be qualified to run again
for Mayor.

Issue: Is Hagedorn qualified to run for Mayor in the special recall elections?

Ruling:
According to the SC, Hagedorn was qualified. The principle behind the three-term limit rule is to
prevent consecutiveness of the service of terms, and that there was in his case a break in such
consecutiveness after the end of his third term and before the recall election.

―After three consecutive terms, an elective local official cannot seek immediate reelection for a
fourth term. The prohibited election refers to the next regular election for the same office following the
end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by
the prohibition for two reasons. First, a subsequent election like a recall election is no longer an
immediate reelection after three consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service. Clearly, what the Constitution prohibits is an
immediate reelection for a fourth term following three consecutive terms. The Constitution,
however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not
immediately after the end of the third consecutive term. A recall election mid-way in the term
following the third consecutive term is a subsequent election but not an immediate reelection after the
third term. X x x What the Constitution prohibits is a consecutive fourth term.‖

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Mendoza vs. Comelec, Dec. 17, 2002

Facts of the case:

May 1992 elections, the one elected governor of Bataan was Ted Garcia. Later part of 1993, there
was a special recall election for governor in the same province. Governor Garcia lost to Governor Ting
Roman in that recall election. However, due to certain legal issues that were elevated to the SC, it was
only on June 28, 1994 that Gov. Ting Roman was able to assume the governorship by virtue of that recall
election. Gov. Roman run again for governor in the May 1995 elections and won. He run again for
governor in the May 1998 elections and won. May 2001, he run again for governor. Precisely, this was
questioned under the three-term limit rule.

Ruling:
The Court voted 8 to 7 to dismiss the petition against Gov. Roman. Therefore, qualified. Justice
Vitug joined by Justice Henares-Santiago voted to dismiss the petition against Gov. Roman. He
contended that as revealed by the records of the Constitutional Commission, the Constitution envisions a
continuous and an uninterrupted service for three full terms before the proscription applies. Hence, not
being a full term, a recall term should not be counted or used as a basis for the disqualification. Justice
Mendoza in whose opinion Justice Quisumbing joined voted also to dismiss the petition against Gov.
Roman on the ground that in accordance with the ruling in Borja vs. Comelec, Arcos vs. Comelec,
Lonzanida vs. Comelec, and Adormeo vs. Comelec, a term during which succession to a local elective
office takes place or a recall election is held should not be counted in determining whether an elective
local official has served more than three consecutive terms. He argued that the Constitution does not
prohibit elective local officials from serving for more than three consecutive terms because in fact it
excludes from the three-term limit interruptions in the continuity of service so long as such interruptions
are not due to the voluntary renunciation of the office by the incumbent. Hence, the period from June 28,
1994 to June 30 1995, during which Governor Roman served as governor by virtue of a recall election in
the year 1993 should not be counted.

If a municipality (Digos) was converted into a city, may the municipal mayor who has already
served for three (3) consecutive terms run for Mayor of the city immediately after the end of his
three consecutive terms?

NO. ―The fact that the new city acquired a new corporate existence separate and distinct from that
of the municipality does not mean that for the purpose of applying Article X, Section 8 of the
Constitution, the office of the municipal mayor would now be construed as a different local government
post as that of the office of the city mayor. The territorial jurisdiction of the City of Digos is the same as
that of the municipality. Consequently, the inhabitants of the municipality are the same as those in the
city. The inhabitants are the same group of voters who elected petitioner Latasa to be their municipal
mayor for three consecutive terms. They are also the same inhabitants over whom he held power and
authority as their chief executive for nine years. X x x‖ [Latasa vs. Comelec, Dec. 10, 2003]

How about if an elective public official is preventively suspended, is his preventive suspension an
interruption of his term of office for purposes of the three-term limit rule?

NO. According to the SC in Aldovino vs. Comelec, Dec. 23, 2009, ―interruption‖ of a term
exempting an elective official from the three-term limit rule is one that involves no less than the
involuntary loss of title to office such that an officer who is preventively suspended is simply barred
from exercising the functions of his office but title to office is not lost.

ABUNDO, Sr. vs. COMELEC, 2013

In this case, the SC summarized the prevailing jurisprudence on issues affecting consecutiveness
of terms and/or involuntary interruption:

1. When a permanent vacancy occurs in an elective position and the official merely assumed the
position pursuant to the rules on succession under the LGC, then his service for the unexpired portion
of the term of the replaced official cannot be treated as one full term. (Borja) If the official runs again
for the same position he held prior to his assumption of the higher office, then his succession to said
position is by operation of law and is considered an involuntary severance or interruption (Montebon,
citing Borja, Jr.);

2. An elective official, who has served for three consecutive terms and who did not seek the elective
position for what could be his fourth term, but later won in a recall election, had an interruption in the
continuity of the official‘s service. For, he had become in the interim, i.e., from the end of the third
term up to the recall election, a private citizen (Adormeo and Socrates);

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3. The abolition of an elective local office due to the conversion of a municipality to a city does not, by
itself, work to interrupt the incumbent official‘s continuity of service (Latasa);

4. Preventive suspension is not a term-interrupting event as the elective officer‘s continued stay and
entitlement to the office remain unaffected during the period of suspension, although he is barred
from exercising the functions of his office during this period (Aldovino, Jr.);

5. When a candidate is proclaimed as winner for an elective position and assumes office, his term is
interrupted when he loses in an election protest and is ousted from office, thus disenabling him from
serving what would otherwise be the unexpired portion of his term of office had the protest been
dismissed. (Lonzanida and Dizon) The break or interruption need not be for a full term of three years
or for the major part of the 3-year term; an interruption for any length of time, provided the cause is
involuntary, is sufficient to break the continuity of service (Socrates citing Lonzanida);

6. When an official is defeated in an election protest and said decision becomes final after said official
had served the full term for said office, then his loss in the election contest does not constitute an
interruption since he has managed to serve the term from start to finish. His full service, despite the
defeat, should be counted in the application of term limits because the nullification of his
proclamation came after the expiration of the term (Ong and Rivera)

HOLDOVER PRINCIPLE

Does this principle apply to all local elective officials?

No. It applies only to barangay officials. Section 5 of RA 9164 provides that ―all incumbent
barangay officials and sangguniang kabataan officials shall remain in office unless sooner removed or
suspended for cause until their successors shall have been elected and qualified.‖ Consequently, in case of
failure of election and until the actual election is held, barangay and SK officials can legally remain in
office as officials of their respective barangays in a hold-over capacity. It must be noted that unlike other
local elective officials whose terms of office are fixed by the Constitution, barangay officials‘ term of
office is to be determined by law. [Largo, p. 212]

What is the rationale of the holdover principle?

The application of the holdover principle preserves continuity in the transaction of official
business and prevents a hiatus in government pending the assumption of a successor into office. Cases of
extreme necessity justify the application of the holdover principle. [Sambarani vs. Comelec, 2004]

VACANCIES, RULES ON SUCCESSION

Sections 44-46, LGC

Permanent Vacancies:

When does a permanent vacancy arise?

A permanent vacancy arises when an elective local official:

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 permanently incapacitated to discharge the functions of his office

Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor.
SECTION 44, LGC

1. governor, Mayor – the vice-governor or vice-mayor concerned

2. vice governor or vice mayor – the highest ranking member or in his permanent inability, the second
highest ranking sanggunian member,

and subsequent vacancies shall be filled automatically by the other sanggunian members according to
their ranking.

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 How to determine the ranking in the sanggunian?

Ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by
each winning candidate to the total number of registered voters in each district in the immediately
preceding election.
Victoria vs. Comelec, 1994
It was argued by the petitioner in this case that the ranking of the Sanggunian members should
not only be based on the number of votes obtained in relation to the total number of registered voters,
but also on the number of voters in the district who actually voted therein. According to the petitioner,
a district may have a large number of registered voters but only a few actually voted, in which case
the winning candidate would register a low percentage of the number of voters obtained since there
was a low turnout of voters. Conversely, according to him, a district may have a smaller number of
registered voters but may have a higher turnout of voters, in which case the winning candidate would
get a higher percentage of votes. The point of the petitioner is that in determining the ranking in the
sanggunian, factoring the numbers of voters who actually voted should also be considered. Here, the
SC did not agree as the law is clear that the ranking in the Sanggunian shall be determined on
the basis of the ―proportion of the votes obtained by each winning candidate to the total
number of registered voters of each district.‖ The SC held that the law does not mention anything
about factoring the numbers of voters who actually voted.

What if there are two highest ranking sanggunian members?

A tie between or among the highest ranking sanggunian members shall be resolved by the
drawing of lots. The successors shall serve only the unexpired terms of their predecessors.

May this mode of succession for permanent vacancies also be observed in the case of temporary
vacancies in the same office?

Yes. [Menzon vs. Petilla]

3. Punong barangay – the highest ranking sanggunian barangay member or in case of his permanent
inability, the second highest ranking sanggunian barangay member.

What if the there are two highest ranking sanggunian barangay members?

A tie between or among the highest ranking sanggunian members shall be resolved by drawing of
lots.

Permanent Vacancies in the Sanggunian where automatic successions do not apply shall be
FILLED BY APPOINTMENT in the following manner:
Section 45, LG

a. The President, through the Executive Secretary, in the case of the sanggunian panlalawigan
or sanggunian Panlungsod of highly urbanized cities and independent component cities;

b. The governor, in the case of sanggunian panlungsod of component cities and the
sangguniang bayan;

c. The city or municipal mayor, in the case of sangguniang barangay, upon recommendation of
the sanggunian barangay concerned.

Here, the recommendation by the Sanggunian barangay takes the place of

nomination by the political party (since members of the sangguniang barangay are
prohibited to have party affiliations), and is considered as a condition sine qua non to the
validity of the appointment.

Who shall be appointed in the above instances?

Except for sangguniang barangay, only the nominee of the political party under which the
sanggunian member concerned had been elected and whose elevation to the position next higher in
rank created the last vacancy in the sanggunian shall be appointed in the manner hereinabove
provided. The appointee shall come from the same political party as that of the sanggunian member
who caused the vacancy and shall serve the unexpired term of the vacant office. X x x [Section
45(b)].

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 A nomination and a certificate of membership of the appointee from the highest official of
the political party concerned are conditions sine qua non, and any appointment without such
nomination and certificate shall be null and void and shall be a ground for administrative action
against the official concerned.

What is the reason behind the right given to political party to nominate a replacement when
a permanent vacancy occurs in the sanggunian? [Navarro vs. CA]

―The reason behind the right given to a political party to nominate a replacement where a
permanent vacancy occurs in the Sanggunian is to maintain the party representation as willed by
the people in the election.
With the elevation of petitioner Tamayo, belonged to REFORMA-LM, to the position of
Vice-Mayor, a vacancy occurred in the Sanggunian that should be filled up with someone who
should belong to the political party of petitioner Tamayo. Otherwise, REFORMA-LM‘s
representation in the Sanggunian would be diminished. To argue that the vacancy created was
that formerly held by Rolando Lalas, a LAKAS-NUCD-Kampi member, would result in the
increase of that party‘s representation in the Sanggunian at the expense of the REFORMA-LM.
This interpretation is contrary to the letter and spirit of the law and thus violative of a
fundamental rule in statutory construction which is to ascertain and give effect to the intent and
purpose of the law. as earlier pointed out, the reason behind par. (b), Section 44 of the LGC is the
maintenance party representation in the Sanggunian in accordance with the will of the
electorate.

The ‗last vacancy‘ in the Sanggunian refers to that created by the elevation of the
member formerly occupying the next higher in rank which in turn also had become vacant by any
of the causes already enumerated. The term ‗last vacancy‘ is thus used in Section 45(b) to
differentiate it from the other vacancy previously created. The term by no means refers to the
vacancy in the No. 8 position which occurred with the election[?] of Rolando Lalas to the seventh
position in the Sanggunian. Such construction will result in absurdity.‖

What if the permanent vacancy is caused by a sanggunian member who does not belong to a
political party?

In case the permanent vacancy is caused by a sanggunian member who does not belong
to any political party, the local chief executive shall upon the recommendation of the sanggunian
concerned, appoint a qualified person to fill the vacancy. [Section 45(c)]

Here, the law speaks of ―the local chief executive‖ as having the authority to make the
appointment. Example, if a permanent vacancy occurs in the Sangguniang Bayan, who is this
―local chief executive‖ to appoint the qualified person? Does it refer to the governor or the
municipal mayor?

Farinas vs. Court of Appeals, April 19, 1996

Xxx xxx xxx
II. Where the Vacancy is Caused by a Sanggunian Member Not Belonging to a Political
Party:

A. Sangguniang Panlalawigan and Sangguniang Panlungsod of highly urbanized and

independent component cities – The President, through the Executive Secretary, upon
recommendation of the Sangguniang Panlalawigan or Sangguniang Panlungsod as the
case may be.

B. Sangguniang Panlungsod of component cities and Sangguniang Bayan – The Governor

upon recommendation of the Sangguniang Panlungsod or Sangguniang Bayan as the
case may be.

TEMPORARY VACANCIES

1. When the governor, city or municipal mayor, or punong barangay is

Temporarily incapacitated to perform his duties

For physical or legal reasons such as, but not limited to,

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 a. Leave of absence
b. Travel abroad and
c. Suspension from office

The vice governor, city or municipal vice mayor, or the highest ranking sanggunian member

Shall automatically exercise the powers and perform the duties and functions of the local chief
executive concerned

EXCEPT the power to appoint, suspend, or dismiss employees which can be exercised only if
the period of temporary incapacity exceeds thirty (30) WORKING days. [Section 46(a)]

When shall the temporary incapacity terminate?

Said temporary incapacity shall terminate upon submission to the appropriate sanggunian
or a written declaration by the local chief executive concerned that he has reported back to office.

In cases where the temporary incapacity is due to legal causes, the local chief executive
concerned shall also submit necessary documents showing that said legal causes no longer exist.
[Section 46(b)]

When the incumbent local chief executive is travelling within the country but outside his
territorial jurisdiction for a period NOT exceeding three (3) consecutive days, what may he
do?

When the local chief executive is travelling within the country but outside his territorial
jurisdiction for a period NOT exceeding three (3) consecutive days, he may designate in writing
the officer-in-charge of the said office. Such authorization shall specify the powers and
functions that the local official shall exercise in the absence of the local chief executive, EXCEPT
the power to appoint, suspend, or dismiss employees. [Section 46(c)]

What if the local chief executive fails or refuses to issue such authorization, what right
becomes ripe for the vice-governor, city or municipal vice-mayor to assume?

In the event, however, that the local chief executive concerned fails or refuses to issue
such authorization, the vice-governor, city or municipal vice-mayor, or the highest ranking
sanggunian barangay member, as the case may be, shall have the right to assume the powers,
duties and functions of the said office on the FOURTH (4th) DAY of absence of the said local
chief executive, subject to the limitations provided in subsection (c) hereof. [i.e., except the
power to appoint, suspend, or dismiss employees]

XX, vice- governor of Ranao del Sur is concurrently the acting governor because the governor
performs the pilgrimage to Makkah, KSA. Is XX the vice governor still deemed a member of the
Sanggunian Panlalawigan for purposes of exercising his legislative prerogatives and powers?

No. a vice governor who is concurrently an acting governor is a quasi-governor. For the purpose
of exercising his legislative prerogatives and powers, he is deemed a non-member of the Sanggunian
Panlalawigan for the time being. [Gamboa vs. Aguirre]

Does a vice-mayor acting as mayor possessed of authority to solemnize marriage?

In the case of People vs. Bustamante, 105 Phil. 64, the SC affirmed the authority of the vice-
mayor as acting mayor to solemnize marriage for he discharges all the duties and wields the powers
appurtenant to the office of the mayor.

DISCIPLINARY ACTIONS

Aside from other laws like the Ombudsman Act, the LGC also provides for disciplinary
mechanisms addressed on erring local government officials. The aggrieved party therefore has the choice
to either initiate a case before the Ombudsman on matters pertinent to the Anti-Graft and Corrupt
Practices Act and related laws or to initiate disciplinary action before the pertinent body or office under
the LGC.

Take note that administrative complaints commenced under the Ombudsman Act are distinct
from those disciplinary actions initiated under the LGC.

Page 161 of 186

DISCIPLINE OF ELECTIVE LOCAL OFFICIALS
Sections 60 – 68

What are the grounds for disciplinary action?

An elective local official may be disciplined, suspended, or removed from office on any of the
following grounds:

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

XX is an incumbent Mayor. He committed acts of lasciviousness against his sexy neighbor. The
suspension of Mayor XX is sought on the ground that acts of lasciviousness is misconduct in
office. May acts of lasciviousness be considered as misconduct in office to justify an order of
suspension? [see Regidor vs. Chiongbian]

Acts of lasciviousness cannot be considered misconduct in office, and may not be the basis of an
order of an order of suspension. To constitute a ground for disciplinary action, the Mayor charged
with the offense must be convicted in the criminal action.

4. Commission of any offense involving moral turpitude or an offense punishable by at least prison
mayor.

5. Abuse of authority

6. Unauthorized absence for 15 consecutive working days, except in the case of members of the
sanggunian Panlalawigan, panlungsod, bayan, and barangay

7. Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of
another country.

8. Such other grounds as may be provided in this code and other laws.

Is the enumeration in Section 60 exclusive? What are the other grounds?

The enumeration is not exclusive.

a. Article 125 of the IRR adds that an elective local official may be disciplined on such other
grounds provided by the Code;
b. RA 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees);
c. The Administrative Code of 1987;
d. RA 3019 (Anti-Graft and Corrupt Practices Act);
e. The Revised Penal Code;
f. All other applicable general and special laws.

May an erring elective local official be removed from office without the order of the proper court?

An elective local official may be removed from office on the grounds enumerated above by
order of the proper court only. [Salalima vs. Guingona]

Who may impose preventive suspension?

Section 63

a. By the President, if the respondent is an elective official of a province, HUC or ICC

b. By the Governor, if the respondent is an elective local official of component city or

municipality

c. By the Mayor, if the respondent is an elective official of the barangay

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Discuss the nature of this preventive suspension.

A preventive suspension is not meant to be a penalty but a means taken to insure the proper
and impartial conduct of an investigation. Therefore, elective local officials who are preventively
suspended are not deemed guilty of the charges filed against them.

May preventive suspension be ordered even before the charges are heard or even before the official
concerned is given an opportunity to prove his innocence?

Yes, a preventive suspension may be ordered even before the charges are heard, as well as before
the official concerned is given an opportunity to prove his innocence, being merely a measure that is
precisely designed in order not to hamper the normal course of an investigation through the use of
influence and authority. [Yabut vs. Office of the Ombudsman]

What should be the extent of the period of preventive suspension?

Any single preventive suspension shall not extend beyond 60 days, and in the event several
administrative cases are filed against the respondent, he cannot be 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.

May the Ombudsman exercise the authority to preventively suspend an elective local official?

Yes. the authority to preventively suspend is exercised concurrently by the Ombudsman, pursuant
to RA 6770; the same law authorizes a preventive suspension of six months [Hagad vs. Gozo-Dadole]

When is a suspended elective official deemed reinstated?

Upon the expiration of the preventive suspension, the respondent shall be deemed reinstated
in office without prejudice to the continuation of the proceedings against him, which shall be
terminated within 120 days from the time he was formally notified of the case against him.

Pending the suspension of the elective local official, is he entitled to his salary?

The respondent official preventively suspended from office shall receive no salary or
compensation during such suspension; but, upon subsequent exoneration and reinstatement, he shall be
paid full salary or compensation including such emoluments accruing during such suspension. [Section
64]

Discuss the limitations of the penalty of suspension. (Section 66)

The penalty of suspension imposed upon the respondent shall
(a) not exceed his unexpired term, or a period of 6 months for every administrative offense,
(b) nor shall said penalty be a bar to the candidacy of the respondent as long as he meets the
qualifications required for the office
The penalty of removal from office as a result of an administrative investigation shall be
considered a bar to the candidacy of the respondent for any elective position.

What is the effect of the re-election on the pending administrative case filed against an elective local
official?
The re-election of a local official bars the continuation of the administrative case against him, in
as much as the re-election of the official is tantamount to condonation by the people of whatever past
misdeeds he may have committed. [Malinao vs. Reyes]

What is the Doctrine of Condonation?

It prohibits the disciplining of elective officials for a wrongful act committed during their
immediately preceding term of office on the theory that reelection to office operates as a condonation of
the previous misconduct to the extent of cutting off the right to remove them therefor.

Do the Civil Service Law and its IRR continue to protect civil servants even if their office is
devolved to an LGU?
Yes. Without the protection of the Civil Service Law, the devolution of offices and personnel to
LGUs could wreck the careers of hundreds of civil service personnel who are directly covered by the
LGC. But the CSC which is the body primarily vested with the power to ensure compliance with civil
service requirements does not have the power to appoint LGU employees or to substitute its choice of
employees for those appointed by the local chief executive.

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NB: The investigation and adjudication of administrative complaints against appointive local officials and
employees as well as their suspension and removal shall be in accordance with the civil service law and
rules and other pertinent laws. [Section 84, LGC]

May the local chief executive impose preventive suspension pending investigation in the
administrative discipline of appointive local officials and employees?

Preventive Suspension: The local chief executive may preventively suspend for a period not
exceeding 60 days any subordinate official or employee under his authority pending investigation if the
charge against such official or employee involves dishonesty, oppression or grave misconduct or neglect
in the performance of duty; or if there is reason to believe that the respondent is guilty of the charges
which would warrant his removal from service. [Sec. 85(a), LGC]

XX is the City Revenue Officer of Mawaraw City. He is under administrative investigation

in connection with an administrative case against him involving dishonesty. The City Treasurer
then placed XX under preventive suspension but the Mayor insists that it is him who may exercise
disciplinary authority over a City Revenue Officer. Decide.

However, it is not the City Mayor, but the City Treasurer who exercises disciplinary
authority over a City Revenue Officer. As head of the Office of the Treasurer, and the revenue Officer
being an officer under him, the former may validly investigate the said Revenue Officer and place him
under preventive suspension. [Garcia vs. Pajaro, 2002]

RECALL OF ELECTIVE LOCAL OFFICIALS

Sections 69 to 75

What is recall?

Mode of removal of a local elective official from his post even before the end of his term on
ground of loss of confidence.

―Recall [is] a mode of removal of a public officer by the people before the end of his term of
office. The people‘s prerogative to remove a public officer 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. Not undeservedly,
it is frequently described as a fundamental right of the people in a representative democracy.‖ [Garcia vs.
COMELEC]

How many are the grounds for recall?

Loss of confidence. The people may petition to recall any local elective officials without
specifying any particular ground except loss of confidence. There is no need for them to bring up any
charge of abuse or corruption against the local elective officials who are the subject of any recall petition.

What is loss of confidence?

Loss of confidence as a ground for recall is a political question – ―whether or not the electorate of
the Municipality of Sulat has lost confidence in the incumbent mayor is a political question.‖ [Evardone
vs. COMELEC] (It is actually an example of the first type of political question. Political questions are
questions which are to be decided by the people in their sovereignty capacity.)

What is meant by loss of confidence?

Loss of confidence as a ground for recall is defined as ―the formal withdrawal by an electorate of
their trust in a person‘s ability to discharge his office previously bestowed on him by the same electorate.‖
[Evardone]

How shall the recall process be initiated?

The recall of any elective provincial, city, municipal or barangay official can only be
commenced by a petition of a registered voter in the LGU concerned and supported by the
registered voters in the LGU concerned during the election in which the local official sought to be
recalled was elected subject to the percentage requirements provided by law [See Sec. 70. LGC as
amended by RA9244]

 The Preparatory Recall Assembly has been eliminated as a mode of initiating recall of
elective local government officials.

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 During the pendency of the recall process, is the elective local official sought to be recalled allowed
to resign?

No because he is prohibited by Sec. 73 of the LGC from resigning. The elective local official
sought to be recalled shall not be allowed to resign while the recall process is in progress.

What are the limitations on recall? Sec. 74, LGC

1. Any elective local government official may be subject of a recall election only once during his term
of office for loss confidence; and

2. No recall shall take place within one year from the date of official‘s assumption to office or one year
immediately preceding a regular local election.

Is an SK election a regular election within the contemplation of the LGC as would bar the holding
of a recall election?

In Paras vs. COMELEC, it was held that the Sangguniang Kabataan election is not a regular
election within the contemplation of the LGC as would bar the holding of a recall election.

How about barangay elections?

Neither will the recall election of the Mayor be barred by the barangay elections. The ―regular
local election‖ referred to in Sec. 74, LGC, means that the approaching local election must be one where
the position of the official sought to be recalled is actually contested and to be filled by the electorate.
[Angobung vs. COMELEC]

From these limitations, what could be the guiding principle in so far as use of recall is concerned?

Recall is to be used sparingly. It must be exercised caution and restraint.

Recall resolutions or petitions may not be used whimsically. In fact, they can be resorted to only
once during the term of the elective official sought to be recalled. And since there is a prohibition against
recalls within the first year of an official‘s term of office, and within one year immediately preceding a
regular election, ―the recall of an elective official can only be done in the second year of the three-year
term of local elective officials, specifically from July 1 of the following year of his election to about
middle of May of the succeeding year – a period of nine months and 15 days.‖ [See Claudion vs.
Comelec]

When does the recall of an elective local official become effective?

The recall of an elective local official shall be effective only 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. Should the official sought to be recalled receive the highest number of votes, confidence in him
is thereby affirmed, and he shall continue in office. [Sec. 72, LGC]

LOCAL INITIATIVE AND REFERENDUM

What is local initiative?

It is the legal process whereby the registered voters of a local government unit may directly
propose, enact, or amend any ordinance. [Section 120, LGC]

What is local referendum?

It is the legal process whereby the registered voters of the local government units may approve,
amend or reject any ordinance enacted by the Sanggunian.

Who may exercise the power of local initiative?

The power of local initiative and referendum may be exercised by all registered voters of the
provinces, cities, municipalities, and barangays.

Describe these two concepts.

The system of initiative and referendum enables the people to exercise an all important original
power to legislate. This is a manifestation of a system of direct democracy at the local level. Before,
legislative power was exclusively vested to Congress but under the 1987 Constitution, the people have
expressly made a reservation by the provisions on initiative and referendum.

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 Distinguish between initiative and referendum

a. initiative is entirely the work of the electorate; referendum is begun and consented to by the law-
making body;
b. initiative is a process of law-making by the people themselves without the participation and the
against the wishes of their elected representatives; referendum consists merely of the electorate
approving or rejecting what has been drawn up or enacted by a legislative body;
c. the process and the voting in an initiative are understandably more complex than in a referendum
where expectedly the voters will simply write either ―Yes‖ or ―No‖ in the ballot. [SBMA vs.
Comelec]

How many kinds of initiative that we have in the Philippines?

1. Initiative on the Constitution, referring to a petition proposing amendments to the Constitution;

2. Initiative on Statutes, referring to a petition proposing to enact a national legislation;
3. Initiative on local legislation, referring to a petition proposing to enact regional, provincial, city,
municipal, or barangay law, resolution, or ordinance.

What is the required minimum number of registered voters who may file a petition?

Not less than one thousand (1000) registered voters in case of provinces and cities, one hundred
(100) in case of municipalities, and fifty (50) in case of barangays, may file a petition with the sanggunian
concerned proposing the adoption, enactment, repeal, or amendment of an ordinance. [Section 122(a),
LGC]

When do local propositions take effect?

If the proposition is approved by a majority of the votes cast, it shall take effect fifteen (15) days
after certification by the COMELEC as if affirmative action thereon had been made by the sanggunian
and local chief executive concerned. If it fails to obtain said number of votes, the proposition is
considered defeated. [Section 123, LGC]

What are the limitations on local initiative?

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
Sanggunians to enact;
3. If at any time before the initiative is held, the Sanggunian concerned adopts in toto the proposition
presented and the local chief executive approves the same, the initiative shall be cancelled. However,
those against such action may, if they so desire, apply for initiative in the manner herein provided.

Limitations upon Sanggunians

May a proposition or ordinance approved through the system of initiative and referendum be
repealed, modified, or amended by the Sanggunian concerned?
Yes. You cannot pass irrepealable laws.

Any proposition or ordinance approved through the system of initiative and referendum shall not
be repealed, modified or amended by the Sanggunian concerned within six (6) months from the date of
the approval thereof, and may be amended, modified or repealed by the Sanggunian within three (3) years
thereafter by a vote of three-fourths (3/4) of all its members. In case of barangays, the period shall be
eighteen (18) months after the approval thereof.

Do the courts have the authority to declare the nullity of any proposition approved pursuant to the
power of local initiative and referendum?
Nothing in this Chapter shall prevent or preclude the proper courts from declaring null and void
any proposition approved pursuant to this Chapter for violation of the Constitution or want of capacity
of the sanggunian concerned to enact the said measure. [Section 127, LGC]

BARANGAY JUSTICE SYSTEM

Introduction
The KP or BJS is a community-based dispute settlement mechanism that is administered by
the basic political unit of the country, the barangay.

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 It covers disputes between members of the same community and involves the Punong
Barangay and other members of the communities (the Lupon members) as intermediaries (mediators,
conciliators, and sometimes, arbitrators)

Mandated by RA 7160, and previously PD 1508 in 1978 and BP 337 or the 1983 LGC.

a. To promote the speedy administration of justice;

b. To minimize the indiscriminate the filing of cases in courts;
c. To minimize the congestion of court dockets and thereby enhance the quality of justice
dispensed by the courts;
d. To perpetuate and recognize the time-honored tradition of amicably settling disputes at the
community level.

The main strategy for settling disputes is to provide a venue for the disputing parties to search for
a solution that is mutually acceptable.

Simply put, the BJS provides a friendly, inexpensive, and speedy forum for the settlement of
disputes where the parties can freely explore options for amicably resolving their disputes without
resorting to the courts.

Contradistinguish to court litigation: lengthy, technical procedure, evidence, lawyers!

The law prohibits the participation of lawyers in the conciliation proceedings.

In some areas where the courts are inaccessible, both because of location and because of the
prohibitive costs of litigation, the BJS , with all its limitations, can be the only avenue that the poor can
avail of for the resolution of their disputes.

The BJS maximizes the use of time-honored traditions and practices of communities in settling
disputes between community members.

The BJS is a salient part of the barangay‘s function to promote peace and harmonious
relationships among community members.

The SC directed the courts to ensure compliance with the requirement of prior recourse to the BJS
as a condition for filing complaint in court for cases that are covered by the system.

THE LUPONG TAGAPAMAYAPA

Composition: 10 to 20 members, Punong Barangay as Chairman

Constituted by the Punong Barangay every three years.

Qualifications of Lupon members:

1. Residing or working in the barangay;

2. Not otherwise disqualified by law;
3. Possessing:

a. Integrity;
b. Impartiality;
c. Independence of mind;
d. Sense of fairness;
e. Reputation for probity.

Disqualifications of lupon members:

1. Below 18 years of age;

2. Incompetent;
3. Perpetual or temporary disqualification from holding public office;
4. Elected government official;
5. Members of AFP in the active service

Before the Lupon can function as such, it must first be constituted by the Punong Barangay. A notice to
constitute the lupon, which shall include the names of proposed members who have expressed their

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willingness to serve, shall be prepared by the Punong Barangay within the first 15 days from the start of
his term of office. Such notice shall be posted in 3 conspicuous places in the barangay continuously for a
period of not less than 3 weeks.

Next appointment of lupon members (term of office: 3 years) by PB within 10 days after said period.
Such appointment does not need confirmation or approval by the Sangguniang barangay. That‘s his sole
prerogative.

Failure to constitute lupon on the part of the PB – can be charged with neglect of duty and subjected to
administrative sanctions.
Lupon members:

 Term of office- 3 years

 Not entitled to compensation
 Honoraria, if barangay has enough funds.
 Two children of lupon member – qualified to become state scholar in tertiary education in
state colleges or universities (CHED Order 62, s. 1997)

How to involve the SB?

The SB has the duty to provide the administrative needs of the Lupon and Pangkat by allocating
funds from the IRA of the barangay.

SUBJECT MATTER FOR AMICABLE SETTLEMENT

The lupon of each barangay shall have the authority to bring together the parties actually residing in the
same city or municipality for amicable settlement of all disputes except:

a. Where one party is the government, or any subdivision or instrumentality thereof;

b. Where one party is a public officer or employee, and the dispute relates to the performance of his
official functions;
c. Offenses punishable by imprisonment exceeding one year or a fine exceeding five thousand pesos;
d. Offenses where there is no private offended party;
e. Where the dispute involves real properties located in different cities or municipalities unless the
parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;
f. Disputes involving parties who actually reside in barangays of different cities or municipalities,
except where such barangay units adjoin each other and the parties thereto agree to submit their
differences to amicable settlement by an appropriate lupon;
g. Such other classes of disputes which the President may determine in the interest of justice or upon the
recommendation of the Secretary of Justice. The court in which non-criminal cases not falling within
the authority of the lupon under this Code are filed may, at any time before trial, motu proprio refer
the case to the lupon concerned for amicable settlement.

However, the following cannot be compromised under the NCC:

1. Civil status of persons;

2. The validity of a marriage or legal separation;
3. Any ground for legal separation;
4. Future support;
5. The jurisdiction of courts;
6. Future legitime;
7. Criminal liability.

VENUE
Disputes between actual residents of the same barangay – lupon of said barangay.
Actual residents of different barangays – barangay of respondent at the election of the complainant.

All disputes involving real property or any interest therein shall be brought in the barangay where the real
property or the larger portion thereof is situated.

INITIATION
Payment of appropriate filing fee, oral or written complaint.
Parties to these proceedings are either complainants or respondents. Juridical entities, not allowed.

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MEDIATION by Lupon Chairman

Upon receipt of the complaint, the lupon chairman shall within the next working day summon the
respondent/s, with notice to the complainant/s for them and their witnesses to appear before him for a
mediation of their conflicting interests. If he fails in his mediation, he shall set a date for the constitution
of the Pangkat.

CONCILIATION THROUGH THE PANGKAT NG TAGAPAGKASUNDO

Mediation and conciliation are the same, except that mediation is done by the PB, while
conciliation is done by the Pangkat headed by a chairman.

For each dispute brought before the lupon, there shall be constituted a conciliation panel referred
to as the Pangkat,

Consisting of 3 members, chosen by the parties to the dispute from the list of members of the lupon.

Should the parties fail to agree on the Pangkat membership, the same shall be determined by lots drawn
by the lupon chairman.

The 3 members shall from among themselves the chairman and the secretary.

ISSUANCE OF SUMMONS; HEARING; GROUNDS FOR DISQUALIFICATION

Pangkat convenes not later than 3 days from its constitution, on the day and hour set by the lupon
chairman, to hear both parties and their witnesses, simplify issues, and explore all possibilities for
amicable settlement.

Disqualifications: relationship, bias, interest, or any other similar grounds, - issue is resolved by
the affirmative vote of the majority of the Pangkat whose decision shall be final.

APPEARANCE OF PARTIES IN PERSON

In all katarungang pambarangay proceedings, the parties must appear in person without the
assistance of counsel or representative, except for minors and incompetents who may be assisted by their
next-of-kin who are not lawyers.

PERIOD TO ARRIVE AT SETTLEMENT

The pangkat shall arrive at a settlement or resolution of the dispute within fifteen days from the
day it convenes. At the discretion of the pangkat, extendible for another period not exceeding 15 days,
except in clearly meritorious cases.

FORM OF SETTLEMENT

All amicable settlements shall be in writing, in a language or dialect known to the parties, signed
by them, and attested to by the lupon chairman or the pangkat chairman, as the case may be.

REPUDIATION

Any party to the dispute may, within 10 days from the date of the settlement, repudiate the same
by filing with the lupon chairman a statement to that effect sworn to before him, where the consent is
vitiated by fraud, violence, or intimidation. Such repudiation shall be sufficient basis for the issuance of
the certification for filing a complaint.

ARBITRATION

Another way of settling disputes wherein the parties agree to be bound by a decision of a third
person or body in place or a regularly organized tribunal.

It can take place at any stage of the proceedings as long as both parties agree in writing to abide
by the arbitration award of the lupon or the pangkat. In other words, either the lupon chairperson or
Punong barangay or the pangkat chairperson can act as an arbitrator.

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 PUBLIC INTERNATIONAL LAW

This is based on the lectures of Dean Sedfrey Candelaria, Prof. Edwin Rey Sandoval, and Nachura
Political law reviewer.

International law vs. Municipal law

One important real difference between international law and domestic law lies in the concept of
Constitution. The concepts or principles of domestic law are governed by a Constitution. In international
law you don‘t have a Constitution to speak of. The UN Charter is not even a Constitution as contemplated
in domestic law. While Justice Nachura refers to it as the closest to a constitution that basically governs
the relations of international persons, technically, the UN Charter is a treaty especially in view of how
treaty is defined in the Vienna Convention on the Law of Treaties [VCLT]

Context of domestic law

In the context of domestic law, you have a Constitution which is the final and supreme standard
to determine the validity of an act. It is the Constitution which says that the legislative, executive, and
judiciary must act in accordance with the Constitution. Is it not that no act shall be valid if it contravenes
the Constitution being the paramount law of the land to which all acts must conform and to which all
persons including the highest officials of the land must defer? Now, who ordain the Constitution? It is
the sovereign people. On the other hand, who ordain international law? We don‘t say we the sovereign
peoples of the world do ordain international law. That‘s why you have sources of international law.

In a republican system like what we have in this jurisdiction, the people have delegated
their power to certain representatives, particularly, for the legislators to make laws, for the
executive to execute the law, and for the judiciary to interpret the law. A system like that cannot be
observed in international law. You don’t have an international constitutional law. When an act is
violative of international law, you do not say violation of constitution in international law or
international constitutional law. This is because in international law, you don’t have a Constitution to
speak of. So that if there is a problem of an international character, the relevant question to ask is not
―What constitution is violated‖? One should ask of what treaty was violated; what CIL was violated; what
general principle of law was violated.

From that, you have to remember that there is really a difference between domestic law and
international law.

Is international law binding upon states if they have not given consent?

As a general rule, NO.

In international law, you are talking about sovereign equals; these are States which exercise
sovereignty within a specific territory. Par in parem non habet imperium. Principally, States are bound
by international law on the basis of consent. That‘s why as a general rule, the basis for which states
may be bound by international law is consent. This is how international law becomes binding upon
states. What Hart asserts is that international law is primary rules of obligations; that States bind
themselves under international law because the source of obligation in international law is on the basis of
consent.

Example: if you are not a ratifying state to a treaty, the treaty is not binding upon you because
you have not given your consent to be bound by the treaty. You are not bound by the principle of pacta
sunt servanda for purposes of a treaty of which you are not a signatory. If you are not a ratifying
state to the UNCLOS, you are not bound to implement the provisions of the UNCLOS
notwithstanding that it is a multilateral treaty. This is because treaties are a source of obligation if
and only if a State consents to it. In the absence of that consent, a State cannot be imputed with
responsibility under the treaty.

May states be bound by a particular matter even if there is no treaty to that effect?

But of course, even if there is no treaty on a particular matter but there is customary
international law, this binds States even if they are not a signatory to a treaty. This is because custom is
one that is universally accepted. This is exemplified by Kuroda vs. Jalandoni: The petitioner was
challenging the jurisdiction of the military commission trying him on the ground that the Philippines was
not covered by the Hague Convention for being not a signatory thereto. The SC ruled that we were bound

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by that convention because it embodied generally accepted principles of international law [customary
international law] binding upon all States by reason of their membership in the family of nations. [Cruz]

But, is there still a consensual character of custom?

Yes.

Custom evolves out of State practice. So there is still a consensual character to it because that
practice is also recognized subjectively by the state as binding upon itself. There is still the subjective
element of Opinio juris sive necessitates (―an opinion of law or necessity or a sense of legal obligation‖)

International law lacks secondary rules of change in adjudication.

In the context of dispute resolution or settlement in international law, would states have to
express recognition or non-recognition of the jurisdiction of ICJ?

Yes.

You must have noticed that even in the context of dispute resolution or settlement in international
law particularly in the International Court of Justice, the governing norm is that States would also have to
express recognition or non-recognition of the jurisdiction of the ICJ. So a State still has to consent to the
assumption of jurisdiction by the ICJ in a case involving said State. The same is true with the
International Criminal Court which can actually entertain cases against natural persons for violations
of crimes against humanity, genocide, war crimes, and wars of aggression. States have to ratify the Rome
Statute or they still need to consent to it. For example, the US has not yet ratified the Rome Statute so the
ICC cannot validly assume jurisdiction insofar as the US is concerned.

Is international law a true law?

Although it may not comply with John Austin‘s concept of law, i.e., enforced by sovereign
political authority, nonetheless it is still true law because international law may be said to possess the
qualities of a true law considering that there are many norms of conduct that society may voluntarily
adopt and obey although no specific penalty is imposed for non-observance.

What are the SOURCES OF OBLIGATIONS IN INTERNATIONAL LAW?

(Article 38, Statute of the ICJ)

FIRST SOURCE OF OBLIGATION IN IL:

International treaties and conventions

The concept of treaty

This is the first source of international law. It is defined under the VCLT, 1969, as ―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 instruments and whatever its particular
designation.‖

Let us analyze the definition. It says ―international agreement concluded between states‖.
These States must be in accordance with the definition in the Montivideo Convention. This is important
because the 1969 VCLT covers only treaties executed between States. If a treaty is executed between a
State and an international organization, the 1969 VCLT does not apply. It is the 1986 Vienna Convention
on Treaties for International Organizations in such a case will apply.

Then it says ―in written form.‖ Is there a possibility for an oral agreement between States?
YES, States can enter into an agreement orally and that can be a source of obligation. But will it be
governed by the VCLT? Not necessarily because in international law, on the concept of treaty particularly
under the 1969 VCLT, it says ―in written form.‖

Then it says ―governed by international law.‖ Can an international agreement which is in

writing yet, not governed by international law? Yes, because the parties to said international agreement
can stipulate that the governing law is other than international law, e.g., the law of Las Vegas or
Philippine law. This kind of arrangement is valid.

In sum, as far as international law is concerned, if the agreement is entered into between two
States, in writing, and governed by international law, then said agreement will have the force and effect of

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a treaty pursuant to the VCLT. That‘s why in the case of Province of North Cotabato vs. GRP Panel,
October 14, 2008, the SC said that the MOA-AD is not a treaty in accordance with the VCLT.
(What if the MILF is a belligerent)

But you have Article 38(1)(a) of the Statute of the ICJ which says ―International treaties and
conventions, whether general or particular, establishing rules expressly recognized by the contesting
state‖ as one of the primary sources. Does this mean that bilateral treaties cannot be a source of
international law?

For this particular question, you have to note that not every treaty can be considered a direct
source of international law as it is not always concluded by the great body of states. In other
words, not all treaties are multilateral treaties.

However, even bilateral treaties may become primary sources of international law, if they are of
the same nature, contain practically uniform provisions and are concluded by a substantial
number of states, albeit separately, e.g. extradition treaties.

REQUISITES FOR THE VALIDITY OF TREATY

1. Treaty-making capacity is a requisite for validity of treaty

Every State possesses the capacity to conclude treaties, as an attribute of sovereignty. Under
customary international law, international organizations are deemed to possess treaty-making capacity,
although such capacity may be limited by the purpose and the constitution of such organizations.

2. Competence of the representative/organ concluding the treaty.

Who can enter into a treaty on behalf of the State?

The conduct of foreign relations is a domain of the executive department. It is a matter of

executive function. It is the executive which enters into a treaty on behalf of the State. Section 21, Article
VII provides that ―No treaty or international agreement shall be valid and effective unless concurred in by
at least two-thirds of all the Members of the Senate.‖ You know this also as the ―treaty clause.‖ You can
find this in Article VII-Executive Department. Under this, the President may enter into an agreement
subject to the concurrence by the Senate. And also, under Section 20 of Article VII, the President may
contract or guarantee foreign loans on behalf of the RoP with the prior concurrence of the Monetary
Board. But it will always be an executive function. This is why the executive has to issue a ―full powers
authority‖ (it‘s a document entitled ―Office of the President. Full Powers Authority‖) to someone who is
so authorized to sign a document on behalf of the RoP.

General Rule: Full powers needed.

What is ―Full Powers‖?

This is the authority granted unto a representative of the state to enter into, negotiate, sign
and seal a treaty. This shall be made by the President or the Secretary of Foreign Affairs, when
delegated (Sec. 4, E.O. No. 459, Guidelines in the Negotiation of International Agreements and
its Ratification)

Under the VCLT, there are certain persons who need not show full powers.

The Head of State, as distinguished from the Head of Government, does not have to show full
powers.

The foreign affairs secretary also does not have to show full powers. By virtue of his functions,
he is presumed to have that power and he need not carry papers to show authority.

The Head of diplomatic missions. This is however limited in the sense that the capacity of the
ambassador is limited to his station. Example: Philippine ambassador to US goes to Cuba and signs an
agreement between Philippines and Cuba. In this situation, the general applies: the ambassador will have
to show full powers.

Representatives to international conferences.

Example: climate change conference like the one held in Copenhagen, Denmark sometime in
2010. We may have sent representatives there who may have come from the private or public sector.

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Those who were part of the delegation, or the head of the delegation may sign in behalf of the government
in the event of signing as they may be possessed with limited authority without need of full powers, but
only for that particular summit.

The concept of validation of treaty

Even if the person who entered into a treaty did not have the authority, but later on, his action was
validated by the government or the government even executed the terms of the agreement, then that
would be evidence of ratification or validation.

The concept of adoption of treaty

Adoption is a concept whereby States will have to concur.

3. Parties must freely give consent.

How do States consent to a treaty?

The consent of a State may be expressed by signature, exchange of instruments

constituting a treaty, ratification, acceptance, approval or accession, or by other means
manifesting consent.

Where the consent of a party has been given in error or induced through fraud on the party of
the other, the treaty is voidable. Where the consent of the State is obtained through the corruption of
its representative by another negotiating State, the former may invoke such corruption in invalidating
its consent to be bound by the treaty.

4. Object and subject matter must be lawful.

It must be within the commerce of nations and in conformity with international law.

When the provisions of a treaty contravene the doctrine of jus cogens, such provisions of a
treaty may be invalidated. In Human Rights Cases vs. Marcos, it was held that official torture of
prisoners or dissenters is a violation of the principle of jus cogens.

What is the doctrine of jus cogens?

Customary international law has the status of a peremptory norm of international law,
accepted and recognized by the international community of states as a rule from which no
derogation is permitted.

5. Ratification in accordance with constitutional processes of the parties concerned.

In other words, ratification should be understood in the concept of the constitutional process of a
State like in the Philippines where you have to secure the concurrence of the Senate under the treaty
clause.

Distinction between SIGNING and RATIFICATION

Now, you have to make a distinction between signing and ratification. The distinction
has been clarified in this case. A State like the Philippines may sign an agreement but it may not
actually proceed with ratification or concurrence by Senate. Take note that SIGNATURE does
not create an obligation to ratify. {But of course there are repercussions if you do this. Your
image in the international community may be stained. You don‘t want to be perceived as an
irresponsible member of the international community. If you could remember the foreign policy
of Obama of a pivot to Asia, this was actually seriously doubted by countries in Asia especially
the ASEAN nations when Pres. Obama failed to attend in one summit of ASEAN member-states.
And you have this consistent message of US to China for the latter to show that it can be a
responsible member of the security environment especially in South China Sea where China is
becoming more assertive. So really, as a State, your image in the international community really
matters in foreign relations. You cannot earn allies if you are sending the wrong image. You don‘t
want to get isolated in the international community where the prevailing norm is interdependence.
Even on the international field, no man is an island. So if you sign but you did not ratify, you are
just embarrassing yourself at the end of the day.}

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 But you see when you ratify and sign, you may have to perform certain actions in
domestic law like amending existing legislation, or issuing executive issuances, regulations and
executing them as compliance with your treaty obligations because you know a treaty has the
force and effect of law. Aside from that, I know you understand the principle of pacta sunt
servanda.

Pimentel vs. Executive Secretary

In this case, the President after he signed (presumably through the Foreign Affairs
Secretary) the Rome Statute (creating the ICC), failed to submit the treaty for a while to the
Senate for concurrence. So the older Pimentel questioned that and filed mandamus before the SC
to compel the executive to submit the treaty to the Senate for concurrence.

Now, can you compel the President to actually submit to the Senate for its
concurrence the treaty that he signs?

The SC said that is discretionary. It is not a ministerial function on the part of the
President to submit the treaty to the Senate for concurrence even after he has already signed the
treaty. In other words, the President may or may not actually submit it. He cannot be compelled.
That is discretionary on his part.

Accession on the other hand has to be understood in a context where a State was never an original
party to a treaty but nevertheless said State wants to become a party to said treaty by acceding to the
same.

THE MAKING OF TREATIES

How is a treaty made in the context of Philippine setting?

The general rule in the Constitution is that a treaty must be concurred in by the Senate of
the Philippines. [Section 21, Article VII] The President negotiates and signs but he may or may not
actually submit it to the Senate for concurrence. In other words, it is within the discretion of the President
whether or not to submit the treaty to the Senate for concurrence [ICC case]. But if the President has
already signed a treaty, what is the effect of the refusal of the President to submit the treaty to the
Senate for its concurrence to the validity of the treaty?

How many ways may a treaty be entered into by the government under the 1987 Constitution?

Here you have to make a distinction on the kind of agreement.

Ordinary treaty
If it is an ordinary treaty, Section 21, Article VII , which is the general rule, applies. ―No treaty or
international agreement shall be valid and effective unless concurred in by at least two-thirds of all the
Members of the Senate.‖

Loan agreement under Section 20, Article VII

If it is loan agreement then Section 20, Article VII applies. For a loan agreement to be validly
entered into by the President, the same must be with the prior concurrence of the Monetary Board. Here
you have to view loan agreement as an exception to the general rule in Section 21, Article VII which says
that a treaty, as defined in Section 21, Article VII, must be concurred in by the Senate. In Section 20, it is
the prior concurrence of the Monetary Board which is required.

Section 25, Article XVIII, Constitution

This speaks of a special kind of treaty or a treaty that will allow the establishment of new military
bases agreement. Hence, if the treaty is for the purposes of establishing foreign military bases or putting
up military troops or facilities, then this is the special provision. The conditions are: ―except under a
treaty duly concurred in by the Senate AND, when the Congress so requires, ratified by a majority of
the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by
the other contracting State.‖

CASE LAWS ON TREATIES

Bayan vs. Zamora
This case was about the Visiting Forces Agreement which is the agreement pursuant to the
mutual defense treaty of 1951 between the Philippines and US. Arising from the VFA is another kind of
document – the balikatan exercises terms of reference. There was a question on the constitutionality of the
VFA because remember one of the conditions of Section 25, Article XVIII, Constitution, for allowing

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foreign military bases or troops or facilities: ―except under a treaty duly concurred in by the Senate AND,
when the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State.‖ The VFA
did not undergo the process of concurrence by the US Senate as provided for in its Constitution which is
similar to our own. According to the representative of US in the person of Amb. Hubbard, he wrote us a
letter that the VFA has the force and effect of a treaty under international law without need of it being
submitted to the US Senate for its concurrence. Because of that, the SC held that it was sufficient
assurance that under US law, the VFA is treated as an international agreement. In other words, there was
compliance with the requirement that the treaty is recognized as a treaty by the other contracting
State.

Nicolas vs. Romulo, February 11, 2009

Daniel Smith Case

This is a case which reaffirmed that the VFA is one which has the force and effect of a treaty. In
this case, the SC reiterated its previous ruling that the VFA is a mere implementation of the Mutual
Defense Treaty of 1951. The question that was raised here has something to do with the ―Romulo-Kenney
Agreements of Dec. 19 and 22, 2006.‖ Detaining accused Daniel Smith in US embassy after conviction is
not in accord with Art. 5, Sec. 10 of VFA. Art 5, Section 6. – custody from commission of offense until
completion of all judicial proceedings is with US, while Art. 5, Section 10 – after conviction, confinement
or detention by Philippine authorities shall be carried out in facilities agreed on by appropriate RP-US
authorities.

Lim vs. Executive Secretary, April 11, 2002

The Balikatan Exercises Terms of Reference does not need concurrence by Senate as it merely
the terms of reference pursuant to the VFA. Its the VFA, the source of the terms of reference called
balikatan exercises, which needs concurrence of the Senate pursuant to Section 25, Article 18 of the
Constitution.

Pharmaceutical vs. DOH, October 9, 2007

WHO guidelines are mere ―soft law.‖ Soft law does not necessarily have the force and effect of a
treaty. These WHO guidelines are not a treaty.

Abaya vs. Ebdane, 513 SCRA 720

Exchange of notes is a form of executive agreement. It is merely a simple communication and it
is not a treaty. But under the VCLT, it is a form of executive agreement. So if it is a form of executive
agreement, may it have the force and effect of a treaty? YES, but not for purposes of having to submit
it to the Senate for concurrence. It is therefore binding upon the government since it is entered into
between two states, in writing, and on the assumption that it is governed by international law.

RESERVATIONS TO TREATY
The general rule here is reservations are allowed. But of course there are exceptions. What are
these exceptions?

a. If the reservation is prohibited by the treaty itself like the ICC where there is a specific
provision under Article 120 thereof that no reservations are permitted. Here reservations are
specifically prohibited.
b. Second exception is if only specific reservations are allowed.
c. And the third exception is if reservation is incompatible with the purpose of the treaty.
The example of the latter is the genocide convention. Here, the importance of prohibiting
genocide as a crime against humanity is serious enough to lay the standard that no
reservations can be made with regard to the genocide convention.

Interpretation of Treaties
How do you interpret treaties?
A treaty shall be interpreted in good faith, in accordance with the ordinary meaning given
to the terms of the treaty in their context and in the light of its objects and purposes. To be
considered in the interpretation are its text, preamble, annexes, as well as other agreements
relating to the treaty and subsequent agreements entered into by the contracting parties.

Example is, under the genocide convention, the term ‗genocide‘ has to be interpreted in
accordance with its ordinary meaning. You have to view it as customary international rule that no
group of people may be the subject of annihilation like what happened in Rwanda between the

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Hutus and Tutsis. In other words, if the FAB fails, the Philippine government cannot adopt
genocide against the Moros to end the so called centuries old ―Moro problem.‖

SOME IMPORTANT CONCEPTS IN TREATY LAW:

THE PRINCIPLE OF JUS COGENS

―JUS COGENS‖ actually means the peremptory norms of international law. We are
speaking here of customary international law which has the status of a peremptory norm of
international law, accepted and recognized by the international community of states as a
rule from which no derogation is permitted. This is also known as non-derogable principle.

So what is its significance to the concept of treaty?

States cannot enter into an agreement which is contrary to the principle of jus cogens. So
if the object or subject matter of the agreement is to unlawfully use force, or to commit piracy,
genocide, human rights violations, or even violate the equality of States, or to engage in slave
trade, said treaty may be invalidated because it is in violation of this principle. You have to
respect norms or standards from which you are not permitted to deviate from. In Human Rights
Cases vs. Marcos, it was held that official torture of prisoners or dissenters is a violation of
the principle of jus cogens.

REBUS SIC STANTIBUS in relation to termination of treaties

This means that a contracting State‘s obligations under a treaty terminates when a vital
or fundamental change of circumstances occurs, thus allowing a State to unilaterally
withdraw from a treaty, because of the ―disappearance of the foundation upon which it
rests.‖
But the mere fact that there is a vital or fundamental change is not a ground for
termination or suspension of treaties. The change must have affected the essential basis of
consent and that the obligation of either or both parties to the treaty have been transformed
radically. But is this absolute? NO. A treaty which establishes a boundary is an exception to the
exception to the rule on rebus sic stantibus. Here, even if the essential basis of consent is affected
and the obligation is transformed radically, you cannot unilaterally withdraw from the treaty. The
other exception is if the fundamental change arose from a breach by the party invoking rebus sic
stantibus. Here you have no basis to invoke it.

Shall the supremacy of the Constitution be upheld as against a treaty especially in view of
pacta sunt servanda?

It depends on which court is deciding:

3. International court – it will uphold treaty obligation in general;

4. Domestic court – it will uphold local laws (such as the Constitution).

Specific situation of conflict between Treaty and the Constitution

A27, VCLT: ―A party may not invoke the provisions of internal law as justification for its
failure to perform a treaty.‖ Under dualist theory, unconstitutionality of a treaty is purely
domestic matter. State faces risk of international sanction.

GATT-WTO imposes to its members an obligation to allow cross-border practice of the

legal profession between and among the members. As a member of GATT-WTO, may the
Philippines validly deviate from its treaty obligation to allow foreigners to practice the legal
profession before Philippine courts?

Yes, the Philippines may validly deviate from its treaty obligation under the GATT-
WTO. This is sanctioned by A46, VCLT, which provides that when constitutional violation is
manifest and concerns a rule of internal law of fundamental importance, state may deviate
from treaty obligation. The constitutional provision to the effect that the practice of all
professions in the Philippines shall be limited to Filipino citizens is a rule of internal law of
fundamental importance. (Sec. 14, 2nd par., Art. XII [National Economy and Patrimony]: ―The
practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases
prescribed by law.‖)

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2ND SOURCE OF OBLIGATION IN INTERNATIONAL LAW: CUSTOMARY INTERNATIONAL LAW

International customs, as evidence of a general practice accepted as binding law…

What is custom?

A custom is defined as a practice which has grown up between states and has come to be accepted
as binding by the mere fact of persistent usage over a long period of time, e.g. principle of
exterritoriality.

What are the requisites/elements of international customs?

a. Prevailing practice (generality) by a number of states;

b. Repeated (consistency and uniformity)over a considerable period of time (duration);

Examples:

1. For a long time, States have always recognized that navigation in the high seas as free. This
principle of freedom on the high seas is an example where traditionally, international law has
given rise to this particular rule;

2. Outer space: States recognize it as beyond appropriation.

These kinds of principles can be articulated in a treaty that‘s why we see treaties
which also contain customary international law.
If the practice on a particular point in international law is inconsistent, this
practice may not evolve into a custom.
Example: In the Asylum case, there was a mention of this theory of regional
custom. This case was a dispute between Columbia and Peru on the right of a State to
unilaterally qualify an offense as political for purposes of asylum. There was a finding
that this practice is rather inconsistent.

c. Attended by opinio juris sive necessitates (sense of legal obligation)

This consists of objective aspect and subjective aspect. There is an objective aspect
because there is a settled practice already. It is subjective because States consider it as binding
upon themselves out of sense of legal obligation.

Example of an assumption of obligation in international law:

This is the case of France and New Zealand and France and Australia on nuclear test
cases. Here, the President of France made a public pronouncement that France will no longer
conduct nuclear weapons test in the Pacific atoll. This demonstrates a subjective commitment by
France which it declared to the entire world on which the international community can rely on for
it has become erga omnes. Obligations Erga Omnes – literally means ―towards all‖; those
obligations which seek to protect and promote basic values and common interests of all states. Jus
cogens are obligations erga omnes.

Is there a limit to State Practice?

Yes. The Persistent Objector rule.
A state that has persistently objected to a rule of customary international law during the
course of its emergence is not bound. But this has limited role today. This is because in cases of
new states, they are bound by customary international law.
Cite Air Defense Identification Zone (ADIZ) declared by China in the East China Sea in
2013. Right after the declaration the US and Japan flew their war planes without complying with
the Chinese imposition to require aircrafts flying in the area to identify themselves and maintain
contact with Chinese authorities.

THIRD SOURCE OF OBLIGATIONS IN INTERNATIONAL LAW:

The general principles of law recognized by civilized nations

What are these principles?

These are rules derived mainly from natural law, observed and recognized by civilized nations.

Examples: the principles of liability(civil or criminal), res judicata, prescription, pacta sunt
servanda, estoppel, reparations, unjust enrichment, property, expropriation, good faith, humanity, rules on

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 presumptions and errors, denial of justice, human rights, right of passage, prescription, administrative
law, procedure. Many of these actually can be found in domestic law.

The Principle of Ex aequo et bono (what is good and just)

This is the power of ICJ to decide a case equitably outside the rules of law, as distinguished
from deciding a case using equitable principles. Here, the parties to a dispute give the ICJ power of ICJ to
decide a case equitably outside the rules of law. In equity, the law cannot cover every possible situation so
when you decide a case of that sort, you have to use equitable principles.

THE FOURTH SOURCE OF OBLIGATIONS IN INTERNATIONAL LAW:

Judicial decisions, generally of international tribunals, the most authoritative being the
International Court of Justice

This source of obligations in international law is actually arising from the application of
international law by domestic courts. You know that national and international tribunals can actually
render decisions which have relevance and applicability in international law.

Example: Filartiga vs. Pena-Irala (60 F. 2d 876, 1980)

Jovelito Filartiga was kidnapped and tortured to death by then Inspector-General of Police of
Paraguay in the person of Pena-Irala. The family of the victim gave up on their domestic remedy in
Paraguay due to the slow administration of justice. They went to the US for greener pastures but it so
happened that Pena-Irala also went to US for the same purpose. When the victim‘s family learned of this,
they filed a suit in the US against Pena-Irala invoking an old US Alien Tort Law which allowed aliens to
sue and have rights (recognized in international law) enforced before US courts even for acts committed
outside the US provided there is jurisdiction over the defendant in US. Under that law, any torturer can be
sued for civil liability purposes because that person is ―hostis humani generis‖ or enemy of all mankind.

FIFTH SOURCE OF INTERNATIONAL LAW:

Writings of publicists, these are teachings of the most highly qualified publicists of the various
nations

N.B: must be fair and unbiased representation on international law by acknowledged authorities on the
field.

PERSONALITY UNDER INTERNATIONAL LAW

Who are the SUBJECTS OF INTERNATIONAL LAW for purposes of violations, complaints, or
actions before the ICJ?

a. STATES

What is the first person in international law? State.

Elements of a State under the 1933 Montevideo Convention (Article 1):
1. Permanent population;
2. Defined territory;
3. Government;
4. Capacity to enter into relations with other States

Is admission to the UN a condition precedent to become State?

No. Admission to the UN is not a condition precedent to become a State. Example you
are a newly emerged State, you applied for admission in the UN but you were denied admission.
You remain as a sovereign state.

Concept of Recognition of States

Two theories:
1. Declaratory theory – possession of the essential elements of state. Here, you have to possess
all the elements of a state. If one does not have them, the same is not a state.

2. Constitutive theory – recognition is what constitutes a State. This means that for one to
become a State under the Montevideo Convention, recognition is an important factor
notwithstanding that you assert the right to self-determination.

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 b. INTERNATIONAL ORGANIZATIONS

Examples:
1. United Nations;
2. Eurpean Union

c. INDIVIDUALS
Human being as a subject of international law in a limited way.

Recent development in this area is the Rome Statute of 1998 (ICC)

Individuals may be tried for genocide, crimes against humanity, war crimes, and crime of
aggression; entry into force: July 2002; aggression remains to be undefined; no death penalty, no trial
in absentia.

d. CORPORATIONS
Case law on this is the Dispute between Texaco Overseas Petroleum Co./California Asiatic Oil Co.
and the Government of the Libyan Arab Republic – Internationalized contracts entered into
between a state and a foreign corporation gives the latter limited capacity by invoking in
international law the rights derived from the contract.

FUNDAMENTAL RIGHTS OF STATES

RIGHT TO SOVEREIGNTY AND INDEPENDENCE

Sovereignty is the totality of the powers, legal competence, and privileges of a state arising from
customary international law, and not dependent on the consent of another state. Independence is the
freedom to conduct foreign relations without outside control. The latter is not absolute freedom as valid
restraints thereof may consist in obligation to preserve the rights of others; treaty stipulations; and
obligations arising from membership in international organizations.

Is intervention allowed?
At present, intervention is allowed only as an act of individual or collective self-defense in
response to an armed attack; pursuant to treaty stipulations; or with prior UN authorization.

RIGHT TO PROPERTY (TERRITORIAL INTEGRITY) AND JURISDICTION

What is jurisdiction in international law perspective?

As a concept – it is the capacity of States to:
a. Legislate or to prescribe laws/rules
b. Enforce laws/rules

As a power – it is exercised by the States over:

a. Land;
b. Persons;
c. Property;
d. Transaction and Events

What is the basic question to ask in jurisdiction?

The basic question of jurisdiction centers upon which State has sovereignty or legal control over
land, persons, ships at sea, airships in flight, property, transactions or events, in various situations.
[Nachura]

Bases of Jurisdiction:
Preliminary theories (applicable to the exercise of criminal and civil jurisdiction):

1. Nationality
The State has jurisdiction over its nationals wherever they may be. This applies to civil
matters because civil law follows the national wherever he may be. An example of this is Article
15 of the New Civil Code: ―Laws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.‖
Example: You are a Filipino who has a validly existing marriage in the Philippines and you go to Las
Vegas and married an American. That marriage is void in the eyes of Philippine law, particularly civil
law.

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2. Passive Personality
Under this principle, State exercises jurisdiction over crimes against its own nationals even if
committed outside its territory. Passive personality means a State may punish aliens abroad who
injure one‘s citizen.

3. Security principle (Protective Principle in Nachura)

Under this principle, State has jurisdiction over acts committed abroad (by nationals or
foreigners) which are prejudicial to its national security or vital interests like the independence of one
state and its territorial integrity. Here, State may punish aliens for acts against a State‘s security,
independence and territorial integrity.
An example of this is actually the assumption of jurisdiction by the State over alleged terrorists. If
somebody bombs our embassy in the US, Philippine jurisdiction may actually reach the perpetrator
under this principle. This is also what happened in the case of Osama bin Laden. But you have
Edward Snowden which exposed the global surveillance of US even over its allies. For sure, that
hurts vital interests of US. But US cannot actually reach Snowden. Why? He is temporarily granted
asylum by Russia.

4. Universality
Under this principle, State has jurisdiction over offenses considered as universal crimes
regardless of where committed and who committed them. There are certain crimes like piracy, crimes
against humanity, genocide, war crimes, which threaten the international community as a whole and
are considered criminal offenses in all countries. This will call the application of universal
jurisdiction, any State may want to prosecute.

Attorney-General of the Government of Israel vs. Eichmann (36 I.L.R. 227, 1962)
Eichmann was a high-ranking German officer identified to have participated in the execution of
the Jews during the Holocaust. He hid to Argentina after World War II. When Israeli courts
discovered this fact, they decided to send Isreali police to kidnap Eichmann in Argentina and brought
him to Tel Aviv in Israel. Eichmann was tried and convicted. Was the conviction valid? Yes, the
conviction was valid because when the crime committed is universal crime like genocide, this is
subject to universal jurisdiction on the basis of which any State like Israel can actually prosecute. But
was there a violation of international law committed by Israel against Argentina? Yes, because
the territory of Argentina was violated, its sovereignty was violated by Israel. That‘s why Argentina
has validly filed a diplomatic protest against Israel.

5. Objective territoriality [Territorial Principle in Nachura]

Under this principle, the State may exercise jurisdiction only within its territory. As a general
rule, a State has criminal jurisdiction only over offenses committed within its territory, except over
(1) continuing offenses; (2) acts prejudicial to the national security or vital interests of the State; (3)
universal crimes; and (4) offenses covered by special agreement (although this is now obsolete).

JURISDICTION OVER TERRITORY

Components of territory:
4. Terrestrial domain;
5. Maritime and fluvial domain;
6. Aerial and space domain.

LAND TERRITORY (Terrestrial Domain)

What are the modes of acquisition?

a. Discovery and occupation with effectiveness
Here the territory being claimed must be terra nullius as pronounced in Western Sahara Case;
discovery alone merely creates an inchoate right; there must be an effective occupation and
administration (Island of Palmas Case). That‘s why as far as the KIG is concerned, we claim it on
the basis of occupation and we put up an administrative district there pursuant to PD 1596 (1978) to
become a municipality there called Kalayaan of the Province of Palawan, to show proof that we are in
effective administration over this area.

b. Conquest (allowed before but this is no longer recognized)

Inasmuch as the UN Charter prohibits resort threat or use of force against the territorial integrity
or political independence of any State. That‘s why the annexation of Kuwait by Iraq has to be
declared null and void by the UN Security Council.

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c. Cession
This may voluntary, through a treaty of sale.

d. Accretion
This refers to an increase in the land area of the State, either through natural means, or
artificially, through human labor.

e. Prescription (Nachura)

Can you have a national territory even if it is not articulated in a document such as the
Constitution? What if a state has a definition of its national territory, did it have a territory in that
sense?
Yes. You can have a national territory even if it is not articulated in a document such as the
Constitution. In other words, a state does not have to articulate its national territory in its constitution
before it is said that it can have a national territory.

In international law, what fundamental right pertaining to territory does every state have?
The right to territorial integrity and jurisdiction. (property and jurisdiction)
As a requirement under the Montevideo Convention, a state must have reasonably stable political
community and this must be in control of a certain area. (Brownlie, 2008)

MARITIME TERRITORY (Fluvial and Maritime Domain)

1. Internal waters
The UNCLOS defines internal waters as all waters on the landward side of the baselines of the
territorial sea.

What is the archipelago doctrine of national territory?

This is a doctrine based on the principle that an archipelago, which consists of a number
of islands separated by bodies of water, should be treated as one integral unit.
Under this doctrine, the Philippine archipelago is considered as one integrated unit instead of
being divided into more than 7000 islands. It is the integration of a group of islands to the sea and
their oneness so that together they can constitute one unit, one country, and one state.

2. Archipelagic waters
The second sentence of Sec. 1, Art. I, articulates this doctrine. ―The waters around,
between and connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines.‖ [2009 Bar exam]

What is the main purpose of this doctrine?

The main purpose is to protect the territorial interests of an archipelago.

How to determine the extent of archipelagic waters?

Straight Baseline Method:
Imaginary straight lines are drawn joining the outermost points of outermost islands of
the archipelago, enclosing an area the ratio of which should not be more than 9:1 (water to land);
provided that the drawing of baselines shall not depart to any appreciable extent, from the general
configuration of the archipelago. The waters within the baselines shall be considered internal
waters; while the breadth of the territorial sea shall then be measured from the baselines.

3. Territorial Sea

What is the extent of the territorial sea?

It extends up to 12 nautical miles from the low-water mark, or in the case of archipelagic
states, from the baselines.
N.B: Ships (not aircrafts) of all states enjoy right of innocent passage through the territorial sea,
not through internal waters. The passage must be continuous and expeditious, except in cases of
force majeure.

By the way, what is the right of innocent passage?

The right of innocent passage means that it is an entry which is not threatening to the
security of the state.

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 NEW BASELINES LAW [RA 9522 (2009)]

It declared KIG and Scarborough Shoal as ―regime of islands‖ pursuant to Article 121 of
UNCLOS III

Case law: MAGALLONA vs. Executive Secretary

RA 9522 is constitutional; it is not intended to delineate Philippine territory but merely
regulates sea-use rights over maritime zones and continental shelves that UNCLOS delimits.

4. Contiguous Zone
This extends up to 12 nautical miles from the territorial sea. Here, the coastal state may exercise
limited jurisdiction over the contiguous zone to prevent infringement of customs, fiscal, immigration
or sanitary laws, even though technically it is not a part of the territory of the State.

5. Exclusive Economic Zone

This extends up to 200 nautical miles from the low-water mark or the baselines, as the case may
be. The coastal state may exercise sovereign rights over economic resources of the sea, seabed,
subsoil, but also taking into account the interests of other States such as freedom of navigation and
over-flight, to lay submarine cables and pipelines, and other lawful uses.

6. Continental shelf
The coastal State enjoys the right of exploitation of oil deposits and other resources in the
continental shelf.

AIR TERRITORY (Aerial domain or Air space)

This refers to the air space above the land and waters of the State. Here, other States have NO
right of innocent passage over the air territory of another State. You distinguish this with the rule
regarding territorial sea because the right of innocent passage in the territorial sea is allowed.

Does it include the outer space? NO.

It does not include the outer space. Under customary international law, States have the right to
launch satellites in orbit over the territorial air space of other States. Pursuant to the Outer Space Treaty of
1967, outer space is free for exploration and use by all States; it cannot be annexed by any State; it may
be used exclusively for peaceful purposes; nuclear weapons of mass destruction may not be placed in
orbit around the earth; astronauts are envoys of mankind.

JURISDICTION OVER PERSONS AND ECONOMIC ACTIVITY

1. On the general theory of criminal jurisdiction

Under the general theory of criminal jurisdiction, the general rule is that vessels on high seas are
subject to the authority of the flag-State, except: piracy, slave trade, hot pursuit, right of approach.

2. Extradition under international law:

What is extradition as distinguished from deportation?

Extradition is the surrender of a fugitive by one state to another where he is wanted for
prosecution or, if already convicted, for punishment. Deportation is the expulsion of an alien who
is considered undesirable by the local state, usually but not necessarily to his own state.
Deportation is the unilateral act of the local state and is made in its own interests.

Significant questions to ask:

a. Is there a treaty?
b. Is the crime listed?

GR: There is no duty to extradite where there is no treaty.

Exception: Even with treaty, crimes with political complexion: ―exempt‖

Exception to the exception: ―attentat clause‖ – assassination of heads of States or any

member of his family

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Rule of Double Criminality

The act for which the extradition is sought must be punishable in both the requesting and
requested states. This also means that it is a crime that is listed in the requesting state‘s penal
code and the requested state‘s penal code.

Principe of Specialty

Under this principle, 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 treaty. The state
of refuge has the right to object to a violation of this principle.

Philippine Extradition Law (PD 1069)

This is the law which seeks to implement the various extradition treaties that the
Philippines entered into with other states.

EXRADITION IN RELATION TO PROCEDURAL DUE PROCESS

First Mark Jimenez Case, October 17, 2000
(Sec. of Justice vs. Hon. Ralph Lantion)

Mark Jimenez is without any right to notice and hearing during the evaluation stage of an
extradition process by the DFA under the RP – US Extradition Treaty. An extradition proceeding is sui
generis.

N.B: The extradition court may adjudge a person extraditable but it is the President who has the final say.

How do you distinguish an extradition proceeding from a criminal proceeding? [Sec. of Justice vs.
Lantion]

First, a criminal proceeding involves the determination of the guilt or innocence of an accused,
whereas, an extradition proceeding does not involve the determination of the guilt or innocence of an
accused because his guilt or innocence will be determined in the courts of law of the requesting
government. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or
innocence of an accused cannot be invoked by an extraditee, especially by one whose extradition papers
are still undergoing evaluation.

Secondly, extradition proceeding under PD 1069 is summary in nature. Criminal

proceeding is not summary. It will require a full blown adversarial trial.

Thirdly, with respect to the application of the rules of evidence, in criminal proceeding there is
strict adherence to the rules of evidence. In extradition proceeding, liberal interpretation rule is applied.

Fourthly, with respect to the quantum of proof required, in a criminal proceeding, the quantum of
proof required for conviction is proof beyond reasonable doubt. In extradition proceeding, the quantum of
proof required is mere prima facie evidence. It is a very low kind of evidence.

Finally, in a criminal proceeding, judgment becomes executory after having attained finality. In
extradition proceeding, our courts may declare a person extraditable but it will always be the President
who will have the last say on the matter, whether to finally extradite him or not.

N.B: An extraditee is always presumed to be a flight risk. Why? The extraditee previously escaped. But
can you not apply the presumption of innocence in extradition? No, because an extradition
proceeding is not similar to a criminal proceeding. The presumption of innocence is a right of an accused
in a criminal proceeding. On the contrary, an extraditee is always presumed to be a flight risk.

Government of Hong Kong vs. Olalia, April 19, 2007

This reexamined one aspect of Purganan ruling (no bail rule applies in extradition)

The modern trend in PIL is the primacy placed on the worth of the individual person and the
sanctity of human rights. While extradition is not a criminal proceeding, it is characterized by the
following: (a) it entails a deprivation of liberty on the part of the potential extraditee and, (b) the means
employed to attain the purpose of extradition is also the machinery of criminal law. While our extradition
law does not provide for the grant of bail, there is no provision prohibiting the extraditee from filing a
motion for bail, a right to due process. The extraditee must establish ―clear and convincing evidence‖
that he or she is not a flight risk or a danger to the community and there exist special, humanitarian and

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compelling circumstances (two conditions laid down in Government of US vs. Judge Purganan) and will
abide with all the orders of the extradition court. (This is a new standard of evidence.)

Immunity from Jurisdiction

a. State Immunity
b. Diplomatic and Consular Immunity

Personal inviolability
The person of the diplomatic representative is inviolable; he shall not be liable to any form of
arrest or detention. However, the diplomatic envoy 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; but he must be released and sent home in due
time. [Nachura]

Inviolability of premises and archives

The premises occupied by a diplomatic mission, as well as the private residence of the diplomatic
agent, are inviolable except in extreme cases of necessity with respect to the premises. Even if a
criminal takes refuge within the premises, the peace officers cannot break into such premises for the
purpose of apprehending him. The fugitive should, however, be surrendered upon demand by
local authorities, except when the right of asylum exists.

Remedy of individual:
1. Sue in the home State of diplomat;
2. Waiver by State of nationality of diplomat;
3. Declare him persona non grata.

STATE RESPONSIBILITY in relation to Treatment of Aliens

What is the general principle surrounding this concept of state responsibility?

It is concerned with illegal acts committed by states or state agents, and the need to compensate
or to make reparations to the aggrieved party. So that is the concept there. You pursue the illegal acts and
seek for compensation or reparations.
Give examples:
1. Breach of a treaty. It will give rise to an internationally wrongful act;
2. Bombing the territory of one state;
3. Destruction of embassy of one state;
4. Destruction of the property of one state;
5. Hurting the diplomat of one state.
All of these are grounds of state responsibility.

What is the Doctrine of State Responsibility?

A State is under obligation to make reparations to another State for the failure to fulfill its
primary obligation to afford, in accordance with international law, the proper protection due to the alien
national of the latter State. Strictly speaking, state responsibility is defined as an internationally wrongful
act or omission.

The State may, therefore, be held liable for injuries and damages sustained by the alien while in
the territory of the State if:

1. The act or omission constitutes an international delinquency;

2. The act or omission is directly or indirectly imputable to the State (concept of imputation or
attribution of an act to the State);

3. Injury to the claimant State directly or indirectly because of damage to its national.

Acts of government officials/(state organs like the three great branches of government)

Acts of primary agents of the State such as the head of State are ―acts of State‖ which will give
rise to direct state responsibility.

e.g. Executive: if it fails to take appropriate steps to punish police officers who failed to attend to
a serious investigation of an incident involving a foreigner. This effectively a responsibility of the
government; legislature: if a treaty requires the enactment of certain rules in domestic law and

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 the legislature does not act on it, this would entail responsibility for breach of our treaty
obligations; judiciary: e.g. concept of denial of due process. If a court erred in the application
and interpretation of treaties and it fails to give effect to a treaty or is unable to do so because the
necessary change or addition to the national law has not been made, this is a violation of treaty
commitments.

Acts of private individuals

The acts of private citizens are not necessarily imputable to the state. For the State to be
held responsible, it must be shown that there was actual or tacit complicity of the government in
the act, before or after it, either by directly ratifying or approving it, or in the patent or manifest
negligence in taking measures to prevent injury, investigate the case, punish the guilty, or to
enable the victim to pursue his civil remedies against the offender. The claimant has the burden of
poving such negligence.

e.g. 2010 hostage taking in Quirino Grandstand resulting to the death of Hongkong
tourists; financial assistance was given to the families of the victims.

DISPUTE RESOLUTION IN INTERNATIONAL LAW in connection with the

RIGHT TO EXISTENCE AND SELF-PRESERVATION

Is the use of force allowed in international law in resolving disputes?

This requires a qualified answer. First of all, there is a principle in the UN Charter that prohibits
the use of force for aggressive purposes. Aggressive use of force is actually not allowed in
international law. In our Constitution, we have a declaration on state policies not to use war as an
instrument of national policy. So, even our Constitution prohibits the use of aggressive force. What is
allowed is defensive force pursuant to the fundamental right of States to existence and self-
preservation, the basis of self-defense. This is the most basic and important right. You have Article 51
of the UN Charter which recognizes the right of the state to individual and collective self-defense.

But the problem is that when is a use of force considered self-defense? You have this concept
of pre-emptive self-defense. Here, a state strikes first on the assumption that the other party is going to
attack it. This is a very dangerous theory according to Dean Candelaria.

Judicial settlement and Arbitration

This contemplates bringing your claim before the ICJ. But there is this concept of recognition of
compulsory jurisdiction of states. This means that you have to declare in advance that you will
recognize the jurisdiction of the ICJ.

Binding effect of ICJ decisions

In the ICJ, only the parties are bound by the judgment. There is no rule on precedents in the ICJ.
From the judgment of the ICJ, no appeal lies.

RIGHT OF EQUALITY

Article 2, UN Charter, states that the organization is based on the principle of sovereign equality
of all its members. This is exemplified in the General Assembly where each member is entitled to one
vote; but there may be no equality in fact, e.g., voting in the UN Security Council.

RIGHT OF DIPLOMATIC INTERCOURSE OR LEGATION

This is also known as the right of diplomatic intercourse. It refers to the right of the State to send
and receive diplomatic missions, which enables states to carry on friendly intercourse. While it is a
fundamental right of states, yet it is not a natural or inherent right, but exists only by common consent. No
legal liability is incurred by the State for refusing to send or receive diplomatic representatives.

SPECIAL TOPICS IN INTERNATIONAL LAW

The International Criminal Court

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 This was created by the Rome Statute. It is separate and distinct from the ICJ.

What are the crimes over which the ICC has jurisdiction?

1. Genocide;
2. Crimes against humanity;
3. War crimes;
4. Crime of aggression.

Principle of Complementarity

This principle gives primacy to national criminal jurisdiction. The ICC is not a substitute to
domestic courts. If domestic remedies are available, pursue them.

Examples of instances when you can go to the ICC:

a. You are unable to seek justice;

b. No courts are functioning in the domestic level;
c. ―kangaroo‖ court in the domestic level.

International Humanitarian Law (Laws of war)

This is the law governing international armed conflict and internal (non-international) armed
conflict. The 4 Geneva Conventions and the 2 Additional Protocols.

What is the cornerstone of IHL?

The Principle of Distinction

Distinguish always between combatants and civilians, military targets and civilian
establishments. Spare the civilians, spare the wounded combatants.

The Principle of Proportionality

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